Opinion
No. C 01-1583 CRB (PR)
November 22, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Tony Burch ("Petitioner") was convicted of two counts of residential burglary by a jury in Superior Court of the State of California in and for the County of Santa Cruz. In a bifurcated proceeding, the trial court found that petitioner had been convicted of six prior serious felonies which counted as "strikes" under California's Three Strikes Law. Petitioner was sentenced to 98 years to life.
Petitioner appealed and on October 27, 1999, the California Court of Appeal affirmed the judgment of conviction, but concluded that the trial court committed sentencing error. The Court of Appeal reduced Petitioner's sentence to 83 years to life. The Supreme Court of California denied review on January 19, 2000.
Petitioner then filed the instant federal petition for writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 10, 2001, the court found that the petition stated cognizable claims under section 2254 and ordered Respondent to show cause why a writ of habeas corpus should not be granted. Respondent moved to dismiss the petition as untimely and unexhausted. The court found that the petition was timely, but that it contained both exhausted and unexhausted claims. Petitioner moved to waive his unexhausted claim and proceed with the two exhausted claims. On March 12, 2002, the court granted Petitioner's motion and ordered Respondent to show cause why a writ of habeas corpus should not be granted Respondent filed an answer on May 13, 2002. Petitioner did not file a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
In 1993, in superior court case No. CR 6978, defendant [Tony Burch] was charged with two counts of residential burglary (§§ 459, 460). He pled guilty to those charges, and the trial court found true four allegations that he had been convicted of a prior serious felony (§ 667. subd. (a)) and one allegation that he had served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a prison term of 25 years 4 months, but the trial court suspended the sentence and placed defendant on probation for three years.
On June 9, 1995, defendant's probation was ordered revoked and a bench warrant issued for his arrest. He was apparently never arrested until 1996, when he was charged with two burglaries that had occurred two days apart in Santa Cruz.
The first burglary occurred on the afternoon of September 8, 1996, at a senior citizens' apartment complex located at 3050 Dover Drive. The burglarized apartment belonged to Ila Hopson, who was at work. Nancy Young, who lived directly above Hopson, was at home. She heard a cracking sound and went to her window. She saw a black man wearing a white sweatshirt. The sweatshirt had a yellow circle on the front and some writing on it. The man was wearing black pants and shoes that were black on the top and white on the bottom. He appeared to be over 30 years old and had a bald spot on the back of his head.
Young saw that a white plastic chair had been placed against the wall of the downstairs apartment. She saw the man pick up the chair and throw it over the landing. The man then took a fence gate and placed it against the building. He used the fence gate to climb towards Hopson's window. He removed the screen from the window, threw it over the landing, and climbed in the window. A few minutes later, he exited back out the window, carrying a small bundle.
Deputy Sheriff John Barden responded to Young's subsequent call. He found the white plastic chair, the window screen, and the fence gate. Neither the fence gate nor the screen was conducive to fingerprints, but he was able to lift several prints from the white plastic chair. He later determined that the prints belonged to defendant.
Deputy Sheriff Fred Plageman later showed Young a photographic lineup, but she was unable to identify any of the persons pictured. She explained that she had only seen the burglar from above and therefore did not see his face. Deputy Plageman also showed Young some photographs of clothing that had been recovered from defendant. Although a sweatshirt seemed to match Young's description of the one worn by the burglar, Young said it was not the same one, because the circle and writing were in the wrong place.
Hopson was notified of the burglary while she was still at work. She returned home and discovered several missing items: a container of silver coins, a roll of quarters, and a pajama top.
The second burglary occurred on September 10, 1996, at 1322 River Street, where Terry Easton lived with several housemates. At about 1:35 p.m., Easton was studying in an upstairs room. He heard noises in the downstairs portion of the house and assumed that one of his housemates had returned home. He then heard footsteps coming upstairs. He turned to greet the person, but discovered it was not one of his housemates. The person saw Easton and ran back down the stairs and out the house. Easton followed. He saw the person, who was carrying something, run past a window. Easton went out the front door and saw the person running toward a maroon-colored jaguar. He asked, "What are you doing? What's going on?" Without responding, the person entered the car and sped off
Easton memorized the license plate number of the Jaguar. He went into the house, where he wrote down the license plate number and called the police. Easton described the person as either a Hispanic male or a light-skinned black male. The person had a light mustache and a balking hairline that ran straight across his head. He was in his late 30s to early 40s about six feet tall, and about 200 pounds.
Easton discovered that the burglar had entered through the sliding glass door in the rear of the house, which had been left open. He later discovered that a camera and a container of coins were missing.
