FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 1999 conviction in Solano County Superior Court on four counts of robbery and one count of attempted robbery, with findings of personal use of a deadly weapon, personal use of a firearm, infliction of great bodily injury, two prior convictions and one prior prison term. He also challenges his sentence of 150 years to life in prison imposed under California's Three Strikes Law.
Petitioner seeks relief on the grounds that: (1) his trial counsel rendered ineffective assistance in failing to move to exclude evidence that was improperly seized, and in failing to move for a new trial based on newly discovered evidence; (2) there was insufficient evidence to support the firearm use enhancement; (3) he was subjected to an illegal search and seizure, in violation of the Fourth Amendment; (4) the pretrial identification procedure was impermissibly suggestive, in violation of his right to due process; and (5) his sentence constitutes cruel and unusual punishment. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the First Appellate District provided the following factual summary:
The Robbery of Audra Harvey (Count 1).
Appellant was convicted of a series of robberies, the first of which occurred on December 16, 1998, at the Food 4 Less Supermarket in Vallejo. The cashier, Audra Harvey, testified that at around 4:00 a.m. appellant approached the register with a loaf of bread. Before Harvey scanned the bread, appellant proclaimed "this is a robbery. Open the drawer and give me the F-ing money." While appellant held the bread in one hand, his other hand was tucked into his shirt, so Harvey thought he might have a gun. After hesitating briefly, Harvey complied with appellant's demand and gave him about $125 from the cash register. Appellant immediately left the store through the front door.
Once appellant was out of the store, Harvey contacted the police. Officer William Hamrick of the Vallejo Police Department responded to the robbery call within 10 minutes and took a statement from Harvey, who was "visibly upset" and shaken. She described appellant as a "very large, heavy-set male," approximately five feet ten inches tall, "250 plus" pounds, about 30 years old, wearing a "black knit cap." Harvey testified that the robber had "a little bit of whiskers," a flat nose, and wore a "Pendleton type shirt," with a "beige" beanie. The most distinctive feature of the man's face was his "cold, flat" eyes, which Harvey focused upon during the robbery. Harvey selected appellant at a physical lineup on January 12, 1999, and positively identified him at trial.
The Robbery of Richard Fuller (Count 2).
Vallejo City Cab Company driver Richard Fuller was dispatched to 545 Georgia Street in Vallejo at 2:00 on the morning of December 25, 1998. At that address, Fuller encountered a man he positively identified at trial as appellant, who lived in apartment number 2. Appellant got into the front seat of the cab, and directed Fuller to drive him to two stores, both of which were closed. Fuller drove to another location as directed by appellant, then "told him what the fare would be." Appellant "put something metal" against Fuller's neck, which Fuller thought was a knife or a gun. He warned Fuller, "Do as I say and nobody will get hurt." Fuller gave appellant money and the cab radio microphone as requested, whereupon appellant left the cab.
Fuller immediately reported the robbery to the police and provided a description of the suspect. Fuller described appellant to the police as a "Black male, approximately 25 years old, six-foot-four, over 300 pounds." Fuller recalled at trial that appellant had a "growth" of beard on his face, and a scar below his eye. Appellant wore a heavy gray and black parka over a gray and green Pendleton shirt, dark pants, and a "black stocking type cap." At the lineup on January 12, 1999, Fuller identified appellant, who was in position number three. Fuller testified, "I picked out the man that robbed me," not the largest man in the lineup.
The Attempted Robbery of Michael Blackshire (Count 3). Vallejo City Cab Company driver Michael Blackshire was dispatched to 1006 Santa Clara Street in Vallejo on December 25, where two Black men were waiting for him, "one small, one large." At trial, Blackshire positively identified the large man, who was "300 plus" pounds and over six feet tall, as appellant. Appellant got in the front seat of the cab, while the smaller man sat in the rear. Just before they reached their destination, appellant put a gun to Blackshire's neck and demanded money. Blackshire responded, "okay, fine," but then changed his mind and "started wrestling for the gun" while the cab was stopped at an intersection. As the struggle for the gun progressed, Blackshire realized that "it was a toy gun," so he "started driving away" toward a lighted apartment complex ahead. The man in the rear seat jumped out of the cab.
