(HC) Craft v. Yates, et al, No. 2:2007cv01484 - Document 22 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION and ORDER signed by Circuit Judge Richard C. Tallman on 10/22/09 DISMISSING in part and DENYING in part petition. CASE CLOSED. (Owen, K)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HENRY CRAFT, 12 Petitioner, 13 14 15 16 2:07-cv-01484-RCT vs. JAMES YATES, et al., Respondents. ________________________________/ MEMORANDUM DECISION AND ORDER 17 18 19 This matter comes before the court on John Henry Craft s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 INTRODUCTION 21 Petitioner Craft is a state prisoner currently incarcerated at Pleasant Valley State Prison, 22 Coalinga, California. He filed this petition for a writ of habeas corpus to challenge a judgment 23 of conviction entered against him in the San Joaquin County Superior Court in 2003 for second 24 degree robbery and elder abuse. A review of the petition shows that at least one of Craft s 25 claims is procedurally barred, and that the California courts correctly applied United States 26 Supreme Court law in rejecting his remaining eyewitness identification claims. 28 U.S.C. 27 § 2254(d). Accordingly, the petition is dismissed in part and denied in part, and the case is 28 dismissed with prejudice. 1 PROCEDURAL AND FACTUAL HISTORY 2 Craft, who has previously suffered six felony convictions, filed this petition for writ of 3 habeas corpus to challenge his latest San Joaquin County Superior Court convictions and 4 resulting sentence of 35 years to life in prison. 5 The California Court of Appeal summarized the facts of this case as follows: 6 On July 31, 2003, Acosta Bolivar,[1] 73 years old, went to his cardiologist at 2800 North California Street, Stockton, for a pacemaker checkup. Bolivar signed in and asked for a key to a one-person bathroom on the first floor. Upon entering the bathroom, Bolivar closed the door, put aside his cane and coat, removed his glasses and put them on the sink, and started to wash. At that time, someone knocked on the door, and Bolivar opened it to find a man who acted like he was going to go and and urinate. One or two seconds after entering the bathroom, the man grabbed Bolivar from behind, put his hand over Bolivar s mouth, threw Bolivar on the floor, and took Bolivar s watch and $240 from his wallet. While in the bathroom, the perpetrator was constantly moving and said, Give me the money and No talking. Bolivar testified that he could not see his assailant s face when the man grabbed him, but he did see the man s face when the man entered the bathroom. He also testified that he uses glasses for reading and that he cannot see long distances too good without them. Nevertheless, he indicated he could clearly see the defense attorney standing behind counsel table at trial. While passing the bathroom at the time of the incident, Yobana Campuzano, who works in the building, heard sounds like muffled screams coming out of the bathroom. Yobana knocked on the door of the bathroom, and after getting no response she ran upstairs to get her sister, Lillian. As they were approaching the last two steps of the stairs on the way down, a black male came out of the bathroom and walked outside to the parking lot. When they heard the noise of the opening door, Yobana said, Oh, someone's coming out. While exiting the bathroom, the man made eye contact with both Yobana and Lillian, who were at that time standing on the last two steps of the stairs. As the man walked toward the exit, Yobana and Lillian knocked on the bathroom door. When Bolivar opened the door, he was on his knees, and he told them he had been robbed. While Yobana stayed with Bolivar, Lillian ran outside where she saw the man who had left the bathroom in the parking lot; then he walked behind the Alpine Market in a loading dock type area, where he stayed for 5 to 10 minutes. She did not see him leave from behind the Alpine Market because she looked away and when she looked back he was gone. When the police arrived, despite Bolivar s objection that he wanted to stay and see his cardiologist, the police took him to St. Joseph s Medical Center. At that time, Bolivar had red marks on his hand from scratches and he was bleeding from his forehead above his eyebrow. While Bolivar was at the hospital, defendant, who fit a description given to the police, was found hiding behind some bushes in a backyard with Bolivar s watch and $137 in his right front pocket. Almost immediately after the police 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The California Court of Appeal mistakenly transposed the victim s first and last names. Unless quoting from the state court s disposition, this Court will refer to the victim as Bolivar Acosta. (See Lodged Doc. No. 13 at 145; Lodged Doc. No. 15 at 252.) -2- 1 2 3 4 5 6 7 8 9 pulled him from the bushes, defendant started talking, saying he did not rob anybody, that he was just waiting in his car, and some guy ran by and threw a bunch of stuff in his car. Defendant said that after seeing unmarked police cars, he decided to run because he figured they would arrest him just because he was on parole. After the arrest, the police brought defendant to the hospital for a oneperson showup because Bolivar was elderly, assaulted, and in the hospital, and the police officers did not want to cause any more duress by bringing him to the scene for the showup. At the one-person showup, Bolivar identified defendant as his assailant. The next day, the Campuzanos each picked defendant out of a photographic lineup as the perpetrator. Before trial, defendant moved to exclude the out-of-court identifications by Bolivar and the Campuzanos as unduly suggestive. The trial court denied the motion. Subsequently, at trial, the Campuzanos identified defendant as the person coming out of the bathroom, and Bolivar identified him as the assailant. (Lodged Doc. No. 4 at 2 4 (internal footnote omitted).) 