FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the petition filed on June 16, 2016,1 ECF No. 1, which challenges petitioner's 2013 conviction for two counts of second degree burglary with use of a firearm. Respondent has answered, ECF No. 17, and petitioner filed a traverse.

BACKGROUND

I. Proceedings in the Trial Court

A. Preliminary Proceedings

Petitioner was charged with assault of a police officer with a semi-automatic firearm, unlawful firearm activity, and two counts of second degree robbery. ECF No. 18-1 at 53-55. The charges arose from two 2012 robberies and one 2012 incident involving a police operation to apprehend petitioner following the robberies.

Trial commenced on October 12, 2012. The court provided the jury with preliminary instructions that included the following:

ECF No. 18-4 at 62, 64-65.

In his opening statement, petitioner's lawyer argued that robbery victim and witness Terry Mitchell ("Mitchell") made multiple inconsistent statements. ECF No. 18-4 at 74. Counsel also commented that there "there is no evidence other than" Joaquin Raya ("Raya") and Mitchell saying they were robbed. Id. Regarding Mitchell's and Raya's identification of petitioner from photographs, defense counsel encouraged the jury in his opening statement to "pay close attention to the features so that when the witness is describing what he remembers the person looked like, you can then see how that applies to the photos." Id. at 79.

B. The Evidence Presented at Trial

The prosecution presented the following evidence regarding the March 24, 2012 Mitchell robbery. Mitchell testified that she was held up at gunpoint at approximately 2:00 a.m. on March 24, 2012 in a Kaiser emergency room parking lot in Vallejo, California. ECF No. 18-4 at 82-83. Mitchell testified that she was in an open door of the back seat of her car looking in her purse for her cell phone and "heard rapid footsteps coming up from behind" as if someone was running. Id. at 83-84, 86. She turned and saw a man about twenty feet away pointing a gun at her and running towards her. Id. at 84. As he neared, Mitchell kicked the man who then "got angry and shoved [her] back against the car" with his body. Id. at 85-86. Mitchell fell back into the car and the person with the gun jumped on top of her and jammed the gun into the side of her stomach several times. Id. at 88-89. Mitchell described the man's face as intimidating and looking at her as if to say, "Stop it." Id. at 90. After Mitchell settled down, the man took her purse, showed it to her, jammed the gun in her side again, then got off her and ran off with her purse. Id. at 91, 92. The police showed up within five minutes and Mitchell gave a description of the robber. Id. at 93-94.

When asked if she felt like she was able to get a good look at the person, Mitchell responded, "Oh, yes." ECF No. 18-4 at 94. Mitchell described the person as wearing all black with a hood that obstructed part of the front of his face so that she could see his forehead, eyes, cheeks, and nose. Id. at 94-95. Mitchell testified that she "could see his eyes really well" and she could tell that he "was a light-colored black man." Id. at 94-95. She further described the robber as average size with what she thought was a mustache, but the bottom part of the hood was covering somewhere around his lip area. Id. at 96. When asked if Mitchell would recognize the person if she saw them again, Mitchell responded, "Oh, yes, sir." Id. at 101. Mitchell was asked if she saw the person in the courtroom and she identified petitioner. Id. When asked how she was able to confidently say she would recognize the person again, Mitchell testified that, "It's just a face you don't forget when they're on top of you." Id. at 102.

After the incident but while it was still fresh in her mind, officers showed Mitchell some pictures. ECF No. 18-4 102. Mitchell was told to look at the pictures, be honest, and not pick a photograph unless she was sure. Id. Mitchell testified that she was not so angry about what happened that she just wanted somebody held responsible. Id. Mitchell confirmed she wrote the following on the photograph she identified: "This is the person that looks like him that robbed me at gunpoint." Id. at 103-04. She also testified that she did not have any uncertainty as to whether or not that was the person, and that she "took [her] time and made sure [she] was positive." Id. at 104. Mitchell stated several times that she was positive about her identification of petitioner as the person who robbed her at gunpoint. See id. at 104-05. She reiterated that when she saw petitioner again, she "knew for sure from the picture to seeing him in person, it was that exact person." Id. at 105.

