PHYLLIS J. HAMILTON, District Judge.
Before the court is the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by state prisoner, Aquior Alfonso Figueroa ("Figueroa"). Having reviewed the parties' papers, the record, and having carefully considered their arguments and the relevant legal authorities, the court DENIES the petition.
In 2007, an Alameda County jury convicted Figueroa of one count of second degree murder under California Penal Code § 187(a), and of one count of being a felon in possession of a firearm in violation of California Penal Code § 12021(a)(1). Additionally, regarding the murder charge, the jury found true several enhancement allegations, including that Figueroa was armed with and personally discharged a firearm during the offense; that he committed the offense while an active member of the Border Brothers street gang; and that he committed the offense for the benefit of and at the direction of a criminal street gang. Regarding the weapons charge, the jury also found true the ehnancement allegation that Figueroa committed the offense for the benefit of and at the direction of a criminal street gang.
On September 21, 2007, the court sentenced Figueroa to fifteen years to life on the second degree murder conviction, along with an additional one-year sentence stayed for the gun use finding, ten years stayed for the gang enhancements, and twenty-five years to life for the enhancement for personally and intentionally discharging a firearm and proximately causing great bodily injury. As for count two, the firearm conviction, the court sentenced Figueroa to three years, along with an aggravated term of four years for the gang enhancements, both to run concurrently with the sentence on count one. In sum, Figueroa received an aggregate sentence of forty years to life.
Figueroa subsequently filed a direct appeal with the state appellate courts. On October 8, 2009, the California Court of Appeal affirmed his conviction, and on December 23, 2009, the California Supreme Court denied review. Figueroa filed the instant federal habeas petition on March 8, 2011.
Figueroa's conviction stems from the following facts, which the state court noted as follows:
There was evidence at trial that the victim, Sisneros, was a member of a Latino street gang, the Nortenos, and that Figueroa was a member of or associated with the Border Brothers street gang. The California Court of Appeal noted the following gang testimony that was elicited at Figueroa's trial:
At trial, Figueroa put on the following defense, as noted by the state appellate court:
Figueroa raises the following claim:
(1) his Fourteenth Amendment due process rights were violated when the trial court admitted into evidence an eyewitness identification of the person whom Figueroa aided and abetted in committing the murder because the identification was the product of an unnecessarily suggestive and unreliable identification procedure.
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09, (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "[E]valuating whether a rule application [i]s unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Id. "As a condition for obtaining habeas corpus [relief] from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340.
Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Figueroa argues that the state appellate court's affirmance of the trial court's admission of eyewitness Amy Cobos' ("Ms. Cobos") pretrial identification of Hector Sanchez ("Sanchez") as the shooter at trial violated his due process rights because the identification was the product of an unnecessarily suggestive and unreliable identification procedure.
Prior to trial, Figueroa moved to suppress evidence of Ms. Cobos' pretrial identification of Sanchez. In conjunction with the motion, the trial court entertained argument from the parties and also heard testimony from Oakland Police Department ("OPD") Sergeant Robert Nolan. R.T. 24-50. As the California Court of Appeal noted, that testimony revealed:
Regarding Sanchez's photograph, the state appellate court additionally noted that:
In support of his motion to suppress, Figueroa argued that the procedure employed by Nolan was impermissibly suggestive, and constituted a "one-person show-up." R.T. 149-150. Based on its evaluation of the requisite factors set forth in California cases regarding single photo show-ups, the trial court ruled that the procedure employed by Nolan was not unnecessarily suggestive. R.T. 151-52.
In favor of admissibility, the trial court found that Ms. Cobos appeared to have had "a very good opportunity in broad daylight to — directly facing the shooter, to have identified him at the time." R.T. 151. It noted that Ms. Cobos testified that she "was focused exclusively [on the shooter]," and even had "a tunnel vision-type of a view of the shooter's faith." R.T. 152. It further noted that she expressed "a high degree of certainty" that Sanchez was the shooter both at the time she identified him on May 24, 2007, and at the time she testified on July 9, 2007. Id. The trial court noted that the delay between the crime and identification constituted a factor against admissibility, R.T. 151, but ultimately found that under the totality of the circumstances, the process was not unduly suggestive. R.T. 152.
