REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JACQUELINE CHOOLJIAN, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I. SUMMARY

On May 16, 2011, Michael Carl Deakins ("petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") with an accompanying memorandum ("Petition Memo"), exhibits ("Petition Ex.") and appendix ("Petition Appx."). Petitioner challenges a judgment in Los Angeles County Superior Court on multiple grounds.

On December 2, 2011, Respondent filed an Answer and a supporting memorandum ("Answer").1 On March 15, 2012, petitioner filed a Reply.

For the reasons stated below, the Petition should be denied, and this action should be dismissed with prejudice.

II. PROCEDURAL HISTORY

On September 13, 2007, a Los Angeles County Superior Court jury found petitioner guilty of first degree automated teller machine ("ATM") robbery (count 1), second degree burglary of a vehicle (count 2), and possession of a controlled substance (count 3). (CT 144-51, 216-17). On November 14, 2007, the trial court sentenced petitioner to a total of fourteen years and four months in state prison. (CT 216-17).

On February 24, 2009, the California Court of Appeal affirmed the judgment. (Lodged Doc. 6). On May 13, 2009, the California Supreme Court denied review. (Lodged Doc. 8).

Petitioner thereafter sought and was denied habeas relief in the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme Court. (Lodged Docs. 9-18).

III. FACTS

Since petitioner challenges the sufficiency of the evidence to support his robbery and burglary convictions, the Court has independently reviewed the state court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). Based on its independent review of the record, the Court adopts the following factual summary from the "Background" section of the California Court of Appeal's opinion on direct review (replacing "defendant" with "petitioner") as a fair and accurate summary of the evidence presented at trial. (Lodged Doc. 6 at 2-3).

Around 7:50 p.m. on February 27, 2007, Adriana Roman returned to her locked car after withdrawing cash from an automatic teller machine at the Bank of America on East Colorado in Pasadena. When Roman entered the car she was confronted by petitioner, who had been hiding in the back seat. Petitioner, who spoke in both English and Spanish, grabbed Roman's hand and demanded money. Roman, who testified through a Spanish language interpreter, described petitioner as being 20 to 26 years old, tall and thin, and wearing a black sweatshirt with a hood. Roman gave petitioner $100, after which petitioner got out of the car. As petitioner walked away, he pulled off his hood, revealing that his head had been shaved bald. Roman also noticed that the back window of her car had been broken. Roman contacted the police.

About 30 minutes after the incident, Pasadena Police Officer John Calderon showed Roman a six-pack photographic lineup, from which she identified petitioner. About two hours after the incident, Roman was taken to petitioner's location and identified him in a field show-up. She also identified petitioner at trial. Roman was nervous when she made both of her pretrial identifications.

Officer Calderon testified that he went to petitioner's Pasadena apartment after Roman made her photographic identification. When petitioner came to the door, he threw aside a baggie that was later determined to contain methamphetamine. More methamphetamine was found in petitioner's pants pocket. Inside the apartment, Calderon found a black hooded sweatshirt.

Several witnesses testified for the defense. Four friends testified that they were with petitioner in his apartment at the time of the robbery. One of these witnesses further testified that petitioner spoke only a few words of Spanish that are in common usage and that it would take around 50 minutes to walk from the Bank of America to petitioner's apartment. Petitioner's parents testified that petitioner does not speak Spanish and does not own a car. An eyewitness identification expert testified regarding various factors affecting eyewitness identification, including how trauma can cause a witness to narrow attention to certain details and that there is no significant relationship between confidence and accuracy in eyewitness identification.

IV. 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). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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).2

In applying the foregoing standards, federal courts look to the last reasoned state court decision. See Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert. denied, 133 S.Ct. 1831 (2013). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (cited with approval in Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013)); Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to "look through" summary denials of discretionary review to the last reasoned state-court decision — whether those denials are on the merits or denials of discretionary review), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001 (2014).

V. DISCUSSION3

Petitioner claims he is entitled to federal habeas relief because: (1) his trial and appellate counsel were ineffective in multiple respects (Grounds 1 and 2); (2) the evidence of identity was insufficient to support his robbery and burglary convictions (Ground 3); (3) the state destroyed exculpatory evidence — petitioner's booking photograph — after his conviction was affirmed on appeal (Ground 4); and (4) the Los Angeles County Superior Court deprived him of due process by denying his state habeas petitions (Ground 5). (Petition Memo at 8-25). Petitioner is not entitled to habeas relief on any of his claims.

A. Petitioner's Ineffective Assistance of Trial Counsel Claims Do Not Merit Habeas Relief — Ground 1

Petitioner claims that his trial counsel was ineffective in (1) failing to investigate the circumstances surrounding the field show-up (Ground 1a); (2) failing to file a motion to "suppress the circumstances surrounding the show-up" (Ground 1b); (3) failing to investigate how petitioner's photo was chosen for the six-pack photo lineup (Ground 1c); and (4) failing to turn over petitioner's booking photo after petitioner's conviction was affirmed on appeal (Ground 1d); and that (5) the cumulative effect of the foregoing errors merit relief (Ground 1e). (Petition Memo at 8-16). The Los Angeles County Superior Court — the last state court to render a reasoned decision on such claims — rejected them on the merits on habeas review. (Lodged Doc. 14).4 Petitioner is not entitled to relief on his ineffective assistance of trial counsel claims.

1. Additional Pertinent Background

As noted above, approximately thirty minutes after the robbery, Roman identified petitioner in a six-pack photo lineup, and approximately two hours after the robbery, Officer Calderon took Roman to petitioner's location for a field show-up. (RT 63-64, 79-80, 87). At the field show-up, Officer Calderon advised Roman that the suspect in the field show-up "may be the person who robbed her," and further admonished her:

(RT 112-13). Roman was very afraid and nervous and was crying. (RT 91). Petitioner was standing across the street from Roman, who remained in the police car. (RT 87-89). He was handcuffed next to two police officers — one on either side of him. (RT 88). One police officer was holding the petitioner by the arm. (RT 88). There were no other individuals in the field show-up. (RT 88). The field show-up took place after dark, but "there was enough light because the patrol car's lights were focused on him." (RT 88-89). Roman identified petitioner at the field show-up. (RT 87). Roman also identified petitioner at the preliminary hearing. (CT 6).

