Opinion
No. C 02-01706 CRB
August 8, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Bobby Ray Barker is a California prisoner who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's claim. Respondent has filed an answer, along with exhibits. Petitioner has filed a traverse.
FACTUAL AND PROCEDURAL BACKGROUND
The California Court of Appeal summarized the facts of the case in the following terms:
Prosecution's Case
Defense Case
At trial, Monsour "Sam" Katwan (Katwan) testified that . . . [o]n September 4, 1998, shortly after noon, he was at work at the Willow Road Market when Marc Mandarich (Mandarich) came in to purchase a drink. Mandarich went to the rear of the market.
Another man entered the market, approached Katwan, and with "his hands on a gun on the side, " said "hold up, give me all your money." Katwan gave the robber all the money in the cash register. When the robber demanded the contents of a file cabinet, Katwan gave him three bags of coins from the cabinet as well. The robber threatened to kill Katwan if he did not give him all of the money.
Katwan later identified the robber as Barker. He recognized Barker because, he claimed, Barker had entered his store on previous occasions over the past several years, on an average of two to three times a week in the previous months. The parties stipulated, however, that except for 12 days in 1997 and certain days in 1998, Barker had been in continuous custody since October 1996.
When Mandarich walked to the front of the store, the robber pointed a chrome-plated nine millimeter weapon at his face from 10 feet away and said, "freeze, buddy, don't move." Mandarich complied and the robber turned back toward Katwan. Mandarich identified Barker in court as the robber, explaining "his face is burned indeliby in my mind."
After the robber left the store, Mandarich pursued him, but lost sight of him. He then spotted the robber alone in a small red car, possibly a Toyota, pulling away from the curb. He observed the car's license plate number, repeated it to himself as he ran back into Katwan's store, and told the 911 operator that the robber was in a red Toyota Tercel with the license number 3 PKD 366 or 336.
Mandarich's recollection of the robber's attire differed from Katwan's. Mandarich told the 911 dispatcher that the robber wore black clothing with white trim on the shirt collar, and an unusual white hat which, he testified, was "something I'll never forget" because of its elongated bill. Katwan told the 911 dispatcher that the robber was wearing gray and had no hat.
About an hour after the robbery, Menlo Park Police Officer Alex Bouja observed a red Kia with the license number matching that which had been broadcast. . . . Officer Bouja recognized the driver, who appeared to be the only occupant, as Pauline Barker (Ms. Barker). . . . Officer Bouja informed her that the car might have been involved in "an activity" earlier that morning. She stated she had not driven the car that morning, but her son (appellant) had used the car to check in with his parole office and had returned it to her about half an hour earlier (i.e. about 1:00 p.m.).
Menlo Park Police Detective James Simpson testified that he arrived at the car stop and informed Ms. Barker the car she was driving had been used in a crime. She replied that her son "had had it earlier." The police searched the Kia but found no money or gun. Detective Simpson took a picture of the car, and at trial, Mandarich confirmed the red Kia in the photograph could be the car he saw the robber drive.
Learning that Barker was on parole, Detective Simpson obtained a Polaroid photograph of Barker from his parole agent. The photograph had been taken four days earlier, shortly after Barker's release from prison. Detective Simpson used the photograph to construct a six-person photo array (People's exhibit 3), which he showed to Mandarich approximately two hours after the robbery. Detective Simpson admonished Mandarich that the robber may or may not be in the lineup. Barker was the only one depicted in a shirt with a black collar and white trim, like the shirt Mandarich had described to the 911 operator. Mandarich looked at the array and "almost immediately" picked out Barker's picure. He then asked to see the photograph again, and he confirmed that Barker was the robber.
Because Katwan had returned home after the robbery before Detective Simpson had composed the photographic lineup, and because of the intervening weekend, Detective Simpson did not show the same photo array to Katwan until Monday, September 8. He admonished Katwan that the robber may or may not be depicted. Katwan selected Barker's picture as that of the robber. At trial, Katwan explained that he did so "[b]ecause I saw the robber in my — I saw him in my store, and I picked up his picture."
On September 11, 1998, the police made up a "wanted" flyer about the robbery which included Barker's picture. The police gave the flyer to Katwan's brother, who later showed it to Katwan. The flyer was posted in Katwan's store until Barker was arrested several weeks later. Katwan looked at the picture and read the accompanying information about Barker's criminal history. He took the poster down after he learned Barker had been arrested.
