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Lewis v. J. Soto

United States District Court, C.D. California, Western Division

January 8, 2015

J. SOTO, Respondent

Brian Dion Lewis, Petitioner, Pro se, Lancaster, CA.

For J. Soto, Respondent: Noah P Hill, LEAD ATTORNEY, Office of Attorney General, California Department of Justice, Los Angeles, CA; Victoria B Wilson, Office of Attorney General of California, Los Angeles, CA.



Before the Court is a petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (" Petition"). The parties have consented to the Magistrate Judge's jurisdiction. ( See [5]-[7].) For the reasons discussed below, the sole claim in the Petition is denied and the Petition is dismissed with prejudice.


1.1 State Court Proceedings

On May 17, 2012, Brian Dion Lewis (" Petitioner") was convicted of three counts of second degree robbery (Cal. Penal Code § 211), one count of second degree commercial burglary (Cal. Penal Code § 459), and petty theft with a prior (Cal. Penal Code § 666(b)), following a jury trial in the California Superior Court for Los Angeles County (case no. GA082478). (Reporter's Transcript on Appeal (" RT") (Lodged Document (" LD") 2) at 413-15, 497-98; Clerk's Transcript (" CT") (LD 1) at 150, 152-55, 214.) He was acquitted of one count of second degree robbery. (RT at 413; CT at 151.)

After a bifurcated proceeding, the same jury found true allegations that Petitioner had suffered two prior convictions within the meaning of California's Three Strikes Law (Cal. Penal Code § § 667(b)-(i), 1170.12(a)-(d)), and had served four prior prison terms (Cal. Penal Code § 667.5(b)). (RT at 498-509; CT at 215-29.) On May 24, 2012, the trial court sentenced Petitioner to a total term of thirty-seven years to life in state prison. (RT at 515-17; CT at 243-48.)

Petitioner appealed the judgment of conviction to the California Court of Appeal, raising inter alia his pending insufficient evidence claim. (LD 3.) On August 27, 2013, in an unpublished opinion, the state court of appeal rejected Petitioner's insufficient evidence claim and affirmed the judgment, except as to his petty theft with a prior conviction, which was reversed on the ground that it was a lesser included offense of the robberies (case no. B241490). (LD 9.) The California Supreme Court denied review of the court of appeal's decision without comment or citation (case no. S213693). (LD 11 & 14.)

1.2 Pending Proceedings

On September 29, 2014, Petitioner, proceeding pro se , filed the pending Petition raising his insufficient evidence claim. (Pet. at 5; attached pages (11).) On November 14, 2014, Respondent filed and served an Answer [8] arguing that Petitioner's claim should be rejected because it lacks merit. (Answer at 8-17.)

Pursuant to paragraph four of the Court's Order Requiring a Response/Answer issued in this case on October 2, 2014 [3], Petitioner's reply was due thirty days after service of Respondent's Answer. Petitioner has failed to file a timely reply. The matter now stands submitted for decision.


2.1 Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), 110 Stat. 1214, a federal court may not grant a state prisoner's application for habeas relief for any claim adjudicated on the merits in state court proceedings unless the adjudication of the claim resulted in a decision that was: (1) " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; " or (2) " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d); Harrington v. Richter, 562 U.S. 86,, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011); see also Burt v. Titlow, __ U.S. __, __, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013). The above standard " recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Titlow, 134 S.Ct. at 15.

Therefore, although AEDPA " stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings, " it nevertheless " reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786 (citation and internal quotation marks omitted). Consequently, § 2254(d) " preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. Put another way, in order to obtain federal habeas relief, " a state prisoner must show that the state court's ruling on the claim being presented in federal court 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; Titlow, 134 S.Ct. at 16.

" 'Clearly 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." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). More specifically, clearly established Federal law " refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) ( quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Additionally, clearly established Federal law is only determined by the Supreme Court, not by the circuit courts. Lopez v. Smith, 574 U.S. __, __, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam); 28 U.S.C. § 2254(d)(1). Circuit precedent also cannot " refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced." Id. ( quoting Marshall v. Rodgers, 569 U.S. __, __, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013)). Instead, where no decision of the Supreme Court " squarely addresses" an issue or provides a " categorical answer" to the question before the state court, § 2254 (d)(1) bars relief because the state court's adjudication of the issue cannot be contrary to, or an unreasonable application of, Supreme Court law. Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (per curiam); see also Moses v. Payne, 555 F.3d 742, 754, 758-60 (9th Cir. 2009).