Prior to trial, petitioner's counsel filed a motion to suppress, claiming that the six-pack photo lineup was so suggestive that it rendered Roman's identification from such lineup and the subsequent in-court identification of petitioner inadmissible.5 (CT 89-97; RT 8-9). Specifically, trial counsel argued that the photo lineup was impermissibly suggestive because petitioner was the suspect with the least amount of hair and Roman described the suspect as having a "shaved head." (RT 9-10). Petitioner's counsel argued that the identification could not be upheld because there was no "independent corroboration" — no other sightings by Roman or corroborating witnesses to back up the identification. (RT 10). The prosecution noted that there had in fact been identifications aside from the six-pack photo lineup, including the subsequent positive field identification. (RT 10-11). Trial counsel indicated that he was unaware of the field identification, stating: "I am trying to look through [the report] and so far I am not finding the indication in the police report that there was a field show[-]up. May be [the prosecutor] will show it to me." (RT 13). The prosecution alerted trial counsel to the portion of a police report mentioning the field show-up. (RT 13). Trial counsel responded: "Very well, your honor. I'll accept that representation then." (RT 13).

The prosecution also observed that all of the people depicted in the six-pack photo lineup "have shaved heads to a certain degree[,]" and that petitioner did not have a shaved head "more than anyone else." (RT 11). Moreover, the prosecution argued that Roman stated that she "recognized [petitioner] mainly by his nose and eyes and forehead, not so much by his shaved head[.]" (RT 11).

The trial court submitted the matter but ultimately denied the motion to suppress, stating:

(RT 19-20).

2. Pertinent Law

a. Ineffective Assistance of Counsel

The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment guarantees a state criminal defendant the right to effective assistance of counsel at trial. Evitts v. Lucey, 469 U.S. 387 (1985). To warrant habeas relief due to ineffective assistance of counsel, a petitioner must demonstrate: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-93 (1984).

As both prongs of the Strickland test must be satisfied in order to establish a constitutional violation, failure to satisfy either prong requires that a petitioner's ineffective assistance of counsel claim be denied. Strickland, 466 U.S. at 687, 697 (no need to address deficiency of performance if lack of prejudice is obvious); Hein v. Sullivan, 601 F.3d 897, 918 (9th Cir. 2010) (a court can deny a Strickland claim if either part of the test is not satisfied), cert. denied, 131 S.Ct. 2093 (2011).

Further, where there has been a state court decision rejecting a Strickland claim, review is "doubly deferential." Harrison v. Richter, 131 S.Ct. 770, 788 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123-24 (2009)). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable." Richter, 131 S. Ct. at 785; 28 U.S.C. § 2254(d). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Richter, 131 S. Ct. at 786. The range of reasonable Strickland applications is "substantial." Id. at 788.

b. Suggestive Identification Procedures

Evidence derived from a suggestive pretrial identification procedure may be inadmissible if the challenged procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, 390 U.S. 377, 384 (1968). To determine the admissibility of identification testimony, courts use a two step analysis. United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984) (citations omitted). First, they determine whether the identification procedure was impermissibly suggestive. Id. Each case must be considered on its own facts, and whether due process was violated depends on the totality of the surrounding circumstances. Simmons, 390 U.S. at 383-84. If the court finds that a challenged procedure is not impermissibly suggestive, the due process inquiry ends. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). However, if a court finds that the procedure was impermissibly suggestive, it then determines whether the identification was nevertheless reliable under the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Love, 746 F.2d at 478.

The factors to be considered in evaluating the reliability of an identification after an impermissibly suggestive identification procedure include:

Biggers, 409 U.S. at 199-200. These five indicia of reliability must be balanced by the reviewing court against the corrupting effect of the suggestive pretrial identification procedure to determine whether the in-court identification should have been admitted. Manson v. Braithwaite, 432 U.S. 98, 114 (1977).

In a motion to suppress, the defense bears the burden to show the unconstitutionality of the identification procedure. See People v. DeSantis, 2 Cal.4th 1198, 1221-22 (1992), cert. denied, 508 U.S. 917 (1993).

3. Failure to Investigate Circumstances of Field Show-Up — Ground 1a

Petitioner contends that his trial counsel was ineffective for failing to investigate the field show-up identification, noting that his trial attorney "did not even know a show-up occurred in this case until he was in the middle of his motion to suppress the six-pack." (Petition Memo at 9-10).

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (quoting Strickland, 466 U.S. at 690-91) (quotation marks omitted). To find prejudice from counsel's failure to investigate, the reviewing court must consider "whether the noninvestigated evidence was powerful enough to establish a probability that a reasonable attorney would decide to present it and a probability that such presentation might undermine the jury verdict." Mickey v. Ayers, 606 F.3d 1223, 1236-37 (9th Cir. 2010) (citing Wiggins, 539 U.S. at 535). Here, petitioner's claim fails because the only facts and evidence that he claims an investigation of the field show-up would have yielded were facts and evidence that actually were presented the jury. (Reply at 11) (citing RT 87-92). Given the jury's decision to convict petitioner, such facts and evidence clearly did not cause the jury to believe that Roman was mistaken in her identification of petitioner as the robber and burglar. Accordingly, the Los Angeles County Superior Court reasonably rejected petitioner's claim that his counsel's failure to investigate the circumstances of the field show-up constituted ineffective assistance. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000) (rejecting petitioner's claim that counsel was ineffective for failing to make a reasonable investigation because petitioner "wholly failed to show that a proper investigation would have revealed [information relevant to the defense]," and thus failed to meet the prejudice requirement of Strickland), cert. denied, 531 U.S. 1072 (2001).

