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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAYNE MOBLEY,

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No. C 11-0639 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
CERTIFICATE OF
APPEALABILITY

v.
RAUL LOPEZ, Warden,
Respondent.
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INTRODUCTION
Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus challenging his conviction pursuant to 28 U.S.C. 2254. Respondent was ordered to

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show cause why the writ should not be granted based upon petitioner’s claim that the

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identification procedures were unduly suggestive, in violation of his right to due process.

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Respondent has filed an answer and a memorandum of points and authorities in support of it,

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and petitioner filed a traverse. For the reasons set forth below, the petition is DENIED.

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STATEMENT

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Petitioner was charged in San Francisco County Superior Court of four counts of

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second-degree robbery, and 14 prior convictions for robbery or attempted robbery. See Cal.

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Pen. Code §§ 211, 667(d)-(e), 1170.12(b)-(c). The four charged robberies took place between

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February and March 2006. The jury acquitted petitioner of three of the charges but convicted

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him of the fourth. The fourth robbery took place at a grocery store in San Francisco. At

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approximate 8:30 p.m., a man walked into the store and paid Jamal Khalil, who was working

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the register, for a bottle of water and a roll of Certs breath mints. Jamal’s father, Zuhdi Khalil,

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owned the store and was in the store nearby. The man brandished what appeared to be a gun

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and demanded money. He reached over the counter, took money out of the register and left the

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store. Jamal and a passerby saw the man get into a “boxy blue car” and drive away.

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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

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the description provided by the Khalils. When petitioner got out of the car, loose change and

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currency fell from his lap. Another officer found a bottle of water, Certs breath mints and a

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For the Northern District of California

police arrived within minutes. Shortly thereafter, a San Francisco Police Officer pulled over

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United States District Court

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plastic replica of a handgun in petitioner’s car, along with a black puffy jacket and a black knit

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cap.

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The police then conducted a “cold-show” identification in which Jamal and Zuhdi were

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brought to the arrest site to view petitioner, who was in handcuffs. The officers admonished

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both of them that the arrested man might not be the robber, and they were given admonition

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forms to this effect, which they signed indicating that they understood. Jamal identified

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petitioner about 30 minutes after the robbery, and Zuhdi identified him about 45 minutes after

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the robbery. At first, Jamal did not recognize the man from 30 feet away, but he identified the

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car, the jacket, the hat, the bottle of water, Certs, and toy gun as belonging to the robbery. Then

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when he stood closer to petitioner, Jamal identified him as the robber. Zuhdi then viewed

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petitioner from approximately 15 feet away and after approximately 10 seconds, identified

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petitioner as the robber based upon his face, height and clothing. They also identified him as

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the robber at the preliminary hearing and at trial. At trial, Zuhdi testified that the was not

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wearing glasses or contact lenses when he identified petitioner at the arrest scene, and that he

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was not sure what clothing the robber was wearing, but he was nonetheless 100 percent certain

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that petitioner was the robber.

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The jury convicted petitioner of the robbery and found true in a separate proceeding that

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he had suffered 14 prior felony convictions. The trial court sentenced petitioner to a term of 25
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years to life in state prison under California’s “Three Strikes” laws. The California Court of

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Appeal affirmed the conviction and the California Supreme Court denied a petition for review.

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ANALYSIS
I.

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STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on the

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basis of a claim that was reviewed on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme

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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

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For the Northern District of California

United States District Court

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U.S.C. 2254(d). The first prong applies both to questions of law and to mixed questions of law

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and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong

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applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340

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(2003).

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Under 28 U.S.C. 2254(d)(2), a state court decision “based on a factual determination

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will not be overturned on factual grounds unless objectively unreasonable in light of the

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evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322 at 340; see also

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Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

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When there is no reasoned opinion from the highest state court to consider the

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petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501

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U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir. 2000). In

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this case, the last reasoned opinion to address petitioner’s claim is that of the California Court

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of Appeal.

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II.

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PETITIONER’S CLAIM
As grounds for federal habeas relief, petitioner claims that his right to due process was

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violated because the “cold-show” identification procedures were unduly suggestive and

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unreliable.