The Court of Appeal correctly described defense counsel's cross-examination as "vigorous[]." ECF No. 18-8 at 228. During cross-examination, Mitchell admitted that she recalled speaking with the police only "somewhat" because of the stress of the situation. ECF No. 18-4 at 110. Counsel questioned Mitchell regarding her prior testimony that she was behind the driver's side of the vehicle versus behind the passenger side of the vehicle when the robber approached. Id. at 122-24. Mitchell testified that the parking lot was "very well-lit" and that she saw the person making the footsteps coming toward her right at the moment she turned around. Id. at 126. Counsel asked Mitchell about her identification of petitioner from the photographs the police showed her. Id. at 144. Mitchell testified that she "recognized the face right away, but [she] still took time to look just to be sure and took away the ones that [she] knew for sure were not the gentleman, and [she] wanted to be sure, so [she] probably looked at them for a good five minutes." Id. Counsel asked her if there was anything about the excluded photos that made her rule them out, and Mitchell responded, "No. The other ones just didn't look anything like the person that I knew that it was" and "[t]he other ones just weren't Mr. Webb." Id. Regarding petitioner's hair, Mitchell testified that she did not know petitioner had hair at the time. As the Court of Appeal aptly noted, "Counsel asked Mitchell a number of questions about the assailant's hood and [petitioner's] shaved head in the photo. Mitchell testified consistently that she could not see any hair on [petitioner's] head and did not know whether he had any hair because of the hood." ECF No. 18-8 at 232 n.5.2 Also during cross-examination, Mitchell confirmed that the robbery was traumatizing for her, she was shaking because of the trauma, and she had nightmares and fear after the incident. ECF No. 18-4 at 153. When asked if any of the emotional turmoil that she went through could have affected her ability to see and recognize the person who was at her vehicle with the hooded jacket, Mitchell responded, "No, sir." Id. at 154.

During the prosecution's redirect examination, Mitchell confirmed that the lighting from the parking lot illuminated the car. Id. at 155. She also testified that she had "[a]bsolutely not" tried to embellish or change her story to have some sort of effect on the case, and that her memory of the incident had "stayed the same." Id. at 155-57. The prosecutor asked Mitchell whether she felt pressured to identify any particular person to which Mitchell responded, "Oh, absolutely not. If anything, they were — they, `Don't identify anybody if I didn't recognize anybody[.']" Id. at 158. Mitchell also did not feel that the photographs were presented in a way that one stood out among the others. Id.

The prosecution presented the following evidence regarding the Raya robbery on April 7, 2012. Raya testified that he was in the business of selling medical marijuana through advertisements on websites including BudTrader.com. ECF No. 18-4 at 176-77. Raya received a text message from a person wanting to purchase medical marijuana, and he ultimately agreed to sell the person approximately two ounces to a quarter pound of marijuana for $800 or $900. Id. at 178, 80. Raya had a "couple thousand" in cash in his backpack because he was "going to look at . . . some rims and some car audio" equipment after he sold the medical marijuana. Id. at 180-81, 187. When Raya arrived at the meeting spot, an apartment building, he stayed on the phone with the person until he saw him emerge with another man. Id. at 181-82, 184. Raya identified petitioner as one of the men who emerged from the apartment building. Id. at 182. Raya described the man's voice on the phone as "[s]oft, feminine." Id. While still on the phone, Raya asked the man to come out to his car, but the man refused so Raya got out of his car and went to him. Id. Raya testified that he spoke with the man who had the same voice he heard on the phone. Id. at 183-84. Raya was led towards the apartment. Id. at 184. The men were concerned Raya had a weapon and all three men pulled up their shirts to show they did not have weapons. Id. at 185. As they walked towards the apartment complex Raya started to get a "bad feeling because of the way they were acting," which he described as "really scared, sketchy, like nervous." Id. at 186. The men asked to look in Raya's backpack again to confirm he did not have a gun. Id. at 188. When Raya showed them inside the backpack again, petitioner grabbed the bag out of his hand and the other man pulled out a gun. Id. at 188-89.

When asked if he got a good enough look at the two people that he would have been able to recognize them after that date, Raya responded, "Yes." Id. at 195. Raya testified that he was sure nothing was covering petitioner's face and he was not wearing a hat or hood. Id. at 196. After the robbery, Raya was contacted by the police to look at some photographs. Id. at 197. The police did not indicate they were hoping he would pick out a certain person and Raya did not feel any pressure to make some sort of identification. Id. at 197. Raya confirmed that he selected petitioner as the person that robbed him and wrote next to petitioner's photograph, "This is the guy that robbed me." Id. at 198.

Raya testified that he did not stop advertising on BudTrader.com and put up a new advertisement the next day with a different phone number. Id. at 199-200. Raya received a response to the new ad and recognized the text message as coming from a number associated with the robbers. Id. at 200-01. Raya had a conversation with the person and recognized the voice as the same man he spoke with on the phone previously. Id. at 202. Raya contacted the police to let them know the same man who robbed him was calling him again at a different number. Id. at 201.

Raya confirmed that he identified petitioner as the person who robbed him. ECF No. 18-4 at 204. Raya did not think it was possible that his in-court identification was based on the fact that the police had showed him a photograph, as opposed to the fact that he was there during the robbery. Id. Raya was certain about who he was identifying as the person who robbed him. Id. at 205.