4. Failure to Move to Suppress Field Show-Up Identification — Ground 1b

Petitioner contends that his trial counsel should have moved to "suppress the circumstances of the `show-up,'" and that the show-up was "impermissibly suggestive" because: (1) petitioner was handcuffed, there was one officer standing on each side of petitioner, and "[n]o one else was there[,]"; and (2) prior to the show-up identification, Roman inaccurately described the perpetrator as a white male, thin-built, 20-26 years-old, six feet tall, with a shaved/bald head, whereas petitioner actually was a white male, medium-built (175 pounds), 35 years-old, five feet eight inches tall, with a full head of hair.6 (Petition Memo at 11-13).

To prevail on a claim of ineffective assistance of counsel predicated on the failure to file a motion to suppress evidence, a petitioner must establish that the motion would have been meritorious and a reasonable probability that the jury would have reached a different verdict absent the introduction of the evidence in issue. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003). Petitioner does not do so here. More specifically, petitioner fails to demonstrate that the field show-up identification procedure was impermissibly suggestive or unreliable given the totality of the circumstances.

The mere fact that Roman identified petitioner in a one-person field show-up did not itself render such identification invalid or inadmissible. See United States v. Jones, 84 F.3d 1206, 1210 (9th Cir.) ("The fact that only one suspect is presented for identification does not make the identification procedure invalid."), cert. denied, 519 U.S. 973 (1996). Nor does the fact that petitioner was obviously in police custody. See, e.g., In re Carlos M., 220 Cal.App.3d 372, 386 (1990) ("[T]he mere presence of handcuffs on a detained suspect is not so unduly suggestive as to taint the identification [at a field show-up]."); In re Richard W., 91 Cal.App.3d 960, 969-71 (1979) (field show-up of suspect handcuffed in police car with officers standing around not unfair, because "the law favors field identification measures when in close proximity in time and place to the scene of the crime"); Jones, 84 F.3d at 1209-10 (upholding show-up of defendant standing by side of road near police officers who were holding robber's wig, hat and sunglasses); Bagley, 772 F.2d at 492-93 (upholding identification at show-up where defendant was seated in police car, handcuffed and surrounded by police). However, even assuming that the show-up was impermissibly suggestive, petitioner's claim fails because the field show-up identification was nevertheless reliable under the totality of the circumstances.

First, Roman's opportunity to view the robber strongly weighs in favor of the reliability of her identification of petitioner. Roman testified that she had the opportunity to look at petitioner for three or four minutes within the close proximity of 12 to 18 inches; she was looking at his face the whole time of the robbery; and, although the suspect wore a hood, she still had a clear look at his face since the area had light. (RT 58-61). Courts have upheld identifications as reliable under far worse situations. See Coleman v. Alabama, 399 U.S. 1, 4-6 (1970) (brief view on dark highway lit only by car headlights); United States v. Drake, 543 F.3d 1080, 1088-89 (9th Cir. 2008) (although robbery took less than a minute, victim "had ample opportunity to view the robber as they were standing face to face in close proximity to each other"); United States v. Gregory, 891 F.2d 732, 734-35 (9th Cir. 1989) (witnesses viewed robber at close range for approximately thirty seconds).

Second, Roman's degree of attention also strongly weighs in favor of the reliability of her identification of petitioner. Roman was not a bystander; she was the victim. See United States v. Barrett, 703 F.2d 1076, 1085 (9th Cir. 1983) ("Being the target of the robbery, [the witness'] degree of attention was undoubtedly high."). As noted above, Roman's attention was focused on the perpetrator within the close proximity of 12 to 18 inches. Indeed, she and the suspect spoke to each other during the encounter. (RT 60-61).

Third, Roman's prior description, albeit imperfect, was not so inaccurate as to cause this factor to weigh heavily against reliability. Compare RT 78, 83-84 (Roman testified that the man who robbed her was 20 to 26 years old, tall and thin, and completely bald) with CT 189-91 (petitioner was in his mid-thirties, 5'8" — 5'9" tall, 170 lbs, and judged by his booking photo had closely cropped hair at the time of his arrest); see Drake, 543 F.3d at 1089 (identification reliable even though witness significantly underestimated defendant's height).7

Fourth, Roman's degree of certainty at the field show-up weighs in favor of the reliability of her identification of petitioner. Roman expressed no uncertainty while identifying petitioner at the field show-up. (RT 93 [testifying that "His face, at that moment I had a very well — I remembered it very well."]); see United States v. Jarrad, 754 F.2d 1451, 1455 (9th Cir.) ("Most importantly, the witness expressed a high degree of confidence, `95%,' as to both her pretrial and in-court identifications."), cert. denied, 474 U.S. 830 (1985).

Finally, the length of time between the crime and Roman's identification of petitioner at the field show-up — approximately two hours (RT 64) — strongly weighs in favor of the reliability of her identification of petitioner. See Manson, 432 U.S. at 115-16 (fact that photo identification occurred two days after the crime contributed to reliability of identification); Simmons, 390 U.S. at 385 (witnesses shown photographs only a day after the incident, "while their memories were still fresh"). Indeed, courts have deemed identifications reliable despite the lapse of longer time periods. See, e.g., Biggers, 409 U.S. at 201 (seven months between crime and identification); United States v. Montgomery, 150 F.3d 983, 993 (9th Cir.) (one year), cert. denied, 525 U.S. 917, 989 (1998); United States v. Matta-Ballesteros, 71 F.3d 754, 769-70 (9th Cir. 1995) (over five years), as amended on denial of rehearing, 98 F.3d 1110 (9th Cir. 1996), cert. denied, 519 U.S. 1118 (1997).

