The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of 105 years to life after being convicted of three counts of robbery in the second degree. The jury also found true that Petitioner had previously been convicted of five felony counts of robbery. Petitioner raises three claims in this federal habeas petition; specifically: (1) due process violations due to an impermissibly suggestive field identification ("Claim I"); (2) trial court error in denying motion to sever ("Claim II"); and (3) prosecutorial misconduct ("Claim III). For the following reasons, the habeas petition should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn1
Madeline Thompson was working at cash register four at the Rite Aid on Freeport Boulevard near City College about 9:00 p.m. on April 7, 2003. Defendant walked into the store. She recognized him, he had robbed the store before, and from his demeanor she knew he was going to do so again. As he approached the register she said she would be right with him and began to walk away to tell her boss. Defendant held his hand in his pocket in a way that indicated he had a gun. He said, "Don't make me do this." Thompson returned to the cash register and opened it. Defendant reached across the counter and took all of the bills out of the drawer. This included a stack of 20's with a tracer chip inside planted to allow it to be traced. Thompson testified that initially she "wasn't scared," "the fear didn't set in," "[i]t's kind of like it shut off and I just became like a robot kind of." The fear did set in after the robbery. She went back to the register because she could not dissuade defendant and if she left "something worse may have -- may occur."
Elizabeth Bailey was working as a night manager that evening. She walked up as defendant, his hand in his pocket pointing like he had a gun, was commanding Thompson, who appeared very upset, to return to the cash register. She thought defendant had a gun and told Thompson to give defendant the money. She then told the other cashier, Margo Polis, [FN 2] to give defendant her money too. Bailey was nervous and upset during the incident. She knew that Thompson's drawer had a planted tracking device. After defendant took the money from Polis he left.
[FN 2] Polis did not tesitfy. She had died before trial.
Shortly thereafter, Officer James Anderson of the Sacramento County Police Department received a radio message about the robbery indicated that the loot included one or more tracer tags. His patrol car was equipped to track such tags. As he drove toward the Rite Aid he began to receive a signal from the tags. He followed the signal to 29th Avenue, about a mile from the Rite Aid, about 14 minutes after the radio alert. Other police officers converged on the location.
Officer Mark Chapman was one of them. He and his patrol dog, Hawk, came to the scene and, about 9:50 p.m., entered a field behind the perimeter of homes along the street. Within a minute Hawk located defendant who yelled out his surrender. He was detained. A large amount of cash and the tracer tags were found where he had been hiding.
Thompson and Bailey were brought to the scene around 10:30 p.m. Each was admonished that the person they would be shown may or may not be the person who robbed them. Separated, each identified defendant as the robber.
After his arrest defendant's booking photo was used to prepare a six-person photographic array. On April 16, 2003, Vilma Gomez and Shawna Roberick were separately shown the photo array, after signing a standard photographic lineup admonition form. Each identified defendant's photo as of the person who on January 24, 2003, about 4:00 p.m., had robbed them of approximately $400 at the Portrait Solutions studio in the Florin Mall in Sacramento.
On April 30, 2003, a similar array with defendant's photo was shown to Tariq Khan. Khan was a customer present at an Auto Zone store on Broadway on March 15, 2003, when it was robbed. After a verbal admonition that he was under no obligation to pick anyone and not to guess, Khan identified defendant's photo as most like the robber. On May 8, 2003, the same array was shown to Adelina Bajramovic, the clerk who was the victim of the Auto Zone robbery. After a similar admonition, she identified defendant's photo, observing that she remembered him because his face was sunken in.
Defendant was charged with three counts of robbery for the Rite Aid robbery, two such counts for the Portrait Solutions robbery and one such count for the Auto Zone robbery.
Denial of severance Before trial defendant made a motion to sever the Rite Aid counts from the others. He argued that severance was required because of the disparity in the strength of the evidence as to the charges, to wit, the Rite Aid charges were backed by fresh identification and corroborating physical evidence and the other charges only by evidence of two lineup identifications months after the robberies in issue. The prosecutor responded that the defense characterization of the Portrait Solutions and Auto Zone cases as "extremely weak" was incorrect and that joinder was appropriate. The trial court denied the motion to sever.
The verdicts Late on the afternoon of the third day of deliberations the jury foreman sent a note to the court asserting: "We the jurors have verdicts for counts [one], [two], and [three]. We are still deadlocked on counts [four], [five], and [six]." The jury was excused and ordered to return.
The next court day, with the agreement of counsel, the jury was brought to the courtroom "to take the verdicts on those counts for which they have arrived at verdicts." The court said that based on the note it appeared there were verdicts on some counts. Addressing the presiding juror, the court said, "I see you have an envelope, and I assume you brought that to court at the direction of the Court and that is as to the verdict which have been reached in this case; is that correct?" The foreman replied that was correct. The court then had the clerk read the verdicts aloud, to wit, guilty of robbery on the three counts pertaining to the Rite Aid robbery. After the verdict was read on each count, the court asked of the jury, "Is this your verdict?" And the jurors replied, "Yes." The court then asked if counsel wished to have the jury polled as to their verdicts. Counsel declined. The court directed that those verdicts be recorded.
After determining by inquiry that further deliberation on the remaining counts would not be productive, the court declared the jury deadlocked as to those counts and declared a mistrial as to those counts. (Slip Op. at p. 2-6.)
Petitioner appealed to the California Court of Appeal and raised the following claims: (1) the judgment must be reversed because the court erroneously denied the motion to sever; (2) the judgment must be reversed because the court erroneously failed to exclude identification evidence; (3) the robbery convictions are backed by insufficient evidence and instructions on attempted robbery, a lesser included offense, were wrongly omitted; and (4) the judgment must be reversed because of the improper manner in which the court took the verdicts. On February 28, 2008, the Court of Appeal affirmed the judgment. Subsequently, the California Court of Appeal denied Petitioner's petition for rehearing on March 21, 2008.
Petitioner then filed a petition for review in the California Supreme Court which only raised issues (1) and (2) that Petitioner raised in the California Court of Appeal as described above. The California Supreme Court summarily denied the petition for review on May 14, 2008.
In March 2009, Petitioner filed a petition for writ of habeas corpus in the Superior Court of California, County of Sacramento. Petitioner raised the issue of prosecutorial misconduct in that state habeas petition that he raises in his federal habeas petition. On June 10, 2009, the Superior Court denied the state habeas petition in a written decision. Subsequently, Petitioner's state habeas petitions to the California Court of Appeal and the California Supreme Court were summarily denied.
Petitioner filed his federal habeas petition in June 2010. Respondent answered the petition in September 2010. Petitioner filed a traverse in January 2011.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents."). In this case, the last reasoned decision with respect to Claims I and II was from the Court of Appeal on direct appeal and from the Sacramento County Superior Court on Claim III on Petitioner's state habeas petition.
IV. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner argues that the field identification by the two Rite Aid employees violated his Constitutional rights because they were unduly suggestive and unnecessary and that the identifications were not reliable. The Court of Appeal addressed this Claim as follows:
Defendant contends the trial court erred in denying his motion in limine to bar evidence that he was identified by two of the Rite Aid victims in the field at the place of his arrest. He argues that the showup was (1) unjustified ...