Opinion
No. C-01-1772 CRB (PR)
July 31, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted of two counts of robbery by a jury in the Superior Court of the State of California in and for the County of Santa Clara. On May 4, 1999, he was sentenced to 14 years in state prison. Petitioner appealed, but the California Court of Appeal affirmed the judgment of conviction and the Supreme Court of California denied review.
Petitioner then filed the instant federal petition for writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 11, 2001. the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause. Petitioner did not tile a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
Defendants [David Dukes and William Cascio] were charged by information with three counts of second-degree robbery. During trial. count two was dismissed because the victim of that crime could not be located. All of the prosecutions evidence focused on the victims of counts one and three.
The victim of count one, Maria Alvear, testified that on July 29, 1998, she got off the bus at 10:17 p.m. and began walking home. A burgundy or maroon truck stopped ahead of her and two white men jumped out. The driver was holding a long black bat; the passenger carried a gun. The passenger held a long-barreled gun against her chest, pointing toward her chin, and demanded her money. She gave them what she had in her front pocket, and the driver, at the passenger's direction, took her wallet from her back pocket. Alvear originally said they were driving a Toyota truck, but then said it was a "general type" like a Toyota; it could have been any other make of the same type. She said Cascio's truck, photographed in People's Exhibit 7, looked like the truck used in the robbery. Similarly, People's Exhibit 5, a black aluminum bat, looked like the one wielded by the driver.
Alvear also described the robbers' appearance. The driver had "dirty blond" hair; he wore jeans and a dark shirt underneath a blue plaid shirt. The passenger had dark brown hair and jeans shorts. He too wore a blue plaid shirt.
About six days after the robbery, Alvear was shown People's Exhibit 1, a photograph of Dukes, whom she identified as the driver of the truck. She told the investigating officer, Sergeant Michael Schembri, that she had recently seen both of the robbers on the bus. At a subsequent court hearing, she was unable to identify either of the two men from a photographic lineup, but she did recognize defendants at trial. She stated that Dukes was the passenger and Cascio was the driver. Shown the photo lineup again, she still was unable to say whether they were in it; the photos did not look like the defendants.
Shortly before 11:30 p.m. on that same evening, Timothy Barlow was walking home from work when a red pickup truck pulled up in front of him. The passenger got out and walked quickly toward him, holding a gun with a barrel extension on it. Pressing the gun against Barlow's neck, the passenger demanded his wallet. Barlow complied, and the passenger returned to the truck. At that point Barlow saw the driver approach him, raising a bat with both hands in a "striking manner." Barlow backed up, his hands in the air, and the driver returned to the truck.
Barlow described the suspects to the police. The passenger wore a dark-colored T-shirt with a light-colored plaid shirt over it, and long pants. The driver wore a T-shirt or tank top with dark jeans. The driver had lighter hair than the passenger.
On August 4, Barlow examined People's Exhibit 1, the same photograph shown to Alvear. He said the person looked like one of the robbers. Two days later, he identified both defendants from a photo lineup. He was as "as positive as [he] could be" that these were the robbers. Barlow also identified them at trial, Dukes as the driver and Cascio as the passenger. Barlow also examined several receipts that bore the number of his debit or credit card, but none of the signatures was his.
On cross-examination, he said his identification was based on height, weight, and hair color. He did not get a good look at the gunman's face at the time of the robbery. He also admitted that in reporting the crime, he had described the truck as having a black camper shell on it and a silver painted bumper. People's Exhibit 7, however, a photograph of Cascio's truck, depicted a truck with a red camper shell and a black bumper. In addition, People's Exhibit 5A, a bat found in the truck, was black aluminum, whereas Barlow had described the bar as a silver-blue aluminum bat. Barlow also admitted that when the officer interviewed him after the robbery he described the robbers as "Hispanic males or dark-complected whites." However, he did not believe there was anything about defendants features that was inconsistent with his report to the police; he still believed that defendants were the ones who had robbed him.
