Sanchez v. Salinas

Filing 39

ORDER signed by Senior Judge James K. Singleton on 3/27/12; IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. The Clerk of the Court is to enter judgment accordingly. Civil Case Terminated. CASE CLOSED.(Matson, R)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
PAUL RICHARD SANCHEZ, JR.,
No. 2:10-cv-00737-JKS
Petitioner,
MEMORANDUM DECISION
vs.
KELLY HARRINGTON, Warden, Kern
Valley State Prison,
Respondent.

Paul Richard Sanchez, a state prisoner appearing pro se, filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. Sanchez is currently in the custody of the California
Department of Corrections and Community Supervision, incarcerated at the Kern Valley State
Prison. Respondent has answered and Sanchez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Sanchez was found guilty of two counts of Robbery under
California Penal Code § 211, three counts of Attempted Robbery under California Penal Code §§
664 and 211, and one count of Assault with a Deadly Weapon under California Penal Code
§ 245(a)(1). The jury also found true that Sanchez had personally used a knife during
commission of several of the offenses. In a bifurcated trial the court found Sanchez had five
prior “strikes,” and sentenced Sanchez to an aggregate prison term of seventy-seven years to life.
The California Court of Appeal, Third Appellate District, affirmed Sanchez’s conviction and

sentence in an unpublished decision,1 and the California Supreme Court denied review on
February 25, 2009. Sanchez timely filed his Petition for relief in the Northern District of
California on February 22, 2010, which transferred the case to this Court.
The facts underlying Sanchez’s conviction are well known to the parties, recited in detail
by the California Court of Appeal, and unnecessary to an understanding of this decision.
Accordingly, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Amended Petition Sanchez raises two grounds, arguing that the trial court erred by
denying: (1) his Marsden motion;2 and (2) his motion to exclude the identification testimony of
the witnesses. Respondent asserts no affirmative defense.3
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court

1

People v. Sanchez, No. C057286, 2008 WL 5331301 (Cal. Ct. App. Dec. 22, 2008).

2

The term “Marsden motion” comes from People v. Marsden, 465 P.2d 44, 47-48 (Cal.
1970), a California Supreme Court case that held that, as part of a criminal defendant’s right to
effective assistance of counsel under the Sixth Amendment, a trial judge must permit a defendant
requesting substitute counsel the opportunity to present his reasons for the request, i.e., evidence
and argument to establish that he is receiving ineffective assistance of counsel.
3

Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).
2

proceeding.”4 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision.”5 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts.6 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”7 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”8 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.9 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected

4

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
5

Williams, 529 U.S. at 412 (alteration added).

6

Early v. Packer, 537 U.S. 3, 10 (2002).

7

Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir.
2009) (explaining the difference between principles enunciated by the Supreme Court that are
directly applicable to the case and principles that must be modified in order to be applied to the
case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not).
8

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
9

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
3

the trial with unfairness as to make the resulting conviction a denial of due process.’”10 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial
and injurious effect or influence in determining the outcome.11 Because state court judgments of
conviction and sentence carry a presumption of finality and legality, the petitioner has the burden
of showing by a preponderance of the evidence that he or she merits habeas relief.12
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus 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.13

10

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
11

Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
12

Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); see Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas
relief on the basis of little more than speculation with slight support”).
13

Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
4

In applying this standard, this Court reviews the “last reasoned decision” by the state
court.14 State appellate court decisions that summarily affirm a lower court’s opinion without
explanation are presumed to have adopted the reasoning of the lower court.15 This Court gives
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.16
IV. DISCUSSION
Ground 1: Denial of Marsden Motion
Prior to the preliminary hearing, Sanchez made a Marsden motion in which he requested
his appointed counsel be replaced by another attorney appointed by the court. Following a closed
hearing, the trial court denied the motion. As he did on direct appeal, Sanchez contends that his
Marsden motion was improperly denied. Specifically, Sanchez contends that the trial court
abused its discretion and denied Sanchez his Sixth Amendment right to the counsel of his choice.
The California Court of Appeal disagreed, stating:
[Sanchez] contends his Marsden motion was improperly denied.
disagree.