During cross examination, defense counsel questioned Raya about his recollection of the details of the robbery and his identification of petitioner. See generally ECF No. 18-4 at 205-38. This included whether Raya recalled telling the officers that he had marijuana in his backpack and the money on his person, id. at 211, 219-22; Raya's identification of the two men who robbed him, id. at 216, 237-38; Raya's physical description of the perpetrators, including whether one of them had hair or a shaved head, id. at 217-19, 225, 237-38; the differences in the darkness of skin between the person Raya identified and the other photographs, id. at 221-22; whether Raya has a clear recollection of some of the events that happened, id. at 227; Raya's description of the clothing on the person who robbed him and whether the perpetrators were wearing jewelry or had tattoos, id. at 229-30, 233; and Raya's recollection of what time the robbery occurred and how much time passed during the robbery, id. at 233-36.

Officer Steve Cheatham ("Cheatham") met with Raya to show him photographs because they recently had a similar incident and he "wanted to see if [Raya] recognized anybody from when he was victimized." ECF No. 18-4 at 244. Cheatham showed Raya six eight-by-ten photographs of individuals and explained to him that "[t]he person who may have victimized him may or may not be in the[] photographs." Id. Cheatham did not suggest to Raya which of the photographs was a person of interest for him. Id. Cheatham testified that he put down photo number one and Raya looked at it, Cheatham put down photo number two and Raya looked at it, and when Cheatham "started putting down number three, [Raya] immediately told [him] that this was the person that had robbed him." Id. at 246. Cheatham said Raya reacted "[e]xtremely quickly" to petitioner's photograph. Id. at 248. Raya told Cheatham that "the subject that he had identified in the photo was the subject who took his marijuana from him while [a] second subject pointed a gun at him." Id. at 246.

The prosecution also presented evidence regarding an undercover operation on April 13, 2012:

ECF No. 18-8 at 224-26; see also ECF No. 184-4 at 253-290; ECF No. 18-5 at 3-38, 40-55, 60-125, 138-76; 183-213.

The court discussed jury instructions with counsel before the presentation of evidence ended. CALCRIM No. 315 was raised by the court, which noted that the instruction was "requested by the defense." ECF No. 18-5 at 249. Petitioner did not request a modification of the instruction. Id. On the court's own motion, and after hearing arguments from the prosecution and defense counsel, Count 1 was eliminated under California Penal Code section 1118.1.3 Id. at 293. The court then introduced counsel for closing arguments, and directed the jury that, "[a]s you listen to the attorneys argue, keep in mind, again, that what they say is not evidence" and "[y]ou will be the ultimate arbiters of what the facts in this case have been." ECF No. 18-5 at 296.

During the prosecution's closing argument, defense counsel made several objections that the court addressed. In overruling counsel's objection on the ground that the prosecutor's argument misstated the law, the court explained that it "will state the law to the jury and will tell the jury that to the extent the attorneys say something different, they're to disregard it." ECF No. 18-5 at 299. The prosecutor made the following arguments during closing:

ECF No. 18-6 at 3-5. Defense counsel lodged an objection that the prosecutor was misstating the law as to the procedures applicable to inconsistent statements and testimony. Id. at 5. The court overruled the objection, reiterating that it "already indicated to the jury that [it] will be giving them the law regarding how to interpret witness testimony, so counsel can argue . . . ." Id. The prosecutor concluded his opening argument with the following comments regarding Mitchell and Raya:

ECF No. 18-6 at 17.

Petitioner's counsel zealously argued misidentification in his closing statement. See generally ECF No. 18-6 at 20-46. Counsel challenged the reliability of Mitchell's identification, arguing that Mitchell's handwriting on petitioner's photograph changed, id. at 23; Mitchell did not realize the scope of the seriousness of what she was doing, id.; Mitchell forgot the date of the robbery, id. at 24; she presented more than one account of the robbery, id. at 24, 26; Mitchell's account does not "make[] any sense at all," id. at 25, 27; "[w]hatever happened to Ms. Mitchell, it wasn't [petitioner] that did that," id. at 26; the "different stories" are "so substantial it amounts to an absolute doubt," id. at 27; that eyewitness identification "is probably one of the weakest, most unreliable bits of evidence that we put in Court here," id. at 28; and the discrepancies in Mitchell's testimony "are so substantial that [the jury] can't possibly reasonably using [its] common sense find that [the charge] has been proven," id. at 29.

Similarly, petitioner's counsel included the following arguments in his closing statement regarding Raya: the photos given to Raya were "put together with the specific intention of [petitioner's] picture standing out, ECF No. 18-6 at 30; there is a problem with connecting petitioner to the phone calls with Raya, id. at 31; someone would not put "cash for rims and audio stuff in the backpack with the marijuana that you are taking around and showing people and stuff," id. at 33; and Raya is "not imputed with some kind of automatic credibility because he complained to the police that he had been robbed," id. at 34.