On December 10, 1998, Mandarich and Katwan attended a physical lineup, composed of Barker and five others, at the San Mateo County jail. Detective Simpson asserted nothing unusual occurred during the lineup. He noted that at one point Katwan glanced around, but he did not see Katwan make eye contact with anyone or make any signal or gesture. However, the deputy sheriff conducting the lineup stopped the process and reminded the viewers not to communicate with each other.
After the lineup, Detective Simpson interviewed Katwan and Mandarich separately, and each identified Barker as the robber. At trial, Katwan explained that he picked out Barker because he was the robber, and not because anyone told him to. Mandarich testified he picked out Barker "In about two seconds" as soon as he saw him. Katwan's glance, Mandarich explained, took place near the end of the lineup and was not a signal. Mandarich added that he would not let anyone influence him in the identification process, because he would not want someone to be wrongly convicted.
According to Ms. Barker, sometime after 11:00 a.m. on the day of the robbery, Barker told her he needed to see his parole officer. She claimed, however, that she told her son to take her Mercedes-Benz, and then she left in the red Kia, which remained in her possession until Officer Bouja followed her. Ms. Barker conceded she did not tell the police that Barker had her Mercedes-Benz, but denied telling the police her son had the red Kia earlier that day.
Barker's defense was an alibi-mistaken identification defense. Andwaunnia Carter (Carter), Barker's girlfriend, testified that Barker was with her at the time of the robbery and did not rob Katwan. Earlier that morning, Barker went to his mother's house to borrow her green Mercedes-Benz, and Barker and Carter drove to the parole office. The parole officer was not there, and the two returned to Carter's home.
LaTonya Cannon, Barker's cousin, who lived with Barker's mother in East Menlo Park at the time of the robbery, offered that Barker came by on the morning of the incident, changed clothes, and borrowed his mother's Mercedes-Benz to see his parole officer. She asserted that Barker's mother was not home at that time.
Ex. D. at 1-5 (footnotes omitted).
The jury convicted petitioner of robbery, see Cal. Pen. Code § 211, but acquitted him of other related counts. Because petitioner had been convicted of a prior serious felony, the trial court doubled the five-year minimum term for robbery, see id. § 1170.12(c)(1), and assessed a five-year "serious felony" enhancement, see id. § 667(a), plus a one-year "prior prison" enhancement, see id. § 667.5(b). In total, therefore, petitioner was sentenced to sixteen years in prison for this offense.
Petitioner appealed to the California Court of Appeal, contending that he was denied due process by the admission at trial over his objection of identification testimony that was the product of allegedly impermissibly suggestive pretrial identification procedures, and that this error was prejudicial. The California Court of Appeal denied petitioner's direct appeal, and the California Supreme Court denied review.
On April 10, 2002, petitioner filed a petition for a writ of habeas corpus in this Court.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court 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); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state courts 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). Habeas relief is warranted only if the constitutional error at issue ""had substantial and injurious effect or influence in determining the jury's verdict."' Penry v. Johnson, 532 U.S. 782, 795 (2001) (quotingBrecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254 (e)(1).
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.), cert. denied, 531 U.S. 944 (2000).
B. Legal Claim: Due Process Was Denied Because of Impermissibly Suggestive and Unreliable Identification
To obtain federal relief for an unconstitutional identification procedure claim, the petitioner must show that the reliability of the in-court identification has been impaired by a pretrial procedure "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377 (1968). If it appears that the pretrial procedure was unnecessarily suggestive, the court must then determine if the identification is nevertheless reliable. Manson v. Brathwaite, 432 U.S. 98, 113-14 (1997). "If under the totality of the circumstances the identification is sufficiently reliable, identification testimony may properly be allowed into evidence even if the identification was made pursuant to an unnecessarily suggestive procedure." Id. Identification evidence is for the jury to weigh unless there is a showing of "a very substantial likelihood of irreparable misidentification." Manson, 432 U.S. at 116.
Petitioner contended in the California Court of Appeal that the trial court erred when it denied his motion to suppress his identification. He argued that the photo array and the physical lineup were unduly suggestive, and that these pretrial identification procedures tainted the in-court identifications.
Petitioner makes much the same points in his habeas petition as he did to the California Court of Appeal. Petitioner asserts that the clothing that he had on in the photo lineup made him distinctive and so constituted an "unfair suggestion." The state appellate court specifically discussed and rejected this contention, stating:
In our review of . . . all six photographs included in the array, we agree with the trial court that it seems unlikely that anyone would focus on [his] collar. Indeed, there was no evidence that anyone did focus on it. Katwan would not have, since he recalled the robber was wearing gray, not a black collar with white trim. Nor does it appear to have affected Mandarich, since he testified he identified Barker because he was, in fact, the robber. Mandarich asserted he did not even notice the similarity in clothing until Barker's attorney pointed it out to him.