A state court decision is " contrary to" governing Supreme Court law if it either applies a rule that contradicts the governing Supreme Court law or " confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). Citation to Supreme Court cases is not required so long as " neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (" Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Richter, 131 S.Ct. at 784 (" [A]s this Court has observed, a state court need not cite or even be aware of our cases under § 2254(d)."). What matters is whether the last reasoned decision by the state court was contrary to Supreme Court law, not the intricacies of the analysis. Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002).

A state court's decision involves an " unreasonable application" of Supreme Court precedent " if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. More specifically, " a habeas court must determine what arguments or theories supported or, ... could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Richter, 131 S.Ct. at 786. Federal habeas relief may only be granted if the state court's application was " objectively unreasonable, " not merely incorrect or erroneous. Andrade, 538 U.S. at 75-76; Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Moreover, " [f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary .. . ." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ( citing § 2254(e)(1)). In fact, under § 2254(d)(2), a state-court factual determination is not unreasonable merely because a federal habeas court would have reached a different conclusion. Titlow, 134 S.Ct. at 15. Instead, a state court makes " an unreasonable determination of the facts in light of the evidence presented" only where the federal habeas court is " convinced that an appellate panel . . . could not reasonably conclude that the finding is supported by the record . . . [or] that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate." Ocampo v. Vail, 649 F.3d 1098, 1106 (9th Cir. 2011) ( quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). " This is a daunting standard - one that will be satisfied in relatively few cases." Taylor, 366 F.3d at 1000.

Additionally, " review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

AEDPA's deferential standard applies to Petitioner's pending insufficient evidence claim. Petitioner raised that claim in the state court of appeal and the California Supreme Court on direct appeal. (LD 3 at 12-25; LD 11 at 4-18.) The court of appeal rejected his claim on the merits in a reasoned opinion, and the state high court denied it without comment. (LD 9 at 7-9; LD 14.) Under the " look through" doctrine, Petitioner's claim is deemed to have been rejected for the reasons given in the last reasoned decision on the merits, which was the court of appeal's opinion. Ylst v. Nunnemaker, 501 U.S. 797, 802-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

2.2 Facts Established at Trial

Petitioner's insufficient evidence claim requires the Court to conduct an independent review of the trial transcript. Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court has conducted that review and finds the state court of appeal's decision affirming Petitioner's judgment of conviction contains a statement of facts that is based upon a reasonable determination of the facts in light of the evidence presented. Ocampo, 649 F.3d at 1106; Taylor, 366 F.3d at 1000. Further, the state court's factual determinations are presumed correct where, as here, Petitioner has not proffered clear and convincing evidence to the contrary. § 2254(e)(1); Miller-El, 537 U.S. at 340; see also Moses, 555 F.3d at 746 n. 1. Consequently, the Court adopts verbatim the court of appeal's summary of the trial evidence as follows:

A. The People's Case

[The] evidence at defendant's second trial established that two sets of automatic doors separated by a vestibule led from the parking lot into the Rite Aid in question. On December 26, 2010, the date of this incident, the more expensive liquor was kept in a padlocked glass cabinet on aisle eight, to which only the managers had keys. That day, store manager Annie Matosevic, shift supervisor Tina Baron and cashiers Alejandra Salcedo and Serineh Didarloo were working. The locked liquor cabinet was full when Matosevic walked by it at about 5:50 that morning; it was still full when she walked past it throughout the day.