In short, the show-up was not impermissibly suggestive, and even assuming it was impermissibly suggestive, the five indicia of reliability when balanced against the arguably corrupting effect of the field show-up, yield the conclusion that the show-up identification and the arguably derivative subsequent in-court identifications of petitioner were nevertheless reliable under the totality of the circumstances. In light of the foregoing, there is no reasonable probability that a motion to suppress the field show-up identification and its potential fruits would have succeeded. Moreover, even assuming such a motion had been filed and granted, petitioner also fails to demonstrate a reasonable probability that the jury would have reached a different verdict absent the introduction of the field show-up identification in light of the independent admission of the victim's prior positive identification of petitioner in the six-pack photo lineup. Accordingly, the Los Angeles County Superior Court reasonably rejected this claim.

5. Failure to Investigate Placement of Petitioner's Photo in Six-Pack Photo Lineup — Ground 1c

Petitioner contends that his trial counsel was ineffective for failing to investigate how petitioner's picture was chosen for the six-pack photo lineup. (Petition Memo at 13-14). This claim appears to be based on the unsupported and seemingly incorrect premises that reasonable suspicion is necessary before a photograph may be included in a photo lineup and that how petitioner's photograph was chosen is relevant. The Superior Court reasonably rejected this claim because petitioner fails to demonstrate that his counsel was deficient in failing to investigate this matter or that he was prejudiced by such failure.

First, to the extent petitioner contends that an investigation would have established that police officers did not have an objectively reasonable suspicion for believing that he was the robber when they chose to include his photograph in the lineup and that such lack of reasonable suspicion would have afforded a basis to suppress the photo lineup and derivative identifications, his claim is legally unsupported. Contrary to petitioner's suggestion (Petition Memo at 14), People v. Rodriguez, 196 Cal.App.3d 1041, 1047 (1987) does not stand for the proposition that an officer must have an "objectively reasonable" suspicion — or indeed any suspicion — before including an individual's photograph in a photographic lineup. Rather, Rodriguez involved the degree of suspicion necessary to physically detain an individual for, among other things, the purpose of having him participate in a field show-up procedure. Id. Petitioner cites no other authority, and the Court is aware of no authority to support petitioner's contention that reasonable suspicion is necessary before a suspect's photograph may be included in a photo lineup. In light of the absence of any such authority, petitioner fails to demonstrate either that his counsel was deficient in failing to investigate how petitioner's photograph was chosen for the photo lineup or any reasonable probability that had counsel conducted such an investigation, petitioner would have had a viable basis to seek the suppression of the photo lineup and the arguably derivative identifications.

Second, to the extent petitioner contends that an investigation would have established that police officers did not have a reasonable suspicion he was the robber when they chose to include his photograph in the lineup, that such fact would have been relevant and admissible at trial, and that there is a reasonable probability that it would have impacted the jury's verdict, he again is not entitled to relief. In short, petitioner cites no facts or legal authority which suggest that how his photograph was chosen for the photo lineup was relevant or would have been admissible in this case. As respondent correctly points out, "the method by which the photographs in the photo lineup were chosen — whether they were hand picked by the officer, computer generated, or chosen by pure chance — is irrelevant to any issue here." (Answer at 19). While petitioner correctly notes that the jury inquired about the matter, that fact is not probative of whether or not the information was relevant or would have been proper for the jury to consider in the first instance. In the absence of any viable theory as to how the choice of petitioner's photo for the photo lineup was relevant and admissible, petitioner again fails to demonstrate either that his counsel was deficient in failing to investigate the matter or that he was prejudiced by such failure. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (factually unfounded claim alleging ineffective assistance of counsel warrants no federal habeas relief).

In light of the foregoing, the Superior Court reasonably rejected this ineffective assistance of counsel claim.

6. Failure to Turn Over the Booking Photo after Petitioner's Direct Appeal — Ground 1d

a. Pertinent Background

After petitioner was arrested on the night of the crimes in issue, law enforcement authorities took a booking photograph of petitioner. (RT 115-16). The photograph was marked as Defense Exhibit C at trial and was admitted into evidence by stipulation of the parties. (RT 193, 246). In closing argument, petitioner's counsel argued to the jury that Roman misidentified petitioner as the robber, as evidenced by, among other things, the fact that she described the robber as bald (as opposed to having a shaved head), but that the booking photograph of petitioner taken on the night in question showed that petitioner was not bald. (RT 281-82). The jury, by returning a verdict of guilty, clearly rejected this argument.

As noted above, on February 24, 2009, the California Court of Appeal affirmed the judgment on February 24, 2009, and the California Supreme Court denied review on May 13, 2009. (Lodged Docs. 6, 8). The Court of Appeal issued the Remittitur on June 4, 2009.

Prior to June 25, 2009, petitioner wrote to his appellate counsel in an effort to obtain a copy of the booking photograph, Defense Exhibit C. (Petition Memo at 15; Lodged Doc. 9, Ex. 6 at 1-2). On June 25, 2009, petitioner's appellate counsel responded, advising petitioner of the following: Petitioner's trial attorney had informed petitioner's appellate counsel that he could not find a copy of Defense Exhibit C and that the trial exhibits entered into evidence were going to be destroyed by the Superior Court 30 days after the Remittitur had been issued on June 4, 2009. Appellate counsel, although it was not her responsibility, had made efforts to locate the exhibits and to discover how petitioner could obtain a copy thereof. A clerk supervisor advised appellate counsel that the exhibits would be flagged not to be destroyed until September. Since petitioner was proceeding pro per, he would have to petition the trial court directly to request that the court order Defense Exhibit C or a copy thereof to be sent to petitioner. Appellate counsel included a rough draft of such a petition for petitioner's benefit and provided him with further instructions regarding how to proceed, cautioning him that he should file a petition as soon as possible. (Lodged Doc. 9, Ex. 6 at 1-2).

