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Taylor v. Beard

United States District Court, S.D. California

May 21, 2014

ISAIAH RASHAD TAYLOR, Petitioner,
v.
DR. JEFFREY BEARD, Secretary, Respondent.[1]

ORDER: (1) ADOPTING IN PART, DECLINING TO ADOPT IN PART, AND ADOPTING IN PART AS MODIFIED, THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE; (2) DENYING PETITION FOR A WRIT OF HABEAS CORPUS; and (3) ISSUING A CERTIFICATE OF APPEALABILITY

BARRY TED MOSKOWITZ, District Judge.

Isaiah Rashad Taylor (hereinafter "Petitioner"), is a California prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner is serving a sentence of life in prison with the possibility of parole, plus ten years, as a result of a conviction by a San Diego County Superior Court jury of kidnapping for robbery and kidnapping during a carjacking; the jury also found he personally used a firearm and committed the offenses in connection with a criminal street gang. He alleges here, as he did in state court, that his federal Constitutional rights were violated due to an impermissibly suggestive identification (Claim 1), ineffective assistance of trial counsel (Claims 2, 4-5), insufficient evidence to support the gang enhancement (Claim 3), and the cumulative effect of the errors (Claim 6). (Pet. at 6-9; Memo. P&A Supp. Pet. ["Pet. Mem."] at 19-41.)

United States Magistrate Judge Barbara L. Major has filed a Report and Recommendation ("R&R") which recommends the Petition be denied because the state court's adjudication of Claims 1-5 is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and because Petitioner has failed to show any errors to accumulate. (ECF No. 29.) Petitioner has filed Objections ("Obj.") to the R&R. (ECF No. 34.)

The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

1. Claim 1

Petitioner alleges in Claim 1 that the victim's identification of Petitioner as the man who kidnapped, carjacked, and robbed him was made under circumstances which were unduly suggestive, and its use at trial, over a defense objection, violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments. (Pet. at 6; Pet. Mem. at 12-24.) Respondent answers that the denial of this claim by the state court is objectively reasonable, and any error is harmless. (Memo. P&A in Supp. Answer ["Ans. Mem."] at 8-16.)

This claim was presented to the state supreme court in a petition for review, which was summarily denied, and to the appellate court on direct appeal, which denied it on the merits. (Lodgment No. 3 at 12-24; Lodgment No. 7 at 12-16; Lodgment No. 6, People v. Taylor, No. D055375, slip op. at 6-14 (Cal.App.Ct. Dec. 16, 2010).) Because the claim was adjudicated on the merits in the state court, as were all the claims presented here, the Court must examine the last reasoned opinion of the state court, in this case the appellate court opinion, in order to determine whether 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.A. § 2254(d) (West 2006).

The state appellate court summarized the identification procedures:

In his initial interview with police after the incident, Kukukafi [the victim] described Taylor [Petitioner] as a 19- or 20-year-old Black man, 5 feet 11 inches tall, weighing approximately 200 pounds. Kukukafi said Taylor's hair was in cornrows and he was wearing a dark sweatshirt with a white stripe across the top. Detectives asked Kukukafi to view three photographic lineups. The first lineup consisted of a photograph of a suspect and two filler photographs, none of which were of Taylor. Kukukafi stated a man in one of the filler photographs looked like Taylor but he was not certain it was him. The second lineup consisted of six Polaroid photographs, including a poor quality photograph of Taylor. Kukukafi did not identify Taylor. The third lineup also consisted of six photographs, one of which was Taylor's driver's license photo. Kukukafi did not identify Taylor, saying, "I can't tell. (The perpetrator) doesn't look like anyone in the photos."
At the preliminary hearing on May 16, 2007, Taylor was seated at the defense table next to [Petitioner's co-defendant] Stillwell, [footnote: Stillwell later pleaded guilty pursuant to a plea agreement] whom Kukukafi had identified on February 1 as the person that had been with him when he notified police officers of the kidnapping. Taylor and Stillwell were both wearing prison clothing. Kukukafi identified Taylor as the man who had asked him for directions and then kidnapped him at gunpoint. [¶] The defense moved to exclude evidence of Taylor's identification at the preliminary hearing and to preclude Kukukafi from making an in-court identification at trial. The trial court stated it did not believe the circumstances at the preliminary hearing were unnecessarily suggestive and denied the motions to exclude Taylor's identification.