The prosecution also presented testimony from sales clerks who were on duty between July 29 and 31, 1998. At 11:39 p.m. on July 29, at the Chevron station where she worked, Heather Spencer processed a sale of beer and gas with Barlow's ATM card. On July 30, shortly after midnight, Hiep Truong processed two transactions at the convenience store where he worked. The purchaser signed receipts for a toy gun, cigarettes, and another non-food item. Another receipt was from a Shell station at 3:39 a.m. on July 30, showing a purchase of two sodas, two magazines, two cartons of Marlboro cigarettes, sunglasses, and some other taxable items. This transaction was captured on a video surveillance camera. The videotape was later used to create the still photograph in People's Exhibit 1. Soda bottles, cigarettes cartons, and sunglasses seized from Cascios truck were similar to those sold in the Shell station store.
Wendy Danh, an employee at Alex's 49ers Inn, a San Jose bar, recalled two Caucasian men who were at the bar on July 30 between 12:45 a.m. and closing time at 2 am. She was suspicious because one of the two used his credit card repeatedly rather than just once at the end. She was unable to make an identification from a subsequent photo lineup, but at trial she recognized Dukes as the person who had used the credit card. Danh also said that Dukes had been dressed like the man in People's Exhibit 1. She recalled him wearing a black biker jacket and a blue bandanna. She identified a black T-shirt, People's Exhibit 13A, as similar to the shirt worn by the other man, and a drink token, which had been taken from Dukes's home, as having come from Alex's 49ers Inn.
Esther Ouellette, a server at the Mini-Gourmet, a 24-hour coffee shop, recalled serving dinner sometime after midnight to two male customers, who paid for their meal with Barlow's credit card. One of them wore a blue bandanna that looked like the one worn by the man in People's Exhibit 1. Ouellette later identified defendants from a photo lineup, and she recognized them at trial.
When Cascio was arrested on August 5, 1998, he was standing next to a red pickup truck. Inside the truck were a carton of Marlboro cigarettes, an empty Sprite bottle, a black leather jacket, a pair of sunglasses, a black T-shirt, and a baseball bat. When Dukes was arrested at his home, police found two boxes belonging to him which contained a carton of Marlboro cigarettes, two magazines, a drink token from Alex's 49ers Inn, and a blue bandanna.
Dukes was interviewed at the police station by Officer Cavallo and Sergeant Overstreet. After waiving his Miranda rights, he admitted that he had made the purchases at a gas station convenience store; he had used a credit card he had found on the street. When Cavallo told him the credit card had been used in a robbery at gunpoint, Dukes became "very agitated" and angry and said, "[t]hat's a lie. There wasn't any gun." He "wavered" about using the card at the Mini-Gourmet coffee shops and about whether someone else had been with him there. He denied being at or even knowing of Alex's 49ers Inn. He also denied knowledge of any red truck or anyone who owned a red truck.
Mick Barile knew both defendants; Cascio was a friend of his, and he had met Dukes once or twice. Barile was at Cascio's house on August 5, 1998, when Cascio was arrested. Barile was arrested, too, but subsequently released. Later that day, he agreed to be taken back to the station, where he gave a tape-recorded statement to Sergeant Schembri. Schembri first assured Barile that he was not under arrest and was free to go. Barile agreed to tell only the truth and give no information just to make Schembri happy. He then said Cascio had talked to him about the robberies. Cascio had told Barile he had done some robberies by threatening people with a baseball bat. He had invited Barile to come along, but Barile had declined. Barile did not know who might have gone with Cascio. Dukes and Cascio did "hang out together" sometimes; when Barile had seen them together, Dukes had been wearing a bandanna on his head.
In January 1999, the month before trial, Schembri asked Barile if his entire taped statement had been true; Barile said yes. The week before trial began, Barile was asked again; he repeated that his statements had been true and accurate. At trial, however, Barile repudiated his statement, insisting he had "made stuff up just to make [Sergeant Schembri] happy" because he was scared and wanted to go home. He denied that Cascio had ever told him about the robberies or invited him to assist in one. He said he did not remember telling Schembri he had seen Dukes and Cascio together four or five times, including three times in the two weeks before Cascio's arrest. The only reason he knew the details of the robberies, he said, was that he had overheard Cascio's father discussing a rumor that Cascio had committed them.
Barile acknowledged that he was afraid of being labeled a "snitch" for testifying. He was specifically concerned about retaliation from Cascio's father because of the "people that he knows." The tape of Barile's statement to Schembri was played to the jury after certain references to Dukes had been redacted.