We

14

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
15

Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”).
16

See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
5

A defendant is entitled to have his or her appointed counsel replaced if the
record clearly shows that counsel is not providing adequate representation or that the
defendant and counsel have become so embroiled in conflict that ineffective
representation will likely result.
Here, prior to the preliminary examination, [Sanchez] made a Marsden
motion requesting substitution of his assigned public defender, John Roth. [Sanchez]
explained that although he had spoken with Roth during the brief period since Roth
had taken over his case, Roth had not visited him in jail as promised. [Sanchez]
further complained that Roth could not explain why the People were refiling
previously dismissed charges against him.
Roth responded that he had just been assigned to [Sanchez’s] case three
weeks earlier and had been unable to meet with [Sanchez] in person because of a
heavy trial calendar. However, Roth explained, he had reviewed nearly 900 pages
of discovery, spent “a couple hours” reviewing “twelve to thirteen CD’s of
information,” and was prepared to go forward with the preliminary hearing. Roth
explained that he did not have any documentation indicating why the previously
dismissed charges were being refiled but could surmise several possible reasons
based on his review of the record; however, he had not had time to explain that to
[Sanchez] because of the timing of the Marsden motion.
Given Roth’s review of the discovery and the fact that he was prepared to
commence with the preliminary hearing, the court inquired whether Roth would be
able to visit [Sanchez] at jail within the week. Roth conferred with [Sanchez] and
responded affirmatively. At [Sanchez’s] request, and subject to the People being
given an opportunity to object, the court granted a short delay in the proceedings to
permit Roth and [Sanchez] time to meet prior to the preliminary hearing. In the end,
the court ruled there had not been “such a breakdown in the relationship between
[Sanchez] and Mr. Roth that it would be impossible for Mr. Roth to properly
represent [Sanchez].” Noting that Roth had “only been in the case fifteen days” and
had not been able to meet with [Sanchez] at the jail because of “his trial schedule and
other court deadlines,” the court denied the motion, giving [Sanchez] and Roth time
to meet outside the presence of the court prior to commencement of the preliminary
hearing.
We review for abuse of discretion the trial court’s denial of a Marsden motion
and will find such an abuse only where the defendant has shown that the failure to
replace appointed counsel would substantially impair his or her right to assistance of
counsel. We find no error.
During the three-week period after being assigned to [Sanchez’s] case, Roth
reviewed a significant amount of discovery in order to familiarize himself with the
matter. While he admittedly had not been to the jail to visit with [Sanchez] in person,
he was prepared to meet with him prior to the preliminary hearing and explain why
previously dismissed charges were being refiled. [Sanchez] agreed to proceed in that
manner, meeting with Roth prior to the preliminary hearing and going forward with
the preliminary hearing without further complaint. From that, we infer the
relationship between client and counsel was still intact and functioning. We note that
6

while the record reflects a second Marsden request by [Sanchez] at the April 19,
2007, pretrial hearing, the court continued the matter because of defense counsel’s
absence, and according to the court’s April 26, 2007, minute order, the Marsden
motion was “drop[ped].” We infer from that course of events that any problem
between client and counsel was resolved to [Sanchez’s] satisfaction.
On the record before us, [Sanchez] has not shown that Roth provided
inadequate representation or that, at the time of the Marsden hearing, he and Roth
were so embroiled in conflict that ineffective representation was likely. Accordingly,
[Sanchez] has failed to demonstrate an abuse of discretion in the denial of his
Marsden motion.17
First, this Court notes that the right to counsel of one’s choice is a qualified right that
applies only to people who can afford to retain counsel.18 In this case, the issue is neither
Sanchez’s right to choice of counsel nor a denial of counsel. The Supreme Court has “reject[ed]
the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused
and his counsel.”19 Instead, the constitutional question is whether the conflict between Sanchez
and his attorney prevented effective assistance of counsel.
Thus, the ultimate constitutional question the federal courts must answer here
is not whether the state trial court “abused its discretion” in not deciding Schell’s
motion, but whether this error actually violated Schell’s constitutional rights in that
the conflict between Schell and his attorney had become so great that it resulted in
a total lack of communication or other significant impediment that resulted in turn
in an attorney-client relationship that fell short of that required by the Sixth
Amendment.20

17

People v. Sanchez, No. C057286, 2008 WL 5331301, at *4-5 (Cal. Ct. App. Dec. 22,
2008) (citations omitted).
18

See United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) (citing Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 624-25 (1989)) (“[T]he right to counsel of
choice does not extend to defendants who require counsel to be appointed for them.”); Schell v.
Witek, 218 F.3d 1017, 1025-26 (9th Cir. 2000) (en banc).
19

Morris v. Slappy, 461 U.S. 1, 13-14 (1983).

