FINDINGS AND RECOMMENDATIONS
Petitioner, DeWayne Nolan Logan, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of forty-one years to life imprisonment following his jury conviction in the Sacramento County Superior Court for second degree robbery with penalty enhancements for personally using a firearm and for five prior convictions. During his trial, Petitioner entered a plea of no contest to one count of inducing a person to give false testimony. Petitioner presents various claims challenging the constitutionality of his convictions.
Petitioner sets forth six grounds for relief in his pending petition. Specifically, the claims are as follow, verbatim:
(1) Trial court allowed a[n] impermiss[i]bly suggestive voice line-up in court. In violation of Petitioner's right [ ] [to] due process.
(2) Improper denial of Motion for Judgment of Acquital. Which violates due process provided by U.S. Constitution.
(3) Refusal to provide defense with juror contact information in regard to juror impropriety claim(s).
(4) False evidence was material in securing Petitioner's conviction which violates Petitioner's right of equal protection.
(5) Failure to disclose impeachment evidence in response to defense request. In violation of [Petitioner's] right [ ] [to] due process and right of confrontation.
(6) Loss of material evidence. Denial of due process ability to put forth a complete defense using all evidence.
(Pet. at 7-12.) Based on a thorough review of the record and applicable law, it is recommended that the each of Petitioner's claims be denied.
The basic facts of Petitioner's crimes were summarized on direct appeal by the California Court of Appeal, Third Appellate District, as follows:
On the morning of May 11, 2000, Sacramento Sheriff's Sergeant Ron Bozworth drove his personal van to an apartment complex for a matter unrelated to this case. At about 7:30 a.m., he saw a red or maroon Oldsmobile Cutlass park[ed] at a street corner, facing him. The car had no front license plate, but did have a plate on its dashboard. Once the car parked, the two men inside got out. They seemed nervous and immediately began looking around, "as if someone was looking at them." It was May, but one of the men was wearing a parka and the other was wearing a ski hat. In contrast, Bozworth, who was on his way to work, was wearing a T-shirt and blue jeans, and he was not cold although the windows of his van were rolled down. The two men crossed the street toward Bozworth, the driver coming within 30 feet of him and the passenger coming within 35 to 40 feet of him. The driver was a light-skinned black man, about 20 to 25 years old, who was about six feet one inch tall, weighing 190 pounds, wearing what appeared to be a ski cap with curly hair coming from underneath it. He had a sparse mustache, was wearing light blue athletic pants with a white stripe, and athletic shoes. The passenger was a black adult male, darker skinned, with very short, cropped hair, a thick mustache, about six feet one inch tall, weighing 220 pounds, wearing a dark parka, dark blue athletic pants with a white stripe, and athletic shoes. The men headed eastbound on Marconi Avenue and disappeared from view. The Greyhound Bus Depot was nearby in the 2600 block of Marconi.
A short while later, while Bozworth was still trying to observe them, the men came running westbound and entered their car. The car immediately started up and proceeded south across Marconi. It failed to stop at a stop sign and proceeded past Bozworth's van. Based on his observations and 16 years of experience, Bozworth suspected the men had just committed a robbery. The men were suspicious because "they were looking around as if someone was watching them. Their eyes were very wide open, as if they were scared." Their behavior was consistent with armed robbery because they parked at a distance so their car could not be seen.
Bozworth pursued the car for several blocks and telephoned its description and license plate number to other officers. Eventually, he lost sight of the car.