(Lodgment No. 6, Taylor, No. D055375, slip op. at 6-7.)

The state appellate court found that "[t]he circumstances of Taylor's in-court appearance at the preliminary hearing clearly suggested the identity of the perpetrator of the kidnapping and robbery in advance of his identification by [the victim], and the identification procedure was therefore unfair and unduly suggestive." (Id. at 9.) The state court went on to find, applying clearly established federal law, that the identification was nevertheless reliable because the record showed that the victim: (1) had an extended opportunity to observe Petitioner, having spent more than two hours in close proximity, including several face-to-face encounters; (2) was able to describe the events of the kidnapping in detail, indicating that his attention level was good and unimpaired; (3) was the same race as Petitioner and provided police with a description which matched Petitioner's physical description; and (4) was certain of the identification, which was made within a reasonable time, three and a half months after the offense. (Id. at 11-12.) The state court also noted that other evidence supported the reliability of the identification, including: (1) Petitioner's DNA was found on the gun used in the crimes and on a beanie placed over the victim's eyes; (2) Petitioner told his co-defendant Stillwell at 4:00 a.m. he would return but did not because he was arrested at 6:00 a.m.; and (3) when arrested, Petitioner was wearing a sweatshirt which matched the sweatshirt described by the victim, and which could be seen in an ATM camera photograph taken during the kidnapping. (Id. at 12-13 n.4.) Finally, the court noted that the credibility of the identification had been fairly presented to the jury, in that a defense expert testified regarding factors which influence eyewitness identifications, and the circumstances of the victim's inability to identify Petitioner in the photographic lineups (which were shown to the jury), was the subject of thorough cross-examination. (Id. at 13 n.5.)

The Magistrate Judge found that although the record reflected Petitioner and the victim spent one hour together, rather than two hours as stated in the appellate court opinion, the appellate court nevertheless correctly applied clearly established federal law in determining that the victim's identification of Petitioner was reliable.[2] (R&R at 12.) The R&R went on to find that even if the state trial court had erred in admitting the in-court identification at trial, any error was harmless because the victim was extensively cross-examined regarding his inability to identify Petitioner from the photographic lineups, and circumstantial evidence supported the identification in the form of DNA evidence and an ATM camera photograph of a man wearing a sweatshirt that was either identical or very similar to the sweatshirt Petitioner was wearing when arrested. (R&R at 12-13.) Petitioner objects to the Magistrate Judge's findings, arguing that it makes no sense that, if the victim in fact spent so much time with Petitioner under circumstances which permitted a reliable identification, he was unable to identify Petitioner in the two photograph lineups which contained his photograph. (Obj. at 2-3.)

Petitioner's concern regarding the victim's inability to identify him in the photographic lineups was, as stated in the R&R, considered by the state appellate court under the "totality of the circumstances" test required by clearly established federal law necessary to determine whether the identification was otherwise reliable. (See R&R at 11, citing Neil v. Biggers , 409 U.S. 188, 199-200 (1972)). However, the state court's consideration of evidence pointing only to Petitioner's guilt when determining whether the identification was sufficiently reliable to avoid a due process violation, such as the DNA evidence, is contrary to clearly established federal law holding that such evidence is relevant only in determining if the error was harmless. See Manson v. Brathwaite , 432 U.S. 98, 116 (1977) (independent circumstantial evidence of guilt "plays no part in our analysis."); see also id. at 118 (Stevens, J., concurring) (cautioning that independent evidence of culpability will not cure a tainted identification procedure, and such evidence should only be considered in determining whether an error was harmless).