As Blackshire drove down the hill, appellant "pulled a knife" and attempted to stab him in the side. Blackshire grabbed the knife and another struggle ensued. Appellant grasped the steering wheel, which caused the car to veer off the road, down an embankment, and into a concrete wall. The cab came to rest tilted to one side, with appellant against the passenger side door and Blackshire on top of him. Blackshire was bleeding from a head wound sustained when he struck the rear view mirror in the crash. He climbed out the driver's side door, and appellant followed him. Appellant then left the scene.
When the police arrived, Blackshire described the larger robber as "a Black male. Very heavy, six-one or six-foot to six-two, over 300 pounds," bald, wearing a black sweat suit. Before the ambulance transported Blackshire to the hospital for treatment of his wounds, he was taken to a nearby restaurant where "two very large Black males" had been detained. Blackshire stated that neither of the detained men was the one who attempted to rob him. At the subsequent physical lineup, Blackshire placed a question mark by number three, appellant. Appellant "looked a little bit different" in the lineup, but Blackshire thought he identified the man who robbed him.
The Robbery of Steven Benson (Count 4).*fn2 Steven Benson, the assistant manager of the Smorgabob's restaurant in Vallejo, was robbed while he worked the cash register on the afternoon of December 27, 1998. Immediately after the robbery, Benson described the suspect for the police as "a Black man, male, standing five-foot-eight, weighing 300 pounds," with a "white beanie" and a Pendleton shirt. Regina Littlefield, a customer at the restaurant at the time of the robbery, gave "essentially the same description" to the investigating officer. Benson identified appellant as the robber at the lineup by marking "number three," based upon appellant's physical stature as the "biggest one." He identified appellant again at trial, after looking at "him directly in the face" and immediately recognizing him. Benson described the robber at trial as "about six-five and 300 plus pounds," not "necessarily Negro," but with that "racial tone," wearing gray sweatpants. Littlefield testified that she thought the robber was "really stout," "six-one, maybe 235 pounds," wearing a plaid, blue jacket, blue jeans, and a beanie, but she did not see his face and could not identify him.
The Robbery of Johann Kennedy (Count 5).
Johann Kennedy worked as a server at Mr. D's restaurant in Vallejo on the evening of December 28, 1998. A man she identified at trial as appellant approached her at the cook station to order a coffee to go. She testified that appellant was "very tall, heavy-set," 300 pounds or more, with "dark skin, dark eyes," and baby face. He wore a ski jacket, a Pendleton shirt, and had "a gun ." When Kennedy opened the cash register, appellant took the gun from behind his jacket, pointed it at her, and demanded money. Kennedy had no familiarity with guns, but it "looked real" to her, and she was frightened by it. Appellant warned Kennedy that he "would use the gun" if she "let anybody else know what was going on." Kennedy gave appellant $200 from the cash register. As he left the restaurant, appellant told Kennedy not to move until he was out of sight.
Two other witnesses gave descriptions of the apparent robber at trial, but did not identify him. Denise Connors was a customer in Mr. D's restaurant, and from behind observed a "large gentleman" talking to Kennedy as she held a coffee cup. The man wore a plaid blue jacket and a "black like beanie cap." Just a couple of minutes before the robbery, Jimmy Rand, a cook at the restaurant, noticed a large "Black guy," slightly more than six feet tall, close to 300 pounds, wearing a black and white plaid jacket.
