The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER SUBSTITUTING RON B ARNES, WARDEN, AS RESPONDENT
FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT
OF HABEAS CORPUS (Doc. 1), DENY PETITIONER'S REQUEST FOR AN
EVIDENTIARY HEARING, ENTER JUDGMENT FOR RESPONDENT, AND
DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on August 23, 2010, along with a request for an evidentiary hearing. Respondent filed an answer with supporting documentation on March 7, 2011. Petitioner filed a traverse on August 2, 2011.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Constitutional rights. Further, the challenged judgment was rendered by the Tulare County Superior Court (TCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
Respondent filed an answer on behalf of Respondent Mike McDonald, who was the warden at High Desert State Prison (HDSP), where Petitioner has been incarcerated at all pertinent times during this proceeding. Petitioner thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over the subject matter of this action and over the Respondent.
II. Order Substituting Ron Barnes, Warden, as Respondent
The official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that Ron Barnes is presently acting as warden of the HDSP.*fn1
Fed. R. Civ. P. 25(d) provides that an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending; rather, the officer's successor is automatically substituted as a party. The rule further provides that a court may at any time order substitution, but the absence of such an order does not affect the substitution.
Accordingly, it is ORDERED that Ron Barnes, Warden, is SUBSTITUTED as Respondent.
At a jury trial held in TCSC case number VCF188670, Petitioner was convicted on March 19, 2008, of having committed the offense of carjacking on or about March 3, 2007, in violation of Cal. Pen. Code § 215(a) (count one); assault with a semi-automatic firearm in violation of Cal. Pen. Code § 245(b) (count two); criminal threats in violation of Cal. Pen. Code § 422 (count three); and possession of a firearm by a felon in violation of Cal. Pen. Code § 12021(a)(1) (count four). With respect to the first three counts, Petitioner was found to have personally used a handgun within the meaning of Cal. Pen. Code §§ 12022.53(b) and 12022.5(a). In connection with all counts, the court found that Petitioner had a prior serious felony conviction within the meaning of Cal. Pen. Code § 667(a)(1). (LD 1, 85-86; 48-51.)*fn2 Petitioner was sentenced on July 24, 2008, to twenty-five years in state prison. (LD 1, 178-79.)
Petitioner timely appealed to the California Court of Appeal, Fifth Appellate District (CCA). On May 28, 2009, the CCA issued a decision affirming the judgment. (Doc. 14-1, 4.) However, it modified the verdict in count two to reflect a conviction pursuant to Cal. Pen. Code § 245(a)(2) instead of § 245(b), modified the firearm enhancement concerning count two to reflect a true finding under Cal. Pen. Code § 12022.5(a), and remanded the case for re-sentencing in accordance with the CCA's decision. (Id.) Petitioner filed a petition for review in the California Supreme Court in case number S174443 which was summarily denied on August 12, 2009. (LD 8.)*fn3
On September 29, 2009, the TCSC issued an amended abstract of judgment that reflected a conviction of assault with a firearm in violation of § 245(a)(2) (count two) with special allegations pursuant to §§ 12022.5(a) and 667(a)(1). Petitioner was sentenced to six years with a consecutive four-year enhancement pursuant to Cal. Pen. Code § 12022.5(b); a consecutive five years pursuant to § 667(a)(1) was stayed pursuant to Cal. Pen. Code § 654. (LD 9.)
In a habeas proceeding, pursuant to § 2254(e)(1), a determination of a factual issue made by a state court shall be presumed to be correct applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009).
The following statement of facts is taken from the decision of the CCA in People v. Cornelio Vedolla Espinoza, case number F055956, which was filed on May 28, 2009:
FACTUAL AND PROCEDURAL SUMMARY
Alejandro Gil wanted to sell his car, a black Ford Mustang, so he placed a "For Sale" sign in its window and parked it in a lot on Olive Street in Porterville. Gil received a telephone call from Espinoza who indicated he was interested in purchasing the car. Espinoza made arrangements to meet at Gil's home so he could test drive the vehicle.