In sum, petitioner's counsel argued during his closing statement that nothing was given to the jury to substantiate Mitchell's identification and Raya was "just mixed up." ECF No. 18-6 at 45-46.

During the court's administration of jury instructions, the court explained to the jury: "Nothing that the attorneys said was evidence. In their opening statements and closing arguments, the attorneys discussed the case, but their remarks are not evidence. Their questions are not evidence, and only the witness's answers are evidence." ECF No. 18-6 at 60. The court further explained to the jury:

ECF No. 18-6 at 64. The court also read CALCRIM No. 315 to the jury:

ECF No. 18-6 at 66-67 (emphasis added).

C. Outcome

The jury found petitioner guilty of counts 3 (second degree robbery upon Raya) and 4 (second degree robbery upon Mitchell), including finding true that a principal was armed with a firearm in the commission of the offenses. ECF No. 18-6 at 81-82. The jury deadlocked on count 2 (unlawful possession of a firearm), which was later dismissed. Id. at 75, 80, 85.

Petitioner filed a motion for new trial, arguing that he was denied a fair trial by the prosecutor's closing comments to the jury that petitioner should have presented witnesses in his defense. ECF No. 18-1 at 131-38. The trial court heard the motion on February 25, 2013. ECF No. 18-6 at 90-111. After hearing arguments, the trial court denied the motion for new trial, finding that the prosecutor did not commit misconduct in making references to petitioner's ability to call witnesses. Id. at 112.

The trial court held a judgment and sentencing hearing on March 18, 2013. ECF No. 18-6 at 114; see also ECF No. 18-1 at 141-48 (the People's sentencing brief). Petitioner's counsel advocated for a lesser enhancement, again attempting to argue that "there is not a strong evidentiary basis to that case in identification, and [petitioner] adamantly denies being involved." Id. at 116-19. Mitchell appeared and addressed the court during sentencing, stating, in part:

ECF No. 18-6 at 121.

Ultimately, the court sentenced petitioner for a term of 15 years for count 4 (the Mitchell robbery), and one year and four months for count 3 (the Raya robbery), for an aggregate prison term of sixteen years and four months. Id. at 130-31.

II. Post-Conviction Proceedings

Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of conviction on November 25, 2015. ECF No. 18-8 at 221-39. The California Supreme Court denied review on February 17, 2016. ECF No. 18-8 at 293.

On September 28, 2014, petitioner filed a petition for writ of habeas corpus in the Court of Appeal and a motion to consolidate the proceeding with the pending appeal. ECF No. 18-8 at 158-204. On September 10, 2015, the Court of Appeal denied the motion to consolidate the appeal and stated the petition for writ of habeas corpus would be considered with the appeal. Id. at 219. The Court of Appeal issued a reasoned opinion on petitioner's appeal, id. at 221-39, and separately denied the petition for writ of habeas corpus without comment on November 25, 2015, id. at 241.

Petitioner then filed a habeas petition in the California Supreme Court, ECF No. 18-8 at 266-84, which was denied without comment on February 17, 2016. ECF No. 18-8 at 295.

By operation of the prison mailbox rule, the instant federal petition was filed June 16, 2016.4 ECF No. 1. Respondent answered on January 6, 2017. ECF No. 17. Petitioner's traverse was docketed on February 6, 2017. ECF No. 21.

STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 99 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 99.

The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute "clearly established Federal law," but courts may look to circuit law "to ascertain whether . . . the particular point in issue is clearly established by Supreme Court precedent." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is "on what a state court knew and did." Id. at 1399. Where the state court's adjudication is set forth in a reasoned opinion, § 2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 101.

DISCUSSION

I. Claim One: Ineffective Assistance of Counsel — Failure to Present an Eyewitness Identification Expert

A. Petitioner's Allegations and Pertinent State Court Record

Petitioner alleges that his sole defense theory at trial was misidentification, and defense counsel "emphatically cross-examined both victim eyewitnesses and later argued to [petitioner's] jury that they had misidentified petitioner as the person that had robbed them." ECF No. 1 at 7. Petitioner argues that "it is for that reason that defense counsel was required to present an expert witness/eyewitness identification expert to counter the identifications made." Id. at 8. Petitioner further argues that the disparities in the crimes and eyewitness testimony "alone would have called for the eyewitness identification expert to be called for the defense." Id. In support of his argument, petitioner attaches two declarations: (1) appellate counsel Thea Greenhalgh, and (2) eyewitness identification expert, Kathy Pezdek, Ph.D. Id. at 9, 24-27, 29-51. Petitioner also argues that the decision to not call an identification expert "simply makes no sense" and "without the identification expert, counsel's cross-examination and closing argument became `uncorroborated' when the expert was the strongest possible defense evidence." Id. at 10.