Kennedy gave a description of the robber to the police that basically matched her testimony at trial. Two days after the robbery, Detective Harry Bennigson showed Kennedy three separate sets of six photographs of suspects who were "large Black males" that "fit the description of the robber." The first two lineups did not contain a photograph of appellant, and Kennedy did not make an identification. Appellant's photograph was in the third lineup, and Kennedy made a positive identification of him. The third photographic lineup was also exhibited to Rand, and he made an identification of appellant's photograph that was "not 100 percent sure."*fn3 The Robbery of Nelsena Garrett (Count 6).
A robbery occurred at the Save Max grocery store in Vallejo at 1:00 a.m. of [sic] December 30, 1998. Nelsena Garrett, one of the cashiers that morning, testified that a man she later identified as appellant approached her cash register to purchase a bottle of alcohol. Before the purchase was completed, appellant told Garrett "to give him all the money in the drawer, and it was a robbery." When Garrett looked back at appellant, he assured her that he was "serious." Appellant warned Garrett "not to scream or . . . push any buttons or anything and stuff, give him all the money in the register." Appellant held one hand under his coat to simulate a weapon. Garrett removed all the cash from the register and gave it to appellant, whereupon he left the store. Garrett testified that appellant was "heavy-set," around 300 pounds, five feet ten inches to five feet eleven inches, a little facial hair or "slight razor stubble," with a "scar on his face near the eye," wearing a brown plaid Pendleton jacket, and a white "brim hat" with a scarf under it.*fn4 Gayosa Johnson observed appellant from her cash register at the front of the Save Max store. She recalled that he was heavy-set, 275 to 330 pounds, about six feet tall, with a "baby face," and wore a white jacket and beige khaki pants. Johnson noticed appellant's face as he walked into the store, when he went to Garrett's register to buy alcohol, and then again as he left. After appellant was gone, Garrett came over to Johnson's register, crying, and said: "The guy just robbed me."
Garrett and Johnson both participated in the physical lineup on January 12, 1999. Garrett looked at all seven men in the lineup, and was "sure" that appellant, number three, was the man who robbed her. Johnson recognized appellant from his "side profile," and marked number three. Johnson also picked appellant's photograph from a "series of six pictures" shown to her by a defense investigator. Garrett and Johnson viewed a surveillance tape of the robbery that depicted a heavy-set man in a light-colored shirt, dark pants and a hat, but it was not distinct enough to discern the suspect's facial features.
Appellant was arrested by Sergeant Robert Lewis of the Vallejo Police Department on December 30, 1998, at his girlfriend's duplex in Vallejo. On a dresser near the front door of the residence the officer found a gym bag that contained two extra large size Pendleton style shirts. Appellant's residence on Georgia Street in Vallejo was also searched, but no incriminating evidence was discovered. No weapons or money were found during either search. Evidence was adduced that at the time of his arrest appellant had a distinctive scratch or scar under his left eye. He was six feet one inch tall, weighed 330 pounds, and was 28 years old. He was bald, and had "slight" facial hair around his mustache and chin. After appellant was arrested, the series of grocery store robberies in Vallejo that fit the suspect description of "a large Black man with a Pendleton shirt stopped."
The Pretrial Physical Lineup.
After robbery victim Johann Kennedy identified a photograph of appellant, Sergeant Bennigson arranged a physical lineup on January 12, 1999. The physical descriptions of the suspect varied from "five-eight to six-four," 250 to over 300 pounds, 21 to 40 years old, and clean shaven to slight facial hair.*fn5 Bennigson therefore composed a lineup with some diversity from the inmates at the jail, but with "very large people" "similar to what the witnesses' descriptions were." A total of seven people were placed in the lineup. Appellant was the only person in the lineup that weighed over 300 pounds, although others were "close," in the "high 200's." The heights of the fillers in the lineup ranged from five feet six inches to six feet two inches tall, and from 190 to nearly 300 pounds. One of the fillers was six feet two inches tall and weighed between 250 and 300 pounds. Bennigson was satisfied with the composition of the lineup, and appellant's appointed counsel gave her approval of it.