Accordingly, the Court declines to adopt the Magistrate Judge's finding that the state appellate court's adjudication of Claim 1 is neither contrary to, nor involves an objectively unreasonable application of, clearly established federal law. However, based on a de novo review of the state court record, and considering only the appropriate factors to determine whether the identification was otherwise reliable, this Court reaches the same conclusion as the state court. See Brathwaite , 432 U.S. at 114 (stating that the court should consider "[t]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."), quoting Biggers , 409 U.S. at 199-200 (noting that unnecessary suggestiveness alone does not require exclusion of identification because such a rule would be based on an incorrect assumption that in every instance the admission of such evidence would offend due process).

The victim, who was from Sudan, Africa, and had been living in the United States since 2000, testified that about 1:20 or 1:25 a.m. on February 1, 2007, he was walking from his car to his apartment, crossing Euclid Avenue at a stop sign at an intersection near University Avenue, when a car full of people pulled up to the stop sign. (Lodgment No. 2, Reporter's Tr. ["RT"] at 892-97.) The driver rolled down his window and said, "Excuse me, sir. I want to get to the freeway. How can I get to the freeway from here?" (RT 896-97.) The victim gave the driver directions and continued walking toward his apartment. (RT 898.) As he was walking along the sidewalk, a man from the car approached him from behind and asked for clarification of the directions. (RT 898-99.) The victim identified that man in court as Petitioner, and described him to police as a Black male, five-feet, eleven-inches tall, about 200 pounds, 19 or 20 years old, with his hair in cornrows and a handkerchief on his head, wearing a black t-shirt and a blue jacket, or a zippered sweatshirt, with white stripes. (RT 973, 990, 1431-32.)

When the victim turned around, Petitioner pointed a gun at his forehead and told him to "drop the money." (RT 899-901.) The victim said he did not have any money; Petitioner held the gun to the victim's head and told him, "I'm not playing. Drop the fucking money." (Id.) The only items the victim had in his pockets were keys, cigarettes, and an ATM card; Petitioner saw the ATM card and called to someone in the car in an unusual rhyming language. (RT 902-03, 906, 953.) The person Petitioner called, a tall, skinny black man, came over carrying a gun, which he then pointed at the back of the victim's head while Petitioner pointed his gun at the victim's chest. (RT 902-04.)

Petitioner asked the victim where his bank was and where his car was; when the victim told him where his car was parked, Petitioner grabbed the keys from his hand and said, "let's go to the car." (RT 905-06.) They walked to the victim's car with Petitioner holding the victim by his arm and pointing a gun at his chest, as the other man held a gun to the back of his head. (RT 907-08.) When they reached the car, the two men searched it; Petitioner told the victim to sit in the passenger seat, and then told the men in the car he had come from to follow them. (RT 907-08.) Petitioner drove the victim's car, pointing his gun at the victim's chest, while the other man sat in the back seat behind the victim holding his gun to the back of the victim's head. (RT 909-10.)

Petitioner parked close to a walk-up ATM and told the victim, "you go try to get the money out." (RT 910-11.) The victim used the ATM while Petitioner and the other man stayed in the car and pointed their guns at him. (RT 911-12.) He returned to the car, showed Petitioner the receipt, which indicated there was money in the account, and said that he would not be able to take money out until the check he had deposited earlier that day cleared in two or three days. (RT 911.) Petitioner responded by saying, "I need this money" and "get in the car." (Id.) The victim sat in the passenger seat while Petitioner drove; the other car came up along side the driver's side and "they started talking their language." (RT 912.) The victim said he tried to look at the men in the other car, "Because I want to know - know who are they, " but Petitioner pushed the victim's face away and told him, "Don't look." (Id.)

Petitioner drove to the College Grove shopping center, pulled into a drive-up ATM, and told the victim to lean over and use the ATM through the driver's window. (RT 913-14.) The receipt was time-stamped 1:43 a.m., and a series of seven photographs taken by the ATM camera were entered into evidence. (RT 914-15.) The victim identified himself, his car, Petitioner, and Petitioner's jacket/sweatshirt in the photographs. (RT 913-17.)