10 Craft was convicted by a jury of robbery in the second degree in violation of section 211 11 and of elder abuse in violation of section 368(b)(1) of the California Penal Code. (Lodged Doc. 12 No. 15 at 624.) After Craft waived his right to a jury trial on the matter of determining which 13 prior convictions counted for enhancing his sentence, the trial court found that he had previously 14 been convicted of six serious felonies. (Id. at 639 40.) The trial court then sentenced Craft to 15 an aggregate term of thirty-five years to life in prison. (Id. at 660.) 16 Craft appealed his convictions and sentence to the California Court of Appeal, Third 17 Appellate District, raising two of the claims presented here: Claim Two (failure to exclude the 18 victim's showup identification) and Claim Three (failure to exclude the Campuzano sisters 19 photographic lineup identification). (Lodged Doc. No. 1.) In an unpublished decision, the 20 Court of Appeal affirmed the superior court s judgment on June 21, 2005. (Lodged Doc. No. 4 21 at 19.) Craft thereafter filed a petition for review in the California Supreme Court, which was 22 denied on August 31, 2005, without comment or citation to authority. (Lodged Doc. Nos. 5, 6.) 23 On February 23, 2006, Craft filed a petition for a writ of habeas corpus with the 24 California Supreme Court raising the allegedly tainted jury (Claim One) as the sole claim. 25 (Lodged Doc. No. 9.) The California Supreme Court denied this petition on October 11, 2006, 26 citing to In re Dixon, 264 P.2d 513 (Cal. 1953). (Lodged Doc. No. 10.) On November 6, 2006, 27 Craft filed a petition for a writ of habeas corpus with the California Court of Appeal, Third 28 Appellate District, raising as the sole claim ineffective assistance of appellate counsel (Claim -3- 1 Four). (Lodged Doc. No. 7.) The Court of Appeal denied this petition on November 9, 2006, 2 without comment or citation to authority. (Lodged Doc. No. 8.) Craft again raised this 3 ineffective assistance claim in a habeas petition filed with the California Supreme Court on 4 December 18, 2006. (Lodged Doc. No. 11.) The California Supreme Court denied this petition 5 on May 16, 2007, citing to In re Clark, 855 P.2d 729 (Cal. 1993), and In re Miller, 112 P.2d 10 6 (Cal. 1941). (Lodged Doc. No. 12.) 7 On July 23, 2007, Craft filed this federal petition for a writ of habeas corpus. 8 Respondents concede that all four claims have been fully exhausted, but argue that only two are 9 properly before the Court. 10 CLAIMS 11 Craft raises the following claims in his petition: 12 1. Fundamental jurisdictional error caused by the trial court s refusal to grant a 13 14 15 16 17 18 19 mistrial based on the jury s exposure during voir dire to a prejudicial statement. 2. Denial of his right to due process when the trial court refused to exclude the victim s identifications of Craft. 3. Denial of his right to due process when the trial court refused to exclude the Campuzano sisters identifications of Craft. 4. Denial of effective assistance of appellate counsel because his attorney failed to raise the tainted jury claim (Claim One) on direct appeal. 20 LEGAL STANDARD 21 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 22 ( AEDPA ), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which established that a 23 federal habeas corpus petition shall not be granted with respect to any claim adjudicated on the 24 merits in the state courts unless the adjudication either: (1) resulted in a decision that was 25 contrary to, or involved an unreasonable application of, clearly established federal law, as 26 determined by the United States Supreme Court; or (2) resulted in a decision that was based on 27 an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 28 U.S.C. § 2254(d). -4- 1 Under the contrary to clause, a federal habeas court may grant the writ 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. 2 3 Williams v. Taylor, 529 U.S. 362, 412 13 (2000). Under the unreasonable application clause, 4 a federal habeas court may grant the writ if the state court identifies the correct governing legal 5 principle from [the Supreme Court] s decisions but unreasonably applies that principle to the 6 facts of the prisoner s case. Id. at 413. 7 Under AEDPA, the federal courts review the last reasoned decision of the state courts. 8 Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). A determination of a factual issue by a state 9 court is presumed correct, and the petitioner has the burden of rebutting the presumption of 10 correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 11 DISCUSSION 12 I. Claim One: Tainted Jury 13 Craft alleges that the trial court committed a fundamental jurisdictional error in 14 refusing to grant him a mistrial. During voir dire, a prospective juror addressed the trial court as 15 follows: I m a correctional officer at Dueul Vocational Institute. I would like to speak with 16 you in your chambers because I believe I have come in contact with Mr. Craft. (Lodged Doc. 17 No. 16 at 331.) The trial court excused this prospective juror after confirming privately in 18 chambers that she had indeed worked with Craft while he was incarcerated at the state 19 correctional facility located near Tracy, California. (Id. at 335.) It also advised the prospective 20 juror to be more discreet in the future, noting how powerful a statement like that can be in front 21 of the other jurors. (Id. at 335 36.) Craft s attorney sought a mistrial on the basis that the jury 22 might infer that Craft had been incarcerated at Dueul on a previous conviction, particularly since 23 a member of the jury was married to a Dueul employee and would therefore know that it is a 24 correctional facility. (Id. at 343.) 25 The trial court denied the motion. (Id. at 345 46.) During voir dire, the trial court, at 26 Craft s request, had revealed that Craft was then in custody. (Id. at 142, 166, 346.) The jury 27 would thus likely infer not that Craft had been previously incarcerated, but rather that he was 28 -5- 1 being housed at Dueul while awaiting trial in the instant case. (Id. at 345 46.) However, the 2 trial court agreed to again admonish the jury that it could not consider for any purpose the fact 3 that Craft was in custody at the time. (Id. at 346.) 