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Henderson v. G. Swarthout

United States District Court, N.D. California

March 23, 2015

G. SWARTHOUT, Respondent.


CLAUDIA WILKEN, District Judge.

Petitioner Demora A. Henderson, a California prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his state conviction. He contends that the trial court violated his due process rights by denying his motions to: (1) exclude a witness's tainted identifications; (2) exclude cell phone evidence; and (3) compel production of exculpatory evidence. Respondent filed an answer and a memorandum of points and authorities in support thereof and Petitioner has filed a traverse. For the reasons stated below, the Court DENIES the petition.


I. Procedural History

On January 19, 2007, the San Francisco District Attorney filed an information charging Petitioner with murder with the allegation that he personally and intentionally discharged a firearm that caused great bodily injury or death. Clerk's Transcript (CT) 28-29. On February 21, 2008, a jury found Petitioner guilty as charged. CT 2387, 2398; Reporter's Transcript (RT) 2759. On June 2, 2008, the trial court sentenced Petitioner to fifty years to life in prison. CT 2648-50.

On January 31, 2011, the California Court of Appeal affirmed the judgment. Exh. F, People v. Henderson, 2011 WL 287889 (Cal.Ct.App.) (unpublished). On April 13, 2011, the California Supreme Court summarily denied review. Exh. H.

On February 21, 2012, Petitioner filed this federal petition for a writ of habeas corpus.

II. Statement of Facts

The following is a summary of the key facts taken from the written opinion of the California Court of Appeal.

Rufino Gutierrez was murdered when he was shot in the back of his head while sitting in the front passenger seat of his car, next to his girlfriend, Christina Medina. She was driving. His assailant was in the back seat, and had arranged to meet Gutierrez in order to buy a.380 caliber handgun from him. Instead of paying Gutierrez for the gun, the perpetrator shot him with it.
The purchase of the gun was arranged through a series of calls to Gutierrez's cell phone earlier the day of the murder. The calls were from phone numbers associated with friends and acquaintances of defendant Demora Henderson who did not have a cell phone and often borrowed one from others. One of the phone numbers that appeared repeatedly in the call records for Gutierrez's phone belonged to the aunt of Henderson's friend Dimitri Braud. Braud told police that he and Henderson were together at his aunt's house during the afternoon and evening before Gutierrez was killed. Braud testified in this case as part of an agreement he reached with prosecutors....
Henderson was identified as Gutierrez's killer by Medina in a videotape of a live lineup and in court.

Henderson, 2011 WL 287889, *1 (footnote omitted).


A federal court may entertain a habeas petition from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a district court may not grant habeas relief unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000).

A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

A federal court on habeas review may not issue a writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. "A state court must be granted a deference and latitude that are not in operation when the case involves review" under the constitutional standard itself. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786. The factual determinations by state courts are presumed correct unless there is "clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion of the highest court to analyze whether the state judgment was erroneous under the standard of § 2254(d). Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). In the present case, the California Court of Appeal is the highest court that addressed Petitioner's claims in a reasoned opinion.


I. Suggestive Photo Lineup

Petitioner argues that the trial court violated his right to due process by denying his motion to exclude Christina Medina's identification of him at the videotaped lineup and later in court on the ground that her previous viewing of a photo lineup tainted her two later identifications.

A. Background

The state appellate court summarized the facts relevant to this claim as follows:

The night of the murder Medina described Gutierrez's assailant to police as about 25 years old with a very dark complexion, wearing dark clothes with a "hoodie" that was raised to cover his head. She also said the shooter was skinny, with a long face, acne scars on his cheeks and pimples on his forehead. She thought she would recognize him if she saw him again.
A few days later, Medina was shown a photo lineup that contained Henderson's photo, and the procedure was recorded on audiotape. Before Medina viewed the photos, the officer admonished her that the person who committed the crime might not be in the group of photos. She was told that she was "in no way obligated to identify anybody, " and people's appearances could change over time and "based on the photographic process, they can be lighter or darker." Medina was unable to identify the killer when she viewed the photo lineup, even though she thought Henderson's skin color and the shape of his face were similar to the shooter's. When Medina remarked that the shooter was "maybe a little darker" than Henderson's photo, and all the photos appeared "lighter" than the shooter, the officer reminded her that the lighting when a photo is taken can influence the appearance of a person's skin color.
Several weeks later, Medina met with a police artist and helped develop a sketch of the shooter based on her memory of his appearance. Approximately a week after that, she was shown a videotape of a live lineup. She gasped audibly when she saw Henderson and she identified him as the killer. A videotape was made of Medina's viewing of the videotaped lineup and was shown to the jury. Medina explained that the videotaped lineup was "more real" than the photo lineup because she could see the people walk and talk. FN2 Medina also later identified Henderson as the shooter at the preliminary hearing and at trial.
FN2 The participants in the videotaped lineup wore dark hooded sweatshirts similar to the shooter, walked across the stage, and spoke certain phrases the shooter used on the night Gutierrez was killed. Medina said Henderson's voice during the videotaped lineup was "a little off, " "like... he was holding back, " but she ...

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