20

Schell, 218 F.3d at 1026.
7

Here, Sanchez expressed nothing more than a general sense of dissatisfaction with his
attorney’s performance, not any conflict, irreconcilable or otherwise. This Court cannot say that
the decision of the California Court of Appeal was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” at the time the state court rendered its decision or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”21 Nor
can this Court find that the state court unreasonably applied the correct legal principle to the facts
of Sanchez’s case within the scope of Andrade-Williams-Landrigan-Richter; i.e., the state court
decision was not more than incorrect or erroneous, its application of clearly established federal
law was not objectively unreasonable. Sanchez is not entitled to relief under his first ground.
Ground 2: Identification Evidence
Sanchez contends the trial court erred by denying his motion to exclude the field and
subsequent in-court identifications by two witnesses, Oscar and Applegate. The field
identification procedure was described by the Court of Appeal as follows:
Sheriff's Deputy Stacey Lonteen, who had been involved in the Taco Bell
robbery investigation two days before the Arby’s incident and responded to Deputy
Fisher’s request for assistance, recognized [Sanchez] from the Taco Bell video
surveillance tape. Lonteen contacted Oscar and Applegate and summoned them to
the location for a possible field identification. Applegate arrived first and was
admonished that the individual she was about to see might or might not have been
involved in the earlier Taco Bell robbery and might have changed his physical
appearance; she was further advised to remain objective. Applegate said, “Yeah, that
looks like him. I’m almost positive.”
Oscar arrived shortly after Applegate left and was similarly admonished by
Lonteen. Oscar said that based on his build, [Sanchez] looked like the person who
had robbed the Taco Bell. She noted that while she had been unable to get a good

21

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
8

look at the perpetrator's face at the time of the robbery, she was pretty sure
[Sanchez’s] physical build matched that of the robber. At trial, Oscar testified she
was “[p]retty certain” the suspect’s build matched that of [Sanchez].22
Sanchez contends that the identification procedure, a single person showup, was so
impermissibly suggestive that it gave rise to a very substantial likelihood of irreparable
misidentification. The California Court of Appeal rejected Sanchez’s arguments, stating:
We exercise our independent judgment in reviewing a trial court's ruling on
the identification procedure. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)
We first consider “whether the identification procedure was unduly suggestive and
unnecessary.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) In determining
whether the procedure was unduly suggestive, “‘[t]he question is whether anything
caused defendant to “stand out” from the others in a way that would suggest the
witness should select him.’” (Id. at p. 990.) If the lineup was unduly suggestive and
unnecessary, then we consider “whether the identification itself was nevertheless
reliable under the totality of the circumstances . . . .” (Id. at p. 989.) If unreliable
under this test, we reverse only if there is a “‘substantial likelihood of irreparable
misidentification.’” (Id. at p. 990.)
[Sanchez] claims the field identifications were “unduly suggestive” because
the witnesses were preconditioned to identify the person in custody when they were
told they were being summoned to identify a possible subject involved in the Taco
Bell robbery, and [Sanchez] was handcuffed and in the presence of numerous police
officers and marked patrol cars when the witnesses arrived. [Sanchez] argues further
that the field identifications were unnecessary because the Taco Bell robbery had
taken place two days earlier, and given that his arrest for the Arby’s robbery was
inevitable, there was no exigency and therefore no reason not to wait for a more
formal photographic “six-pack” or jail lineup. In any event, he argues, the field
identifications by Oscar and Applegate were not reliable under the totality of the
circumstances because neither witness was able to get a good look at [Sanchez] (i.e.,
Oscar did not see the robber's face and Applegate “never saw him from the front”)
and both relied on [Sanchez’s] build and body shape to identify him. We disagree.
Here, both Oscar and Applegate were summoned to the field show-up by
Deputy Lonteen. The witnesses arrived separately and were never present at the
location at the same time. Neither witness spoke to the other prior to the
identification. Both witnesses were similarly admonished to keep an open mind and
told that the individual shown might or might not have been involved in the Taco
Bell robbery. Applegate was “almost positive” [Sanchez] was the robber. Oscar was
“pretty sure” [Sanchez’s] build matched that of the robber. While it is true that every