As Petitioner drove them on the 94 freeway, the man in the back asked Petitioner, "Hey, where is that hood at?, " and Petitioner removed a beanie from his pocket and handed it to the man in the back, who gave it to the victim and told him to cover his head. (RT 918-19.) The beanie, which was made of sweater material and was later recovered by the police in the victim's car, covered the victim's entire face and he could not see where they were going. (RT 919-20, 994.) As they were driving, the victim asked, "How can you guys do something like that to your own people?" to which Petitioner responded, "I don't give a fuck. Black, white, Mexican. I'm a gangster. I do that for a living. I don't play with men. If I don't get what I need, you're done." (RT 920-21.) The victim told Petitioner he had a three-month old daughter who would have only her mother to look out for her, and Petitioner said, "I don't give a fuck. This is my job. This is what I'm doing for a living." (RT 944.)

After driving ten to fifteen minutes, they pulled into an apartment complex parking lot where the victim was told to remove the beanie. (Id.) He was asked if he knew where he was, and said "No;" he was told they were in Mira Mesa, but he knew he was near Mollison Avenue in El Cajon because he recognized the area. (RT 921-22.) Petitioner sat in the car playing with his gun, spinning the cylinder of the revolver, for about ten minutes, while the victim smoked one of his own cigarettes and the gunman from the back seat came and went from one of the apartments. (RT 922-23.) When the gunman returned and resumed his place in the back seat, the victim was told to put the beanie on and they drove to another apartment complex, where Petitioner removed the car radio and gave it to the gunman in the back seat, who carried it away. (RT 923-24.) Petitioner told the victim, "Sorry, I have to do that since we didn't get anything from you. Now we need this money. We need anything right now, so, sorry, we're going to take your radio." (RT 924.) Petitioner drove the two of them back to the first apartment complex near Mollison Avenue with the beanie over the victim's eyes. (RT 924-25.)

When they arrived, Petitioner told the victim he could take the beanie off; they waited two or three minutes, and Petitioner told the victim to put the beanie back on and drove them to an ATM, where he told the victim to get out and try to retrieve money. (RT 925.) The victim took off the beanie and saw they were on Second Street in El Cajon, an area he was familiar with, and he walked up to the ATM while Petitioner stayed in the car pointing his gun at him. (RT 925-26.) The ATM receipt indicated the victim used it at 3:42 a.m. (RT 935.) He was unable to retrieve money and returned to the car; Petitioner said, "I need this money. How long have you been having this ATM?" (RT 925-26.) The victim said it was his wife's card, and she had it for two years. (RT 926.) Petitioner replied, "How come - how come you can't get the money? I need this money today. You put in this money. We have to go to the mall tomorrow. I want to buy gold and clothes and shoes by this - you have - you have to use it." (RT 927.) When the victim said he was not sure he would be able to use the card, Petitioner got "really angry, " grabbed him by the front of his shirt, pointed the gun at his head, and said, "I will shoot right now. You trying to mess with me right now. Don't waste my - don't waste my time. Do you want to have kids?" (RT 927-28.) The victim said he wanted to have more children, and Petitioner replied, "I will just shoot you in your balls so you can't have kids no more. Man you piss me off, man. This - this - this is how I do for a living. Don't waste my time. I'm going to kill you, man. I don't play with money." (Id.)