Easton was shown a photographic lineup, which pictured defendant in the fifth Position. Easton circled the photographs in the third and fifth positions and wrote "most like Number 5." He stated that he wanted to see the suspect in person so that he could view the person's body, which would help him be certain of his identification.
At a subsequent physical lineup, Easton immediately selected defendant, who was placed in the fourth position, as "the gentleman who was outside my house." He also told the police that he remembered defendant from the photographic lineup. Easton further commented that the person in the third position looked similar to the burglar.
Defendant was arrested on September 12, 1996. At 6 a.m. that day, Santa Cruz Police Officer Martin Zemanek was on patrol when he discovered a maroon Jaguar parked in a turnout on West Cliff Drive. The license plate number of the Jaguar closely matched the license plate number reported by Easton.
Officer Zemanek discovered defendant sleeping in the driver's seat of the Jaguar, which was registered to defendant. Terry Swain was asleep in the front passenger seat. Officer Zemanek arrested both men and then searched the car. He found a glass tube used for smoking crack cocaine and a steel wool pad used as a filter for smoking crack cocaine. Another officer later performed a further search of the Jaguar and discovered a small bindle containing .04 grams of rock cocaine.
Defendant was charged, by information in superior court case No. S6-09576, with two counts of residential burglary (§§ 459, 460) and one count of possession of a controlled substance (Health Saf. Code, § 11350, subd. (a)). The information alleged that defendant had suffered six prior serious felony convictions (§ 667, subd. (a)), which qualified as "strikes" (§ 1170.12), and that defendant had served a prior prison term (§ 667.5 subd. (b)).
Defendant was also charged with violating his probation in superior court case No. CR-6978. He brought a motion requesting that the probation revocation proceedings be delayed until after the preliminary hearing on the charges in superior courts case No. S6-09676. The trial court denied the motion. At a hearing on April 22, 1997, the trial court found defendant in violation of his probation. At a subsequent sentencing hearing, the trial court imposed the previously suspended sentence of 25 years, 4 months.
At trial on the charges in superior court case No. S6-09576, defendant presented two witnesses on his behalf The first was Darren Davison, an investigator with the public defender's office. Davison testified that he attended the physical lineup at which Easton identified defendant. He identified photographs of the lineup participants and described his impressions of three of them. The person in the third position had a large, noticeable birthmark or mole on his face. The person in the second position was very dark-skinned, younger than defendant, and did not resemble defendant at all. The person in the sixth position had skin coloring that was similar to defendant's skin colors but also had tattoos on his neck.
Defendant's second witness was Robert Shomer, a psychologist who had previously testified at the probation revocation hearing. Shomer described the various factors pertinent to an accurate identification, including the circumstances of the initial observation, the intervening time and circumstances between the initial observation and the identification, the fairness of the identification procedure, and the circumstances subsequent to the identification. He explained that the stress of an event may affect the accuracy of a later identification and that cross-racial identifications tend to be less accurate. He further explained that if identification procedures are unfair, the result may be an identification based on the procedures rather than the witness's memory. In addition, he explained that a witness's confidence in his or her identification tends to increase with time although the accuracy of the identification actually decreases with time.
Shomer was given a hypothetical identification procedure similar to the one utilized in this case, described as follows. The witness views a photographic lineup and selects two people, identifying one as most likely to be the perpetrator of the crime The witness then views a physical lineup that includes the person selected as most likely to be the perpetrator, but not the other person selected. Shomer testified that this would be a flawed procedure, because the person previously selected would appear more familiar-to the witness.
Shomer also opined that the photographic lineup procedure employed in this case was flawed, because not all of the subjects fit Easton's description of the burglar. He opined that defendant appeared to be the shortest and fattest of the six persons, and that defendant was the only subject with a high hairline. He testified that he had conducted an experiment: he gave 15 people Eastons' description of the burglar and then had them select a subject from the photographic lineup: 14 or 15 people selected defendant's photograph.
The jury convicted defendant of both burglary charges and the charge of possession of a controlled substance. At sentencing, the trial court imposed consecutive indeterminate terms of 34 years to life for the two burglaries pursuant to section 1170.12, subdivision (c)(2)(A)(iii). It imposed a consecutive determinate term of 30 years, comprised of five years for each of the six prior serious felony enhancements (§ 667, subd. (a)). The trial court imposed, concurrently, the middle term of two years for count 3, possession of a controlled substance. (Health Saf. Code, § 11350, subd. (a).) It stayed the one-year term for the prior prison term allegation. (§ 667.5, subd. (b).) Finally, the trial court noted that the sentence would run consecutively to the sentence imposed for the probation violation case (superior court case No. CR 6978).People v. Burch, No. H018260, slip op. at 3-8 (Cal.Ct.App. Oct. 27, 1999) (footnotes omitted) (Resp't Ex. 3).