At 7:51 a.m. that morning, Sacramento Police Officer Joseph Pane was on duty in a marked patrol car. He heard a broadcast stating that the suspect car contained a black male in his twenties and a black male in his forties. The broadcast included the car's license plate number. Pane obtained the registered owner's address on Erickson Street, drove to that location and found the car parked in the driveway. As Pane waited for other officers to arrive, he saw defendant walk across the driveway between the car and a fence. Defendant walked past Pane, reached El Camino Avenue, and continued walking westbound. Pane stopped defendant, pat-searched him, placed him in the patrol car and drove him back to the Erickson Street address. Defendant denied that he had come from the residence and denied knowing anything about the red Oldsmobile. Shortly thereafter, co-defendant Marcus Newson left the house and approached Pane at his request. Newson denied knowing defendant and Pane placed him in the patrol car. Pane asked Newson if he had been out in the Oldsmobile that morning and Newson stated he had been at his sister's residence on Edison Avenue. Other officers arrived and entered the Erickson Street residence.
Earlier that morning, Ronald Egenhoff was working in his office at the Greyhound Bus Depot on Marconi. At about 7:30 a.m., while Egenhoff was doing paperwork in his back office, he heard someone in the lobby yell "hey." Egenhoff left the office and found two men at the ticket counter. The younger man was about 20 years old, about five feet nine inches tall, wearing a large black jacket and hood. Egenhoff could not see his hair. The older man was about 40 years old, about five feet ten inches tall and about 190 pounds. He was wearing a light-colored beanie cap with dreadlocks protruding from beneath it. The older man suddenly pulled out a small "reddish-colored" gun and pointed it at Egenhoff. Egenhoff became frightened, and the older man began shouting that he was going to rob him. The older man ordered Egenhoff to open the cash drawer and give him all the money, shouting, "Hurry, hurry, hurry, or I'm going to shoot you." Egenhoff opened the main cash register, which contained $242, consisting of mostly ones, fives and some tens. Egenhoff avoided looking at the older man's face and looked down as soon as the man pulled the gun. The older man then asked if there was another register and ordered Egenhoff to open it up. Egenhoff opened a smaller register and gave the older man about $21. The older man then demanded to know the location of the safe. Egenhoff returned to his office, opened the safe and handed the older man the money, which consisted of two "drops," one of $130 and the other of $120. The older man told Egenhoff to lie down and he complied. The men rushed out the door. A few seconds later, Egenhoff looked out and saw the men running toward an apartment complex building lot. Egenhoff went to a neighboring business and asked a patron, Nathaniel Sutton, to call 911; Sutton had already done so. Sheriff's deputies arrived and obtained a statement from Egenhoff, who stated that the older robber had a "heavy mustache." Egenhoff was then driven to Erickson Street where he viewed two suspects. The younger man (Newson) was brought toward Egenhoff. He was not wearing a hooded ski jacket, and Egenhoff was unable to positively identify him. Egenhoff believed the robber was a little bit darker skinned than the suspect, but he was "similar in build and size." The lighting in the office consisted of fluorescent tubes whereas the suspect was viewed in very bright sunshine.
The deputies then brought an older man (defendant) to the front of the patrol car and Egenhoff was unable to positively identify him as the older robber. Egenhoff explained that he "expected him to have the same thing on" and "expected him to have hair," but the older man being shown looked bald. Egenhoff noted that the older man was "[v]ery similar to the height and build" of the older robber. In examining the face, Egenhoff concluded defendant looked "close" and "looked familiar," but he could not say it was the same person for sure. Egenhoff was shown, but he could not identify, a green ski jacket that had been found in the back seat of the Oldsmobile. But when the jacket was reversed, Egenhoff identified it as "the exact type jacket" the younger robber was wearing. Egenhoff believed it was the same jacket. Later, deputies brought Egenhoff close to defendant and showed Egenhoff a strand of hair on the side of defendant's head. Egenhoff came to believe that defendant was the person who had robbed him. He was "[a]bout 89 percent" sure of his identification.
A search of defendant's pants pockets revealed $263 in various denominations. A search of Newsom's pants pockets revealed $141 in various denominations and keys that unlocked the Oldsmobile, which was registered to him.
A search of the Erickson Street residence revealed a pair of blue nylon sweatpants with gold and white stripes along the side. The pants were in a trash can with some trash on top of them.