1. Baron Robbery (Count 2)

Baron testified that at a little past 4:30 that afternoon, she was straightening up the store from the Christmas rush when she noticed defendant and a woman in the liquor aisle. After they declined her offer of help, Baron resumed her task in the next aisle over. Not long after that, the woman asked Baron to take her to the hair products aisle, which Baron was about to do when something, Baron could not recall what, caused her to stop. Moments later, Baron noticed that defendant had taken liquor out of the locked cabinet and put it into a bag, which he should not have been able to do without assistance from a store employee. As defendant and the woman walked away from the liquor cabinet, Baron followed them and asked defendant to show her what was in his bag. When defendant refused, Baron yelled out for Matosevic and tried to grab the bag, but defendant evaded her by tossing it over his shoulder. Baron pursued defendant and his companion as they walked quickly towards the exit doors, all the while trying to get the bag away from him. As Baron and defendant reached the cash registers located just before the double set of exit doors, Matosevic approached. While Matosevic struggled with defendant for possession of the bag and other employees tried to close the front doors, Baron went to call 911. When Baron spoke to the police later that day, she felt traumatized by the incident. She identified defendant from a photographic lineup shown to her by the police on February 1, and in court.[3]

[3] The jury found defendant not guilty of second degree robbery of Baron.

2. Matosevic Robbery (Count 1)

Matosevic testified that when she went to the front of the store in response to Baron either calling Matosevic by name or yelling for someone to call 911, she saw defendant and a woman walking towards the doors leading to the vestibule. Defendant was carrying a red plastic Target bag over his shoulder, from which Matosevic could see boxes sticking out. Matosevic made contact with defendant at the check stand and asked him to give her what he had. Defendant said, " I promise to have nothing of yours." Matosevic tried to keep defendant from getting past her and through the first set of doors, but after some dodging and weaving, defendant dodged past Matosevic and into the vestibule area. When Matosevic tried to grab defendant's jacket to keep him from leaving the store, defendant threw his arm out, hitting Matosevic in the shoulder and face. At some point, defendant's plastic bag fell to the ground and some boxed bottles of Patron and a pair of bolt cutters fell out of it. As Didarloo and Salcedo were trying to close the exit doors, defendant grabbed the bag and barreled through the doors to the parking lot, causing Didarloo and Salcedo to fall. Matosevic pursued defendant but gave up the chase after he got into a car driven by the woman he had been with in the store. When Matosevic returned to the store, the boxed bottles of Patron and the bolt cutters were still on the ground in the vestibule area and her employees were already on the phone with the 911 operator. Matosevic discovered that the padlock on the glass liquor cabinet had been broken and multiple bottles of Patron, Hennessey V.S.O.P. and Remy Martin were missing from the cabinet. At the request of the police, Matosevic created a CD of the incident from the video taken by the store's surveillance cameras. Matosevic narrated the CD as it was played for the jury. Matosevic identified defendant in court, but had been unable to identify him from the photographic lineup shown to her by the police about one month after the incident.

3. Salcedo Robbery (Count 3)

Salcedo testified that she was in the cologne aisle when she heard Matosevic arguing loudly with a man. Leaning over, Salcedo was able to see Matosevic confronting defendant in front of the cash registers, about 35 or 40 feet away. As defendant tried to get past her, Matosevic asked him to show her the contents of his bag. Defendant refused, repeating, " It's not from here, " several times. Salcedo moved towards the doors with the intention of keeping defendant from leaving the store and noticed Didarloo also moving in that direction. While Salcedo stood in the middle of the open doors hoping to block defendant, Didarloo was trying to close the doors. To get past Salcedo, defendant shoved her against the security gate, causing Salcedo to hit her head against the gate.[4] Salcedo tried to hang onto defendant's jacket but he pulled away and ran through the doors. After Matosevic ran after him, Salcedo noticed three bottles of Patron and a bolt cutter on the ground. Salcedo picked up the bottles and the bolt cutters to move them out of the way, but when a customer told her that the police would want those things as evidence, Salcedo put them back where they had fallen. The surveillance video was played again and Salcedo narrated it. Salcedo was not shown a photographic lineup, but she identified defendant in court.
[4] Until she saw the surveillance video, Salcedo thought she fell and hit her head on the ground.
4. Didarloo Robbery (Count 4)
Didarloo testified that she realized something was wrong when she heard Baron trying to stop a customer from leaving the store. She ran to tell Matosevic that Baron needed help and together they walked toward Baron. At the cash registers, Didarloo saw Baron confronting a man holding a big, red Target bag, and the man's female companion. The man was refusing Baron's repeated request that he put down the bag. As Matosevic went to assist Baron, Didarloo went to close the doors to keep the man from leaving until police arrived. Didarloo's back was to the commotion and she had almost succeeded in getting the doors closed when she was pushed from behind, causing her face to hit the door. After the man and woman ran out of the store, Didarloo saw bolt cutters and two boxed bottles of Patron on the ground. Didarloo was not shown a photographic lineup and was unable to identify defendant in court.
Detective Robert Jenkins prepared a photographic lineup (six-pack), placing defendant's photograph in position number four. Baron identified defendant as the person she confronted in the store that day; Matosevic was not able to make an identification. Jenkins did not show the six-pack to Salcedo or Didarloo.