People v. Dukes, et al., No. H019865, slip op. 1-6 (Cal.Ct.App. Oct. 20, 2000) (footnotes omitted) (Resp't Ex. E).
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 different 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 max 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 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. 2000).
II. Claims
Petitioner raises two cognizable claims for relief under § 2254: suggestive identification procedures and ineffective assistance of counsel.
A. Suggestive Identification Procedures
In his petition for writ of habeas corpus, Cascio claims that "the trial court erred in failing to suppress identification evidence based on the suggestive procedures employed by the investigating officer." Specifically, he claims the pretrial identifications by Alvear and Barlow were garnered through impermissively suggestive procedures that should render in-court identifications inadmissible.
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. however. 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.
1. Identification Procedures Used with Alvear
Cascio apparently claims that it was impermissively suggestive to show Alvear the single photograph of Dukes. When shown the photograph of Dukes, Alvear identified him as the driver of the truck. She was later unable to identify either of the two men from a photographic lineup, but she did recognize defendants at trial. After viewing the photographic lineup again. Alvear thought the photographs did not closely resemble the defendants.
The California Court of Appeal rejected the claim that suggestive procedures were used with Alvear, holding that showing a witness a single photograph is "not inherently unfair." People v. Dukes, et. al., No. H019865, slip op. at 9 (Cal.Ct.App. Oct. 20, 2000) (quoting People v. Ochoa, 19 Cal.4th 353, 413 (1998)). The Court of Appeal also pointed out that Schembri did not make any comments to Alvear during the identification procedures that were unduly suggestive. Id.
The California Court of Appeal did not err. The identification procedures used with Alvear were not impermissively suggestive. She was not told any leading information prior to being shown the single photograph, and the use of a single photograph did not in itself result in an unreliable in-court identification. Accord People v. Ochoa, 19 Cal.4th 353, 412 (1998) (upholding use of single photograph identification); People v. Floyd, 1 Cal.3d 694, 714 (1970) (same). It certainly cannot be said, with a definite and firm conviction, that the California Court of Appeal's rejection of Cascio's claim was "clearly erroneous." Van Tran, 212 F.3d at 1159.
The California Court of Appeal did not address another apparent claim regarding Alvear — that her supposed sighting of the two suspects on the bus tainted her identification of them. However. this claim lacks merit. Alvear was adamant that the two men on the bus were the men who robbed her. The only effect of seeing the men on the bus was strengthening her memory of what the robbers looked like.
2. Identification Procedures Used with Barlow
Cascio claims that Schembri used impermissively suggestive procedures with Barlow. Like Alvear, Barlow was shown the single photograph of Dukes. However, Schembri also informed Barlow, as he showed it to him, that the man in the photograph had been using his credit card (which had been stolen by the robbers). Barlow determined that the man in the photograph "could have been" one of the robbers. Barlow was then able to pick both defendants out of the photo lineup (he was "as positive as [he] could be" that he had accurately identified them), and was able to identify the defendants at trial.
The California Court of Appeal found that Schembri's comment to Barlow while showing him the photograph of Dukes was impermissively suggestive. The court determined that, although he did not directly state that the person in the photograph was a suspect in the robbery, stating that the person in the photo had used his credit card was suggestive enough to lead Barlow to think the person in the photo was a suspect for the robbery. People v. Dukes, et. al., slip op. at 9-10. However, the court determined that this error was harmless, because Barlow was still able to pick both suspects out of a photo lineup two days later, where the photo of Dukes in the lineup was a different photo than that shown singly. Id. at 10.
Because the court determined that the error was harmless, it found it unnecessary to determine whether the identification was reliable under the totality of the circumstances. See People v. Dukes, et. al., slip op. at 10.
The Court of Appeal did not err in finding that the error was harmless. Two days after being shown the single photo of Dukes, Barlow was able to accurately identify both defendants in an independent multi-photo lineup. Also, Barlow was not shown a picture of Cascio prior to the multi-photo lineup where Barlow accurately identified him. This is significant since the instant petition regards Cascio. "As the state court did not err in concluding that any error was harmless, it follows that its decision is not reversible under [ 28 U.S.C. § 2254(d)]." Van Tran, 212 F.3d at 1156.