4 A. Procedural Default 5 State courts may decline to review a claim based on a procedural default. See generally 6 Wainwright v. Sykes, 433 U.S. 72 (1977). As a general rule, a federal habeas court will not 7 review a question of federal law decided by a state court if the decision of that court rests on a 8 state law ground that is independent of the federal question and adequate to support the 9 judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). A state rule must be 10 independent in that it is not interwoven with the federal law. Park v. California, 202 F.3d 11 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040 41 (1983)). A 12 state rule is adequate if it is well-established and consistently applied. Bennett v. Mueller, 13 322 F.3d 573, 583 (9th Cir. 2003) (citing Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999)). 14 If the applicable state rule is independent and adequate, the claim may be reviewed by 15 the federal court only if the petitioner can show: (1) cause for the default and actual prejudice 16 as a result of the alleged violation of federal law; or (2) that failure to consider the claims will 17 result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Cause is a 18 legitimate excuse for the default, and prejudice is actual harm resulting from the alleged 19 constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). [T]he 20 miscarriage of justice exception is limited to those extraordinary cases where the petitioner 21 asserts his innocence and establishes that the court cannot have confidence in the contrary 22 finding of guilt. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (citing Schlup v. Delo, 23 513 U.S. 298, 317 (1995)). 24 In California, [t]he general rule under In re Dixon is that habeas corpus cannot serve 25 as a substitute for an appeal unless the petitioner can demonstrate special circumstances 26 constituting an excuse for failure to raise the alleged errors on direct appeal. 264 P.2d at 514. 27 Four exceptions apply: (1) cases involving fundamental constitutional error; (2) cases where 28 the trial court lacked personal or subject matter jurisdiction over the petitioner; (3) cases where -6- 1 the trial court acted in excess of its jurisdiction; and (4) cases where there has been an 2 intervening change in the law. In re Harris, 855 P.2d 391, 398 407 (Cal. 1993); see also id. at 3 395 n.3 (applying the four exceptions to the Dixon bar); In re Robbins, 959 P.2d 311, 340 n.34 4 (Cal. 1998) (so recognizing). In Robbins, the California Supreme Court announced a 5 prospective rule that decisions as to whether the Dixon procedural default rule applies rest solely 6 on state law grounds. 959 P.2d at 338 39. Thus, the Dixon bar now rests on state law grounds 7 that are independent of federal law. See Bennett, 322 F.3d at 582 83. 8 9 Although Craft raised the tainted jury claim in a habeas petition filed with the California Supreme Court, he failed to do so on direct appeal. The California Supreme Court thus denied 10 the claim, citing to In re Dixon, 264 P.2d 513 (Cal. 1953). (Lodged Doc. No. 10.) The 11 California Court of Appeal also reviewed Craft s tainted jury claim insofar as it was the basis 12 for his claim of ineffective assistance of appellate counsel, but denied Craft s petition without 13 comment or citation to authority. (Lodged Doc. No. 8.) 14 Craft s traverse fails to address the requirements for challenging a state procedural bar 15 on federal habeas review. Craft cites to no authority demonstrating inconsistent application of 16 the Dixon procedural default rule. See Bennett, 322 F.3d at 585 86. Nor does he address either 17 the cause-and-prejudice exception or the fundamental-miscarriage-of-justice exception. 18 Admittedly, with respect to cause, Craft has also made a claim of ineffective assistance of 19 appellate counsel. Craft does not, however, assert ineffective assistance as the cause for his 20 procedural default; rather, he asserts his appellate counsel s failure to raise the issue of jury taint 21 as an example of his alleged ineffective assistance. Moreover, even if Craft did argue that his 22 procedural default was caused by ineffective assistance of appellate counsel, the argument 23 would fail. As discussed infra, Craft has not established that his appellate counsel s 24 performance was deficient under the standard of Strickland v. Washington, 466 U.S. 668 (1984). 25 Therefore, the Court holds that Claim One is procedurally barred from federal review. 26 B. Merits 27 Even if the Court were to reach the merits of this claim, Craft would not prevail. 28 Craft argues that the potential juror s statement, made in open court, tainted the jury with -7- 1 the inference that Craft had previously been convicted of a felony. He claims that the resulting 2 bias violated his right to an impartial jury and rises to the level of structural error. Because the 3 California Court of Appeal at best impliedly denied this claim without providing a reasoned 4 decision, the Court must independently review the record to determine whether the state court 5 clearly erred in its application of Supreme Court law. Pirtle v. Morgan, 313 F.3d 1160, 1167 6 (9th Cir. 2002) (citing Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). However, the 7 independent review undertaken under Delgado is not the equivalent of de novo review, but 8 rather is a style of review which views the state court decision through the objectively 9 reasonable lens. Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir. 2006) (citations and internal 10 quotation marks omitted). And even though the Court independently reviews the record, it must 11 still defer to the state court's ultimate decision. Pirtle, 313 F.3d at 1167. 12 The right to a jury trial established by the Sixth Amendment guarantees to the 13 criminally accused a fair trial by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 14 U.S. 717, 722 (1961). A defendant is denied the right to an impartial jury if only one juror is 15 unduly biased or prejudiced. Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1998) (citation 16 omitted). Due process requires a jury capable and willing to decide the case solely on the 17 evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to 18 determine the effect of such occurrences when they happen. Smith v. Phillips, 455 U.S. 209, 19 217 (1982). In assessing a case of jury bias, the appropriate focus is on the nature of the 20 [extrinsic] information. Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir. 1997), overruled on 21 other grounds by Lindh v. Murphy, 521 U.S. 320 (1997). 22 Constitutional errors, such as denial of the right to an impartial jury, fall into one of two 23 categories trial errors or structural errors. See Brecht v. Abrahamson, 507 U.S. 619, 629 24 (1993). A trial error occurs during the presentation of the case to the jury and can be 25 quantitatively assessed in the context of other evidence presented in order to determine the 26 effect it had on the trial. Id. (brackets omitted). A structural error, by contrast, relates to trial 27 mechanism and infect[s] the entire trial process. Id. at 629 30; see also Arizona v. 28 Fulminante, 499 U.S. 279, 309 10 (1991). Thus, if constitutional error is found, the error may -8- 1 be harmless if it is not structural. See Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008) (per 2 curiam). Under the harmless error standard, relief is warranted on collateral review if the error 3 had substantial and injurious effect or influence in determining the jury s verdict. Brecht, 507 4 U.S. at 623 (quoting Kotteakos v.United States, 328 U.S. 750, 776 (1946)). Whether a jury s 5 exposure during voir dire to a prejudicial statement constitutes trial error or structural error 6 appears to depend on the nature of the information and its connection to the case. Mach, 137 7 F.3d at 634 (citations omitted). 8 9 Craft relies on Mach v. Stewart, in which the Ninth Circuit observed, without deciding, that such a statement arguably rises to the level of structural error. Id. at 633. Mach was 10 convicted of sexual conduct with a minor based primarily on the child s testimony. Id. at 634. 11 During voir dire, an experienced social worker who had taken courses in child psychology made 12 four separate statements that she had never been involved in a case in which a child accused an 13 adult of sexual abuse where that child's statements had not been borne out. Id. at 632 33. The 14 trial judge warned the jurors that the determination of guilt or innocence could only be based on 15 the evidence, dismissed the prospective juror for cause, and denied a mistrial. Id. The Ninth 16 Circuit reversed the conviction. It viewed the error as structural given that the prejudicial 17 statements occurred before the trial had begun, resulted in the swearing in of a tainted jury, and 18 severely infected the process from the very beginning. Id. at 633. It then concluded that [t]he 19 result of the trial . . . was principally dependant [sic] on whether the jury chose to believe the 20 child or the defendant, that [t]he extrinsic evidence was highly inflammatory and directly 21 connected to Mach's guilt, and that reversal was warranted even under the harmless error 22 standard. Id. at 634. 23 Respondents, by contrast, analogize the instant case to Thompson v. Borg, which 24 characterized a prejudicial statement introduced during voir dire as trial error. 74 F.3d 1571, 25 1574 (9th Cir. 1996). Thompson had initially pleaded guilty to second degree murder, but then 26 withdrew his plea. Id. at 1573. In response to questioning by defense counsel, a prospective 27 juror indicated that he had read in a newspaper that Thompson had pleaded guilty at one time 28 and changed it. Id. The Ninth Circuit compared the extrinsic evidence to admission of an -9- 1 involuntary confession, a classic trial error. Id. at 1574. The Ninth Circuit then held that the 2 failure to grant a mistrial, if error at all, was harmless. Id. at 1575. In so doing, it relied on the 3 following factors: (1) the trial judge s extensive consultation with counsel on how to cure the 4 problem; (2) the trial judge s carefully worded admonition, which acted to prevent jurors from 5 drawing inferences from what the [prospective] juror had said, without reminding them of 6 exactly what he had said; (3) that defense counsel had created the problem; (4) that the 7 prospective juror s remark did not indicate to what charge Thompson had initially pleaded 8 guilty; (5) that Thompson s defense hinged on whether the stabbings were justified, not on 9 whether or not he had committed them; and (6) the fact that the jury rejected the charge of first 10 degree murder and seriously deliberated for more than two full days before finding Thompson 11 guilty of second degree murder. Id. at 1575 76. 12 Even if the trial court erred in denying a mistrial in the instant case, the Court concludes 13 that it is objectively reasonable to characterize the error as harmless trial error. First, the 14 prospective juror s statement I'm a correctional officer at Dueul Vocational Institute. I would 15 like to speak with you in your chambers because I believe I have come in contact with Mr. 16 Craft. is ambiguous. It gives no indication of when, where, and in what capacity the 17 prospective juror met Craft. Her statement is thus susceptible to any number of interpretations. 18 Admittedly, one such interpretation is that Craft was previously convicted of a felony. But 19 given that the voir dire panel had been informed, at Craft s request, that he was in custody 20 pending trial (see Lodged Doc. No. 16 at 142 43, 166 67), it is much more likely that the jurors 21 simply assumed that the prospective juror recognized Craft from this pretrial incarceration. 22 Second, the trial judge consulted extensively with counsel in considering a number of possible 23 admonitions. (See Lodged Doc. No. 16 at 337 47.) Acceding to defense counsel s preference, 24 the trial judge eventually settled on a general admonition that the fact of Craft s custody did not 25 constitute evidence and could not be considered by the jury for any purpose. (Id. at 346 47.) 