B. The Clearly Established Federal Law

To establish a constitutional violation based on ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94. The court need not address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.

C. The State Court's Ruling

This claim was raised on appeal and in the habeas petition presented in conjunction with the appeal. The California Court of Appeal decision on direct review, ECF No. 18-8 at 221-39, constitutes the last reasoned decision on the merits because the state supreme court denied discretionary review, id. at 293. See Ylst v. Nunnemaker, 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012). The Court of Appeal ruled as follows:

ECF No. 18-8 at 228-30.

To the extent this claim should be deemed exhausted in state habeas, because that is the context in which the state courts were presented with the declaration of plaintiff's eyewitness identification expert, Kathy Pezdek, Ph.D.5, it was denied without comment. ECF No. 18-8 at 241 (denial by Court of Appeal); id. at 295 (denial by California Supreme Court). Accordingly, the question under § 2254(d) becomes whether summary denial of the claim was unreasonable in light of the extra-record evidence.

D. Objective Reasonableness Under § 2254(d)

It was not unreasonable of the state courts to reject this claim. Neither the state court's opinion on appeal, nor the summary denial of the claim in light of the Pezdek declaration, can be considered objectively unreasonable.

As petitioner recognizes, defense counsel "emphatically cross-examined both victim eyewitnesses and later argued to [petitioner's] jury that they had misidentified petitioner as the person that had robbed them." ECF No. 1 at 7. In that regard, defense counsel cross-examined both Mitchell and Raya during the trial in order to overcome their prior and in-court identifications of petitioner. Counsel emphasized the stress of Mitchell's situation, ECF No. 18-4 at 110, questioned Mitchell regarding discrepancies in her prior testimony, id. at 122-24, asked whether anything about the photograph line-up made her rule out other photographs, id. at 144, and questioned Mitchell on whether she knew petitioner had hair, id.

Similarly, counsel questioned Raya regarding his recollection of the details of the robbery, including, among other things, challenging the reliability of Raya's identification of the men who robbed him, ECF No. 18-4 at 216, 237-38; Raya's recollection of whether the perpetrators had hair or a shaved head, id. at 217-19, 225, 237-38; and the differences in the darkness of skin between the person Raya identified and the other photographs in the photographic line-up, id. at 221-22. During his closing argument, defense counsel emphasized misidentification, arguing in part that eyewitness identification "is probably one of the weakest, most unreliable bits of evidence that we put in Court here." ECF No. 18-6 at 28. Defense counsel encouraged the jury to find that there was nothing to substantiate Mitchell's identification and Raya was "just mixed up." ECF No. 18-6 at 45-46. In light of the record, it is clear that counsel did, in fact, challenge Mitchell's and Raya's identification directly and vigorously.

Furthermore, as the Court of Appeal noted, "[c]ounsel relied on the exhaustive list of factors identified in CALCRIM No. 315 that affect the reliability of eyewitness identification testimony," and counsel may well have concluded that calling the jury's attention to the "certainty" factor was superfluous in light of the arguments he made. ECF No. 18-8 at 229. See Howard v. Clark, 608 F.3d 563, 574 (9th Cir. 2010) (affirming denial of the petitioner's claim that his attorney rendered ineffective assistance by failing to call as a defense witness an expert on the unreliability of eyewitness testimony, finding that counsel extensively cross-examined two witnesses and, "even more significantly, the jurors were instructed on the potential shortcomings of eyewitness testimony"); see also United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987) (noting the Ninth Circuit "adhere[s] to the position that skillful cross examination of eyewitnesses, coupled with appeals to the experience and common sense of jurors, will sufficiently alert jurors to specific conditions that render a particular eyewitness identification unreliable").

In light of these considerations, it was not unreasonable for the appellate court to conclude that counsel's decision to rely on cross-examination rather than retaining an expert was within the wide range of reasonable defense strategies.

Moreover, the declaration of Dr. Pezdek (see ECF No. 1 at 29-40) does not render rejection of this claim objectively unreasonable. The undersigned construes the Pezdek declaration as a proffer on the prejudice prong of Strickland. Dr. Pezdek summarizes an extensive body of social science research regarding problems with eyewitness memory and identification. She identifies factors in petitioner's case, including cross-racial identification and the presence of a hood, that present a heightened risk of unreliable identification. The undersigned does not disagree with Dr. Pezdek that eyewitness expert testimony is more effective (especially from a defense perspective) in educating jurors than simply reading jury instructions. That, however, is not the issue here. The only issue is whether it was unreasonable for the state courts to find no Strickland violation. In light of the record as a whole, including the evidence regarding the Raya robbery and undercover operation, Dr. Pezdek's declaration does not generate a reasonable probability that the result of the proceeding would have been different had she or a similar expert testified. See Strickland, 466 U.S. at 693-94. Without a compelling showing of actual prejudice, it cannot have been objectively unreasonable for the state courts to summarily deny the claim.