DISCUSSION
I. Standard of Review
This Court may entertain a petition for writ of habeas corpus "on 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).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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." Id. § 2254(d).
"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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 'Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
In the Ninth 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. 2000).
II. Claims
Petitioner raises two cognizable claims for relief under § 2254: Suggestive identification procedures and failure to give proper instructions.
A. Suggestive Identification Procedures
Petitioner argues that both the photo and physical lineup at which he was identified by Terry Easton were unduly suggestive. As to the latter, he specifically argues that it was suggestive because it did not include the other person that Easton identified during the photo lineup. The California Court of Appeal found that petitioner had waived the claim of undue suggestiveness as to the photo lineup by failing to object specifically to that identification proceeding at trial. As such, the court did not address the merits of this claim. The Court of Appeal also found that the trial court did not err by failing to suppress Easton's identification of Petitioner as unduly suggestive.
The California Court of Appeal applied the standard outlined in People v. Ochoa, 19 Cal.4th 353, 412 (1998), which states:
The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary . . .; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation . . . . If, and only if the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable . . . . In other words, if we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.
The state appellate court held that under independent review, the physical lineup was not unduly suggestive. The court went on to explain that even assuming the physical lineup procedures were unduly suggestive, the identification itself was nevertheless reliable under the totality of the circumstances for the following reasons:
Easton had three opportunities to see the burglar at his house. The observations occurred during the daytime. Easton was no more than 15 feet from the burglar during each observation. His description of the burglar was vividly detailed. At trial, Easton explained that he "still ha[d] a vivid memory in mind of the gentleman outside of my house," and that he recalled what burglar looked like "from the memory of the event."People v. Burch, No. H018260, slip op. at 12.
1. Federal Standard
A defendant is denied due process of law if identification procedures are so unduly suggestive as to give rise to a substantial likelihood of mistaken identification. See Neil v. Biggers, 409 U.S. 188, 196-98 (1972); United States v. Jones, 84 F.3d 1206, 1209 (9th Cir. 1996). The admission of evidence at trial deriving from suggestive pretrial identification procedures therefore may violate due process. See Neil, 409 U.S. at 196.
Use of an impermissively suggestive pretrial identification procedure does not automatically exclude in-court identification testimony. Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977); Neil, 409 U.S. at 198-99. Even if a suggestive procedure was employed, in-court identification may properly be allowed into evidence if the identification is reliable under the totality of the circumstances. Id United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985).
In considering whether the in-court identification is sufficiently reliable under the totality of the circumstances, a court should consider the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the pretrial identification; and (5) the length of time between the crime and the pretrial identification. Neil, 409 U.S. at 199-200; Bagley, 772 F.2d at 492. A sufficiently reliable identification presents "no substantial likelihood of misidentification" Neil 409 U.S. at 201.
2. Legal Anlaysis
a. Photo lineup
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal ground and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). A defendant who fails to observe a state's "contemporaneous objection" rule therefore may be barred from litigating his constitutional claim in federal court. See Engle v. Isacc, 456 U.S. 107, 124-29 (1982). Here, where the California Court of Appeal found that petitioner's photo lineup claim was procedurally barred under California's contemporaneous objection rule, "to obtain habeas relief under federal law [petitioner] must demonstrate cause and prejudice. Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (recognizing and applying California's contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default). Petitioner makes no such showing. The claim accordingly is barred from federal habeas review.
b. Physical lineup
The California Court of Appeal's rejection of Petitioner's physical lineup claim was not contrary to federal law nor was it based on an unreasonable application of federal law. The identification procedures used by Easton in identifying Petitioner were not impermissively suggestive, and his identification of Petitioner was not unreliable.
The Ninth Circuit has acknowledged that, as with all photographic identification procedures, there is a possibility that a photo lineup may taint the later identification, but it is not per se illegal. See United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (overruled on other grounds by Luce v. United States, 469 U.S. 38, 40, fn.3 (1984)). In Cook, a witness identified the defendant first in a photo lineup, then from a physical lineup. The witness stated that he recognized the defendant both as the person he had seen perpetrating the crime and from the previous photographic lineup. In rejecting defendant's claim of unduly suggestive identification procedures, the court explained that "the suggestion, if any, was not so great as to create a substantial likelihood of misidentification," because the witness got a second look at the perpetrator, gave police a description of the perpetrator shortly after the offense that "reasonably fit" the defendant, immediately recognized the defendant upon seeing him person at the physical lineup, and stated that although he recognized the defendant from the photo lineup his identification was based on his observations at the time of the crime.Id. at 1179.
