The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction for rape, residential burglary, home invasion robbery, assault with a firearm and false imprisonment. Petitioner was sentenced to an indeterminate prison term of 25 years to life.*fn1 This action is proceeding on the original petition filed June 18, 2009, raising the following claims: 1) the police used unduly suggestive identification procedures which the trial court allowed into evidence; 2) the trial court erred by directing the jury to continue its deliberations and allowing the entry of partial verdicts;*fn2 and 3) petitioner's sentence was improperly enhanced by juvenile adjudications. Petition at 10-24.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California Court of Appeal opinion contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
The three Spanish-speaking victims were in bed in their small one-bedroom apartment when petitioner broke in, assaulted them with a handgun, robbed them, and raped one of the victims after binding her husband and forcing him into the bathtub with his sister.
Gabriel H., his wife, Marina, and his sister, Guillermina, went to bed between 9:00 and 9:30 p.m. on April 20, 2006. An intruder [later identified as petitioner] awakened them. Before Gabriel could call the police, [petitioner] was in the apartment and demanded money he claimed Gabriel owed him. Gabriel testified he had never seen [petitioner] before and did not owe him any money. [Petitioner] threatened Gabriel, and to demonstrate he "wasn't playing," he fired a shot into a pillow on a bed in the living room. When Marina came into the living room, [petitioner] pointed the gun at her and ordered her to approach him. Meanwhile, Guillermina called 911, but unable to communicate with the English-speaking operator, she hung up. [Petitioner] forced Gabriel and Marina back into the bedroom, and when the telephone rang, he answered it. In response to the 911 operator's inquiries, [petitioner] assured her everything was fine and some children had been playing with the phone. Guillermina, with a gun at her head, confirmed that everything was fine. [Petitioner] bound Gabriel and Guillermina with duct tape, forced them into the bathtub, and put towels over their heads. Back in the bedroom with Marina, he demanded money and swung his gun at her head. She ducked. When he could not find any money, he threw Marina to the floor and told her he was going to rape her. She pleaded with him not to rape her, telling him she was pregnant and it would hurt the baby. When Gabriel heard this, he escaped through a bathroom window. [Petitioner] removed Marina's clothes and raped her. Gabriel broke a plastic soap dish as he climbed out the window and thereby alerted defendant to his escape.
Angry about the escape, [petitioner] pointed his gun at Marina and again demanded money. She gave him $40 to $50 from her purse and another $50 to $70 from Guillermina's purse. [Petitioner] also took Marina's cell phone, a watch, a DVD player, and a Diskman and, threatening to kill her, demanded that she put the items in a bag for him. She went to the kitchen for a bag and then escaped, eventually going to her brother-in-law's apartment in the same complex, where she discarded her panties because she was "disgusted."
All three victims provided a description of their assailant and identified pictures of him. The details are provided in part I at pages 5-6, post. Suffice it to say, Marina did not initially tell the police she had been raped, but she told her husband later that evening. Gabriel urged her to tell the police about the rape, and she did. She went to the hospital within a few hours for a pelvic examination. Vaginal samples were taken. A DNA expert testified that the sperm cell portion from the vaginal sample had a DNA profile that matched [petitioner's].
Police found [petitioner] hiding in a shed just before midnight on April 21, 2006. He had a mole on the left side of his face, next to his nose, and was wearing a black T-shirt, black baggy pants, and white tennis shoes, just as all three victims had described. [Petitioner] testified on his own behalf. He claimed he met Gabriel and Marina at a bar in December 2005. About two months later, Marina flirted with him and begged to have sex with him when they met again at a friend's house. A man of manners, he refused to have sex with her in someone else's house, but two weeks later he drove her to a cemetery in a borrowed car, where they had sexual intercourse. According to [petitioner], they continued their illicit affair for several months and had intercourse as recently as April 18, 2006, just two days before the charged offenses. There was evidence admitted that sperm may stay in the vagina for up to five days. [Petitioner] contended Marina framed him to cover up their illicit affair. She testified she had never seen him before the night she was raped. [Petitioner] offered an alibi defense. Although when arrested he told the police officers he had been at his mother's the entire night, his mother testified he left between 9:00 and 10:00 p.m. A long-time friend testified she and her son picked up [petitioner] at 9:30 p.m., and they all spent the night at a trailer on a farm. [Petitioner] and the friend gave vastly different descriptions of the farm and the kinds of animals that resided there. [Petitioner's] 16-year-old niece also testified she saw [petitioner] with a woman in an alley in March 2006 whom she later identified as a woman she saw at the courthouse.
People v. Vargas, 2008 WL 565679 at *1-2.
Claim 1 - Identification Procedures Petitioner alleges that the trial court erred in permitting the introduction of certain identification evidence when the procedures used by police tainted the identifications. Petition at 10.
The Due Process Clause of the United States Constitution prohibits the use of identification procedures which are "unnecessarily suggestive and conducive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967 (1967), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 326, 107 S.Ct. 708 (1987) (discussing retroactivity of rules propounded by Supreme Court). A suggestive identification violates due process if it was unnecessary or "gratuitous" under the circumstances. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375 (1972). See also United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984) (articulating a two-step process in determining the constitutionality of pretrial identification procedures: first, whether the procedures used were impermissibly suggestive and, if so, whether the identification was nonetheless reliable). Each case must be considered on its own facts and whether due process has been violated depends on "'the totality of the circumstances' surrounding the confrontation." Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967 (1968). See also Stovall, 388 U.S. at 302.
An identification procedure is suggestive where it "[i]n effect... sa [ys] to the witness 'This is the man.'" Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127 (1969). One-on-one identifications are suggestive. See Stovall, 388 U.S. at 302. However, "the admission of evidence of a showup without more does not violate due process." Biggers, 409 U.S. at 198. One-on-one identifications are sometimes necessary because of officers' and suspects' strong interest in the expeditious release of innocent persons and the reliability of identifications made soon after and near a crime. See, e.g., United States v. Kessler, 692 F.2d 584, 585 (9th Cir. 1982).
If the flaws in the pretrial identification procedures are not so suggestive as to violate due process, "the reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury." Foster v. California, 394 U.S. at 443, n. 2; see also Manson v. Brathwaite 432 U.S. 98, 116, 97 S.Ct. 2243 (1977) ("[j]uries are not so susceptible that ...