The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 17), and petitioner's reply (Doc. 20).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
Robbery of Goeman's Lounge
On October 10, 2004, at about 11:00 p.m., bartender Jesus Valadez and a customer named David Mooney were the only two people in Goeman's Lounge on Franklin Boulevard. An African-American man and woman entered the bar. The man ordered a beer and Valadez saw him reach into his back pocket. When Valadez next turned around, he saw the man pointing a silver handgun at him.
Mooney only glanced at the couple when they came in and then turned his attention back to the television. When Mooney heard the man say something about moving to the end of the bar, he glanced back and saw the man pointing a chrome-plated revolver at him. The man told Mooney not to look at him, to put his head down and move to the end of the bar. Mooney closed his eyes and moved as instructed. The man told Mooney to lie on the floor, handed Valadez a roll of duct tape and told Valadez to tie Mooney up.
When Mooney's hands and feet were taped together, the man took Valadez back to the safe. The man told Valadez if he did not open the safe, he would blow his brains out. Valadez felt the gun at his head. Valadez opened the safe and the man took the money that was inside. Then they returned to the front of the bar. The man ordered Valadez to open the cash register. Valadez did and the man took all the money. The man told Valadez to lie down on the floor and directed his female companion to tie Valadez up, which she did. The man told Valadez and Mooney not to move for five minutes or he would kill them. The couple left the bar.
After a couple of minutes, Valadez and Mooney freed themselves from the duct tape. Valadez called the police and then his boss.
The description Valadez gave of the male robber to the 911 operator and the responding officer differed slightly from his description of him at trial, both of which were different to defendant's actual age, height and weight. Two months after the robbery, Valadez picked defendant out of the physical lineup conducted at the jail. It took him about a minute to choose defendant. Valadez said defendant's face looked very familiar, but he could not be sure. At trial Valadez identified defendant as the male robber, testifying again he looked familiar, but he could not be absolutely sure.
Mooney did not attend the physical lineup. He was shown photographs of the men from the lineup in February 2005. Mooney testified he told the officer he thought it might be either photograph No. 3 or No. 4 (defendant). The officer testified Mooney actually eliminated photograph No. 3 and No. 4. At trial Mooney identified defendant in court as the male robber.
On October 18, 2004, at about 1:00 a.m., bartender Tracy Biagi and customer Gary Slauson were the only two people in Trino's Bar located on Fulton Avenue. An African-American man and woman entered the bar. Biagi served each of them a beer and then couple visited the patio area in the back. When they came back, they laughed and talked with Biagi until closing time. Biagi told the couple they would have to finish their drinks and leave. Biagi started to close out the cash registers and asked Slauson, who had been playing darts, to let them out the door.
As the man stepped outside the door, he turned and struck a chrome-colored gun into Slauson's belly. The man grabbed Slauson's arm, turned him around, and directed him back inside the bar. The man pointed the gun at Biagi, who had turned around to see Slauson and the man walking back. Biagi put her hands up and the man told Biagi to walk over to him. He told Biagi and Slauson to lie down. The man then directed his female companion to tape Slauson up. The woman taped Slauson's hands and feet with sliver duct tape.
The man told Biagi to get up. He wanted to go to the back where the safe and surveillance tape were located. Biagi accompanied the man to the back of the bar and gave the man the tape from the VCR, but told him her boss was the only person with access to the safe. Biagi opened the lockbox for which she had a key and gave the man $50 of rolled quarters from inside. When she eventually convinced him she could not get into the safe, they walked back to the registers behind the bar. Biagi opened the two registers. The man ordered her to lay down by Slauson with her arms behind her back. Biagi laid down. Her arms and legs were duct taped. She heard the man by the register, the sound of coin trays being moved, the tip bucket being moved and crunching money. The man told Biagi and Slauson not to move for five minutes or they would be sorry. Biagi heard the bar door open and close.
Biagi and Slauson freed themselves from the duct tape. Biagi called the police and then her boss. Later, Biagi realized that an ID was missing from the cash register. At trial she identified a driver's license for Janis LaBella, found in defendant's car, as the missing ID. LaBella, a customer of Trino's Bar, also identified the ID as her license.