On or about July 2, 2009, petitioner filed an application in the Los Angeles County Superior Court requesting that he be supplied with Defense Exhibit C. (Lodged Doc. 9, Ex. 6 at 3). On July 30, 2009, the Superior Court denied such request. (Lodged Doc. 9, Ex. 6 at 4).

b. Analysis

Petitioner claims that his trial counsel was ineffective for failing to provide petitioner with petitioner's booking photo when, after the conclusion of petitioner's first appeal of right, petitioner's appellate counsel, at petitioner's request, asked trial counsel for a copy of the photo for petitioner's use on collateral review. (Petition Memo at 15; Lodged Doc. 9, Ex. 6 at 1-2). Petitioner argues that his booking photo possessed exculpatory value and would have supported his actual innocence claim. (Petition Memo at 15). Petitioner is not entitled to relief on this claim.

First, this claim is not cognizable. A criminal defendant does not have a constitutional right to counsel after the conclusion of his first appeal of right, such as when mounting collateral attacks in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no constitutional right to counsel in discretionary proceedings or habeas proceedings; "the right to appointed counsel extends to the first appeal of right, and no further"). Thus, a claim of ineffective assistance of counsel in a federal habeas petition cannot properly be predicated on any action or omission of counsel occurring after the conclusion of petitioner's first appeal of right in the California Court of Appeal. Id. This means that petitioner's claim that counsel failed to turn over petitioner's booking photo after petitioner's first appeal of right for use on collateral review fails to present a colorable federal question. Absent a colorable federal question, this claim must be denied. See 28 U.S.C. § 2254(a) (federal habeas relief may be granted "only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States").

Second, even assuming this claim was cognizable and that his trial attorney was deficient in not retaining and supplying petitioner with the booking photograph for petitioner's use in pursuing an actual innocence claim on habeas review, it would still not merit relief as petitioner cannot show that he was prejudiced. More specifically, petitioner cannot show a reasonable probability that he would prevail on an actual innocence claim if his trial counsel had retained and supplied him with the booking photograph, even assuming a freestanding claim of actual innocence is cognizable on federal habeas review.8 "[A] habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Carriger, 132 F.3d at 476 (citing Herrera, 506 U.S. at 442-44 (Blackmun, J., dissenting)). The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Id. (quoting Herrera, 506 U.S. at 417); see also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir.1999) (denying habeas relief where "the totality of the new evidence [did] not undermine the structure of the prosecution's case"), cert. denied, 531 U.S. 995 (2000); Swan v. Peterson, 6 F.3d 1373, 1384-85 (9th Cir. 1993) (denying habeas relief where newly discovered evidence did not contradict materially the evidence presented at trial, did not demonstrate that the state's evidence was false, and was merely equivocal), cert. denied, 513 U.S. 985 (1994). Here, even assuming the presence of the booking photograph, there is no reasonable probability that petitioner would prevail on an actual innocence claim because he offers nothing more than the evidence which was presented and vigorously argued to the jury at trial — evidence and argument which the jury found to be unpersuasive.9

In light of the foregoing, petitioner's instant ineffective assistance of counsel claim does not merit federal habeas relief.

7. Cumulative Error — Ground 1e

Petitioner claims that the cumulative effect of the above asserted deficiencies in counsel's performance amounted to error of constitutional proportion. (Petition Memo at 15-16). Multiple errors, even if harmless individually, may entitle a petitioner to habeas relief if their cumulative effect prejudiced him. Brown v. Uttecht, 530 F.3d 1031, 1049 (9th Cir. 2008) (citations omitted), cert. denied, 555 U.S. 1141 (2009). Petitioner does not so demonstrate here. In short, the Superior Court reasonably rejected petitioner's claim of cumulative error. Accordingly, petitioner is not entitled to relief on this claim.

B. Petitioner's Ineffective Assistance of Appellate Counsel Claims Do Not Merit Habeas Relief — Ground 2

Petitioner contends that his appellate counsel rendered ineffective assistance because: (1) she failed to appeal the trial court's denial of the motion to suppress the six-pack photo lineup (Ground 2a); and (2) she failed to raise Grounds 1a and 1b on direct appeal, i.e., ineffective assistance of trial counsel based on such counsel's failure to investigate the circumstances surrounding the show-up and failure to file a motion to suppress the show-up identification and the fruits thereof (Ground 2b). (Petition Memo at 17-19). The Los Angeles County Superior Court — the last state court to render a reasoned decision on such claims — rejected them on the merits on habeas review. (Lodged Doc. 14).10 Petitioner is not entitled to relief on his ineffective assistance of appellate counsel claims.

1. Pertinent Law

The standards discussed in Part VA2a, supra, also apply to ineffective assistance of appellate counsel claims. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997) (citation omitted). "A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court." Id. (citation omitted). Appellate counsel's failure to raise an issue on direct appeal cannot constitute ineffective assistance when the "appeal would not have provided grounds for reversal." Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (citation omitted); see also Rhoades v. Henry, 638 F.3d 1027, 1036-37 (9th Cir.) (en banc) (counsel not ineffective for failing to investigate and raise an argument on appeal where "neither would have gone anywhere"), cert. denied, 132 S.Ct. 401 (2011).

2. Failure to Appeal the Trial Court's Denial of the Motion to Suppress the Six-Pack Photo Lineup — Ground 2a

Petitioner claims that his appellate counsel's failure to appeal the trial court's denial of the motion to suppress the six-pack photo lineup constitutes ineffective assistance. The record reflects that petitioner's appellate counsel elected not to raise such a claim because she did not believe that it was meritorious. (Petition Appx., Declaration Attachment D).11 The Superior Court reasonably rejected this claim because petitioner's appellate counsel was not deficient in choosing not to challenge the trial court's decision on appeal, and petitioner was not thereby prejudiced.