The victim said he was really scared and that he tried to calm Petitioner down by putting his hands up with his palms out, and told him, "Okay. Okay. Tomorrow I will take you to the mall. You can buy anything you want. I will try my best to use this card or to get the money. Take everything you want." (RT 928.) Petitioner calmed down and drove them to another apartment complex near Mollison Avenue and Madison Street with the victim wearing the beanie. (RT 928-29.) Petitioner parked the car and told the victim to take the beanie off; Petitioner got out of the car, walked about 20 feet away, and talked to two Black men; one was short and dark and the other skinny and light-skinned. (RT 929-30.) Petitioner returned, told the victim to put the beanie on, and drove away; while they drove, Petitioner spoke with a new man who had gotten into the back seat directly behind the victim, who the victim identified as Stillwell. (RT 930-31, 938.) They drove to an apartment complex at 660 South Mollison Avenue in El Cajon. (RT 931, 940.) Testimony from an FBI agent established it to be adjacent to Petitioner's downstairs apartment at 642 South Mollison Avenue. (RT 1556, 1560-61.)

Petitioner told the victim, who was still wearing the beanie, "My soldier's going to watch you, " and gave his gun to Stillwell, who said, "I'm going to watch you." (RT 935.) Petitioner told Stillwell that the victim was "cool, " but if he did something wrong, "just go ahead and blow his head off." (RT 937.) Petitioner asked the victim if he wanted to use the bathroom or have something to drink, and the victim took the beanie off and asked for water. (RT 935-36.) Petitioner walked away and returned with water in a fast-food restaurant cup which he gave to the victim; he then told the victim that if he wanted to use the bathroom to tell Stillwell. (RT 936.) Petitioner said he was going to go upstairs and go to sleep, and walked away; the victim urinated next to the car with Stillwell's permission. (RT 939-40, 1452)

Stillwell and the victim sat in the car from about 4:00 a.m. until 8:00 a.m., but Petitioner never returned; Stillwell was talking to himself during that time wondering why Petitioner did not return. (RT 944-46.) Stillwell told the victim that if he got money out of the bank he would let him go, and the victim agreed; Stillwell attempted to drive the car, but could not, and the victim drove them out of the apartment complex parking lot. (RT 946-47.) As the victim was driving and following Stillwell's directions, he saw a police officer on a motorcycle at a stop sign; he parked the car in front of the officer, jumped out, and said he had been kidnapped. (RT 947.) Stillwell ran but was caught and his gun recovered; the victim identified him later that day. (RT 947-50, 984.) Also later that day, when he was "really tired, " the victim was asked to look at a set of photographs in order to identify the man who abducted him; he said he was not sure but that it might be one of the people. (RT 991.) He did not see Petitioner again until the preliminary hearing. (RT 984-85.)

Cross-examination of the victim involved how well he remembered the events that day, small discrepancies between his preliminary hearing and trial testimony, and why, although he was in close contact with Petitioner, even leaning over him at one point to use the ATM, he gave only a general physical description to the police and had identified him at the preliminary hearing only by his lips and face. (RT 953-76.) The victim was cross-examined regarding his inability to pick Petitioner out of the photographic lineups, a discrepancy in the color of the jacket he said Petitioner wore that night, the length of time between the crime and his identification three and one-half months later, and why the cup Petitioner used to bring him water, which was left in the car, was never found. (RT 977-89.)

As noted above, where a lineup is suggestive, clearly established federal law provides that a Court should consider: "[t]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Brathwaite , 432 U.S. at 114. "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Id.

A de novo review of the state court record shows that the victim had an excellent opportunity "to view the criminal at the time of the crime." Id . The victim and Petitioner were face-to-face several times. At one point Petitioner grabbed the victim by the front of his shirt and threatened him, and the victim leaned over Petitioner to use an ATM. The "witness' degree of attention" id., was sharp and serious, as he testified that he looked at the other people with Petitioner because he wanted to know who they were, and was able to describe them at trial. In fact, he was so attentive that he caused Petitioner to physically turn the victim's head away and tell him not to look, and may have inspired the gunman in the back seat to make the victim wear Petitioner's beanie to prevent him from seeing where they went.

The "accuracy of [the victim's] prior description of the criminal, " id., also supports a reliable identification, in that there was no challenge to it other than defense counsel bringing out on cross-examination that the victim's initial description of Petitioner was somewhat lacking in detail. However, the physical description and estimated age of the abductor reported by the victim immediately after the crimes is generally consistent with the physical description of Petitioner set forth in the probation officer's report. (Compare RT 973 with CT 94.) Even to the extent the victim identified Petitioner in court only by his face and lips (RT 974-77), Petitioner wore a handkerchief on his head during the crimes.