On direct appeal, the California Court of Appeal denied Figueroa's claim that his due process rights had been violated by the trial court's admission of the pretrial identification on the merits and on standing grounds. First, the state court held that under California law, Figueroa lacked standing to object to an eyewitness' identification of a third person, Sanchez, as the suspected shooter. Alternatively, even assuming Figueroa had standing, the state court held that under the totality of the circumstances, the identification was not unconstitutional under California or United States Supreme Court law. This court discusses the state court's decision in more detail below in its analysis of Figueroa's claim.
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990.
In Perry v. New Hampshire, the United States Supreme Court recently spoke on the admission of eyewitness out-of-court identifications, and reiterated the relevant legal standards as previously set forth by the Court. 132 S.Ct. 716 (2012). Specifically, in Perry, the Court ruled that the introduction of eyewitness out-of-court identification testimony, without a preliminary judicial assessment of its reliability, did not render the defendant's trial fundamentally unfair given the safeguards generally applicable in criminal trials. Id.
In Perry, the defendant was convicted in New Hampshire state court of theft after taking items from a car in the parking lot of an apartment building. Id. at 721-23. An officer responding to a report that a man was trying to break into cars in the parking lot saw the defendant standing between two cars. Id. The defendant walked toward the officer holding two car-stereo amplifiers in his hands, and a metal bat was on the ground behind him. Id. An eyewitness, interviewed by police at her apartment, stated that the perpetrator was an African-American man. Id. When police asked her for a more specific description of the man, she pointed to her kitchen window and said the man she saw breaking into a car was standing in the parking lot, next to a police officer. Id. The defendant's arrest followed this identification. Id. About a month later, when police showed the eyewitness a photographic array that included a picture of the defendant, she was unable to identify the defendant as the perpetrator. Id. The trial court denied the defendant's motion to suppress the eyewitness' identification on the ground that admitting it would violate due process. The New Hampshire Supreme Court affirmed the defendant's conviction. Id.
The Supreme Court affirmed, holding that under its precedent, the Due Process Clause does not require a preliminary judicial inquiry into the reliability of eyewitness identification that was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Id. at 730. It held that the admission of identification testimony raises due process concerns only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Id. The court acknowledged the Perry defendant's arguments regarding the inaccuracy rate for eyewitness identifications generally, but held that when no improper law enforcement activity is involved, the reliability of eyewitness testimony can be sufficiently tested through rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identifications and the requirement that guilt be proved beyond a reasonable doubt. Id. at 726.
In so holding, the Perry court summarized its precedent regarding out-of-court eyewitness identifications to date. Id. at 723-24. It commenced by noting that, "[t]he Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit." Id. at 723. The "constitutional safeguards available to defendants to counter the state's evidence include the Sixth Amendment rights to counsel, compulsory process, and confrontation plus cross-examination of witnesses." Id. (citing Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963); Taylor v. Illinois, 484 U.S. 400, 408-09 (1988); Delaware v. Fensterer, 474 U.S. 15, 18-20 (1985)). It is "[o]nly when evidence is so extremely unfair that its admission violates fundamental conceptions of justice, [that the Court has] imposed a constraint tied to the Due Process Clause." Id.
The Perry Court then synthesized the approach it set forth in prior cases, namely Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977), used to determine whether the Due Process Clause requires suppression of an out-of-court eyewitness identification. Id. at 724. First, due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Id. at 724 (citing Brathwaite, 432 U.S. at 107; Biggers, 409 U.S. at 198). However, "even when the police use such a procedure,[] suppression of the resulting identification is not the inevitable consequence." Id. (citing Brathwaite, 432 U.S. at 112-13; Biggers, 409 U.S. at 198-99). "A rule requiring automatic exclusion []would `g[o] too far,' for it would `kee[p] evidence from the jury that is reliable and relevant,' and `may result, on occasion, in the guilty going free.'" Id. (quoting Brathwaite, 432 U.S. at 112) (when an "identification is reliable despite an unnecessarily suggestive [police] identification procedure," automatic exclusion "is a Draconian sanction," one "that may frustrate rather than promote justice").
