Opinion
No. C 03-2273 MJJ (PR).
June 10, 2005
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a supporting memorandum of points and authorities, and has lodged exhibits with the court. The matter is submitted.
BACKGROUND
Petitioner Marlon Morris was convicted of one count of car jacking (Pen. Code, § 215), and two counts of second degree robbery (§ 212.5). The jury also found, with respect to one of the robbery counts, an enhancement pursuant to § 12022(d), and allegations of a prior conviction for robbery, for which he served a prison term (§§ 667, subds. (a)(1), (d), (e); 1170.12, subds. (b)©); 667.5(b)). Petitioner was sentenced to serve 27 years and four months in state prison.
Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.
At 5:15 p.m., on March 13, 1999, Carlos Aviles went to retrieve his wallet from his light brown Mazda Protégé, license number 3GCZ942, which was parked in a lot at Fifth and Folsom in San Francisco. He was approached by a man asking for change. He described the man as a 27 to 35 years old African American male, with short, almost fully shaved hair, who was approximately 5 feet 10 inches tall, and weighed approximately 165 pounds. The man refused to take no for an answer, and followed Aviles to his car. After Aviles was seated in the car with the key in the ignition, the man gestured as if he was going to break the window. When Aviles opened the car door to talk to him, the man grabbed Aviles' sunglasses. Aviles got out of the car, demanding that the man return his sunglasses. As Aviles dialed 911, on his cellular telephone, the man got into his car and drove off.
On March 24, 1999, Aviles took two seconds to pick appellant's photograph out of a photo lineup, because he recognized him immediately, and he also identified appellant at trial.
The next day, March 14, 1999, Annie Chann was walking to church, when an African American male in his late 20's or 30's, with closely shaved hair, approximately 5 feet 9 or 10 inches tall, and weighing 160 to 175 pounds, grabbed her purse. He was holding a small switch blade, which he pointed at her head. She let go of her purse, and watched the man run toward a four door beige Geo Prism. She memorized the license plate, and a few minutes later wrote down the number, 3CGZ794.
On March 24, 1999, Chann selected appellant's picture from a photographic lineup. Chann testified that Inspector Maloney told her to select a picture only if she "was pretty confident that the person was . . . the person that robbed me." She eliminated four of the six photographs, "pretty easily," within two to three minutes, and set them aside. After examining the last two, she selected the photograph of appellant because of the round face and the size of the eyes. She told the Inspector that the photograph was the closest image to her recollection of the robber's appearance. She did not say she was 100 percent certain, or that his was the robber. When asked at trial why she put her name on the back of the photograph, she stated "I believe that was the picture of Mr. X." At trial, she identified appellant as a person who looked similar to the person who robbed her, except that appellant now had longer hair, moustache, and appeared a little darker.
On March 14, Maria-Therese Bianco was out for a walk, when she was approached by a 25 to 30-year-old African American male, with a shaved and stocky-build, approximately 5 feet 7 inches tall and 176 to 187 pounds. He grabbed her purse, and Bianco chased him as he ran to his car. She reached into the car, and tried to grab her purse back. The man hit her, and drove forward, opening and closing the car door in an attempt to shake her off. Bianco fell, and hit her head on the street. She described the car as a four door sedan, medium blond in color. Don Reznicek, a neighbor, saw Bianco being dragged down the street, and described the car as a dark gold sedan and identified part of the license plate as 3GC. Bianco also selected appellant's picture from a photographic lineup on March 24, 1999, and identified him in court. The picture exactly matched the image of the robber she had in her head.
Appellant was arrested in Aviles's car, license plate number 3GCZ842, after the police traced several parking tickets to it.
Inspector Maloney testified that he used a computer to compile the photographic lineup he showed to Aviles, Chann, and Bianco. He also gave all three of them a written admonition form, which stated that the person who robbed them might not be among the photographs, and that they were under no obligation to choose any of the photographs shown to them. He made notations on the back of the photographs each victim selected. With respect to Aviles, his notation stated that Aviles made an "immediate I.D., two seconds after prints all down, guy right here," and said, "I'm positive, he looks the same as he looked that day." As to Bianco he noted that her identification took "15 seconds . . . because of the look in his eyes being the same . . . and also the same shape of his face, she is quite sure." With respect to Chann, Maloney noted: "Ms. Chann eliminated all pictures except the signed photo based upon his eyes and roundness of his face." Maloney recalled that she had, at first, narrowed the photographs down to two, before finally selecting one, and although he had not written in his notes, he believed three minutes was a fair estimate of the time involved. He also testified that he uses the term "positive identification" to encompass a range of degrees of certainty, that there were differences among the three witnesses on the degree of certainty, but each had been confident enough to select appellant's photograph, and put his or her name on the back.
It was stipulated that appellant was born in 1969, is 5 feet 9 inches tall, and weighed 197.5 pounds as of March 3, 2000.