In a field behind the house, deputies found a white plastic sack tied in a knot. The sack was fairly new and "looked out of place" among the weeds. Inside the sack were an auburn or reddish-coloroed long wig, a bronze handgun-shaped cigarette lighter, and a blue knit cap. The wig was shedding and it had shed inside the knit cap. Defendant had close, cropped hair with only about four days' worth of growth. However, auburn or reddish wig fibers were recovered from defendant's head, ear and shoulders. Three fingerprints found on the plastic sack did not match defendant or Newson.
At trial, Egenhoff was shown a handgun-shaped cigarette lighter and identified it as the "gun" that was pointed at him. There were "[n]o dissimilarities" between the "gun" he saw during the robbery and the item shown to him at trial.
Also at trial, Egehoff reported that defendant, who was proceeding in propria persona and had questioned Egenhoff, had a voice similar to that of the older robber. Defendant provided a voice sample in which he stated, "Hey, hurry." Egenhoff opined that defendant's voice was "[v]ery similar" to the robber's, although he "wouldn't say absolutely that's the voice."
LaQuanda McKenzie was staying at the Erickson Street house along with Debra Foster; Foster's son, Newson; and defendant, Foster's boyfriend. The house belonged to Foster.
At about 5:45 a.m. the morning of the robbery, while McKenzie was in a living room chair, Newson entered, got some window cleaner, and took it outside to wash his car. After doing so, Newson returned to the living room and asked defendant if he was "ready to roll." Defendant replied, "Let's go, man," and the two left together. McKenzie heard two car doors slam and the car drive off. McKenzie recalled that Newson was wearing blue sweatpants with a yellow and white stripe and a hooded black jacket with green lines or stripes. She identified the sweatpants from the trash can as the ones Newson had been wearing. She also identified the jacket from the Oldsmobile as Newson's jacket. She had previously seen Newson wear it with the black side outward.
McKenzie recalled that defendant was wearing jeans, a dark jacket, a black or navy blue beanie, and sunglasses. She identified the beanie found in the plastic sack as the one defendant had been wearing. She also identified the jacket from the Oldsmobile as defendant's jacket. McKenzie identified the wig found in the sack as the one she had seen in the backseat of the Oldsmobile. McKenzie testified that about one and one-half to two hours after leaving, defendant and Newson returned to the house. Newson was still wearing the hooded coat and blue pants but he soon changed into a pair of tan pants. He went outside still wearing the jacket. McKenzie told a detective that when she saw Newson five minutes later he was no longer wearing the jacket. The police soon arrived and arrested defendant, Newson and McKenzie's mother, who had a warrant for selling drugs.
After the arrest, defendant telephoned McKenzie and asked her why she had told police that he had been with Newson. He told her to tell police that she had been half asleep and did not know what she was talking about. McKenzie, in turn, refused to lie to the police. Defendant told McKenzie to tell police that "everybody used the lighter," but she had never seen the "gun" and did not know what he was talking about. Defendant instructed McKenzie to tell Foster to claim that she had used his sweater and had transferred fibers from her wig. McKenzie replied, "whatever." He responded that if she did not want to say this, she should say that defendant and Foster had slept together and the fibers found on him were her real hair. McKenzie again replied, "[w]hatever," and hung up the phone.
A criminalist determined that the hair fibers found on defendant were not Foster's hair.
Newson testifed. He claimed that on the morning of the robbery he drove himself to his sister's apartment, discovered she was not home, and got lost while en route back to the Erickson Street house. Newson then gave defendant a ride to the gas station located two blocks away. Newson denied associating with anyone as old as defendant and denied owning the sweatpants found in the trash can. Donald Hamilton had been defendant's friend for 20 years. On a morning in May, Hamilton met defendant at a gas station and waited with him for about 15 to 20 minutes drinking beer. A blue car, apparently driven by defendant's sister, arrived and defendant walked away presumably to the car.
Defendant's sister, Deborah Perry, confirmed that "sometime" in May she asked defendant to do errands including picking up her child and paying her cable television bill. Perry testified she gave defendant $135 to pay the cable bill for five rooms in her house.