The instant case is substantially similar to Cook. The record shows that even if the lineup procedures were suggestive, the identification was still reliable: Easton made the identification after he had the opportunity to view the criminal several times at the time of the crime and his description was vivid, accurate, and certain. Furthermore, he testified at trial that his in-court identification was made from the memory of the event. Cf id. The California Court of Appeal's rejection of Petitioner's claim accordingly cannot be said to be "clearly erroneous."Van Tran, 212 F.3d at 1159. Petitioner is not entitled to federal habeas relief on this claim.
B. Failure to Give Instruction
Petitioner contends that he was denied the right to present a defense because the trial court failed to instruct, sua sponte, on third party culpability. Specifically, Petitioner argues that the trial court should have included an instruction explaining that he did not have the burden of proving third party culpability beyond a reasonable doubt.
The California Court of Appeal held that the trial court was not required to give, sua sponte, a third party culpability instruction because Petitioner did not present substantial evidence to support the theory that another person committed the burglaries. People v. Burch, No. H018260, slip op. at 12-13 (citing People v. Breverman, 19 Cal.4th 142 (1998) ("the sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case'")). The court explained that while Petitioner argued that Swain, the individual found with him when he was arrested, committed the burglaries, there was no direct or circumstantial evidence linking Swain to the actual perpetration of the crime. Id. at 13.
The California Court of Appeal also held that Petitioner's counsel was not ineffective for failing to request an instruction on third party culpability. The court found that even if Petitioner's counsel failed to act in a manner to be expected of a reasonable competence attorney, Petitioner was not prejudiced under Strickland v. Washington, 466 U.S. 668 (1984). The court reasoned that there was no prejudice because given the instructions as a whole, "a reasonable juror would not have believed that it was defendant's burden to prove beyond a reasonable doubt that a particular third party committed the burglaries"; and "the evidence of guilt was quite strong." People v. Burch, No. H018260, slip op. at 14-15.
The ineffective counsel claim was not raised in this habeas petition.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a prisoner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id.
1. Federal Standard
The first step in determining constitutional error from the jury charge is whether there is a "reasonable likelihood" the jury applied the instructions as a whole in a way that prevented consideration of constitutionally relevant evidence. Calderon v. Coleman, 525 U.S. 141, 146 (1998). And, even if there was constitutional error, the petitioner is not entitled to relief unless the record demonstrates that the instructional error "'had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
More recently, the Supreme Court held that habeas relief is also appropriate if the record on collateral review leaves the judge in "grave doubt" as to the effect of the constitutional error. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (relief granted because record so evenly balanced that conscientious judge in grave doubt as to harmlessness of error). In such circumstances, "the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a "substantial and injurious effect or influence in determining the jury's verdict')." Id. at 994.
2. Legal Analysis
The California Court of Appeal did not err in rejecting Petitioner's instructional error claim. The record shows that the trial court instructed the jury about the burden of proof on the prosecution to prove guilt beyond a reasonable doubt. It informed the jury that it had to acquit if, after considering all the evidence, it had a reasonable doubt whether defendant committed the burglaries. The court also instructed the jury that defendant's failure to explain the evidence against him did not relieve the prosecution of its burden. Given the instructions as a whole, there is not a "reasonable likelihood" that the jury applied the instructions in a way that prevented consideration of his theory that Swain committed the burglaries. See Coleman, 525 U.S. at 146 see also United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996) (defendant not entitled to have jury instructions raised in his precise terms where given instructions adequately embody his defense theory).
And, even if the trial court's failure to instruct sua sponte on third party culpability constitutes constitutional error, Petitioner is not entitled to relief because he was not prejudiced. First, there was no evidence of Swain's guilt. Second, as the California Court of Appeal pointed out, there was "substantial" evidence of Petitioner's guilt:
[Petitioner] matched Young's description of the man who burglarized Hopson's apartment, and his fingerprints were found on the chair that Young saw the burglar throw over the landing. Easton positively identified [Petitioner] as the person who entered his home, before and during trial, and [Petitioner's] car matched the description of the getaway vehicle.People v. Burch, No. H018260, slip op. at 14-15. Petitioner is not entitled to federal habeas relief on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall enter judgment in favor of Respondent and close the file.