"Instead of mandating a per se exclusionary rule, [] the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a `substantial likelihood of misidentification.'" Id. (citing Biggers, 409 U.S. at 201). "`[R]eliability [of the eyewitness identification] is the linchpin' of that evaluation." Id. (quoting Brathwaite, 432 U.S. at 112). "Where the `indicators of [a witness'] ability to make an accurate identification' are `outweighed by the corrupting effect' of law enforcement suggestion, the identification should be suppressed." Id. (quoting Brathwaite, 432 U.S. at 114). Otherwise, the evidence, if admissible in all other respects, should be submitted to the jury. Id. The reliability factors to be considered in evaluating a witness' ability to make an accurate identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. (citing Brathwaite, 432 U.S. at 114).
The Perry Court rejected the petitioner's argument that under Brathwaite, any time a pretrial eyewitness identification was made under suggestive circumstance, the trial court should be required to screen the identification for reliability. Id. at 725. Regarding the reliability requirement, the Perry Court clarified that:
Id. at 725-26 (citing Brathwaite, 432 U.S. at 112-13). The Perry Court further stated that the reliability or "due process" check is linked "not to suspicion of eyewitness testimony generally, but only to improper police arrangement of the circumstances surrounding an identification." Id. (citing Coleman v. Alabama, 399 U.S. 1 (1970)).
In terms of reliability, the Perry Court suggested that "[e]xternal suggestion [by law enforcment] is hardly the only factor that casts doubt on the trustworthiness of an eyewitness' testimony." Id. at 727. It noted that "many other factors bear on `the likelihood of misidentification,' [] for example, the passage of time between exposure to and identification of the defendant, whether the witness was under stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness was from the suspect, whether the suspect carried a weapon, and the race of the suspect and the witness." Id.
Regarding standing, Figueroa contends that the state court's determination that he lacked standing was contrary to federal law, suggesting that he has standing to object to the admission of unreliable evidence used to his detriment. In opposition, the state argues that Figueroa lacked standing to complain about an alleged infringement of Sanchez's constitutional rights, but acknowledges that Figueroa has standing in these proceedings to object that the trial court's admission of Ms. Cobos' identification rendered his trial fundamentally unfair so as to violate due process.
As for the merits, Figueroa argues that the state court's decision was contrary to federal law because although the state court properly set out the two step-approach it was required to apply, it unreasonably applied it. Figueroa argues that the state court improperly conflated the suggestiveness and reliability prongs into a single analysis. He contends that the state court's conflation of the two standards was per se unreasonable and prejudicial and entitles him to federal habeas relief.
To the extent that the state court held that the identification was not unduly suggestive, Figueroa argues the decision was unreasonable. He contends that Sanchez's photo was singled out and emphasized in a manner that clearly distinguished it from the others presented to Ms. Cobos. In support, he asserts that unlike the other photos, Sanchez's was standing alone and of a larger size, the photo included information clearly identifying Sanchez as an arrestee with an alias, the photo was taken from a different angle than the other photos with Sanchez looking up at the camera, and it was presented only after Ms. Cobos was unable to identify the shooter from the other sets of photographs. Figueroa further implies that Nolan's failure to record the procedure supports its suggestiveness.
Figueroa additionally argues that it was unnecessary for Nolan to utilize the procedure that he did, and that he had no good explanation for his presenting Sanchez's single photo, or for his failure to prevent Ms. Cobos from observing the written information on Sanchez's photo.
Regarding suggestiveness, in addition to arguing that the state court unreasonably applied federal law, Figueroa also argues that the California Court of Appeal unreasonably determined certain facts in light of the evidence presented in the state court proceeding under § 2254(d)(2). Specifically, Figueroa argues that the state court's assertion that "Nolan instructed Cobos not to guess or conclude anything from the fact that he was showing her the photographs" was an unreasonable determination of the facts. He argues that instead, Nolan advised Ms. Cobos that "she should not conclude anything from the fact that a particular person's photo appeared in the photos he was showing her." Figueroa contends that this evidence differs from the state court's determination of the facts because
Opening Brief at 37.