26 Third, there is no direct connection, as there was in Mach, between the prejudicial statement and 27 Craft s guilt in the instant case. Therefore, as in Thompson, [t]he case is analogous to where a 28 witness says something that was not supposed to be before the jury, the judge admonishes the -10- 1 jury to disregard it, and there is no reason to doubt that the jury obeyed the admonition. Id. at 2 1576. 3 II. Claim Four: Ineffective Assistance of Counsel 4 5 Craft claims that he suffered ineffective assistance of appellate counsel because the attorney representing him on appeal failed to appeal the issue of jury taint (Claim One). 6 A. Procedural Default 7 Craft raised this ineffective assistance claim in two of his state habeas petitions.2 The 8 California Court of Appeal denied the claim without comment or citation to authority. (Lodged 9 Doc. No. 8.) The California Supreme Court then denied the same claim citing to In re Clark, 10 855 P.2d 729 (Cal. 1993), and In re Miller, 112 P.2d 10 (Cal. 1941). (Lodged Doc. No. 12.) 11 In Miller, the California Supreme Court denied a habeas petition because a prior petition 12 was based on the same grounds set forth in the present petition and no change in the facts or 13 the law substantially affecting the rights of the petitioner has been disclosed in the interim. 112 14 P.2d at 10. By invoking Miller in the second state habeas petition to invoke ineffective 15 assistance, the California Supreme Court was in effect denying the petition for the same 16 reasons that it denied the previous one, Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (9th Cir. 17 1986), be it for substantive reasons, procedural reasons, or both. See also Karis v. Vasquez, 828 18 F. Supp. 1449, 1457 (E.D. Cal. 1993) (holding that a federal court will look through a state 19 court s citation to Miller to the basis for decision in the first state petition). Therefore, Miller 20 merely maintains the status quo as to what occurred when the same claims were raised in the 21 first state habeas petition, and does not act as a separate procedural bar to federal habeas review. 22 See Ylst, 501 U.S. at 804 n.3 ( Since a later state decision based upon ineligibility for further 23 state review neither rests upon procedural default nor lifts a pre-existing procedural default, its 24 effect on the availability of federal habeas is nil . . . . ). Accordingly, only the California Supreme Court s citation to In re Clark may provide a 25 26 27 28 2 Although Craft did not raise this claim on direct appeal, the Dixon bar does not apply to claims of ineffective assistance. See Robbins, 959 P.2d at 340 n.34 (so noting with respect to ineffective assistance of trial counsel). -11- 1 basis for finding Craft s ineffective assistance of counsel claim procedurally barred. The 2 citation to In re Clark could be an invocation of: (1) the bar on successive petitions, see 3 Robbins, 959 P.2d at 322 n.9 ( Clark serves to notify habeas corpus litigants that we shall apply 4 the successiveness rule when we are faced with a petitioner whose prior petition was filed after 5 the date of finality of Clark. ); (2) the bar on piecemeal claims, see Clark, 855 P.2d at 740 ( In 6 this state a defendant is not permitted to try out his contentions piecemeal by successive 7 proceedings attacking the validity of the judgment against him. (quotation omitted)); (3) the bar 8 on untimely petitions, see id. at 738 ( It has long been required that a petitioner explain and 9 justify any significant delay in seeking habeas corpus relief. ); or (4) all of the above, see id. at 10 760 (noting that the general rule is still that, absent justification for the failure to present all 11 known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely 12 petitions will be summarily denied ). As it is unclear whether the California Supreme Court 13 meant to invoke a procedural bar other than that on successive petitions, i.e., whether it cited 14 Clark for a different reason than Miller, the Court exercises its discretion to decide Petitioner s 15 claims on the merits. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) ( We do not mean to 16 suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily 17 should be. ); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ( Procedural bar issues 18 are not infrequently more complex than the merits issues presented by the appeal, so it may well 19 make sense in some instances to proceed to the merits if the result will be the same. ). 20 B. Merits 21 Clearly established federal law guides the Court s examination of ineffective assistance 22 of counsel claims. Delgado, 223 F.3d at 980. Specifically, in order to establish ineffective 23 assistance, a petitioner must show that counsel s representation fell below an objective standard 24 of reasonableness and that the deficient performance affected the result of the proceeding. 25 Strickland, 466 U.S. at 687 88. There is a strong presumption that counsel s conduct falls 26 within the wide range of reasonable professional assistance. Id. at 689. A reasonable tactical 27 decision by counsel with which the defendant disagrees cannot form a basis for an ineffective 28 assistance of counsel claim. See id. at 689 90. In order to demonstrate prejudice, [t]he -12- 1 defendant must show that there is a reasonable probability that, but for counsel s unprofessional 2 errors, the result of the proceeding would have been different. Id. at 694. The Supreme Court 3 defines a reasonable probability as a probability sufficient to undermine confidence in the 4 outcome. Id. 5 Moreover, federal habeas review of an ineffective assistance of counsel claim is doubly 6 deferential under AEDPA. Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). If a 7 state court has already rejected an ineffective-assistance claim, a federal court may [only] grant 8 habeas relief if the decision was contrary to, or involved an unreasonable application of, clearly 9 established Federal law, as determined by the Supreme Court of the United States. Id. at 5 10 (quoting 28 U.S.C. § 2254(d)(1)). The Strickland standard also applies to claims of ineffective assistance of appellate 11 12 counsel. Smith v. Robbins, 528 U.S. 259, 285 86 (2000). Appellate counsel does not have a 13 constitutional duty to raise every non-frivolous issue requested by a defendant. Jones v. Barnes, 14 463 U.S. 745, 751 (1983). Counsel must be allowed to decide what issues are to be pressed; 15 otherwise, the ability of counsel to present the client s case in accord with counsel s 16 professional evaluation would be seriously undermine[d]. Id. There is, of course, no 17 obligation to raise meritless arguments on a client s behalf. See Strickland, 466 U.S. at 687 88. 18 In particular, appellate counsel's failure to raise issues on direct appeal does not constitute 19 ineffective assistance when appeal would not have provided grounds for reversal. Wildman v. 20 Johnson, 261 F.3d 832, 840 (9th Cir. 2001). As discussed in Claim One, supra, any error committed by the trial court in refusing to 21 22 grant Craft a mistrial based on alleged jury bias was harmless. Because an appeal of this denial 23 would not have provided grounds for a reversal of his conviction, Craft cannot establish 24 ineffective assistance of appellate counsel based on failure to assert Claim One on direct appeal. 25 III. 26 Claims Two and Three: Eyewitness Identifications Craft claims that the procedures whereby the victim and witnesses identified him as the 27 perpetrator of the robbery were unduly suggestive and violated his right to due process. 28 // -13- 1 A. Legal Standard 2 Due process protects against the admission of evidence deriving from suggestive pretrial 3 identification procedures. Neil v. Biggers, 409 U.S. 188, 196 97 (1972). In a habeas action, a 4 federal court applies a two-step analysis to evaluate a petitioner s challenge to pretrial and 5 subsequent in-court identifications. United States v. Givens, 767 F.2d 574, 581 (9th Cir. 1985). 6 The first step is to determine whether the underlying pretrial identification procedure was so 7 impermissibly suggestive as to give rise to a very substantial likelihood of irreparable 8 misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968). This may occur when 9 the procedure emphasize[s] the focus upon a single individual. United States v. Bagley, 772 10 F.2d 482, 493 (9th Cir. 1985) (citations omitted); see also Simmons, 390 U.S. at 383 ( This 11 danger [of misidentification] will be increased if the police display to the witness . . . the 12 pictures of several persons among which the photograph of a single such individual recurs or is 13 in some way emphasized. ). Second, even if the pretrial identification procedure was 14 impermissibly suggestive, the court must decide whether, under the totality of the 15 circumstances, the identification was nonetheless reliable. Manson v. Brathwaite, 432 U.S. 98, 16 114 (1977); Neil, 409 U.S. at 198 200. The factors to be considered in determining reliability 17 are: (1) the witness s opportunity to view the criminal at the time of the crime; (2) the witness s 18 degree of attention; (3) the accuracy of the witness s prior description of the criminal; (4) the 19 level of certainty demonstrated by the witness at the confrontation; and (5) the length of time 20 between the crime and the confrontation. Neil, 409 U.S. at 199 200. Even if the pretrial 21 identification procedure was impermissibly suggestive and the identification was unreliable, 22 harmless error analysis applies. Foster v. California, 394 U.S. 440, 444 (1969) (remanding a 23 challenge to an in-court identification for harmless error analysis); United States v. Wade, 388 24 U.S. 218, 242 (1967) (same). 25 B. Claim Three: Photographic Montage Identification 26 Craft contends that he was denied due process by virtue of an unduly suggestive pretrial 27 photographic montage, and on this basis seeks to exclude both the pretrial and in-court 28 identifications made by Yobana and Lillian Campuzano. However, the California Court of -14- 1 Appeal s denial of Craft s claim was not contrary to clearly established federal law under 28 2 U.S.C. § 2254(d)(1). The Court of Appeal held that Craft must show the identification was 3 unduly suggestive as well as unreliable under the totality of the circumstances. Nor did the 4 Court of Appeal unreasonably apply federal law in denying Craft s claim. 5 6 1. Suggestiveness Craft argues that the photographic montage from which the Campuzano sisters each 7 identified him was unduly suggestive. Specifically, Craft claims that his photograph stood out 8 from the remaining five photographs for two reasons: (1) only Craft s photograph had a pure 9 white background; and (2) only Craft was wearing clothing a black t-shirt with red trim at the 10 collar matching the description of the perpetrator s clothing given by the Campuzano sisters. 11 The Court addresses each argument in turn. 12 13 14 15 16 17 18 19 20 21 22 First, with respect to Craft's challenge to the white background of his photograph, the California Court of Appeal concluded: The background of the five other pictures included in the lineup varies in color from dark gray to light gray. Only defendant s picture has a pure white background except for an area next to the left side of his neck. However, a difference in the color of the background does not in and of itself render a lineup suggestive. Moreover, defendant does not point to any evidence here that would support the conclusion that the white background was unduly suggestive to the Campuzanos. Although defendant cross-examined the witnesses about the details of the bases for their selection of him out of the lineup, both during the preliminary hearing and the trial, the testimony of the Campuzanos does not support an inference that they found the background color at all suggestive. At the preliminary hearing, when asked if the backgrounds of the photos were the same, the Campuzanos both said they did not remember. Indeed, in moving to exclude their identifications of him, defendant did not argue that the background made his photograph stand out; instead, he contended the clothing was the one factor alone [that] created an unnecessarily suggestive procedure. Absent any evidence suggesting the background of his photograph made him stand out from the others, we conclude this aspect of defendant s argument is unsupported. 