On December 8, 2004, Biagi picked defendant out of the physical lineup at the jail. She identified defendant before the curtains in the viewing room were even fully opened. Biagi also identified defendant at trial as the man who robbed the bar. She said defendant had the same lump on his head as the male robber. She also recognized his eyes and nose. There was no doubt in her mind. Biagi denied seeing news coverage photos of defendant after he was arrested in connection with a subsequent robbery.
Slauson also identified defendant at the physical lineup conducted on December 8. Slauson recognized defendant as soon as he saw him. He was sure about his identification. At trial Slauson identified defendant as the male robber. There was no doubt in his mind.
On October 20, 2004, at about 11:15 a.m., bartender Debbie O'Dell was inside the Oak's Lounge on Auburn Boulevard getting ready to open. The only other person in the bar was the owner Roy Tillis. Around 11:20 a.m., an African-American man and woman entered the bar. According to O'Dell, the man was wearing a dark navy blue jacket and light colored jeans. He had a cap on. The woman was wearing a jacket and what looked like a wig of long wavy hair. They asked O'Dell if there was a place they could eat chicken and O'Dell provided a phonebook. The woman used the restroom and then the man went down the hall to use the restroom.
Tillis was in his office preparing the daily tills. The safe was open and there was about $5,800 in cash in the tills, the safe, and laying out in the office. Tillis staples his $10 bills into packs of $100. Tillis looked up to see a man come into the office holding a dark, "bluing" colored revolver. The man told Tillis it was a holdup. He made Tillis get up from the desk and hold a bag while the man took out all the money from the safe into the bag. The man grabbed the plastic tray inside the safe and unsuccessfully tried to pull it out. When he had all the money, he ordered Tillis into the bar area.
O'Dell saw Tillis come out of his office with the man behind them. The man was holding a silver revolver and a bag. The man pointed the gun at O'Dell's face and told her and Tillis to get down on the floor. The man asked his female companion to tie them up with duct tape. The man then directed O'Dell to get up. He first took her back to the office and then made her go into the restroom. He told her not to come out or he would kill her.
Tillis saw the couple leave the bar. He immediately broke free of his duct tape and went to the restroom to check on O'Dell. Tillis told her to call the sheriffs. He then ran to the front door, got in his truck and drove around the corner of the bar, where he saw the couple starting to get into their Ford Explorer. Tillis saw the man open the driver's door and get into the car with the money bag in his hand. There were no other cars in the area. Tillis chased the Explorer as it drove through residential streets and onto westbound Interstate 80. When Tillis's truck appeared to be running out of gas, Tillis accelerated and tapped the Explorer to make it stop. Both cars spun out. Tillis ended up on the inside center rail and the Explorer ended up on the right side of the freeway.
As Tillis tried to cross the freeway, Tillis observed the man and the woman get out of the Explorer. The man grabbed the money bag, spilling some of the money onto the driver's seat and ground. Once Tillis got to the Explorer, he picked up the money and threw it back inside the car. The man was going up the embankment from the freeway and the woman was trying to follow him. She did not have on her wig. It was left in the Explorer. The man's coat was gone. He was wearing a white shirt. Tillis saw the man swing the money bag over a fence at the top of the embankment, jump over the fence and then disappear.
Shannon Fannin was traveling on eastbound I-80 at the time. He noticed smoke coming off the other side of the freeway and stopped to help. He saw the driver of a Blazer-type vehicle get out of the car and take off running of the hill. Fannin described the man as Black, in his late 20's to early 30's, wearing a blue sweater or sweatshirt with a stripe in it and blue jeans. There was a grayish bag in the man's hand. A second person came out of the car. Fannin thought it was a woman. She was wearing a black fluffy down jacket and carrying an oversized purse. When the man got to the top of the hill, he grabbed the fence, looked back at the car and then climbed to the other side. Fannin called 911 as he watched the man go up the hill. Fannin never had a full view of the man's face, but identified defendant at trial as the man he saw going up the hill. Fannin was fairly certain from the side profile of defendant's face.