Petitioner relies on Foster v. California, 394 U.S. 440 (1969), for the proposition that distinctive clothing is a recognized form of undue suggestiveness. The state appellate court was correct in finding that petitioner's reliance on Foster is misplaced. As the state court noted, while it is true that the defendant in Foster was the only one in the lineup wearing a leather jacket similar to the one the robber in that case was said to have worn, the court's conclusion that the lineup was unfair was based on several additional considerations. First, the defendant in Foster was far taller than the other individuals in the lineup. Second, the defendant was the only defendant in a second lineup who appeared in the original lineup. See id. at 441-442. There are no analogous circumstances in the instant case.
Petitioner also argues that the photo lineup was simultaneous rather than sequential and that "scholarly literature" establishes that simultaneous viewings are inherently suggestive. However, he fails to cite to any controlling federal precedent on this issue. In the absence of such authority, the state court did not err by rejecting this argument.
Petitioner next asserts that the "wanted" poster that police supplied to Katwan bearing petitioner's image fixed petitioner's face in Katwan's mind and thereby unfairly influenced Katwan's identification at the time of the physical lineup. However, Katwan testified that he recognized petitioner at the time of the robbery because he had come into the store on previous occasions, not because of the "wanted" poster. In rejecting petitioner's contention, the state appellate court observed that Katwan did not see the "wanted" poster until after he had identified petitioner in the photo lineup. The state appellate court did not err in determining that the wanted poster was not impermissibly suggestive under these circumstances.
Petitioner also asserts that the physical lineup was tainted because it was conducted as a joint viewing during which Katwan and Mandarich allegedly communicated with each other. The defense attorney watching the lineup testified that when defendant was called forward. Mandarich and Katwan looked at each other and one of them, though he could not remember which, nodded to the other. Accepting this testimony as true, the trial court found that the identifications were nonetheless reliable. See Ex. B-1 at 141; see also Manson, 432 U.S. at 113. After observing the testimony of Katwan and Mandarich, the trial court found that "the identifications are a product of their memory and their ability to identify the perpetrator, and not the product of any improper suggestion." Ex. B-1 at 141. The trial court then correctly noted that "[w]hether these two witnesses are correct in their identification or not, is a matter for the jury to determine. . . ." Id.; see Watkins v. Sanders, 449 U.S. 341, 347 (1981). The state appellate court found that the trial court's factual determination was supported by substantial evidence, and petitioner presents nothing to compel a finding of clear error.
The California Court of Appeal found that neither the photo array nor the live lineup was unduly suggestive, but still proceeded to address whether the identifications were reliable under the totality of the circumstances. See Manson, 431 U.S. at 116. The court wrote:
Although Katwan and Mandarich observed the robber for only about a minute under extremely stressful conditions, the robbery occurred in daylight and the robber did not disguise his face. Katwan saw him clearly from approximately three feet away, Mandarich saw the robber's face from a distance of 10 feet and testified it was burned indelibly in his mind. Further, Katwan's and Mandarich's testimony suggests their attention was substantially focused on the robber. Their physical description of the perpetrator is not claimed to differ from Barker in height, weight, complexion, absence of glasses, gender, or race. The license number Mandarich reported to 911, but for one digit, matched the license plate number of Barker's mother's car, which met the general description of the car driven by the robber. The identifications occurred promptly after the incident, as Mandarich identified Barker from the photo array merely two hours after the robbery, and Katwan identified Barker's photograph a few days later. Katwan and Mandarich were both certain of their identifications throughout the identification process. At bottom, the totality of circumstances overwhelmingly demonstrates that the identifications were reliable.
Barker points out that Katwan and Mandarich had different recollections of the robber's attire and, to some extent, the incident. Innocent differences in eyewitnesses' recollections of an even are not uncommon, however, and the jury was instructed it could take such discrepancies into consideration . . . [citing Manson, 432 U.S. at 116 ("Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.")].
We conclude not only that the identification procedures were sufficiently free from undue suggestion, but also that the identifications themselves were reliable in the totality of the circumstances. Barker's due process rights were not violated.
Ex. D at 10-11. This court agrees.
Petitioner is not entitled to federal habeas relief on his claims. The California Court of Appeal's decision correctly identifies controlling Supreme Court precedent and is not an unreasonable application of that precedent. The decision was not based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254 (d);Williams, 529 U.S. at 412 (2000). Petitioner has failed to establish that the California Court of Appeal's decision was clearly erroneous. See Van Tran, 212 F.3d at 1159.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is hereby DENIED.