B. The Defense Case

When Pasadena Police Officer Richard Padilla arrived at the Rite Aid at about 4:43 p.m. that afternoon, he saw the bolt cutters and boxed bottles of Patron on the ground in the vestibule. According to Padilla's report, Baron told him that the first time she saw the Target bag it was empty and in the possession of the suspect's female companion; Baron said she saw the suspect using the bolt cutters to break the padlock on the liquor cabinet and then saw him holding the bolt cutters as he fled the store. Salcedo told Padilla that she fell and hit either her head or her back during the scuffle with defendant.

The criminalist dispatched to the scene that afternoon explained that he did not take any DNA samples because so many people had been in close proximity and even touched the relevant items, that no useful information could be gleaned. He dusted the items for latent fingerprints, but did not find any useable ones.
A DNA expert testified that, in his opinion and contrary to the testimony of the police department criminalist, useable DNA could have been obtained from the bolt cutters even though people in addition to the suspect may have also left some DNA on them.

(LD 9 at 2-6.)

2.3 Insufficient Evidence Claim

Petitioner contends the prosecution's evidence was insufficient to establish his identity as the perpetrator. He specifically argues no physical evidence tied him to the crimes and the eyewitness identifications were unreliable and insufficient. (Pet. at 5, attached pages.) Respondent argues that Petitioner's claim lacks merit. (Answer at 8-17.) As discussed below, the Court agrees with Respondent. Petitioner's insufficient evidence claim is denied on the merits.

2.3.1 Legal Standard

The United States Supreme Court has " made clear that [insufficient evidence] claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, __ U.S. __, __, 132 S.Ct. 2060');"> 132 S.Ct. 2060, 2062, 82 L.Ed.2d 978 (2012) (per curiam).

The first layer is the standard of review for insufficient evidence claims, which has long been " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (italics in original). Under this standard, Jackson " makes clear that it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, __ U.S. __, __, 132 S.Ct. 2, 3-4, 181 L.Ed.2d 311 (2011) (per curiam). Consequently, " [a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Id. at 4; see also Johnson, 132 S.Ct. at 2065 (" [T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality."). Also under Jackson, a reviewing court " faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326; McDaniel v. Brown, 558 U.S. 120, 133, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010).

The second layer is the " additional layer of deference" under AEDPA requiring a petitioner to establish that the state court unreasonably applied the Jackson standard to the facts of the case. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). More specifically, " a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Cavazos, 132 S.Ct. at 4 ( quoting Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)).

2.3.2 Analysis

The state court of appeal denied Petitioner's claim that the evidence was insufficient to establish his identity, in pertinent part, as follows:

A. The Convictions Are Supported By Substantial Evidence
* * * *
It is well settled that a single eyewitness's identification of the defendant as the perpetrator may be sufficient to sustain a conviction. (Citations omitted.)
Here, Baron identified defendant from the six-pack and at trial. Matosevic was unable to identify defendant from the six-pack but did so in court. Salcedo was not shown the six-pack but identified defendant in court. These three eyewitness identifications constitute substantial evidence to support the convictions. As we shall explain, we are not persuaded otherwise by defendant's argument that these identifications were unreliable under the circumstances.