23 (Lodged Doc. No. 4 at 7 8 (internal citations omitted) (alteration in original).) Having reviewed 24 a color copy of the same photographic montage examined by the Campuzano sisters, this Court 25 agrees with the Court of Appeal. The backgrounds are uniformly monochrome. No one 26 photograph stands out more than the others given that each background is at a different point on 27 the spectrum between white and black. See Mitchell v. Goldsmith, 878 F.2d 319, 323 (9th Cir. 28 -15- 1 1989). Nor does the testimony from either Yobana or Lillian Campuzano indicate that the 2 background color of the photographs in any way influenced their positive identifications of Craft 3 as the robber. (See Lodged Doc. No. 13 at 99, 140.) 4 In reviewing Craft s challenge to how the suspects in the photographic montage were 5 clothed, the California Court of Appeal considered the totality of the circumstances surrounding 6 the Campuzano sisters identification of Craft as the perpetrator. (Lodged Doc. No. 4 at 9 16.) 7 The Court of Appeal concluded that the trial court s findings that Yobana and Lillian identified 8 Craft in the photographic montage based primarily on facial features rather than clothing is 9 supported by substantial evidence. (Id. at 10 11, 15.) The Court of Appeal reasoned: 10 11 12 13 14 15 16 17 18 During the preliminary hearing and the trial, Yobana stated that although she noticed the black T-shirt with the red collar, she relied on the facial features to make the selection. She described the time she took and how she was able to eliminate three persons from the lineup based on their faces and their age. In fact, despite noticing defendant s clothing, she stared at all six pictures for about five minutes, and only through a process of elimination by looking at their facial features did she make the final selection. In addition, she knew she was not obligated to make a selection, and thus there was no pressure to find the person with the specific clothing was the perpetrator. .... Lillian knew the perpetrator might not be in the lineup, and she knew she was not obligated to pick anyone. Furthermore, she had multiple opportunities to see his face, not only inside but also outside in the parking lot and behind the Alpine Market. During the lineup identification, Lillian was able to eliminate three or four pictures based on their facial features and their age. Despite the fact that she recognized the particular clothing she saw on the perpetrator, it took her about 10 minutes to make the final selection, and the process she used was a process of elimination not based solely on the presence of the clothing. 19 (Id. at 11, 15.) This Court has examined the photographic montage admitted into evidence and 20 agrees that Craft is the only person in the montage wearing a black t-shirt, let alone a black t21 shirt with red trim around the collar. The record does not reveal why police used what may have 22 been Craft s booking photo on the day of his arrest showing him wearing the outfit described by 23 the witnesses. A better practice clearly would have been to select for the montage persons 24 photographed wearing the same or similar clothing. Alternatively, the photograph could have 25 been cropped at the shoulder line to avoid showing any clothing at all. Had this Court been 26 reviewing the montage on direct appeal in a federal criminal prosecution, its determination 27 might have been different. However, although this is admittedly a closer question than the 28 -16- 1 challenge to the background color, this Court cannot conclude that the California Court of 2 Appeal unreasonably applied federal law in determining that Craft s distinctive attire did not 3 make the photographic montage unduly suggestive. The state courts found the testimony of the 4 Campuzano sisters credible, and Craft has not rebutted the presumption of correctness Congress 5 has directed, through AEDPA, that this Court must accord to that finding. See 28 U.S.C. § 6 2254(e)(1). Based on the factual determination that their testimony was credible, it was not 7 objectively unreasonable for the state courts to conclude that the Campuzano sisters did not 8 simply settle for the one individual in the photographic montage whose clothing matched that 9 of the perpetrator. Rather, credible evidence shows that the sisters carefully and methodically 10 examined the facial features of the six suspects before identifying Craft as the perpetrator. Even 11 though Craft s clothing may have contributed to the certainty of the sisters identifications, the 12 photographic montage was not so impermissibly suggestive as to give rise to a very substantial 13 likelihood of irreparable misidentification. Simmons, 390 U.S. at 384. 14 15 2. Reliability Craft further argues that the Campuzano sisters identifications were unreliable under the 16 totality of the circumstances. He claims that neither woman had the opportunity or clarity of 17 mind to adequately observe the perpetrator s facial features, that their descriptions of the suspect 18 were vague and failed to include aspects of Craft s appearance upon arrest, and that any 19 certainty in their identifications of Craft was undermined by their admitted reliance on Craft s 20 distinctive clothing in the photographic montage. 21 As the California Court of Appeal did not reach the question of reliability, the Court will 22 undertake an independent review of the record. See Pirtle, 313 F.3d at 1167. Contrary to 23 Craft s contentions, the totality of the circumstances indicates that the Campuzano sisters 24 identifications were reliable. Upon leaving the bathroom where he attacked Acosta, the robber 25 looked directly at the two women. (Lodged Doc. No. 13 at 69, 115; Lodged Doc. No. 15 at 136, 26 189, 194.) Lillian followed the robber outside and continued to watch him from a distance for 27 several minutes. (Lodged Doc. No. 13 at 116 17; Lodged Doc. No. 15 at 196 200.) As both 28 women approached the bathroom with the suspicion that someone was either being robbed or -17- 1 having a heart attack, it is proper to infer that they were paying attention to their surroundings. 