Mobley v. Lopez

Filing 16

ORDER DENYING PETITION AND CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Wayne Mobley. Signed by Judge William Alsup on 11/22/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 11/22/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 WAYNE MOBLEY, 12 13 14 No. C 11-0639 WHA (PR) Petitioner, 11 For the Northern District of California United States District Court 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY v. RAUL LOPEZ, Warden, Respondent. / 15 16 17 INTRODUCTION Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 18 corpus challenging his conviction pursuant to 28 U.S.C. 2254. Respondent was ordered to 19 show cause why the writ should not be granted based upon petitioner’s claim that the 20 identification procedures were unduly suggestive, in violation of his right to due process. 21 Respondent has filed an answer and a memorandum of points and authorities in support of it, 22 and petitioner filed a traverse. For the reasons set forth below, the petition is DENIED. 23 STATEMENT 24 Petitioner was charged in San Francisco County Superior Court of four counts of 25 second-degree robbery, and 14 prior convictions for robbery or attempted robbery. See Cal. 26 Pen. Code §§ 211, 667(d)-(e), 1170.12(b)-(c). The four charged robberies took place between 27 February and March 2006. The jury acquitted petitioner of three of the charges but convicted 28 him of the fourth. The fourth robbery took place at a grocery store in San Francisco. At 1 approximate 8:30 p.m., a man walked into the store and paid Jamal Khalil, who was working 2 the register, for a bottle of water and a roll of Certs breath mints. Jamal’s father, Zuhdi Khalil, 3 owned the store and was in the store nearby. The man brandished what appeared to be a gun 4 and demanded money. He reached over the counter, took money out of the register and left the 5 store. Jamal and a passerby saw the man get into a “boxy blue car” and drive away. 6 Zuhdi immediately called the police, described the robber as a tall Black man, and the petitioner about one and a half miles from the robbery because petitioner and his car matched 9 the description provided by the Khalils. When petitioner got out of the car, loose change and 10 currency fell from his lap. Another officer found a bottle of water, Certs breath mints and a 11 For the Northern District of California police arrived within minutes. Shortly thereafter, a San Francisco Police Officer pulled over 8 United States District Court 7 plastic replica of a handgun in petitioner’s car, along with a black puffy jacket and a black knit 12 cap. 13 The police then conducted a “cold-show” identification in which Jamal and Zuhdi were 14 brought to the arrest site to view petitioner, who was in handcuffs. The officers admonished 15 both of them that the arrested man might not be the robber, and they were given admonition 16 forms to this effect, which they signed indicating that they understood. Jamal identified 17 petitioner about 30 minutes after the robbery, and Zuhdi identified him about 45 minutes after 18 the robbery. At first, Jamal did not recognize the man from 30 feet away, but he identified the 19 car, the jacket, the hat, the bottle of water, Certs, and toy gun as belonging to the robbery. Then 20 when he stood closer to petitioner, Jamal identified him as the robber. Zuhdi then viewed 21 petitioner from approximately 15 feet away and after approximately 10 seconds, identified 22 petitioner as the robber based upon his face, height and clothing. They also identified him as 23 the robber at the preliminary hearing and at trial. At trial, Zuhdi testified that the was not 24 wearing glasses or contact lenses when he identified petitioner at the arrest scene, and that he 25 was not sure what clothing the robber was wearing, but he was nonetheless 100 percent certain 26 that petitioner was the robber. 27 The jury convicted petitioner of the robbery and found true in a separate proceeding that 28 he had suffered 14 prior felony convictions. The trial court sentenced petitioner to a term of 25 2 1 years to life in state prison under California’s “Three Strikes” laws. The California Court of 2 Appeal affirmed the conviction and the California Supreme Court denied a petition for review. 3 4 ANALYSIS I. 5 STANDARD OF REVIEW A district court may not grant a petition challenging a state conviction or sentence on the 6 basis of a claim that was reviewed on the merits in state court unless the state court’s 7 adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 8 unreasonable application of, clearly established Federal law, as determined by the Supreme 9 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 11 For the Northern District of California United States District Court 10 U.S.C. 2254(d). The first prong applies both to questions of law and to mixed questions of law 12 and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong 13 applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 14 (2003). 15 Under 28 U.S.C. 2254(d)(2), a state court decision “based on a factual determination 16 will not be overturned on factual grounds unless objectively unreasonable in light of the 17 evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322 at 340; see also 18 Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 19 When there is no reasoned opinion from the highest state court to consider the 20 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 21 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir. 2000). In 22 this case, the last reasoned opinion to address petitioner’s claim is that of the California Court 23 of Appeal. 24 II. 25 PETITIONER’S CLAIM As grounds for federal habeas relief, petitioner claims that his right to due process was 26 violated because the “cold-show” identification procedures were unduly suggestive and 27 unreliable. 