For all the above reasons, petitioner is not entitled to relief on this claim.

II. Claim Two: Ineffective Assistance of Counsel — Failure to Move to Exclude Identification Testimony

A. Petitioner's Allegations and Pertinent State Court Record

Petitioner next contends that trial counsel failed to move for exclusion of Mitchell's identification testimony. ECF No. 1 at 4. Petitioner argues that the circumstances under which Mitchell's robbery took place "should have induced trial counsel to move for exclusion of at least that identification." Id. at 12. According to petitioner, the circumstances include that Mitchell "admitted that the robbery was a traumatizing experience for her" and she denied that the "emotional turmoil could have had an effect on her ability to see and recognize her assailant . . . despite previous testimony that she `misidentified her own car.'" Id. Petitioner also argues that the photo of petitioner in the lineup "was distinct from the others because petitioner did not have hair in the photo array while all the others did." Id. at 13. Despite all of this, counsel "still chose not to ask for suppression of . . . Mitchell's testimony." Id. In light of Mitchell's misidentification of her own car, petitioner avers that a motion for suppression was critical. Id. Petitioner further argues that suppression "was a `mainstay requirement' under every strategical or tactical component of a misidentification defense." Id. at 14.

B. The Clearly Established Federal Law

The general legal standards pertaining to a claim of ineffective assistance of counsel are provided above.

Regarding admission of a witness's pretrial identification, "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); United States v. Givens, 767 F.2d 574, 581 (9th Cir. 1985). An unduly suggestive line-up alone does not necessarily violate due process; it is the likelihood of misidentification, under the "totality of the circumstances," that constitutes a violation. Neil v. Biggers, 409 U.S. 188, 198-99 (1972). A line-up only violates due process if it is both impermissibly suggestive and the resulting identification lacks reliability. Manson v. Brathwaite, 432 U.S. 98, 106, 114 (1977).

To determine the reliability of identification testimony, courts must examine the totality of the circumstances. Id. at 114. Among the factors to consider are: (1) the witness' opportunity to view the criminal at the scene of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the witness' level of certainty at the pretrial identification, and (5) the time between the crime and the pretrial identification. Biggers, 409 U.S. at 199-200.

C. The State Court's Ruling

This claim was raised on direct appeal. The California Court of Appeal decision, ECF No. 18-8 at 221-39, constitutes the last reasoned decision on the merits because the state supreme court denied discretionary review, id. at 293. See Ylst, 501 U.S. 797; Ortiz, 704 F.3d at 1034 (9th Cir. 2012). The Court of Appeal ruled as follows:

ECF No. 18-8 at 230-33.

D. Objective Reasonableness Under § 2254(d)

The undersigned has independently reviewed the photographs used during Mitchell's pretrial identification of petitioner and agrees that the identification procedure was not so impermissibly suggestive or tainted as to give rise to a very substantial likelihood of mistaken identification. Simmons, 390 U.S. at 384. The Court of Appeal reasoned that the photographs all depicted young adult African-American males with similar age, weight, and build and no visible personal identifiers. ECF No. 18-8 at 231. Further, Michell made clear during the trial that she could not see petitioner's hair during the robbery and that factor had no effect on her selecting petitioner's photograph over the others. Id. at 231-32. In addition, although not mentioned by the Court of Appeal, Mitchell testified that she would recognize the person who robbed her if she saw him again, ECF No. 18-4 at 101, that his was "a face you don't forget when they're on top of you," id. at 102, that she had no uncertainty as to whether or not petitioner was the person who robbed her, id. at 104, and she "knew for sure from the picture to seeing him in person, [petitioner] was that exact person," id. at 105; see Biggers, 406 U.S. at 199-200 (listing five factors when determining the reliability of identification testimony). Thus, the identification possessed "sufficient aspects of reliability." Manson, 432 U.S. at 106.

In sum, a court must examine the totality of the circumstances to determine the reliability of identification testimony. United States v. Field, 625 F.2d 862, 865-66 (9th Cir. 1980). The court must then weigh the factors of reliability against the "corrupting effect of the suggestive pretrial identification procedure." United States v. Barrett, 703 F.2d 1076, 1085 (9th Cir. 1983) (citing Manson, 432 U.S. at 114). Here, although the California Court of Appeal did not expressly examine each factor outlined in Biggers, its conclusion—that petitioner "has not met his burden of establishing that the photo lineup was impermissibly suggestive," ECF No. 18-8 at 232—is not objectively unreasonable given the totality of the circumstances and the evidence presented at trial, particularly the fact that Mitchell had an opportunity to view petitioner's face up close as he was on top of her at the scene of the crime and her level of certainty at both the pretrial and in-trial identifications. Biggers, 409 U.S. at 199-200.