2 (Lodged Doc. No. 13 at 66 67, 112.) The sisters described the robber to the police as a black 3 man in his mid-thirties to early-forties, wearing blue jeans, a black t-shirt with red trim around 4 the collar, and a black baseball cap. (Id. at 68, 87 89, 128 30, 136; Lodged Doc. No. 15 at 5 135 36, 189.) These descriptions were generally accurate, omitting only Craft s closely cropped 6 facial hair and yellow writing on the front of his shirt. Both women expressed a high level of 7 certainty in their in-court identifications Yobana indicated she was 99 percent certain that 8 Craft was the robber, and Lillian indicated that she was between 85 and 90 percent certain. 9 (Lodged Doc. No. 13 at 104, 141 42.) Although Craft s clothing factored into their decisions, 10 both women carefully scrutinized the suspects facial features before identifying Craft. Finally, 11 only two months elapsed between the robbery and the preliminary hearing at which the 12 Campuzano sisters made their first in-court identification of Craft. Therefore, even if the 13 pretrial photographic montage was impermissibly suggestive, under the totality of the 14 circumstances, application of the Neil factors indicates that the identifications of Craft by 15 Yobana and Lillian Campuzano were nonetheless reliable. 16 C. Claim Two: Showup Identification 17 Craft claims that he was denied due process by virtue of an unduly suggestive pretrial 18 showup identification, and on this basis seeks to exclude both the pretrial and in-court 19 identifications made by victim Bolivar Acosta. He contends that the showup is improper under 20 Stovall v. Denno, 388 U.S. 293 (1967), because not justified by any exigency. He also argues 21 that Acosta s identification was unreliable under the totality of the circumstances given that: 22 (1) at the time Acosta saw the perpetrator he was not wearing his eyeglasses and had been 23 washing his face; (2) Acosta s description of the perpetrator was vague; (3) the certainty of 24 Acosta s identification of Craft was undermined by allegedly suggestive techniques used by the 25 police in conducting the showup; and (4) Acosta based his identification solely on Craft s attire. 26 On direct review, the California Court of Appeal declined to address the constitutionality of 27 Acosta s showup and in-court identifications, finding instead that their admission, even if 28 erroneous, was harmless. (Lodged Doc. No. 4 at 16 17.) -18- 1 This Court agrees that, even if Acosta s showup identification was unduly suggestive 2 and unreliable, admission of his pretrial and in-court identifications of Craft would at most 3 constitute harmless error. As the California Court of Appeal aptly explained: 4 5 6 7 8 9 10 11 12 13 14 15 16 Here, independent of Bolivar, the Campuzanos reliably identified defendant as the perpetrator. The two sisters both observed defendant walk out of the bathroom, they both saw his face and observed his facial features, his clothes and general features, and they both independently were able to recall those features, describe them to the police, and subsequently identify defendant as the assailant with a high degree of certainty. In addition, the evidence showed that defendant, who matched the description of the assailant, was found hiding nearby in possession of the stolen watch. At the time of his arrest, even before defendant was told he was suspected of robbery, he blurted out that he did not rob anybody and then immediately offered a patently incredible explanation of how he happened to be in possession of the stolen watch and why he was hiding in the bushes in someone s backyard. Furthermore, the jury was instructed pursuant to CALJIC No. 2.92 on the various factors to be considered in determining the weight to be given eyewitness identification testimony. Also, the jury heard the testimony of a defense expert on the subjects of human perception, memory, and eyewitness identification, including cross-racial identification. Given that Bolivar had only one or two seconds without his glasses to see defendant, and given the testimony of the defense expert and the jury instruction on eyewitness identification, we are convinced the jury gave little if any weight to Bolivar s identification of defendant. Rather, we believe that in reaching its verdict, the jury relied on the strong identifications given by the Campuzanos and defendant s incredible explanation of why he was found hiding in the bushes with the stolen watch. 17 (Lodged Doc. No. 4 at 17 18.) Given this strong corroborative evidence of Craft s guilt, the 18 Court cannot find on habeas review that Acosta s identifications had substantial and injurious 19 effect or influence in determining the jury s verdict. Brecht, 507 U.S. at 623 (quoting 20 Kotteakos, 328 U.S. at 776). 21 Therefore, the state court decision rejecting Craft s challenge to Acosta s identifications 22 was not contrary to nor an unreasonable application of clearly established federal law, nor was it 23 based on an unreasonable determination of the facts in light of the evidence in the record before 24 this Court. 25 26 27 28 -19- 1 Therefore, it is hereby 2 ORDERED that Craft s petition for a writ of habeas corpus pursuant to 28 U.S.C. 3 § 2254 is DISMISSED IN PART and DENIED IN PART. The case is DISMISSED with 4 prejudice. 5 The Clerk is directed to enter the accompanying Judgment and to send uncertified copies 6 of this Order and the Judgment to all counsel of record and to any party appearing pro se at said 7 party s last known address. 8 DATED this 22nd day of October, 2009. 9 10 /s/ Richard C. Tallman UNITED STATES CIRCUIT JUDGE Sitting by designation 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20-
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