This plate number was registered to a person named Sherrien Green, with an address near Fresno, and was cleared of any involvement in the robberies.
In the context of the questioning, "Mr. X" referred to the person who robbed her.
Exh. F at 1-4 (footnotes renumbered).
DISCUSSION
A. Standard of Review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA 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 court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority and falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decision but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary."Miller-El, 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Summer v. Mata, 449 U.S. 539, 546-547 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 123 S.Ct. at 1041; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion, in this case that of the California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991);Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir. 2000).
B. Issues Presented
1. Exclusion of Testimony
Petitioner contends that his right to due process was violated when the trial court improperly excluded arguably exculpatory evidence relating to Inspector Maloney's testimony about Ms. Chann's identification of petitioner's photo. The evidence petitioner sought to admit was testimony of Sarah Watkins and Yen Chen, who were witnesses to an previous, unrelated crime investigated by Maloney. In that case, Maloney had shown Watkins and Chen a photographic lineup, and they informed Maloney that one of the individuals looked like, but was not in fact, the perpetrator. Maloney failed to include in his report in that case that Watkins and Chen had thought that the man in the photograph was not the perpetrator. Petitioner argues that the testimony by Watkins and Chen about Maloney's failure to adequately convey the uncertainty of their identification in an earlier case was highly probative of the reliability of Maloney's testimony in this case as to Chann's degree of certainty in identifying petitioner. Petitioner wanted to introduce the testimony of Watkins and Chen to show that in this case Maloney acted in conformity with his character by omitting exculpatory facts in his notation on the back of the photograph selected by Chann, and also to impeach Maloney's credibility. According to petitioner, the exclusion of this testimony amounted to an abuse of discretion by the trial court.
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the petitioner of the fundamentally fair trial guaranteed by the Due Process Clause.See Pulley v. Harris, 465 U.S. 37, 41 (1984). The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A petitioner does not have un unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43. (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). The petitioner must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." See id.
The exclusion of testimony by Watkins and Chen regarding Maloney's conduct in a prior case did not infringe upon a specific federal constitutional or statutory provision, nor did it deprive petitioner of a fundamentally fair trial. The testimony of Watkins and Chen would have been relevant and admissible as evidence that Maloney acted in conformity with his character in this case only if Maloney's report about Chann's out-of-court identification was misleading. Unlike the case of Watkins and Chen, however, there was no conflict between Maloney's testimony and that of Ms. Chann concerning the details of her selection of petitioner's photograph, or her degree of certainty in selecting the photograph. Both Maloney and Chann testified that Chann took several minutes to eliminate four of the photographs, and that after she narrowed her selection down to two, she chose petitioner's photograph. Chann also reviewed Maloney's notes and stated that they accurately described what took place during her identification of petitioner from the photographic lineup.
The omission from Maloney's notes as to the amount of time it took Chann to make her selection was immaterial in light of his trial testimony regarding the amount of time that she took. As the trial court explained, "even if the jury believes that he intentionally omitted from [his notes] the fact of the three minutes [for Chann to eliminate four photographs] . . . so what? He never told her . . . [to] tell everybody that it was quicker. He never came to court and said it was an instant identification, and Ms. Chann came in here and told us how long it took."
Petitioner appears to argue that a conflict existed on the basis that Chann's testimony that she thought that petitioner's photograph "most closely resembled" the perpetrator was not in fact a positive identification of petitioner as the perpetrator. This is not the case. Chann testified that she selected petitioner's photograph after being informed to select a photograph only if she was confident that the person depicted was the perpetrator. She also testified that she signed the back of the photograph of petitioner because she believed that he was the person who robbed her. Maloney's testimony that Chann had "positively identified" petitioner therefore was not misleading. As Maloney explained, the term merely indicates that Chann was sufficiently certain to pick petitioner out of the lineup, and sign her name on the back of the photo. There is nothing in the record to the effect that Maloney said Chann was 100 percent certain petitioner was the robber.
If a conflict had existed between Maloney and Chann's testimony about her out-of-court identification, then evidence that Maloney had in past cases omitted exculpatory details or misrepresented facts of an out-of court identification might have been relevant to this case. However, since Maloney's testimony was not misleading, but was in fact consistent with Chann's as to the certainty and nature of her out-of-court identification, exclusion of evidence of Maloney's conduct in the prior identification procedure did not render the trial fundamentally unfair.
2. CALJIC NO. 17.41.1
Petitioner further contends that CALJIC No. 17.41.1 violated his constitutional right to a fair and impartial jury, and to a unanimous verdict. CALJIC 17.41.1, which instructs jurors to inform the court of other jurors' misconduct, is not contrary to any existing Supreme Court precedent. See Brewer v. Hall, 378 F.3d 952, 955-56 (9th Cir. 2004) (rejecting under AEDPA habeas claims against CALJIC 17.41.1). Therefore, petitioner's second contention must also fail.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file and terminate all pending motions.IT IS SO ORDERED.