As a result, petitioner's counsel did not perform unreasonably in deciding not to seek exclusion of the pretrial identification. Petitioner is not entitled to relief on this claim.

III. Claim Three: Instructional Error — CALCRIM 315

A. Petitioner's Allegations and Pertinent State Court Record

Petitioner claims he was denied due process when the trial court instructed the jury that it should consider the eyewitness' level of certainty in evaluating the reliability of each witness' identification. Petitioner argues that "despite compelling reasons for misidentification, both robbery victims `claimed' that they were `certain[]' of their identifications of petitioner at trial" and "[b]ased on such testimony, the court instructed them as to" CALCRIM No. 315. ECF No. 1 at 5. Petitioner further argues that the instruction was erroneous and violated due process, and that the instructional error allowed the prosecution to convict petitioner without meeting its burden of proof. Id. at 16-17.

Petitioner presented this claim on appeal, arguing that his rights to due process and a fair trial were violated when the court instructed the jury pursuant to CALCRIM No. 315 that it could consider the witness' level of certainty when evaluating the eyewitness identification. See ECF No. 18-8 at 58-65. Petitioner argued in part that "even though jurors tend to place greater reliance on eyewitnesses who exhibit confidence in their identification, jurors do not generally understand that eyewitness confidence is not a reliable predictor of accuracy. To the extent that CALCRIM No. 315 perpetuates this myth in the face of overwhelming scientific evidence to the contrary, it is erroneous." Id. at 58. The Court of Appeal denied the claim in a reasoned opinion. See id. at 233-35.

B. The Clearly Established Federal Law

Federal habeas corpus relief does not lie for errors of state law; and a claim that a state court failed to follow its own state law in regard to jury instructions given at trial does not necessarily invoke a federal constitutional question. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In order to warrant federal habeas relief, a challenged jury instruction must violate due process to the extent that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

"The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). A defendant is not entitled to a specific instruction provided that other instructions, in their entirety, adequately inform the jury of the defense theory of a case. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996).

A "slight possibility" that the jury misapplied the instruction is not enough to warrant habeas relief. Waddington v. Sarausad, 555 U.S. 179, 191 (2009). Rather, an ambiguous instruction violates due process only when there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 190-91; Estelle, 502 U.S. at 72 & n.4 (1991). In making this determination, the reviewing court must not view the instruction in artificial isolation, but must consider it in the context of the trial record and the instructions as a whole. Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See Cupp, 414 U.S. at 147 (explaining that the challenged instructional error must be assessed not by focusing on the alleged faulty instruction in isolation, but by considering its effect in the context of the overall charge).

C. The State Court's Ruling

This claim was raised on direct appeal. The California Court of Appeal decision, ECF No. 18-8 at 221-39, constitutes the last reasoned decision on the merits because the state supreme court denied discretionary review, id. at 293. See Ylst, 501 U.S. 797; Ortiz, 704 F.3d at 1034 (9th Cir. 2012). The Court of Appeal ruled as follows:

ECF No. 18-8 at 233-35.

D. Objective Unreasonableness Under § 2254(d)

The court of appeal was not objectively unreasonable in denying this claim. A review of the "certainty" language in CALCRIM No. 315 shows that it is framed in neutral terms and only one among fourteen nonexclusive factors that the jury was instructed it could consider in weighing the accuracy of identification evidence. See ECF No. 18-6 at 66-67. The instruction itself begins by telling the jury that it "must decide whether an eyewitness gave truthful and accurate testimony." Id. Petitioner has not identified anything in the record that demonstrates the eyewitness identification instruction so infected the trial that his conviction violated due process.

Further, the studies petitioner relies on are not clearly established federal law as interpreted by the Supreme Court, which is the only basis upon which this court may grant federal habeas relief. See Williams, 529 U.S. at 412-13 (explaining that a writ may issue only if one of two conditions is satisfied: the state-court adjudication resulted in a decision that (1) was contrary to, or (2) involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States). Petitioner's theory regarding the invalidity of CALCRIM No. 315 is inconsistent with Supreme Court precedent, which holds:

Biggers, 409 U.S. at 199-200 (emphasis added). Given that some of the factors listed in CALCRIM No. 315 are identified by the Supreme Court as essential factors in evaluating misidentification, the instruction cannot amount to a due process violation.