A psychologist testified to the factors affecting a witness's identification of a suspect, including lighting, distractions, stress, race, and the use of a photo lineup.
A detective testified that doughnut shop patron Sutton was shown a photo lineup containing defendant and Newson; Sutton did not identify either man. Sergeant Bozworth did not identify defendant at the show up near the Erickson Street house.
Neither defendant's nor Newson's fingerprints were found on the sack containing the hat, wig, and gun. None of defendant's clothing was found at the Erickson Street house. Bozworth believed that both suspects wore sweatpants, but only one pair of sweatpants was found.
Defendant was not wearing sweatpants when arrested. A detective opined that authorities did not have enough time to search the entire house.
Officer Pane confirmed that when he observed defendant on Erickson Street, defendant walked at a regular pace and did not try to avoid Pane. Pane stopped defendant because he walked past the suspect Oldsmobile. At the time of the stop, defendant was not dressed like one of the robbers.
Sacramento County Sheriff's Deputy Cathryn Hill interviewed Egenhoff about the gun used in the robbery. The gun recovered by deputies did not match the description Egenhoff gave Hill.
Deborah Perry's co-worker at an elementary school testified that Perry is an honest person. (Lodged Doc. 3 at 2-11.) Defendant was convicted by a jury of second degree robbery (CAL. PENAL
§§ 211; 212.5(c)) with a penalty enhancement for personal use of a firearm (CAL. PENAL § 12202.5).
The jury deadlocked, resulting in a mistrial, on two additional counts of second degree robbery (CAL. PENAL § 211) and one count of false imprisonment (CAL. PENAL § 236), and the District Attorney elected to dismiss those counts for insufficient evidence. Petitioner also entered a plea of no contest during his trial to one count of inducing another person to give false testimony (CAL.
PENAL § 137(c)). The trial court also found true allegations that Petitioner had suffered five serious felony convictions (CAL. PENAL § 667(a)). Petitioner was sentenced, in the aggregate, to a determinate term of sixteen years plus an indeterminate term of twenty-five years to life imprisonment with the possibility of parole.
Following his convictions, but prior to sentencing, Petitioner filed a petition for writ of mandate in the California Court of Appeal, Third Appellate District on March 14, 2001. The petition was denied without comment on March 22, 2001. He filed another petition for writ of mandate in the same court on March 27, 2001. That petition was denied without comment on April 12, 2001. Petitioner then filed yet another petition for writ of mandate in the California Supreme Court on April 5, 2001. That petition was construed as a petition for review, and was denied without comment on May 16, 2001. Petitioner filed a final petition for writ of mandate, also construed as a petition for review, in the California Supreme Court on April 18, 2001. The petition was denied without comment on May 16, 2001. Petitioner was sentenced on June 15, 2001.
Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions in a reasoned opinion on January 9, 2003. He next sought review of his convictions in the California Supreme Court, which was denied without comment on March 19, 2003.
After exhausting the appellate process, Petitioner sought habeas corpus relief in the Sacramento County Superior Court. That petition was denied because it duplicated a previously filed motion for new trial, which had been construed as a petition for writ of habeas corpus by the trial court. He then filed habeas corpus petitions in the California Court of Appeal, Third Appellate District, and the California Supreme Court. Those petitions were denied without comment on May 14, 2003 and March 3, 2004, respectively.
Petitioner then sought habeas corpus relief for a second time in the Sacramento County Superior Court. His petition was denied in a reasoned opinion on the merits of his claims on March 15, 2004. He subsequently filed habeas corpus petitions in the California Court of Appeal, Third Appellate District, and the California Supreme Court, both of which were denied without comment.
Petitioner filed this federal petition for writ of habeas corpus on April 21, 2005. Respondent filed an answer on January 5, 2006, and Petitioner filed his traverse on February 13, 2006.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (2001); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). 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 ...