FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction on charges of second degree robbery while armed with a firearm. Petitioner raises two claims in the petition. First, he claims that his right to due process was violated by admission of a pretrial identification that was the result of an unduly suggestive show up procedure. Second, he claims that there was insufficient evidence to support a finding that petitioner aided and abetted a robbery.
[Petitioner] Steven Robert Wesley . . . [was] convicted of robbery based on [his] participation in a group attack on 15-year-old Justin Williams in which his wallet, shoes, and bicycle were stolen. . . . .
The robbery occurred on June 4, 2004. People v. Wesley, slip op. at 1-2.
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. 28 U.S.C. § 2254(d).
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, 75 (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). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
A. Admission of Pretrial Identification
Petitioner's first claim is that his right to due process was violated when the trial court permitted the victim's testimony identifying petitioner as a perpetrator to be admitted at trial. Petitioner contends that the victim's pretrial identification of petitioner was the result of an unduly suggestive show-up procedure which tainted both the victim's pretrial identification of petitioner and his in-court identification of petitioner. The last reasoned state court rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal, which set forth and denied the claim as follows:
Before trial, [petitioner] moved in limine to exclude evidence of a "field show-up identification" and any resulting in-court identification. [Petitioner] asserted police officers took Williams to a field show up of three suspects, at which he identified Wesley as one of the individuals who hit him and took his property.
Wesley argued the show up was unduly suggestive because Williams had already identified the other two suspects by name as being among his attackers. According to Wesley, "The fact that shortly following the incident [those two suspects were] with another black male lends itself to an impermissible inference that he must be one of the [other attackers]."
No evidentiary hearing was held on Wesley's motion. The prosecutor agreed "Wesley was with two other accomplices whom Williams had previously identified," but argued this did not make the field show up unduly suggestive. The trial court denied the motion. On appeal, Wesley contends this ruling was error. We disagree.
At the outset, we must address the relevant facts as to the circumstances of the field show up. In his opening brief, Wesley makes numerous assertions about how the show up occurred, but the citations to the record in support of these assertions are to the trial testimony of various witnesses. What we review on appeal, however, is the trial court's ruling on Wesley's motion to exclude evidence of the pretrial identification, and that motion was heard and decided before the trial began. The standard of review is clear: "We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive." (People v. Gonzalez (2006) 38 Cal.4th, 932, 943, italics added.)
Here, the only facts before the trial court regarding the circumstances of the field show up when the court ruled on Wesley's motion were those to which the parties agreed: Williams identified Wesley at a field show up of three suspects, two of whom Williams had already identified by name before the show up. The question for us, then, is ...