The afternoon of March 3, 2007, Espinoza arrived at Gil's home and the two men walked to the lot where the car was parked. Espinoza climbed into the driver's seat and Gil sat in the passenger's seat. Espinoza drove for several minutes, arriving at the outskirts of town. At that point, Espinoza pulled a chrome gun from his pocket, moved his hand back on the gun in a ratcheting motion, and pointed the gun at Gil. Espinoza ordered Gil out of the car, telling Gil to run or be killed. Gil was afraid Espinoza would kill him, so he ran. After getting away from Espinoza, Gil called the police.
On August 9, 2007, Espinoza and his girlfriend went to the local California Highway Patrol (CHP) office to obtain information regarding a car accident. The CHP ran a check of the vehicle identification number (VIN) and license plate of the car Espinoza was driving, a Ford Mustang. The VIN listed for the license plate did not match the VIN on the dash of the Mustang. The CHP also noticed that while the exterior of the Mustang was red, the interior of the vehicle and the area near the rear license plate were black.
Sheriff's Deputy Genaro Pinon arrived at the CHP office to interview Espinoza. Espinoza claimed his cousin had given him the car. Initially, Espinoza stated he did not know why the VIN and license plate did not match. He then changed his story and stated he had swapped license plates with another vehicle.
During the course of the interview, Pinon received a telephone call from Gil. Pinon left Espinoza at the CHP office and went to pick up Gil for a field lineup. Gil was riding in the back of Pinon's vehicle when they returned to the CHP office. As Pinon drove into the parking lot, and before Pinon could direct his attention, Gil spotted and identified Espinoza as the man who had stolen his car.
After Gil identified Espinoza, Pinon again interviewed Espinoza. Espinoza denied any involvement in a carjacking and blamed his cousin. As Pinon was handcuffing Espinoza, Espinoza remarked, "Okay, okay, I'll tell you the truth." Espinoza confessed he had stolen the car, described specific details about the crime, and claimed the gun he had pointed at Gil was a fake. No gun, real or fake, was recovered. Espinoza was charged in count 1 with carjacking (§ 215, subd. (a)); count 2, assault with a semiautomatic firearm (§ 245, subd. (b)); count 3, making criminal threats (§ 422); and count 4, felon in possession of a firearm (§ 12021, subd. (a)(1)). It was further alleged as to all counts that Espinoza had suffered a prior strike conviction. As to counts 1 through 3, firearm and prior serious felony enhancements were alleged. Espinoza presented an alibi defense at trial, claiming that he had been with his brother and girlfriend at the time of the carjacking. Espinoza also claimed that he confessed to the crime only because he could hear his girlfriend crying and he was afraid Pinon would arrest her.
The jury convicted Espinoza of all counts and returned true findings on the firearm enhancements. Espinoza waived a jury trial on the prior conviction allegation and the trial court found it to be true as to all counts.
Espinoza moved for a new trial on the grounds of juror misconduct. The motion was denied. On July 25, 2008, Espinoza was sentenced to a term of 25 years in state prison. (Doc. 14-1, 4-6.)
V. Standard of Decision and Scope of Review Title 28 U.S.C. § 2254 provides in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.
A state court's determination that a claim lacks merit precludes federal habeas relief as long as fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The § 2254(d) standards are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and that Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398. Further, habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, ---U.S.--, 132 S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. A state court decision on the merits based on a factual determination will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceedings. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The last reasoned decision must be identified in order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). Here, the CCA's decision was the last reasoned decision in which the state court adjudicated Petitioner's claims on the merits. Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This Court will thus "look through" the unexplained decision of the California Supreme Court to the DCA's last reasoned decision as the relevant state-court determination. Id. at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004).
VI. Suggestive Identification
Petitioner argues that the evidence that Petitioner was the perpetrator of the crimes was insufficient because a field identification of Petitioner by the victim was so impermissibly suggestive that it violated Petitioner's right to due process of law guaranteed by the Fourteenth Amendment.
A. The State Court Decision
The DCA's decision regarding Petitioner's claim concerning the field identification and a related claim concerning trial counsel's alleged ineffective assistance for failing to object to evidence of the identification is as follows:
Espinoza contends that the pretrial identification procedures used were procedurally flawed and therefore the in-court identification also was flawed. Espinoza further argues his convictions for assault with a semiautomatic weapon and being a felon in possession of a firearm must be reversed because the evidence failed to establish that he had a semiautomatic or any real, as opposed to a fake, weapon. He further contends that his criminal threat conviction must be reversed for insufficient evidence in that there was no "imminent prospect of execution" because he told the victim to run or else be killed, and the victim chose to run.