An appellate counsel is not deficient and causes his or her client no prejudice by declining to raise a "weak issue." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Here, there is no merit to petitioner's assertion that the photographic line up was impermissibly suggestive. See Biggers, 409 U.S. at 196 (due process protects against the admission of evidence deriving from suggestive pretrial identification procedures). As the trial court concluded, each person depicted in the lineup has "short-cropped hair[,]" and petitioner's photograph does not "stand[] out in such a manner that would cause an impermissibly suggestive misidentification." (RT 19-20; CT 96). Moreover, even assuming petitioner is correct that his is the "shortest hairline of any of the six photos[,]" (RT 9), such a minor discrepancy between petitioner's photograph and the others did not in itself create an impermissible suggestion that petitioner was the offender. See United States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (photographic lineup depicting individuals with "approximately the same hair length" not impermissibly suggestive), cert. denied, 510 U.S. 900 (1993); Barrett, 703 F.2d at 1084-85 (photographic display not impermissibly suggestive where defendant was the only man depicted wearing dark tinted glasses, even though robber was described as wearing dark glasses).

In any event, petitioner's claim that the six-pack photo lineup was impermissibly suggestive ignores the basis on which Roman identified petitioner. Roman did not identify petitioner solely on the basis of hair length. (RT 93). Instead, Roman testified that she also recognized her attacker's face. (RT 93) (stating that "[she] remembered [petitioner's face] very well" when identifying him in the photographic line up); see Black v. Harrington, 2012 WL 6764525, at *11-12 (S.D. Cal. 2012) (finding state court properly rejected petitioner's claim that the photo lineup was impermissibly suggestive when it depicted petitioner with shorter hair than he had at the time of the crime in order to favor eyewitnesses' initial description of the suspect to police, because this claim "ignores the basis on which the eyewitnesses to the shooting identified Petitioner[,]" i.e., petitioner's face, rather than the length of his hair), report and recommendation adopted, 2013 WL 55659 (S.D. Cal. Jan. 3, 2013).

Finally, even assuming the photo lineup was impermissibly suggestive, consideration of the five criteria of reliability when balanced against the arguably corrupting effect of the photo lineup yields the conclusion that Roman's identification of petitioner was reliable under the totality of the circumstances for essentially the same reasons discussed in Part VA4, supra, regarding the field show-up identification. Biggers, 409 U.S. at 198-99.

As an appeal of the trial court's denial of the motion to suppress the photo lineup identification would not have provided grounds for reversal, petitioner's appellate counsel was not deficient in electing not to raise such a claim, and petitioner was not prejudiced by such election. In short, the Superior Court reasonably rejected this claim and petitioner, accordingly, is not entitled to federal habeas relief thereon.

3. Failure to Raise Ineffective Assistance of Trial Counsel Claims — Ground 2b

Petitioner also claims that his appellate counsel was ineffective in failing to raise ineffective assistance of trial counsel claims based on trial counsel's failure to investigate the circumstances surrounding the show-up (Ground 1a), and trial counsel's failure to file a motion to "suppress the circumstances surrounding the show-up" (Ground 1b). (Petition Memo at 18-19). However, as set forth above, there is no merit to Grounds 1a and 1b. As a result, petitioner cannot show that appellate counsel was deficient in failing to present these claims, or that the outcome of petitioner's appeal would have been different had counsel done so. See Smith, 528 U.S. at 285, 289. In sum, the Superior Court's rejection of Ground 2b was neither contrary to, nor an objectively unreasonable application of, any clearly established federal law, and petitioner is not entitled to habeas relief on this claim.

C. Petitioner's Insufficiency of the Evidence Claim Does Not Merit Habeas Relief — Ground 3

Petitioner contends that the evidence of identity was insufficient to support his robbery and burglary convictions because such convictions rested solely on Roman's assertedly unreliable identification. (Petition Memo at 19-22). The California Court of Appeal rejected such claim on its merits on direct appeal (Lodged Doc. 6 at 3-4), and the Los Angeles County Superior Court — the last state court to render a reasoned decision on such claim — likewise rejected this claim on habeas review on the merits. (Lodged Doc. 14).12 Petitioner is not entitled to relief on this claim.

1. Pertinent Law

On habeas corpus, the court's inquiry into the sufficiency of evidence is limited in that it is subject to two layers of judicial deference. Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam).

First, on direct appeal, "it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Id. (quoting Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979) (standard of review on sufficiency of the evidence claim is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.") (emphasis in original). "[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality." Coleman, 132 S. Ct. at 2065.

Second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was `objectively unreasonable.'" Coleman, 132 S. Ct. at 2062, 2065 (state court determination that jury's finding was not so insupportable as to fall below the threshold of bare rationality is entitled to considerable deference on habeas review) (citations omitted); see Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) (as amended) (on federal habeas review, relief may be afforded on sufficiency of the evidence claim only if state court's adjudication of such claim involved unreasonable application of Jackson to the facts of the case), cert. denied, 546 U.S. 1137 (2006).13

Sufficiency of the evidence claims are judged by the elements defined by state law. Jackson, 443 U.S. at 324 n.16. In this case, petitioner challenges the sufficiency of the evidence to support his first degree ATM robbery (count 1) and second degree burglary of a vehicle (count 2) convictions.

In California, a robbery conviction requires proof of "the felonious taking of personal property in the possession of another, from [her] person or immediate presence, and against [her] will, accomplished by means of force or fear." Cal. Penal Code § 211; CALCRIM No. 1600; People v. Scott, 45 Cal.4th 743, 749 (2009). To establish that a defendant is guilty of first degree robbery of an ATM, the prosecution must also prove that the victim was robbed while using or immediately after using an ATM and was in the vicinity of the ATM. Cal. Penal Code § 212.5(b); CALCRIM No. 1602; People v. Ervin, 53 Cal.App.4th 1323, 1326 (1997).