Robert Black was sweeping the driveway of his home on Harris Avenue facing the I-80 freeway on October 20, 2004, at about 11:30 a.m. He heard a crash on the freeway and went to see what was going on. He saw a Black man dressed in a blue jogger suit coming over the hill. A Black woman was following him up the hill. She was dressed all in black. She had a long fluffy coat and was carrying a big black purse. The man had a brown paper bag in his hands. Money was falling out of the bag. Black asked the man if he needed help, but did not get a response. A person at the bottom of the hill told Black the man had just robbed him. Black got in his truck to follow the man and woman who were moving toward North Avenue. When the couple split up, Black followed the man until he met a parking officer who told him the police had been notified.
Sacramento Police Officer Joseph Alioto detained defendant in the area of North Avenue and Clark. Defendant was wearing blue jeans and a green jacket zipped up. Under the jacket defendant had on a white T-shirt. The green jacket had a dark blue interior. Defendant was found to have money, including stapled $10 bills, in his shoes.
Tillis and Black were separately taken to view defendant in a field show-up. Tillis was 80 percent positive defendant was the male robber when he saw him 30 to 60 feet away. Then offices brought defendant up close to Tillis, Tillis saw defendant's face and sais, "Yes, that's him." Black also identified defendant at the show-up as the man he had seen climb over the fence, but said defendant had changed clothes. Both Tillis and Black were shown other possible suspects, but said they were not the man. In December 2004, at the physical lineup, it took Tillis only a second to identify defendant. O'Dell also quickly identified defendant at the physical lineup. Both Tillis and O'Dell were certain of their identification. At trial, O'Dell, Tillis, Fannin and Black all positively identified defendant as the robber.
O'Dell, Tillis, Fannin and Black did have difficulty specifically identifying the various items of clothing collected by the police from defendant, his Ford Explorer, and the area above the freeway.
Inside the Explorer, officers found $1,764 in cash, including $10 bills stapled together, a black coat with a handgun in the pocket, a wig, LaBella's ID (located between the driver's seat and the center console), checks made out to the Oak's Lounge, a vehicle registration and a vehicle insurance document for the Explorer made out in the names of defendant and his wife, and other paperwork connecting the car to defendant.
Two latent fingerprints found on the plastic money tray from the Oak's Lounge safe matched defendant's known fingerprints.
Defendant testified on his own behalf. He claimed at the time of the Oak's Lounge robbery he was flagged down in the Auburn Boulevard area by three individuals who he thought were women. They were standing by a car with its hood up. They asked and offered to pay for a ride to South Sacramento. Although defendant was headed home to West Sacramento, he agreed to give them a ride. Two of them got into his Explorer and the person in the back directed him onto the highway. Suddenly defendant found himself being chased by a gold pickup truck. The person in defendant's backseat told defendant to "just get us out of here fast." Defendant looked back and saw the person in his backseat had removed a wig, revealing he was a man, and he was putting money into his pocket. The man promised to "kick [defendant] in" if defendant got them our of there. The man had a gun. On the freeway, the gold truck bumped the Explorer and spun them out. As they were coming to a stop, the man in the backseat handed defendant a couple of bundles of money, jumped out and headed up the hill. Not wanting to be "left holding the bag," defendant decided to get out and run up the hill too. He took a different path from the other man. Defendant did not see Black at the top of the hill. When stopped by the police, defendant admitted he gave them untrue explanations of what he was doing in the area. He put the money he was given in his shoe.
Defendant denied robbing the Oak's Lounge. He claimed he had never been inside the bar in his life. Defendant denied the prints on the inside of the safe were his. Defendant denied robbing either Goeman's Lounge or Trino's Bar.
Petitioner is serving consecutive life sentences following his conviction on three counts of armed robbery, six counts of false imprisonment, and enhancements for use of a firearm and prior robbery convictions. Petitioner filed a direct appeal in the California Court of Appeal which affirmed the convictions.*fn2 Petitioner filed a petition for review in the California Supreme Court which was denied. Petitioner then filed two habeas corpus actions in the Sacramento County Superior Court, both of which were denied. Thereafter, petitioner filed habeas petitions in the California Court of Appeal and the California Supreme Court, both of which were denied.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism... do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 § 2254(d)(1), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is ...