The "level of certainty demonstrated at the confrontation, " Brathwaite , 432 U.S. at 114, also supports a finding of reliability, as the victim's identification of Petitioner at the preliminary hearing was direct and unqualified. (RT 14.) The final factor, the three and one-half month period between the crime and the identification, is not as strong as the other factors. See Brathwaite , 432 U.S. at 116 (noting that the victim described the perpetrator to the police within minutes of the crime and the photographic identification took place two days later, and "[w]e do not have here the passage of weeks or months between the crime and the viewing of the photograph."); but see Biggers , 409 U.S. at 201 (acknowledging that a delay of seven months "would be a seriously negative factor in most cases, " but less so when the victim had made no previous identification, and therefore had a good record for reliability by having previously resisted whatever suggestiveness inheres in lineups.)

At least four of the factors weigh heavily in favor of a reliable identification, and the fifth factor does little to lighten the load. The Court finds that the substantial weight of the five Biggers factors is not outweighed by the "corrupting influence" of allowing the victim to view Petitioner for the first time in the courtroom, in jail clothing, seated at the defense table next to Stillwell, who the victim had already identified as one of the perpetrators. The identification was sufficiently reliable to avoid a federal due process violation by its introduction at trial. See Brathwaite , 432 U.S. at 114 (holding that the ultimate goal is to determine whether there is a very substantial likelihood of irreparable misidentification and, short of that, the identification testimony is properly received and any flaws in the procedure are for the jury to weigh).

The Court finds, based on a de novo review of the record, that the victim's identification of Petitioner was reliable notwithstanding the procedures used, and that federal habeas relief is unavailable with respect to Claim 1 because Petitioner has not demonstrated that his federal Constitutional rights were violated by the introduction at trial of the victim's identification. Id .; see Fry v. Pliler , 551 U.S. 112, 119-22 (2007) (holding that a federal habeas petitioner must show a constitutional violation even if § 2254(d) has been satisfied); Frantz v. Hazey , 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc) (same).

The Magistrate Judge also found that, assuming a federal Constitutional error occurred, it was harmless because there was substantial circumstantial evidence that the identification was reliable in the form of the DNA evidence and the ATM photographs of Petitioner wearing the same sweatshirt or jacket he was wearing when arrested, and because the evidence undermining the identification, in the form of the photographic lineups, was presented to the jury and was the subject of expert testimony and extensive cross-examination. (R&R at 12-13, citing Williams v. Stewart , 441 F.3d 1030, 1039 (9th Cir. 2006) (applying harmless error to identification made under suggestive circumstances).) Petitioner objects to that finding, arguing that the error was harmful because there is no doubt the jury was influenced more by the in-court identification than by the circumstantial evidence relied on by the Magistrate Judge. (Obj. at 3-4.)

Habeas relief is not available "unless the error resulted in substantial and injurious effect or influence in determining the jury's verdict, '... or unless the judge is in grave doubt' about the harmlessness of the error." Medina v. Hornung , 386 F.3d 872, 877 (9th Cir. 2004), quoting Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) and O'Neal v. McAninch , 513 U.S. 432, 436 (1995). The Magistrate Judge correctly observed that, in addition to the DNA and ATM camera evidence, the circumstances of the identification procedure were fairly placed before the jury, who were instructed (CT 67-68) on evaluating eyewitness identification and presented with defense expert testimony (RT 1239-47) which called into question the accuracy and validity of the identification. The Court adopts that finding with the following modification. In addition to the items identified by the Magistrate Judge, there was no dispute that the perpetrator: (a) matched Petitioner's physical description; (b) parked the victim's car near Petitioner's apartment and walked away; and (c) was arrested at his nearby apartment while Stillwell and the victim were waiting for him to return to the car. Assuming the jury was not presented with the victim's in-court identification, they would still have been presented with strong evidence of guilt. They were also presented with the ATM photographs showing the abductor, who was wearing the same or similar jacket or sweatshirt Petitioner was wearing when arrested, and the jury could have made their own identification. The Court does not have a "grave doubt" whether any error in introducing the victim's in-court identification had a substantial and injurious effect or influence on the jury's verdict. In sum, habeas relief is denied as to Claim 1 because Petitioner has not demonstrated that a federal Constitutional violation occurred, and because any error was harmless.