The Court of Appeal reasonably determined that petitioner was not denied a fair trial when the jury was instructed with CALCRIM No. 315. Petitioner is not entitled to relief on this claim.

IV. Claim Four: Prosecutorial Misconduct

A. Petitioner's Allegations and Pertinent State Court Record

Petitioner argues that the prosecutor improperly vouched for both robbery victims in his closing argument and therefore went beyond the scope of proper argument. ECF No. 1 at 5. Petitioner takes issue with the following from the prosecutor's closing argument regarding Mitchell:

ECF No. 1 at 18; see also RT 601-02. Regarding Raya, petitioner takes issue with the following from the prosecutor's closing argument:

ECF No. 1 at 19; see also RT 601. Petitioner further argues that the prosecutor's closing argument was nothing less than vouching "for these two witnesses where based on the evidence concerning both robberies their testimony would be the deciding factor as to both guilt or innocence." ECF No. 1 at 5, 20-22. Petitioner relies in part on the declaration of Dr. Kathy Pezdek in support of his argument. See ECF No. 1 at 29-51.

B. The Clearly Established Federal Law

In reviewing prosecutorial misconduct claims, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). "To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987) (quotations omitted) (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). "[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden, 477 U.S. at 181 (quotations and citation omitted). In other words, "[i]mproper argument does not, per se, violate a defendant's constitutional rights." Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (quoting Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993)). Finally, any claim of prosecutorial misconduct is reviewed within the context of the entire trial, Greer, 483 U.S. at 765-66, and the standard of review is "the narrow one of due process, . . . not the broad exercise of supervisory power." Donnelly, 416 U.S. at 642.

C. The State Court's Ruling

This claim was raised on direct appeal. The California Court of Appeal decision, ECF No. 18-8 at 221-39, constitutes the last reasoned decision on the merits because the state supreme court denied discretionary review, id. at 293. See Ylst, 501 U.S. 797; Ortiz, 704 F.3d at 1034 (9th Cir. 2012). The Court of Appeal ruled as follows:

ECF No. 18-8 at 235-39.

D. Objective Unreasonableness Under § 2254(d)

As a preliminary matter, respondent argues that this claim is procedurally defaulted because petitioner's trial counsel failed to make a contemporaneous objection to the prosecutor's statements during closing argument. ECF No. 17-1 at 26. The state court of appeal recognized that the failure to object forfeited this claim, but nevertheless reached its merits. ECF No. 18-8 at 236-37. A federal habeas court may bypass a procedural default to reach the merits of a clearly non-meritorious claim. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (explaining that federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits). The court elects to do so with respect to this claim.

The essence of petitioner's claim is that he was prejudiced by the prosecutor's impermissible "vouching" for Mitchell and Raya. The Court of Appeal determined in part that, in light of the record as a whole, the prosecutor could reasonably argue that Mitchell would not have identified petitioner repeatedly and confidently at trial if she had any doubt, and that the prosecutor permissibly urged the jury to believe Mitchell and Raya based on "their demeanor and testimony at trial." ECF No. 18-8 at 238. In the context of the entire trial, the Court of Appeal was not unreasonable in finding that the prosecutor's comments did not deprive petitioner of a fair trial.

The prosecutor did not place the prestige of the government behind Mitchell and Raya by providing personal assurances of their veracity, nor did he suggest that their testimony is supported by information outside that presented to the jury. See United States v. Stinson, 647 F.3d 1196, 1212 (9th Cir. 2011) (citing United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010)). Instead, the prosecutor's comments regarding the reliability of Mitchell's and Raya's testimony were grounded in the evidence showing that both victims were confident in their identification of petitioner as the man who robbed them. See, e.g., ECF No. 18-4 at 104 (Mitchell testified that she did not have any uncertainty as to whether or not petitioner was the person who robbed her); id. at 205 (Raya testified he was certain about who he was identifying as the person who robbed him). The prosecutor's argument that Mitchell and Raya told the truth "was not vouching but was `simply an inference from evidence in the record.'" United States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011) (quoting United States v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993) (explaining that a prosecutor improperly vouches where he makes statements that bolster a government witness's credibility by referring to facts not in the record, such as explaining why a witness did not testify against codefendants)).

For these reasons, this court cannot conclude that petitioner was deprived of a fair trial by the prosecutor's statements. Nothing in Dr. Pezdek's declaration, even assuming it was fairly presented to and considered by the state courts in this context, renders rejection of the claim objectively unreasonable. Petitioner is not entitled to relief on this claim.

CONCLUSION

For all the reasons explained above, the state courts' denial of petitioner's claims was not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DENIED. It is FURTHER RECOMMENDED that a certificate of appealability, see 28 U.S.C. § 2253(c), be DENIED.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).