28 Admission of identification evidence derived from a “cold-show” identification 3 1 procedure is constitutional as long as the procedure was not unduly suggestive and the 2 identification was reliable. Neil v. Biggers, 409 U.S. 188, 198 (1972). Unnecessarily 3 suggestive pretrial identification procedures alone do not require exclusion of in-court 4 identification testimony, as reliability is the linchpin in determining the admissibility of 5 identification testimony. Manson v. Brathwaite, 432 U.S. 98, 100-14 (1977). Identification 6 testimony is inadmissible as a violation of due process only if (1) a pretrial encounter is so 7 impermissibly suggestive as to give rise to a very substantial likelihood of irreparable 8 misidentification, and (2) the identification is not sufficiently reliable to outweigh the 9 corrupting effects of the suggestive procedure. Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986). A reviewing court may assume suggestiveness and review reliability first. See id. at 11 For the Northern District of California United States District Court 10 1339. 12 The California Court of Appeal rejected petitioner’s claim after finding that the 13 procedure was not unduly suggestive and that the identifications by Jamal and Khalil were 14 reliable. The Court of Appeal’s decision was not “contrary to . . . clearly established federal 15 law” within the meaning of 28 U.S.C. 2254(d)(1) because the court applied the correct due 16 process standard from Neil. Williams, 529 U.S. at 405-06 (state court decision is “contrary to” 17 clearly established Supreme Court precedent if it “applies a rule that contradicts the governing 18 law set forth in our cases”). The Court of Appeal’s decision was also a “reasonable 19 application” of that standard. See 28 U.S.C. 2254(d)(1). 20 First, the identification procedures did not cause a substantial likelihood of irreparable 21 misidentification. To be sure, the “cold show” procedure by its nature leaves the suspect as the 22 only person for the witnesses to view, but this does not make any identification using such a 23 procedure unconstitutional. To the contrary, an identification using this procedure was upheld 24 by the Supreme Court in Neil. See 409 U.S. at 198-200. Moreover, nothing about the way the 25 procedure was carried out in this case caused it to be unduly suggestive. The officers told both 26 witnesses beforehand that petitioner may not have been the robber and that they wanted the 27 witnesses to tell them if they had the right person. The witnesses also both signed written forms 28 to that effect. In addition, there is no evidence that the officers made any comments or gestures 4 1 suggesting that petitioner was the robber, nor did they ask the witnesses any leading questions. 2 When the officers took Jamal to petitioner’s car to view petitioner’s clothing and car, they did 3 so because Jamal asked to look at these items so that he decide whether or not petitioner was the 4 robber. As the Court of Appeal reasonably determined, the officers were not suggesting that 5 petitioner was the robber, they were simply providing more information in response to a request 6 by Jamal. Given these circumstances, the California Court of Appeal could reasonably 7 conclude that the identification procedures were not impermissibly suggestive. 8 The Court of Appeal could also reasonably conclude that the identifications were 9 reliable. In determining whether in-court identification testimony is sufficiently reliable, courts consider five factors: (1) the witness' opportunity to view the defendant at the time of the 11 For the Northern District of California United States District Court 10 incident; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; 12 (4) the level of certainty demonstrated by the witness at the time of the identification procedure; 13 and (5) the length of time between the incident and the identification. Id. at 199-200; Manson, 14 432 U.S. at 114. The witnesses had a clear view of the robber’s face and clothes from up close 15 in a lighted store, and Jamal also saw him get into his car. Both witnesses testified that they 16 were very attentive, and despite their concern about the gun, they both testified that they saw his 17 face clearly. The witnesses accurately described his height, clothes, race, car and the items he 18 had purchased from the store before they identified him. Jamal was certain of the identification 19 when he was close to petitioner; his initial uncertainty came when he had been 30 feet away. 20 Although Zuhdi did not remember what the robber was wearing, and he was not wearing his 21 glasses when he identified petitioner, he stated that he was 100% certain of the identification. 22 Lastly, the witnesses identified petitioner a short time – less than an hour -- after the robbery. 23 As all of the factors weigh in favor of a finding of reliability, the California Court of Appeal 24 could reasonably find that the identifications were reliable. 25 The state court’s finding that the identification procedures were not unduly suggestive, 26 that the identifications were reliable, and that admission of evidence based upon such 27 identifications did not violate due process, was neither contrary to nor an unreasonable 28 application of the controlling federal law. Consequently, petitioner is not entitled to habeas 5 1 relief. 2 CONCLUSION 3 For the foregoing reasons, the petition for writ of habeas corpus is DENIED. 4 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case 5 in which “reasonable jurists would find the district court’s assessment of the constitutional 6 claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 7 The Clerk shall enter judgment in favor of respondent and close the file. 8 IT IS SO ORDERED. 9 Dated: November 22 , 2011. 11 For the Northern District of California United States District Court 10 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 G:\PRO-SE\WHA\HC.11\MOBLEY0639.RUL.wpd 18 19 20 21 22 23 24 25 26 27 28 6

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