Opinion
C-02-3607 PJH
August 19, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the court is the petition for writ of habeas corpus filed by state prisoner, Richard Wright ("Wright") pursuant to 28 U.S.C. § 2254. Having reviewed the parties' papers, the record, and having carefully considered their arguments and the relevant legal authorities, the court DENIES the petition.
BACKGROUND
I. Procedural History
On May 31, 1995, the state filed an information charging Wright with attempted premeditated murder, assault with a firearm, assault with a semiautomatic firearm, and first degree burglary. Cal. Pen Code §§ 187, 245(a)(2) (b), 460(a), 664. Each count alleged as enhancements the personal use of a firearm and the personal infliction of great bodily injury. Cal Pen. Code §§ 12022.5(a), 12022.7. A prior robbery conviction was alleged as a serious felony enhancement, as a prior prison term enhancement, and as a prior conviction under the Three Strikes law. Cal Pen Code §§ 667, 667.5(b). (CT 5-14.)
On February 29, 1996, following a jury trial, Wright was found guilty as charged with the addition of the firearm and great bodily injury enhancements. (CT 446-458; RT 925-928.) Furthermore, the prior conviction allegations were admitted and found true. (RT 923, 931-932.) On April 30, 1996, the trial court sentenced Wright to a life term for attempted murder plus determinate terms for the enhancements. (CT 523-525, Exh. 8 at 10-12.) The California Court of Appeal affirmed the convictions but modified the sentence on January 20, 1998. (Exh. 4.)
This portion of the record is sealed and not lodged with the notice. These citations are from the State's Answer to the Petition for Writ of Habeas Corpus.
On May 13, 1998, the California Supreme Court granted review (Exh. 6) and on November 10, 1999, directed the court of appeal to vacate its decision and reconsider the case in light of subsequent authority regarding the Three Strikes law. (Exh. 7.) Accordingly, on remand, the California Court of Appeal reconsidered the case, affirmed Wright's convictions and modified his sentence. (Exh. 8.) The California Supreme Court subsequently denied Wright's petition for review on March 15, 2000. (Exh. 9, 10.)
Wright filed a petition for habeas corpus in state court for his claim of ineffective assistance of counsel. His petition was denied by the State Superior Court on November 19, 1998 in a written opinion. (Exh. 11.) The California Court of Appeal and the California Supreme Court both summarily denied Wright's petition on January 20, 2000 and June 27, 2001 respectively (Exh. 12, 13.)
II. Factual History
Wright's convictions stem from the following facts, a more extensive summary of which may be found in the state appellate court's opinion dated January 20, 1998. (Exh. 8 at 2-4.) The victim in this case rented a room in Pacifica, California. He testified that on the evening of April 25, 1994, a little after 6:00 p.m., he was assaulted and seriously injured by two men who were looking for his roommate, an alleged drug dealer. (RT 381-386, 431.)
The victim testified that on that evening, he heard knocking on the front door of his residence. At first, he ignored the knocking because most of his guests came in through the garage door, while his roommate's guests used the front door. (RT 383.) However, after a few minutes, he opened the door about one inch, and two men pushed their way into his house, displaying semi-automatic guns. (RT 384.) At the scene, the victim described his assailants as two African American males. He estimated that one was approximately 5f6" tall, and the other was about 5f11" tall. (RT 384-485, 248.) He guessed that both men were in their early twenties. (RT 248.) According to the victim, his assailants were wearing hooded sweatshirts with baseball caps under the hoods. (RT 384-386.) The victim testified that although the hoods and the caps covered their heads, he could see the faces of the two men, which were not covered. (RT 386, 395-397.)
The victim testified that he was face-to-face with the shorter assailant for about six seconds. (RT 398.)
The shorter of the two assailants, which the victim identified as the petitioner, Wright, pointed his gun at the victim and asked where the victim's roommate could be found. (RT 386.) At the same time, the other taller assailant looked around the victim's house. When the victim gave no response to Wright's inquiry regarding his roommate, Wright told him to lie on the floor and not to make any noise. Fearing for his life, the victim fled out the door instead of complying with Wright's order. (RT 386-387.)
The victim looked at the gun long enough to be able to identify the type of gun. (RT 389-390.)
As the victim ran down the stairs of the house, he was shot three times, once in the back of his shoulder and twice in his right leg. The bullets to his leg hit the back of his right thigh and calf. (RT 387-389.) The victim nevertheless continued running into his neighbor's home and was able to look back and observe his assailants enter an automobile and drive away. (RT 391-394.)
The victim noted the license plate number as he observed the car drive away. He yelled the number to neighbors who recorded it. (RT 110-111, 154, 170, 394.) The Automobile turned out to be registered to Wright, Rebecca Young ("Young"), Wright's girlfriend, and Young's mother. Young testified that she was the principal owner and driver of the car. According to Young, Wright had been listed as a registered owner because he had a job and because Young could not qualify to buy the car by herself. (RT 194-195, 222.)