In its response, contrary to Figueroa, the state assumes that the state court indeed addressed suggestiveness, and argues that its conclusion that the procedure was not unduly suggestive was not unreasonable. It asserts that this was not a case where Sanchez's photo was in color where the others were in black and white; nor was it more menacing than the other photos. It points out that Ms. Cobos was admonished not to guess or conclude anything based on the fact that she was being shown the photos, and notes that Ms. Cobos viewed eighteen other photographs before identifying Sanchez's photograph.
In his traverse, Figueroa argues that the procedure here did constitute the functional equivalent of a "one-picture show-up" and was unduly suggestive for that reason. However, he contends that even if that was not the case, it was nevertheless unduly suggestive because it was distinctive from the other photographs shown in groups of six. In support, Figueroa makes several arguments, some of which more appropriately apply to reliability rather than to suggestiveness, and are included with the discussion regarding reliability below.
Figueroa contends that the procedure was unduly suggestive because Nolan presented the photo alone to Ms. Cobos after she failed to pick out the shooter from the other photos, because it alone "depicted an arrestee with an alias," and because it was larger than the other photos and emphasized Sanchez's eyes.
Figueroa also suggests that the state court unreasonably relied on the fact that Nolan allegedly did not know Sanchez was the shooter at the time he showed Ms. Cobos the photo. See Traverse at 9 ("the state appellate court asked and answered the wrong question — did Officer Nolan know that Sanchez was the shooter when he showed the latter's photo to Ms. Cobos. . . ?"). Instead, Figueroa contends that Nolan "almost certainly" showed Ms. Cobos Sanchez's single photo because he knew Sanchez was a deceased member of the Border Brother's street gang.
Additionally, citing to a United States Department of Justice training manual, Figueroa argues that the California Appellate Court should have addressed Nolan's failure to advise Ms. Cobos that the shooter may not be in the line-up at all.
Figueroa also suggests that to the extent the state court concluded that the identification was reliable, it unreasonably applied federal law. He argues that the following factors made the identification unreliable:
Of the above factual arguments, Figueroa makes a § 2254(d)(2) argument solely with respect to the state court's finding that Ms. Cobos "was not under the stress of being the target of the crime." He argues that this state court finding was unreasonable.
In opposition, citing to the five factors set forth by the United States Supreme Court in Brathwaite, the state argues that Ms. Cobos' identification was reliable. See 432 U.S. at 114 (the factors for evaluating reliability include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation). Regarding the first factor, the state argues that Ms. Cobos had a clear view of the shooter and that there were no obstructions to her view. Second, the state contends that Ms. Cobos' degree of attention was high, given that she watched the shooter's face for the entire shooting, and focused on him because of the "cold" look in his eyes. Third, regarding the accuracy of prior descriptions, the state asserts Ms. Cobos recognized Sanchez as a clean-shaven Latino man in his late teens or early twenties and identified his clothing. As for the fourth and fifth factors, the state notes that even though eight to nine months elapsed between the shooting and the photographic line-up, Ms. Cobos was "absolutely certain" when she saw Sanchez's photo that she was looking at the shooter.
The state further refutes Figueroa's laundry list of factors. It argues that the state court's determination that Ms. Cobos' identification was reliable was a not an unreasonable application of federal law. It does not specifically address Figueroa's argument regarding the state appellate court's factual findings under § 2254(d)(2).
In his traverse, Figueroa again contests several of the facts set forth by the state regarding Ms. Cobos' testimony and identification (many of which constitute state appellate court factual findings), and argues that Ms. Cobos' testimony was not credible. Figueroa again makes several arguments regarding the unreliability of eyewitness identifications generally based on social science research, law enforcement training manuals, and other similar sources.
Figueroa stapled several "exhibits" to his federal habeas petition. Exhibits A and B represent state court orders that are already a part of this court's record, so there is no issue regarding this court's ability to review and consider those orders in the context of this federal habeas petition.