Petitioner alleges in a related but unenumerated claim that his trial counsel rendered constitutionally deficient performance in failing to request a live lineup before the preliminary hearing, or to otherwise take measures to avoid the suggestive in-court identification. (Pet. Mem. at 15-19.) Respondent does not address this claim in the Answer, and it was not addressed by the Magistrate Judge. The Court will address it in the first instance.

This claim was presented to the state supreme court in the petition for review and to the appellate court on direct appeal. (Lodgment No. 3 at 15-19; Lodgment No. 7 at 17-20.) The Court will apply 28 U.S.C. § 2254(d) to the appellate court opinion, which stated:

Taylor asserts he received ineffective assistance of counsel because his attorney did not request a live lineup before the preliminary hearing, or otherwise avoid a suggestive identification at the preliminary hearing. Taylor contends that without the suggestive identification at the preliminary hearing, the jury would have discounted the accuracy of Taylor's identification at trial, which took place almost 18 months after the crime.
Upon timely request, a criminal defendant may be afforded a pretrial lineup if eyewitness identification is a material issue at trial and there is a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. ( People v. Farnam (2002) 28 Cal.4th 107, 183, citing Evans v. Superior Court (1974) 11 Cal.3d 617, 625; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) If a defendant anticipates that an in-court identification may be suggestive, the remedy to avert any prejudice that may result from the suggestive courtroom procedure is to demand that a lineup be conducted before the in-court identification. ( Evans, at p. 625; People v. Harmon (1989) 215 Cal.App.3d 552, 568; People v. Green (1979) 95 Cal.App.3d 991, 1004.)
Kukukafi was unable to identify Taylor in two photo lineups. Cutter [Petitioner's original trial counsel] stated that as her investigation proceeded, she focused on identity issues as the primary defense to the criminal charges. The record supports the conclusion that counsel's decision not to request a live lineup, either as a precaution or a remedy, was a tactical decision and did not constitute ineffective assistance of counsel. Had Kukukafi identified Taylor in a live lineup prior to the preliminary hearing, the resulting identification would have undermined the defense case. Thus the defendant does not show counsel's performance was deficient under an objective standard of professional reasonableness. ( Ledesma, supra, 43 Cal.3d at p. 216; Strickland, supra, 466 U.S. at pp. 687-688.)
Further, assuming counsel made an unprofessional error, Taylor does not show prejudice. ( Strickland, supra, 466 U.S. at p. 687.) In view of the reliability of Taylor's identification (discussed ante, pp. 10-14), it is reasonably probable Kukukafi would have identified Taylor at a live lineup. As we have explained, Kukukafi had the opportunity to observe Taylor for more than two hours. They sat next to each other in the car. They talked. Kukukafi remembered features of Taylor's face and was certain about his identification. (See, e.g., Moody, supra, 564 F.3d at p. 763; Rivera-Rivera, supra, 555 F.3d at p. 284; Romero, supra, 44 Cal.4th at p. 400.) This is a far different situation than a witness who had only a few seconds to observe an unknown perpetrator or whose view of the perpetrator was partially obscured. ( United States v. Russell (6th Cir. 1976) 532 F.2d 1063, 1066 ("There is great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation....").)
In view of the circumstances presented here, the potential for misidentification was minimal. Thus Taylor does not show on appeal there is a reasonable probability the result of the proceeding would have been different had he participated in a live lineup prior to the preliminary hearing or otherwise avoided a suggestive identification at the preliminary hearing. ( Ledesma, supra, 43 Cal.3d at p. 216; Strickland, supra, 466 U.S. at p. 687.)