To convict a defendant of second degree burglary of a vehicle in California, the prosecution must prove that the defendant made a forced entry into a locked vehicle with the intent to commit theft or robbery. Cal. Penal Code §§ 459, 460(b); CALCRIM 1700; People v. Thorn, 176 Cal.App.4th 255, 258 n.2 (2009).

2. Analysis

Petitioner contends that the evidence of identity was insufficient to support his robbery and burglary convictions. (Petition Memo at 19-22). He does not otherwise challenge the sufficiency of the evidence to support such convictions. Petitioner is not entitled to federal habeas relief on this claim.

Petitioner argues that Roman's identification of him was too unreliable and insubstantial to support his conviction because (1) Roman's prior description of petitioner did not match his physical attributes in terms of age, height, weight and length of hair; (2) Roman spent a long time — two to three minutes — looking at the photos in the photo lineup and even then concluded only that "[t]his looks like the guy"; and (3) Roman testified at trial that petitioner was bald at the show-up, whereas petitioner's booking photo showed that petitioner in fact then had a full head of hair. (Petition Memo at 20-21). He further points to the alibi testimony, testimony regarding his inability to converse in Spanish, and the lack of physical evidence linking him to the crime, arguing that the evidence as whole was insufficient to establish identity and to support his conviction. (Petition Memo at 21-22). These arguments were already made to, and rejected by the jury at trial. Petitioner is essentially asking this Court to reweigh the evidence. However, the Court may not do so on federal habeas review. See Cavazos, 132 S. Ct. at 7 n.* (reweighing facts precluded by Jackson); United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir. 2010) (in assessing sufficiency of the evidence claim, it is not court's function to reweigh the evidence) (citation and quotation marks omitted). The only issue before this Court is whether it was objectively unreasonable for the California courts to determine that a rational trier of fact could have found beyond a reasonable doubt that petitioner committed the robbery and burglary in issue. In this case, such question must be answered in the negative.

Roman positively identified petitioner as the robber and burglar both before and during trial. (RT 58, 63-64, 87; CT 6). As previously discussed, her eyewitness identifications were reliable under the totality of the circumstances. See Parts VA4, VB2, supra. Being only 12 to 18 inches away from petitioner, she had a clear look at his face. (RT 59-61). She directly looked at his face for about three or four minutes. (RT 59-61, 76). The parking lot was well lit. (RT 59-61). She positively identified petitioner from a six-pack photo lineup within minutes of the robbery. (RT 63-64, 110). She again identified him at a field show-up. (RT 63-64, 76, 110). "Identification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime." People v. Boyer, 38 Cal.4th 412, 480 (2006) (citations omitted), cert. denied, 549 U.S. 1021 (2006); United States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981) ("The testimony of one witness . . . is sufficient to uphold a conviction."); United States v. Jones, 425 F.2d 1048, 1055 (9th Cir.) ("[I]n this circuit, . . . the testimony of one witness, if believed, is sufficient to prove a fact.") (citation omitted), cert. denied, 400 U.S. 823 (1970); see also United States v. Foster, 243 Fed. Appx. 315, 316 (9th Cir. 2007) (even testimony of one witness, if believed, sufficient to support conviction; resolution of any question as to credibility properly entrusted to jury). Moreover, "testimony that a defendant resembles the robber, or looks like the same, has been held sufficient." People v. Jackson, 183 Cal.App.2d 562, 568 (1960) (internal citations omitted); see also United States v. Smith, 563 F.2d 1361, 1363 (9th Cir. 1977) (statement that defendant "look[ed] like" the perpetrator sufficient), cert. denied, 434 U.S. 1021 (1978).

Although petitioner points to discrepancies in the testimony and the fact that defense witnesses offered exculpatory testimony, it was the province of the jury to credit the evidence showing that petitioner was the robber/burglar. See United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996) ("The evidence is not rendered insufficient simply because there are discrepancies in the eyewitnesses' descriptions of the robber."); People v. Jackson, 183 Cal. App. 2d at 568 ("The uncertainty of recollection, qualification of identity and lack of positiveness in the testimony of the several witnesses complained of by appellant were matters going to the weight of the evidence and the credibility of witnesses and for the observation and consideration, and directed solely to the attention of, the jury in the first instance. . . ."). A jury's credibility determinations are "entitled to near-total deference under Jackson [v. Virginia]." Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (citations omitted) (federal habeas court could not revisit jury's resolution of inconsistencies between victim's account and those of other witnesses, and victim's account was not "wholly incredible"). Notwithstanding petitioner's assertion to the contrary and the exculpatory evidence presented by the defense, this Court cannot say that the California courts' deference to the jury's finding that Roman's testimony identifying the petitioner as the robber/burglar should be credited was objectively unreasonable.

As the California courts reasonably determined that the evidence of identity was constitutionally sufficient to support petitioner's robbery and burglary convictions, petitioner is not entitled to federal habeas relief on this claim.

D. Petitioner's Claim That the State Violated His Due Process Rights by Destroying an Exculpatory Booking Photo Does Not Merit Habeas Relief — Ground 4

Petitioner claims the state violated his constitutional right to due process by destroying his booking photo, which had exculpatory value, after his conviction was affirmed on appeal. (Petition Memo at 22-23). The Los Angeles County Superior Court — the last state court to render a reasoned decision on such claim — rejected it on habeas review on the merits. (Lodged Doc. 14).14 Petitioner is not entitled to relief on this claim.