However, according to Figueroa, Exhibit C represents a copy of the photo line-ups shown to Ms. Cobos. The state did not object to the "exhibit;" nevertheless, this court notes that it is not permitted to simply consider evidence stapled to habeas petitions, and in order to consider such evidence in the context of this petition, the evidence must have been included in the record before the state appellate courts. Initially, it was unclear to the court whether the photos had been presented to and considered by the state appellate courts. The California Court of Appeal's decision suggested that it likely had reviewed the photographs, but the habeas record submitted by respondent before this court did not appear to contain copies of the photo line-ups; nor did the parties cite to the record in their briefs when they referred to the line-ups. However, the state has since submitted petitioner's state appellate court briefs in response to this court's June 25, 2012 order requiring the state to supplement the record. Figueroa's brief submitted to the California Court of Appeal confirms that the photo line-up was indeed before that court, and therefore may be considered by this court on federal habeas review. See Appellant's Opening Br. at 15.
At the outset, the court notes that as indicated above, throughout his briefs, Figueroa frequently argues that the California Court of Appeal's findings and characterizations of the record evidence were erroneous. In many instances, he implies that in evaluating his claim, this court should simply adopt his interpretation of the evidence and the record, even when it is contrary to the state court's determinations otherwise. That, however, is not this court's role on federal habeas review.
As set forth above, habeas relief is warranted only if the California Court of Appeal's decision "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). The relevant question under § 2254(d)(2) is whether an appellate panel, applying the normal standards of appellate review, could reasonably conclude that the state court findings are supported by the record. Detrich v. Ryan, 677 F.3d 958, 972 (9th Cir. 2012); Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004). Factual issues are defined as "basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000).
Intrinsic challenges to state court findings pursuant to the "unreasonable determination" standard may arise in several ways, including where the finding is unsupported by sufficient evidence; where the state court should have made a finding of fact but neglected to do so; where the state court made findings of fact under a misapprehension of the correct legal standard; and where the fact-finding process itself was defective. See Taylor v. Maddox, 366 F.3d 992, 999, 1000-01 (9th Cir. 2004). Where a petitioner challenges the state court's findings based entirely on the state record, "[the court] must be particularly deferential to [the] state court [ ]," and defer to its factual findings unless it is "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010) (quoting Maddox, 366 F.3d at 999-1000). "This is a daunting standard — one that will be satisfied in relatively few cases." Id; see, e.g., De Weaver v. Runnels, 556 F.3d 995, 1006-07 (9th Cir. 2009) (petitioner did not show unreasonable determination of facts by merely disagreeing with the state court's interpretation of the record but not pointing to any material fact that the court failed to consider in reaching its determination that the trial judge had not coerced the jury to reach a verdict); cf. Detrich, 677 F.3d at 981 (quoting Maddox, 366 F.3d at 1001) ("a state court unreasonably determines the facts when it "overlook[s] or ignore[s] evidence [that is] highly probative and central to petitioner's claim").
A federal district court must accord a state court's credibility determination the highest deference. See Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 1985). A state court's rejection of a claim following a hearing or trial at which directly contradictory statements are offered constitutes an implied credibility determination by the state court that is entitled to deference under § 2254(d)(2). See Weaver v. Palmateer, 455 F.3d 958, 963 n. 6 (9th Cir. 2006).
The court has applied the above standards in evaluating Figueroa's arguments that constitute challenges to state appellate court findings.
Additionally, the court notes that, in support of his claims, Figueroa cites and relies in many places in his briefs on social science articles and research and law enforcement "guidance" regarding eyewitness identifications. As this is a federal habeas case, this authority is not particularly helpful — or authoritative — since none of it constitutes clearly established federal law as determined by the United States Supreme Court.
In admitting Cobos' pretrial identification of Sanchez, the state trial court expressly found that the procedure was not unnecessarily suggestive but did not make an express ultimate finding regarding reliability. However, many of the findings the trial court made were more appropriate to a reliability determination — as opposed to a suggestiveness determination — including those regarding Ms. Cobos' opportunity to view the shooter; her focus on the shooter; her level of certainty in her identification; and the time that elapsed between the shooting and the identification. Accordingly, it is fair to conclude that the state trial court determined that the procedure was neither unduly suggestive nor unreliable.