I. Challenge to Identification Procedures Gil first identified Espinoza as the perpetrator when officers brought Gil to the CHP office for a field lineup. Officers had told Gil that his car had been found and the officers wanted Gil to identify the person found driving his car. As soon as the officer drove into the CHP parking lot, with Gil riding in the back seat, Gil pointed at Espinoza and said, "That's him." Gil identified Espinoza before the officer had an opportunity to direct Gil's attention to Espinoza. Gil later identified Espinoza in court as his assailant. Espinoza maintains that the field lineup procedure was unreliable and impermissibly suggestive. He also contends the circumstances under which Gil identified him were so suggestive as to taint the in-court identification. At no time, however, did Espinoza ever challenge the identification procedures in the trial court. When a defendant fails to object to identification procedures in the trial court, he or she is barred from raising the issue on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) Having failed to challenge the identification procedures in the trial court, Espinoza is barred from challenging them on appeal. (Ibid.)
Anticipating a future claim by Espinoza that his counsel was ineffective, we conclude any error in failing to raise the issue was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Espinoza was driving the stolen car and confessed to the crime. His confession corroborated several details of the crime when questioned by officers, including the route driven, and the expression on Gil's face when confronted with a gun. Thus, any failure by Espinoza's counsel did not prejudice him. (Doc. 14-1, 6-7.)
Respondent argues that the CCA's determination that Petitioner's failure to object to the identification barred him from challenging it constitutes an adequate and independent state procedural ground that forecloses this Court's review of the decision.
The doctrine of procedural default is a specific application of the more general doctrine of independent state grounds. It provides that when a prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the United States Supreme Court, the prisoner may not raise the claim in federal habeas absent a showing of cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003). This rule applies regardless of whether the default occurred at trial, on appeal, or on state collateral review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Because state procedural default is an affirmative defense, the state has the obligation to plead the defense or lose the right to assert the defense thereafter. Bennett v. Mueller, 322 F.3d at 585. Further, the state bears the ultimate burden of persuasion as to the adequacy and independence of the pertinent rule. Id. at 585-86. However, once the state adequately pleads the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place the defense in issue shifts to the petitioner. Id. at 586. The Petitioner may satisfy the burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Id. Once the petitioner has done so, the ultimate burden of proof of the defense is on the state. Id. at 586.
For a state procedural rule to be independent, the state law basis for the decision must not be interwoven with federal law. Bennett v. Mueller, 322 F.3d at 581. A state law ground is so interwoven if the state has made application of the procedural bar depend on an antecedent ruling on federal law, such as the determination of whether federal constitutional error has been committed. Id. Independence is determined as of the date of the state court order that imposed the procedural bar. La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001).
Here, the state court's decision was based on People v. Cunningham, 25 Cal.4th 926, 989 (2001), which held that a contention that a photographic identification was suggestive was waived because the defendant failed to timely object to evidence of the identification at trial. Id. The court in Cunningham relied on California Evidence Code § 353, which prohibited reversal of a judgment because of the erroneous admission of evidence unless there was a timely objection, as well as on state cases that had applied § 353. Id. The state court's application of the state law requirement of a timely objection at the trial court level was not interwoven with federal law and was thus independent.
In the absence of exceptional circumstances, a procedural ground is "adequate" where it is firmly established and regularly followed. Walker v. Martin, --U.S.-, 131 S.Ct. 1120, 1127-28 (2011). The Ninth Circuit has long recognized that California's contemporaneous objection rule is adequate to support the judgment where a party has failed to make any objection to the admission of evidence. See, Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002) (citing Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir. 1981), which held that the failure to object to a photographic identification during trial would bar review of a claim). There is nothing before this Court that would warrant a different conclusion in the present case.
Mere negligence of counsel generally does not constitute cause sufficient to excuse procedural default; however, cause may be demonstrated by a showing that counsel's failure rose to the level of a constitutional violation under Strickland v. Washington, 466 U.S. 668 (1984). This includes a showing that there is a reasonable probability that the outcome of the trial would have been different in the absence of counsel's failings. See, Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show that 1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) unless prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). A petitioner must identify the acts or omissions of counsel that are alleged to ...