22

Sanchez, 2008 WL 5331301 at *4.
9

field identification is inherently suggestive, “[t]he potential unfairness in such
suggestiveness, however, is offset by the likelihood that a prompt identification
within a short time after the commission of the crime will be more accurate than a
belated identification days or weeks later. Because the problem is inherent in such
confrontations, the choice is between prohibiting all in-the-field identifications or
permitting them notwithstanding the element of suggestiveness. The choice involves
a balancing of the interests of fairness to criminally accused persons and prompt,
proper and efficient law enforcement, and the choice has properly been made to
permit in-the-field identifications, because the immediate knowledge whether or not
the correct person has been apprehended is of overriding importance and service to
law enforcement, the public and the criminal suspect himself.” (People v. Odom
(1980) 108 Cal.App.3d 100, 110.) We do not find the field identifications to have
been unduly suggestive, nor do we find them to have been unnecessary given the
similarity between the two robberies and the fact that one was committed just two
days after the other, the second being in relatively close proximity to the first.
In any event, even if we were to determine that the field show-up procedure
was suggestive, we would still conclude that the identification was reliable under the
totality of the circumstances. Oscar could not see [Sanchez’s] face during the
robbery; however, she had plenty of time to observe what he was wearing and assess
his build, despite the fact that she was admittedly afraid and did not want to look at
him. Her recollection of [Sanchez’s] clothing, size, and shape was, as it turns out,
accurate. Although Oscar was not absolutely certain [Sanchez] was the robber, she
was “pretty sure” based on his build.
To the extent Oscar's identification may have been equivocal, Applegate's
identification of [Sanchez] was not. Applegate saw the robber standing behind Oscar,
then observed him as he walked out from behind the counter and right past her to exit
the restaurant. She identified him as “Hispanic, about six feet tall,” with a “large
build” and “a thick, muscular neck,” probably weighing 200 pounds. She noted he
wore a white beanie that covered most of his hair, but he had short black sideburns.
She described him as unshaven, with a thin mustache, wearing a black T-shirt and
light-colored blue jeans. Although she only saw his face from the side, Applegate
confirmed she “could definitely recognize him” if she saw him again. As for both
witnesses, we note that the fact that the field identifications occurred two days after
the Taco Bell robbery did not appear to dull either witness’s memory or impair her
ability to recognize and identify [Sanchez]. We find the field identifications by Oscar
and Applegate to be reliable under the totality of the circumstances here.
[Sanchez] argues he was prejudiced by admission of the field identifications,
speculating that Applegate’s identification of him at the field show-up made it
“unlikely that she would retract” her identification at trial regardless of her degree of
certainty. [Sanchez] also concludes, without reasoning or authority, that “this Court
cannot say beyond a reasonable doubt” that he would not have obtained a more
favorable result in the absence of those identifications. Indeed, as the People
accurately point out, [Sanchez] took full advantage of the opportunity to crossexamine both Oscar and Applegate, as well as the deputies involved in the field
10

show-ups. He presented expert testimony related to the inaccuracies of eyewitness
identifications. We also note that, in addition to the field and in-court identifications,
the jurors were shown portions of the surveillance videotape from the Taco Bell
robbery and were able to draw their own conclusions from that evidence. Given the
other evidence in the case, including the items found in the car in which [Sanchez]
was apprehended, any possible error in admitting the identification was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705, 711].)23
Analysis starts with the rule that due process is violated when an identification procedure
is “unnecessarily suggestive and conducive to irreparable mistaken identification.”24 The
Supreme Court, although acknowledging that showing suspects individually to persons for the
purpose of identification and not as part of a lineup was widely condemned, has declined to adopt
a per se rule prohibiting the practice. Instead, it has adopted a rule that “a claimed violation of
due process of law in the conduct of a confrontation depends on the totality of the circumstances
surrounding it.”25 The Supreme Court has further stated:
[E]ach case must be considered on its own facts, and that 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. 26
Determining whether an identification is so-flawed as to require its exclusion is a twostep process. The first inquiry is whether the identification process was “unnecessarily

23

Id. at *5-6.

24

Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other grounds by Griffith v.
Kentucky, 479 U.S. 314 (1987).
25

Id.

26

Simmons v. United States, 390 U.S. 377, 394 (1968).
11

suggestive.”27 The second is whether, “under the ‘totality of the circumstances’ the identification
was reliable even though the confrontation procedure was suggestive.”28 “[R]eliability is the
linchpin in determining the admissibility of identification testimony ,”29 and thus even an unduly
suggestive identification may satisfy due process if it was nevertheless reliable. “[T]he factors to
be considered in evaluating the likelihood of misidentification include the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by
the witness at the confrontation, and the length of time between the crime and the
confrontation.”30
Applying these principles to this case, this Court cannot say that the decision of the
California Court of Appeal was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” at the time the
state court rendered its decision or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”31 Nor can this Court find that the
state court unreasonably applied the correct legal principle to the facts of Sanchez’s case within
the scope of Andrade-Williams-Landrigan-Richter; i.e., the state court decision was not more

27

Neil v. Biggers, 409 U.S. 188, 198 (1972); Stovall, 388 U.S. at 302 (“[A] showup
identification violates due process only if it is an ‘unnecessarily suggestive’ procedure.”
(emphasis original)).
28

Biggers, 409 U.S. at 199.

29

Manson v. Braithewaite, 432 U.S. 98, 114 (1977).

30

Biggers, 409 U.S. at 199-200.

31

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
12

than incorrect or erroneous, its application of clearly established federal law was not objectively
unreasonable. Sanchez is not entitled to relief under his second ground.
V. CONCLUSION AND ORDER
Sanchez is not entitled to relief on either ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.32 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.33
The Clerk of the Court is to enter judgment accordingly.
Dated: March 27, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

32

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003))).
33

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
13