B. Identifications From the Photographic Lineup Were Not Unreliable

Defendant concedes that trial counsel's failure to object to the pretrial identification procedure constitutes a forfeiture of the issue on appeal (citation omitted), but urges us to consider the suggestive nature of the lineup in analyzing the sufficiency of the evidence. He argues that Baron's pretrial and subsequent in-court identifications of defendant do not constitute substantial evidence because defendant stood out as the only person in the six-pack depicted wearing a jacket.[5] We disagree.
[5] In a separate Petition for Habeas Corpus Relief, defendant argues that his trial counsel was ineffective for failing to object to the photographic lineup. By separate order we summarily deny defendant's habeas petition.
* * * *
Here, the witnesses said the perpetrator was wearing a black puffy jacket. In the six-pack shown to Baron, five of the six people are wearing T-shirts of varying colors and only defendant is wearing what appears to be a hooded jacket or sweatshirt. (Footnote omitted.). . . [T]he difference in clothing did not make defendant stand out in a way that suggested the witnesses should select him; nor was evidence insufficient because of the unreliability of the identification.

C. The In-Court Identifications Were Not Inherently Unreliable

Defendant contends none of the in-court identifications constitute substantial evidence because the witnesses had little time to observe the perpetrator and the procedure of having a witness identify the defendant who is seated at a table with counsel is inherently suspect. In particular, he challenges Matosevic's in-court identification on the ground that she failed to identify him from the six-pack. We disagree.
Defendant's challenge to the in-court identifications based on the witnesses' ability to observe the perpetrator involves issues of credibility, resolution of which fall squarely within the jury's province. (Citation omitted.) Likewise, his challenge to the unreliable nature of the in-court identification process is a matter that may be argued to the jury, but does not make the identification insufficient as a matter of law. (Citation omitted.) Finally, as to Matosevic's failure to identify defendant from the six-pack, it is well settled that the failure to make an identification from a photograph goes to the weight of the in-court identification, not its sufficiency. (Citations omitted.)

(LD 9 at 7-9.)

The conclusion of the state court of appeal was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, and was based upon a reasonable determination of the facts in the record. § 2254(d).

In light of the fact Petitioner claims only that the evidence establishing his identity as the perpetrator was insufficient, the Court finds it unnecessary to discuss the elements of each of his offenses. Furthermore, Petitioner's claim is patently without merit, as he was positively identified as the perpetrator by three victim eyewitnesses in open court at trial, and one of those witnesses had previously identified him in a six-pack photographic lineup. (RT at 57, 67, 118-19, 165, 170-71, 231-33.) That evidence was by far constitutionally sufficient. United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986) (the testimony of a single eyewitness is constitutionally sufficient to support a conviction); United States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981) (same); United States v. Smith, 563 F.2d 1361, 1363 (9th Cir. 1977) (" [T]he testimony of one witness, if solidly believed, is sufficient to prove the identity of a perpetrator of crime."); United States v. Gudino, 432 F.2d 433, 434 (9th Cir. 1970) (per curiam) (" The testimony of the one witness, if believed, was sufficient to support the conviction, and the resolution of any question as to his credibility was properly entrusted to the jury."); see also Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (per curiam) (holding that a single witness's testimony was sufficient for a finding of guilt where the witness's account was not " physically impossible.").

Moreover, to the extent Petitioner challenges the reliability of the eyewitness evidence as part of his insufficient evidence claim (Pet. at 5, attached pages 1, 4-5, 7-11), and attempts to point to alleged inconsistencies or holes in the prosecution's evidence (Pet., attached pages 3-8, 11), his arguments ignore the fact that this Court must view all the evidence, and must do so in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; McDaniel, 558 U.S. at 133-34 (under Jackson, a court must review all the evidence in the light most favorable to the prosecution and may not merely recite or highlight inconsistencies in the testimony). Further, Jackson " makes clear that it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, 132 S.Ct. at 3-4; Jackson, 443 U.S. at 326 (a reviewing court " faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."). Petitioner's belated attempts to re-try his case are rejected in light of the very clear legal standard governing his claim, and the sufficient evidence of his guilt.

Most significant, Petitioner has failed to surmount the " additional layer of deference" under AEDPA because the evidence establishing his identity and guilt was sufficient to conclude that the state courts reasonably applied the Jackson standard to the facts of this case in denying his insufficient evidence claim. Juan H., 408 F.3d at 1274-75; Cavazos v. Smith, 132 S.Ct. at 4.