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Admission of identification evidence derived from a “cold-show” identification
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procedure is constitutional as long as the procedure was not unduly suggestive and the

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identification was reliable. Neil v. Biggers, 409 U.S. 188, 198 (1972). Unnecessarily

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suggestive pretrial identification procedures alone do not require exclusion of in-court

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identification testimony, as reliability is the linchpin in determining the admissibility of

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identification testimony. Manson v. Brathwaite, 432 U.S. 98, 100-14 (1977). Identification

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testimony is inadmissible as a violation of due process only if (1) a pretrial encounter is so

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impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

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misidentification, and (2) the identification is not sufficiently reliable to outweigh the

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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

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For the Northern District of California

United States District Court

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1339.

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The California Court of Appeal rejected petitioner’s claim after finding that the

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procedure was not unduly suggestive and that the identifications by Jamal and Khalil were

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reliable. The Court of Appeal’s decision was not “contrary to . . . clearly established federal

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law” within the meaning of 28 U.S.C. 2254(d)(1) because the court applied the correct due

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process standard from Neil. Williams, 529 U.S. at 405-06 (state court decision is “contrary to”

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clearly established Supreme Court precedent if it “applies a rule that contradicts the governing

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law set forth in our cases”). The Court of Appeal’s decision was also a “reasonable

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application” of that standard. See 28 U.S.C. 2254(d)(1).

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First, the identification procedures did not cause a substantial likelihood of irreparable

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misidentification. To be sure, the “cold show” procedure by its nature leaves the suspect as the

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only person for the witnesses to view, but this does not make any identification using such a

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procedure unconstitutional. To the contrary, an identification using this procedure was upheld

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by the Supreme Court in Neil. See 409 U.S. at 198-200. Moreover, nothing about the way the

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procedure was carried out in this case caused it to be unduly suggestive. The officers told both

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witnesses beforehand that petitioner may not have been the robber and that they wanted the

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witnesses to tell them if they had the right person. The witnesses also both signed written forms

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to that effect. In addition, there is no evidence that the officers made any comments or gestures
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suggesting that petitioner was the robber, nor did they ask the witnesses any leading questions.

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When the officers took Jamal to petitioner’s car to view petitioner’s clothing and car, they did

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so because Jamal asked to look at these items so that he decide whether or not petitioner was the

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robber. As the Court of Appeal reasonably determined, the officers were not suggesting that

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petitioner was the robber, they were simply providing more information in response to a request

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by Jamal. Given these circumstances, the California Court of Appeal could reasonably

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conclude that the identification procedures were not impermissibly suggestive.

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The Court of Appeal could also reasonably conclude that the identifications were

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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

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For the Northern District of California

United States District Court

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incident; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description;

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(4) the level of certainty demonstrated by the witness at the time of the identification procedure;

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and (5) the length of time between the incident and the identification. Id. at 199-200; Manson,

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432 U.S. at 114. The witnesses had a clear view of the robber’s face and clothes from up close

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in a lighted store, and Jamal also saw him get into his car. Both witnesses testified that they

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were very attentive, and despite their concern about the gun, they both testified that they saw his

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face clearly. The witnesses accurately described his height, clothes, race, car and the items he

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had purchased from the store before they identified him. Jamal was certain of the identification

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when he was close to petitioner; his initial uncertainty came when he had been 30 feet away.

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Although Zuhdi did not remember what the robber was wearing, and he was not wearing his

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glasses when he identified petitioner, he stated that he was 100% certain of the identification.

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Lastly, the witnesses identified petitioner a short time – less than an hour -- after the robbery.

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As all of the factors weigh in favor of a finding of reliability, the California Court of Appeal

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could reasonably find that the identifications were reliable.

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The state court’s finding that the identification procedures were not unduly suggestive,

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that the identifications were reliable, and that admission of evidence based upon such

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identifications did not violate due process, was neither contrary to nor an unreasonable

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application of the controlling federal law. Consequently, petitioner is not entitled to habeas
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relief.

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CONCLUSION

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For the foregoing reasons, the petition for writ of habeas corpus is DENIED.

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A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case

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in which “reasonable jurists would find the district court’s assessment of the constitutional

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claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Clerk shall enter judgment in favor of respondent and close the file.

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IT IS SO ORDERED.

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Dated: November

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, 2011.

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For the Northern District of California

United States District Court

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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