1. Pertinent Law

The State's destruction of evidence may violate due process when the evidence "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 488-89 (1984); see also Drake, 543 F.3d at 1090 ("The exculpatory value of an item of evidence is not "apparent" when the evidence merely "could have" exculpated the defendant; finding digital surveillance video of robbery which was lost prior to trial far from clearly exculpatory) (citation omitted) (emphasis in original). However, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also Mitchell v. Goldsmith, 878 F.2d 319, 322-23 (9th Cir. 1989) (in the absence of bad faith, failure to preserve two photographic lineups shown to victim which did not include defendant's photo and as to which victim did not identify anyone did not constitute denial of due process).

Bad faith is shown where "the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Youngblood, 488 U.S. at 58. A police department's compliance with "departmental procedure" should be regarded as an indication that the disposal of the subject evidence was not performed in "bad faith." See Mitchell, 878 F.2d at 322 (observing, in the course of enumerating reasons for not finding bad faith, that "the police were acting in accord with their normal practices").

All of the foregoing cases involved the loss or destruction of evidence before trial. Petitioner does not cite and the Court is not aware of any United States Supreme Court or Ninth Circuit case which has applied Trombetta, Youngblood or their progeny to claims involving the post-trial loss or destruction of evidence, let alone the post-trial loss or destruction of evidence previously supplied to the defense and admitted into evidence at trial. At least two circuits have suggested that Trombetta and Youngblood do not apply to the post-trial loss or destruction of evidence. See e.g., Ferguson v. Roper, 400 F.3d 635 (9th Cir. 2005) (Youngblood does not apply to evidence that was not lost or destroyed until after trial), cert. denied, 546 U.S. 1098 (2006); Lovitt v. True, 403 F.3d 171, 187 (4th Cir. 2005) (observing that "[e]xtending the destruction of evidence rule [to evidence discarded by the clerk after trial had concluded and the state supreme court had affirmed the conviction] might impermissibly create a "new rule" on federal habeas review," but declining to decide issue because claim failed even under Youngblood), cert. denied, 546 U.S. 929 (2005).

2. Analysis

Petitioner claims his due process rights were violated when the state failed to preserve or destroyed his booking photo prior to petitioner's collateral challenge to his conviction on habeas review. (Petition Memo at 15, 22). He is not entitled to relief on this claim.

First, in the absence of United States Supreme Court authority extending Trombetta and Youngblood to the post-trial loss or destruction of evidence previously supplied to the defense and admitted at trial, petitioner cannot demonstrate that the Superior Court's rejection of this claim was contrary to or an unreasonable application of United States Supreme Court law. See 28 U.S.C. § 2254(d).

Second, even assuming Trombetta and Youngblood apply here, the booking photo was not "apparently exculpatory" and was at best "potentially exculpatory." Certainly the jury, which saw the booking photo and was not persuaded that petitioner was innocent, did not view the photo to be "apparently exculpatory." Moreover, multiple witnesses who testified at trial — such as the arresting officer and petitioner's alibi witnesses — actually interacted with petitioner on the same night that the booking photograph was taken and certainly could have offered testimony regarding petitioner's hair length at trial, or declarations regarding the same in support of petitioner's habeas petitions. In other words, comparable evidence regarding the appearance of petitioner's hair on the night in issue was reasonably available to petitioner, further supporting the court's conclusion that the booking photograph was not "apparently exculpatory."

Third, since the booking photograph was at best "potentially exculpatory," and assuming that Youngblood applies, petitioner cannot demonstrate that the presumable destruction thereof was in "bad faith." As discussed above, it is the state court's normal procedure to destroy trial exhibits shortly after the conclusion of a criminal defendant's direct appeal. The state court clerk's presumable destruction of petitioner's booking photo after a state judge denied petitioner's application to obtain such trial exhibit is simply not an act of "bad faith."

Finally, petitioner cannot demonstrate that he has been prejudiced by the presumable destruction of the booking photograph. As discussed above, petitioner had a full and fair opportunity to use the booking photograph at trial and was nonetheless convicted. The jury was provided with such photograph and despite that fact and petitioner's counsel's vigorous use of the photo and defense of petitioner, the jury still determined that petitioner was the person who committed the robbery and burglary crimes against Roman. This Court, in assessing whether petitioner is entitled to federal habeas relief on his sufficiency of the evidence and his other foregoing claims, has assumed that the booking photo depicted petitioner as petitioner has described, i.e., with a full head of hair, but has nonetheless determined that his claims lack merit. In short, petitioner has not been prejudiced by the post-appeal loss/destruction of the booking photograph.

In light of the foregoing, petitioner is not entitled to federal habeas relief on his instant claim.

E. Petitioner's Claim That the Los Angeles County Superior Court's Habeas Denials Deprived Him Of Due Process Does Not Merit Habeas Relief — Ground 5

Petitioner argues that the Superior Court's rejection of his state habeas petitions was "objectively unreasonable" thereby depriving him of due process of law. (Petition Memo at 23-24). He is not entitled to relief on this claim.

First, this "claim" is essentially an abbreviated recitation of a portion of the standard of review which governs this Court's review of the merits of the Superior Court's determinations on petitioner's other claims, and does not itself constitute a cognizable federal constitutional claim. See 28 U.S.C. § 2254(d). In any event, as discussed in detail above, the Court has concluded that the Superior Court's determinations on all of petitioner's other claims are not "objectively unreasonable." Thus, even assuming this "claim" was cognizable as framed, it is without merit.

Second, to the extent this claim seeks to challenge the Superior Court's post-conviction review process, it is likewise not cognizable because "a petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings." Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989); see also Cooper v. Neven, 641 F.3d 322, 331 (9th Cir.) ("grounds stem[ming] from activities arising out of the state trial court's consideration of [a petitioner's] last state habeas petition" are "not cognizable for federal habeas review") (citing Franzen, 877 F.2d at 26), cert. denied, 132 S.Ct. 558 (2011).

Accordingly, petitioner is not entitled to federal habeas relief on this claim.

VI. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.15