The witnesses were escorted together to the jail facility to view the lineup. A deputy district attorney and appellant's counsel were also present. Bennigson told the witnesses that the suspect "may or may not be here." He read the witnesses standard instructions from a prepared card "on how they are supposed to view the lineup, how to mark the card and so forth." All the witnesses verbally indicated that they understood the instructions and so marked their cards. Bennigson specifically told the witnesses not to discuss "their robberies" or descriptions of the suspect, and to his knowledge "everyone was very good about it." Each witness individually viewed the lineup. Every witness other than Michael Blackshire promptly made a positive identification of appellant by placing an "X" at position number three. Although Blackshire "put a question mark" by appellant's position, he indicated after the lineup that he nevertheless had "no doubt that number three was the person that robbed him."*fn6 The Defense Evidence.
Appellant presented the expert opinion testimony of Dr. Bruce Behrman on the vagaries of eyewitness identification testimony and the fairness of the pretrial lineup. Dr. Behrman testified that "brain processing" occurs in three stages -- perception, storage, and retrieval -- that results in a "constructive" process of addition and deletion rather than a just an objective "recording" of an event or information. He also enumerated various factors that affect an identification, such as lighting, duration of exposure to the suspect, the delay between the crime and the identification, the degree of fear or stress that attends the event, the "concept of weapon focus," personal familiarity with the suspect, and a "cross-racial" identification. According to Dr. Behrman, eyewitness memory experiments and archival work indicate that the "typical hit rate" -- that is, the percentage of witnesses who "actually pick the right person" in a lineup -- is between "50 to 70 percent," depending upon conditions.
The eyewitness identification accuracy rate also depends upon the fairness of the lineup. In a fair lineup, every person "should meet the general description given by the witnesses." Dr. Behrman also explained the term "functional lineup," which he described as the "number of people in the lineup who actually at least fairly well mirror the description" given by a witness. In a "functional lineup" of six persons, the accuracy rate of identification is approximately 66 percent. He characterized the lineup in which appellant participated as a functional lineup of only three, rather than seven, based upon the size disparity of some of the subjects.
In Dr. Behrman's opinion, appellant's functional lineup of three exhibited to the witness between two to four weeks after the crimes presented a "solid likelihood of misidentification." However, Dr. Behrman acknowledged that a greater number of independent identifications increases the rate of accuracy.
Chantile Lewis, appellant's sister, testified for the defense that appellant stayed at her residence at 545 Georgia Street, unit number 2, the entire night of December 15, to the morning of December 16, 1999, when the robbery at the Food 4 Less Supermarket occurred. She further testified that appellant's size and chronic asthmatic condition prevents him from running.
Appellant is also unable to drive a car.
Defense investigator James McCully testified that he compiled a photographic lineup from drivers' licenses and California ID cards of six "people who were of similar size and similar complexion" to appellant. McCully showed the photographic lineup to witnesses Benson, Fuller, Johnson, and Garrett. Benson selected two photographs other than appellant; Fuller picked appellant, and was "pretty sure" of his identification; Johnson selected appellant's photograph; Garrett "indicated that she would not pick anyone out."*fn7 After petitioner's conviction was affirmed by the California Court of Appeal, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. J. That petition was summarily denied. Id. Petitioner subsequently filed a petition for certiorari in the United States Supreme Court, which was denied on October 7, 2002. Lewis v. California, 537 U.S. 915 (2002).
On October 27, 2000, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Resp.'s Lodg. Doc. I. That petition was summarily denied by order dated November 16, 2001. Id. Petitioner subsequently filed a petition for review of that decision, which was denied by order dated February 27, 2002. Lodg. Doc. K.
On February 28, 2003, petitioner filed a habeas petition in the California Supreme Court. Lodg. Doc. L. That petition was denied by order dated October 22, 2003. Id. On November 5, 2003, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court. Lodg. Doc. M. That petition was summarily denied on August 25, 2004. Id.
On February 24, 2005, petitioner commenced this action by filing his federal habeas ...