Subsequently, in affirming the trial court, the California Court of Appeal set forth the proper legal standards, and noted the two different inquiries — suggestiveness and reliability — in evaluating the identification. Figueroa is correct that in its analysis of the issues, the appellate court combined its discussion of the two inquiries — suggestiveness and reliability — into the same paragraph. However, the state court in fact addressed both the suggestiveness and the reliability issues in that paragraph.
As for suggestiveness, the court held:
Additionally, regarding reliability, the court held:
Accordingly, the state appellate court set forth the proper legal standards and addressed the considerations governing both suggestiveness and reliability. This court rejects Figueroa's argument that he is entitled to habeas relief based on the simple fact that it combined its discussion of the two issues in its analysis.
The state court's standing determination was based on state law. It is not disputed that on federal habeas review, Figueroa may challenge on due process grounds the trial court's admission of evidence. Accordingly, the court need not reach the issue regarding whether the state court's standing ruling was unreasonable under AEDPA given that there is no dispute that Figueroa is entitled to challenge the admission of the evidence in these proceedings.
As noted, in support of his argument that the procedure used by Nolan was unduly suggestive, Figueroa explicitly challenges one related finding of the California Court of Appeal, and in argument also implicitly challenges at least two other factual issues addressed by the state appellate court. First, as noted, Figueroa argues that the state court's finding that "Nolan instructed Cobos not to guess or conclude anything from the fact that he was showing her the photographs" was an unreasonable determination of the facts.
This court disagrees that the state court's finding constituted an unreasonable determination of the facts in light of the evidence. Having reviewed the record, the state court's finding is nearly identical to Nolan's testimony on the subject. Nolan testified that he advised Ms. Cobos that "she was about to look at a group of photographs, to not guess or conclude anything from the fact [he] was showing her the photographs." R.T. 32-33. Nolan further advised Ms. Cobos "that people's complexion[s] could appear different in the photograph[s], as well as hairstyles and facial hair could change." R.T. 33.
Additionally, Figueroa suggests several times in his briefs that Ms. Cobos actually observed the information contained on the bottom of Sanchez's photo, which as the California Court of Appeal noted, contained "Sanchez's `PFN' number (a unique number assigned to arrestees), his first and last names, a booking date in 2002, and Sanchez's nickname, `Lechuga.'" Not only does Figueroa assume that Ms. Cobos in fact observed this information, but he also assumes that she recognized the information for what it was: a booking date, the fact that he was an arrestee, and also that he possessed an alias. This simply is not borne out by the record in this case. Instead, the California Court of Appeal correctly and reasonably found that "[w]hen Cobos first saw the photograph, the writing was covered with another piece of paper. Nolan testified that Cobos nonetheless might have been able to see the writing when she picked the page up to take a closer look at the photograph." (Emphasis added.) Based on the court's review of the record, this finding was reasonable, and it is unclear whether Ms. Cobos actually observed any of the notations on Sanchez's photo, and it is equally unclear whether or if she understood the significance of the writing.
Finally, Figueroa mistakenly asserts that the state appellate court unreasonably found that Nolan did not know Sanchez was the shooter at the time he showed Ms. Cobos the photo. See Traverse at 9 ("the state appellate court asked and answered the wrong question — did Officer Nolan know that Sanchez was the shooter when he showed the latter's photo to Ms. Cobos. . . ?"). This, however, is a mischaracterization of the state court's decision. The state court decision did not focus on that fact, nor did it make such a finding. In fact, the court touched upon the issue, if at all, tangentially at best. See Decision at 6 ("there was no evidence [Nolan] showed her Sanchez's photograph separately because the police believed he was the shooter Cobos had seen").