(Lodgment No. 6, Taylor, No. D055375, slip op. at 26-27.)

For ineffective assistance of counsel to provide a basis for federal habeas relief, Petitioner must demonstrate two things. First, he must show that counsel's performance was deficient. Strickland v. Washington , 466 U.S. 668, 687 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id . Second, he must show counsel's deficient performance prejudiced the defense, which requires showing that "counsel's errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result is reliable." Id . To show prejudice, Petitioner need only demonstrate a reasonable probability that the result of the proceeding would have been different absent the error. Id. at 694. A reasonable probability in this context is "a probability sufficient to undermine confidence in the outcome." Id . Petitioner must establish both deficient performance and prejudice in order to establish ineffective assistance of counsel. Id. at 687.

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky , 559 U.S. 356, 371 (2010). "The standards created by Strickland and section 2254(d) are both highly deferential' and when the two apply in tandem, review is doubly' so." Harrington v. Richter , 562 U.S. ___, 131 S.Ct. 770, 788 (2011) (citations omitted). These standards are "difficult to meet" and "demands that state court decisions be given the benefit of the doubt." Cullen v. Pinholster , 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011). Federal habeas relief functions as a "guard against extreme malfunctions in the state criminal justice systems, " and not simply as a means of error correction. Richter , 131 S.Ct. at 786, quoting Jackson v. Virginia , 443 U.S. 307, 332 n.5 (1979). "Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process' that the defendant was denied a fair trial." Strickland , 466 U.S. at 687.

The state appellate court's finding that counsel made a tactical decision not to request a live lineup prior to the preliminary hearing because, had the victim identified Petitioner in such a lineup the resulting identification would have undermined the defense case, is supported by the record and entitled to deference. At the time of the preliminary hearing, the victim had failed to identify Petitioner in two photographic lineups which contained his photograph, and had chosen someone from a photographic lineup which did not contain his picture. Thus, the defense was in a position to argue, both at the preliminary hearing and at trial, that Petitioner was the subject of an unreliable identification, and a live lineup risked weakening that argument. In fact, the defense expert on identification procedures testified that in-court identifications such as the one conducted in this case are "totally" invalid, and that the witness' inability to identify the perpetrator in the two photographic lineups containing Petitioner's photograph viewed near the time of the crime further weakened the identification. (RT 1247-52.) The authority relied on by the state court regarding a defendant's right to a pretrial lineup arises from a right not to be detained based on identification without a chance to challenge that evidence, which is lessened where, as here, there was independent evidence of guilt in the form of the DNA evidence, the ATM photographs, and, as discussed below, although excluded at trial, Stillwell's police statement implicating Petitioner. See Evans , 11 Cal.3d at 625 ("The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.")

As there is no indication in the record that the victim would not have identified Petitioner at a live lineup prior to the preliminary hearing, and every indication he would have, the defense strategy had the effect of bolstering their expert's opinion that the identification was invalid, whereas a lineup may have damaged the defense of misidentification. The record supports the state court's finding that it was unlikely the victim would not have identified Petitioner had a live lineup been conducted or had counsel taken measures to prevent the victim from seeing Petitioner seated next to Stillwell wearing jail clothing. Thus, the state court's findings that Petitioner's counsel was not deficient, and that Petitioner was not prejudiced by counsel's actions, is supported by the record and entitled to a high degree of deference.

The Court denies habeas relief as to Petitioner's claim that trial counsel rendered constitutionally ineffective assistance in failing to request a live lineup prior to the preliminary hearing, or taking measures to avoid the victim seeing Petitioner for the first time sitting next to Stillwell in the courtroom wearing jail clothing. The state court adjudication of that claim did not involve an unreasonable application of Strickland. See Weighall v. Middle , 215 F.3d 1058, 1062 (9th Cir. 2000) (holding that an ...


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