Because it cannot be said that the jury's verdict " was so insupportable as to fall below the threshold of bare rationality, " Johnson, 132 S.Ct. at 2065, or that " the state court's ruling on [Petitioner's insufficient evidence claim] . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, " Petitioner's claim fails. Richter, 131 S.Ct. at 786-87.

2.4 Reliability of the Eyewitness Identifications

To the extent Petitioner intends to raise separate and distinct claims challenging the reliability of both the six-pack and in-court identifications (Pet., attached pages 1, 4-5, 7-11), his argument is rejected for the reasons discussed below.

First, as to the in-court identifications, Petitioner points to nothing unusual in the procedure that would have caused a misidentification. Like any other proper trial, all three of the eyewitnesses who positively identified Petitioner were called to testify, all three witnesses identified Petitioner in open court as part of their testimony, and all three witnesses were then thoroughly cross-examined. (RT at 50, 57, 76-109, 116, 118-19, 130-54, 165, 171-88, 190-229.) Petitioner vaguely contends he was " the only African-American man in the entire court[]room" (Pet., attached page 9), but his contention fails to explain how the in-court identification procedure was in any way " so unnecessarily suggestive and conducive to irreparable mistaken identity that he was denied due process of law." United States v. Valenzuela, 722 F.2d 1431, 1433-34 (9th Cir. 1983) ( quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)).

Second, to the extent Petitioner challenges the six-pack photographic lineup as unduly suggestive, he has again failed to point to any aspect of the photographic array or the identification procedure that was so suggestive that he was denied due process of law. See Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir, 1995) (applying the Stovall standard to pretrial identifications); see also United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985) (" If we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends."). The entire basis of his contention is that he was the only person in the photographic array wearing a hooded sweatshirt or jacket, and that the others depicted were wearing t-shirts. (Pet., attached page 4.) Petitioner has not shown that such an incidental feature rendered the photo array impermissibly suggestive. See United States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (photo array in which the defendant was " the only person in the photospread with discernible bruises on his face" was not impermissibly suggestive); see also United States v. Sambrano, 505 F.2d 284, 286 (9th Cir. 1974) (photo display in which the defendant's photograph was " darker and clearer than the other photographs" was not impermissibly suggestive). Moreover, contrary to Petitioner's erroneous assertion, Baron described the perpetrator as wearing " jeans, tennis shoes, a red t-shirt and a black puffy shirt, " not a " jacket" or anything else resembling the hooded sweatshirt or jacket he was depicted wearing in the photographic lineup. (RT at 218 (emphasis added); Pet., attached page 4 & Ex. A.) Petitioner fails to demonstrate that the photo array was so unnecessarily suggestive and conducive to irreparable mistaken identity that he was denied due process of law. Johnson, 63 F.3d at 929.

Third, even if Petitioner had established a constitutional error involving the photographic lineup, the alleged error did not have a " substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Specifically, as the Court has already discussed, the testimony of only one eyewitness is sufficient to establish guilt. See McClendon, 782 F.2d at 790. Even setting aside both Baron's photographic and in-court identifications, Salcedo and Matosevic also positively identified Petitioner as the perpetrator at trial. (RT at 57, 118-19.) And, before trial, Matosevic was unable to identify Petitioner from the photographic array (RT at 108-09, 233), and the array was never even shown to Salcedo. (RT at 240.) Consequently, the photographs could not have tainted the testimony of either of those eyewitnesses. The error Petitioner alleges as to the photographic lineup was harmless. Brecht, 507 U.S. at 623.

Petitioner is not entitled to federal habeas relief based upon his insufficient evidence claim, or his related claims that the pretrial and in-court identifications were suggestive and unreliable.


Based upon the foregoing, IT IS HEREBY ORDERED THAT the Petition is denied and dismissed with prejudice. The Clerk is directed to enter judgment dismissing this action with prejudice and serve a copy of this Order on all counsel or parties of record. Any and all pending motions are denied as moot and terminated.


IT IS HEREBY ADJUDGED that this action is dismissed with prejudice for the reasons set forth in the related Order.

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