While this court agrees with the California Court of Appeal that the photo identification procedure utilized here was "no model of good police practice," it cannot conclude that the state court's determination that the procedure was not unduly suggestive was unreasonable or contrary to federal law as established by the United States Supreme Court. An identification procedure is suggestive where it "[i]n effect ... sa[ys] to the witness `This is the man.'" Foster v. California, 394 U.S. 440, 443 (1969). In Foster, the Supreme Court found the identification procedure in that case impermissibly suggestive because: (1) the defendant stood out markedly from other photographic lineup participants (with respect to the suspect's identifying features, such as height and skin tone); (2) the defendant was the only person who appeared in each of the two lineups the police showed the witness; and (3) the police subsequently permitted a one-to-one confrontation between the defendant and the witness. Id.
In United States v. Wade, the Supreme Court similarly noted numerous instances of suggestive procedures, for example, that all persons in the lineup but the suspect were known to the identifying witness; that the other participants in a lineup were grossly dissimilar in appearance to the suspect; that only the suspect was required to wear distinctive clothing which the culprit allegedly wore; that the witness was told by the police that they had caught the culprit after which the defendant was brought before the witness alone or was viewed in jail; that the suspect was pointed out before or during a lineup; and that the participants in the lineup were asked to try on an article of clothing which fits only the suspect. 388 U.S. 218, 239-41 (1967) (finding unconstitutional an identification that occurred without defendant's counsel present).
Here, the photo of Sanchez was not markedly different from the other eighteen photos shown to Ms. Cobos. All of the subjects in the photos appear to be Latino, of similar complexion and with similar facial hair, and of a similar age to Sanchez. Sanchez's photo differed from the others in that it was a single photo, not included on a page with six other photos, and it contained notations, which Ms. Cobos may or may not have observed. However, these factors, and, specifically, the totality of the procedure employed by Nolan, are nowhere near as suggestive as those cases in which the United States Supreme Court has held pretrial identifications to be unduly suggestive — or even many cases in which the identifications were found not to be unduly suggestive. See, e.g., Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987) (finding constitutional an identification where the suspect was handcuffed to a police officer, escorted by four other police officers, and was brought to the hospital bed of his victim who was asked whether the suspect "was the man"); see also Mitchell v. Goldsmith, 878 F.2d 319, 323 (9th Cir. 1989) (lineup not unduly suggestive where petitioner was only person in the lineup photographed against blue background; four of seven individuals in lineup had lighter complexions than his; and photo was only photo with a 1981 date). Accordingly, the procedure employed by Nolan was not unduly suggestive under clearly established United States Supreme Court law.
Nevertheless, even if the procedure utilized by Nolan may be considered unduly suggestive, the California Court of Appeal's determination that the identification was reliable was not unreasonable or contrary to clearly established United States Supreme Court law.
As with suggestiveness, Figueroa explicitly challenges one related finding of the California Court of Appeal, and in argument also challenges numerous other related factual issues addressed by the state appellate court. Again, many of the "facts," presented by Figueroa in support of his argument regarding reliability constitute his interpretation of the evidence, about which the state appellate court made contrary findings. Figueroa, in many instances, asks this court to simply disregard the state appellate court's findings and/or to make findings that simply are not supported by the record in this case.
Among the "facts" related to reliability advanced by Figueroa that are disputed, unsupported, and/or contrary to the state court findings are his assertions that:
Contrary to the California Court of Appeal's finding that Ms. Cobos "was not under the stress of being the target of the crime," Figueroa argues that given that her husband had just warned her to get down, the stress may have distorted her perceptions. He contends that the court's finding was unsupportable under § 2254(d)(2). Figueroa also points to Ms. Cobos' testimony that after the shooting stopped, she remained "nervous" and "upset."
Having reviewed the record, the court concludes that the state court's finding did not constitute an unreasonable determination in light of the evidence, especially Ms. Cobos' testimony at trial. There was nothing in her testimony that suggested that Ms. Cobos thought she was a target of the crime or that her perception of the shooter was distorted by the stress of the situation and Figueroa's assertion to the contrary amounts to no more than speculation. Accordingly, the court affords deference to the state court's finding and rejects Figueroa's factual assertion to the extent that it conflicts that finding.
Here, Figueroa does not explicitly argue that the state court's finding that Ms. Cobos could see the shooter's face for "more than a few seconds" was an unreasonable determination of the evidence, but that is the implication. Having reviewed the record, the court concludes that this determination was reasonable. Moreover, to the extent that Figueroa is arguing Ms. Cobos' testimony was not credible, credibility was a decision for the factfinder — not this court on federal habeas review.