B. Ineffective Assistance of Counsel
In his petition for writ of habeas corpus, Cascio claims that his defense counsel's failure to object to inadmissible evidence presented at trial constituted ineffective assistance of counsel. Specifically, Cascio maintains that his counsel's failure to object to evidence regarding a supposed third robbery that was admitted at trial prejudiced the outcome of the trial.
Dukes also claimed that failure of his counsel to object to misconduct by the prosecutor constituted ineffective assistance of counsel. The California Court of Appeal noted that Cascio conceded that such "an objection would have been futile." People v. Dukes, et. al., slip op. at 14.
In order to prevail on an ineffective assistance of counsel claim, petitioner 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. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he can 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." Id. at 694. A reasonable probability' is a probability sufficient to undermine confidence in the outcome. Id.
Judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689.
Petitioner has the burden of "showing" that counsel's performance was deficient. Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. Conclusory allegations that counsel was ineffective do not warrant relief Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995).
Defendants originally were charged with three counts of robbery. However, one of the alleged victims could not be located (that victim was considered to be "5150" — mentally incompetent or insane), so the prosecution went ahead laying out the evidence against defendants in the other two robberies (that of Alvear and Barlow). At different points during the trial, the prosecutor nonetheless mentioned the third robbery possibly committed by the defendants.
During the prosecutor's opening statement, he said. "I don't have the witnesses, the victim [of] the [third robbery], so I am not going to talk about anything I can't prove at this time. . . . If we can come up with [the third robbery victim] before the end of the trial, great. If not, that's the best we can do."
Then, during Schembri's testimony, the third robbery came up again in the context of laying out the timeline of events of the evening in question. The prosecution asked Schembri to clarify the timeline:
Q. The first robbery would have been the robbery of Ms. Alvear; is that correct?
A. Right.
Q. And the second robbery is the robbery of the 5150 person who is the second charge in our case which we don't have the witness on that; is that correct?
A. Correct.
Q. So we have Ms. Alvear's robbery, we have the 5150 robbery, and then we have Tim Barlow's robbery all during that time period; is that correct?
A. Correct.
Q. All right. So then this is putting together the descriptions from all the various robberies; is that correct?
A. Correct.
Q. Just one last question. Does that computer printout indicate anywhere on it the time of the initial call for the 5150, the mentally ill woman?
A. I shows a time reference. To the far left of it is 2345 hours. But I think that's when it's updating this broadcast.
Q. It couldn't have been on that day because — that time because that was after our last robbery correct?
A. Correct.
Q. And we know because of the sequence of things, that it occurred between the two robberies that we have evidence on here in court today?
A. Correct.
The California Court of Appeal found that defense counsel "should have sought to prevent or correct the mention of the third robbery." People v. Dukes, et. al., No. H019865, slip op. at 12 (Cal.Ct.App. Oct. 20, 2000). However, the court concluded that defense counsel's failure to do so did not constitute ineffective assistance of counsel because this failure was not prejudicial to the outcome of the case. Id. at 12-13. There was a plethora of evidence presented regarding the robberies of Alvear and Barlow — evidence independent of any mention of a third robbery — that the defendants would have still been found guilty even if the defense counsel had prevented admission of evidence related to the third robbery. Id.
The California Court of Appeal did not err in rejecting petitioner's claim. In order to establish prejudice under Strickland from failure to file a motion. petitioner must show that (1) had counsel filed the motion. it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999). Here, mention of the third robbery by the prosecutor during the trial was of very limited frequency and duration, and was also very general. There is no reasonable probability that the outcome of the trial would have been more favorable to petitioner had mention of the third robbery been prevented or corrected. The evidence presented regarding the robberies of Alvear and Barlow was substantial and, for the most part, was presented to the jury independently of any mention of the supposed third robbery. Petitioner is not entitled to habeas relief because it cannot be said, with a firm and definite conviction, that the California Court of Appeal's rejection of Cascio's claim was "clearly erroneous." Van Tran, 112 F.3d at 1159.
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.
IT IS SO ORDERED.
JUDGMENT
The Court having denied petitioner's petition for a writ of habeas corpus, judgment is hereby ENTERED in favor of respondent and against petitioner.
SO ORDERED.