The above assertion is contrary to state appellate court findings and to Ms. Cobos' testimony at trial. Specifically, it contradicts the state court's findings that Ms. Cobos "had an unobstructed view of the shooter's face in broad daylight;" that "she could see [the shooter's] face for more than a few seconds;" that "[h]er attention was focused on the shooter's face;" and that when shown the photo of Sanchez she "immediately" "expressed a high degree of certainty that he was the shooter."
Again, having reviewed the record, the court concludes that the state court's findings did not constitute an unreasonable determination of the facts in light of the evidence. Ms. Cobos repeatedly testified that she was focused on the shooter's face, and there was no evidence that the gun "flashes" she testified she observed impeded her ability to identify the shooter.
Figueroa's interpretation of the evidence is not only contrary to the state court findings, but it is also speculative and unsupported by the evidence. For the same reasons as those set forth above with respect to (3), the court concludes that the state court's findings did not constitute an unreasonable determination of the facts in light of the evidence at trial.
Yet again, Figueroa's interpretation of the evidence is not only contrary to the state court findings, but it is also speculative and unsupported by the evidence. For the same reasons as those set forth above with respect to (3), the court concludes that the state court's findings did not constitute an unreasonable determination of the facts in light of the evidence at trial.
Figueroa's interpretation of the evidence is not only contrary to the state court findings, but it is also speculative and unsupported by the evidence. This interpretation contradicts the California Court of Appeal's finding that when shown the photo of Sanchez Ms. Cobos, "immediately" "expressed a high degree of certainty that he was the shooter." It also contradicts testimony in the record from Ms. Cobos and Nolan.
Having reviewed the record, the court concludes that the state court's finding did not constitute an unreasonable determination in light of the evidence. Accordingly, the court affords deference to the state court's finding and rejects Figueroa's factual assertion to the extent that it conflicts with that finding.
This assertion is not so much a challenge to the state court's explicit findings as it is a mischaracterization of the record. It is undisputed that Ms. Cobos had identified the shooter as clean-shaven at the time of the shooting. It is also undisputed that Ms. Cobos identified the shooter in the photo nearly nine months after the shooting, and that, in the photo, Sanchez, had facial hair. Given the passage of time between the shooting and the photo line-up, the discrepancy in facial hair does not support a conclusion that Ms. Cobos gave a prior description of the shooter that did not match Sanchez.
As noted above, the reliability factors to be considered in evaluating a witness' ability to make an accurate identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Perry, 132 S.Ct. at 723 (citing Brathwaite, 432 U.S. at 114).
Consideration of the relevant factors confirms that the state court's determination that Ms. Cobos' pretrial identification of Sanchez was reliable was not unreasonable or contrary to federal law as established by the United States Supreme Court. Ms. Cobos had sufficient opportunity to identify the shooter at the time of the crime and she afforded a high degree of attention to the shooter, especially his face. For the reasons set forth above, her prior description of the shooter was not contrary to her subsequent identification, and she relayed a high degree of certainty that Sanchez was the shooter. Accordingly, the only factor that weighs against reliability is the delay in time — nearly nine months — that elapsed between the shooting and Ms. Cobos' identification at the photo line-up. Given that the majority of factors overwhelmingly support reliability, Figueroa is not entitled to relief on this claim.
Because the court concludes that the admission of Ms. Cobos' pretrial identification of Sanchez did not violate Figueroa's due process rights, it need not address whether admission of the evidence was prejudicial.
For the foregoing reasons, Figueroa's petition for a writ of habeas corpus is
To obtain a COA, Figueroa must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward. "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA to indicate which issues satisfy the COA standard. Here, the court finds that the issue presented by Figueroa in his petition meets the above standard and accordingly GRANTS the COA as to that issue. See generally Miller-E v. Cockrell l, 537 U.S. at 322. That issue is:
Accordingly, the clerk shall forward the file, including a copy of this order, to the Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).