The day after the incident, Young reported the car stolen to the Suisun City Police Department. In her police interview she stated that "her boyfriend" had borrowed the car for a few hours on the afternoon of the shooting and that he called her that night at about 6:00 or 7:00 p.m., reporting that he could not return the car because it had been involved in a shooting. (RT 203, 208.) At trial, the investigating police officer attested that the "boyfriend" referred to in Young's statement was Wright. (RT 228.) However, at trial, Young denied having told police that it was Wright who had borrowed her car. (RT 221-222.) She testified instead that she had loaned the car to another boyfriend. (RT 203, 220.) Upon replaying the taped portion of Young's statement to the police, Young referred solely to "her boyfriend" and never mentioned Wright by name. (RT 619-629.)
During her first, prior interview with the police, Young fabricated a story about being in Reno, gambling all night, and returning to discover her car stolen. However, the police uncovered this lie at the subsequent interview referred to above. Young admitted she lied previously and proceeded to tell the police the story about "her boyfriend." (RT 226-228, 538.)
Another officer present during the interview of Rebecca Young testified that Young asserted that the last time she had seen the car, her boyfriend was using it. Young also stated that she was expecting her boyfriend's child. However, this officer conceded that Young had never referred to Wright by name during the interview. (RT 537-538, 541.)
Young described her other boyfriend as African American and approximately 5'6", living somewhere in San Francisco. (RT 204-205.) She testified that she picked up her "other boyfriend" at the bus station earlier that day and let him borrow the car for a couple of hours. (RT 207-208.) She further testified that her "other boyfriend" called her later on that day around 6:00 or 7:00 p.m., to tell her to report the car stolen. He alleged! threatened to kill her and her unborn baby if she "told on him." (RT 212-215.) She testified that she specifically never mentioned her "other boyfriend" by name in the interview an referred to him only generically as "her boyfriend" because she was afraid of this threat (RT 215.)
In addition, the investigating officer testified that in May 1994, he spoke with the victim's roommate, from whom he first learned the name of Young's "other boyfriend," an identified him as someone who may have known that there was "a lot of money" at the residence. However, the officer did not try very hard to locate or identify the other man in order to investigate his potential involvement. (RT 325-327, 287.)
Wright's father, Richard Wright Sr., a Deputy Sheriff for the San Francisco Sheriff department, testified for the prosecution at trial. He testified that his son lived primarily at his home, and on the morning of the incident, the car, which was later identified as the get-away car registered to Wright Jr., was parked outside their home. (RT 369, 372.)
At the scene of the shooting the police discovered the spent casing of two 9mm cartridges, which indicated that a 9mm weapon had been fired. A .22 caliber bullet was removed from the back of the victim's shoulder. The bullets which struck the victim's legs were not recovered. From this evidence, a firearms expert determined that bullets were fired from two different guns at the time of the shooting. (RT 367-368.)
Wright's defense at trial was misidentification and alibi.
ISSUE
Wright claims that he has been deprived of his Sixth Amendment right to effective assistance of counsel at trial because his trial attorney failed to bring a motion to exclude evidence of eyewitness identification testimony on the basis that it had been secured violation of his Sixth Amendment right to counsel at a pretrial lineup.
This court's order to show cause mistakenly identified two claims made by Wright, instead of one: (1) that he was denied his Sixth Amendment right to counsel when his appointed public defender was excluded from a lineup during which the victim identified petitioner; and (2) that his Sixth Amendment right to effective assistance of counsel was violated when his trial attorney failed to seek exclusion of the eyewitness identification of petitioner. However, both parties agree that the instant petition contains only an ineffective assistance of counsel claim, and does not contain a free-standing claim for Wright's alleged denial of his Sixth Amendment right to counsel at the pretrial corporeal lineup.
STANDARD OF REVIEW
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA, 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).A state court decision is "contrary to" Supreme Court authority, falling within 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 v. Taylor, 529 U.S. 362, 412-413 (2000). "Clearly established Federal law" under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003). This "clearly established" law refers to the holdings, as opposed to the dicta, of [Supreme] Court decisions as of the time of the relevant state-court decision. Id.
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas `court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1174. However, this standard requires the state court decision to be more than incorrect or erroneous. Id. For the federal court to grant habeas relief, the state court's application of the Supreme Court authority must be objectively unreasonable. Id. at 1174-1175. The "objectively unreasonable" standard is different from the "clear error" standard in that "the gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness" Id. at 1175; see Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). Therefore, it is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous. Rather, the habeas court must conclude that the state court's application of federal law was objectively unreasonable. Andrade, 123 S.Ct. at 1175; Clark, 331 F.3d at 1068.
However, when the state court decision does not articulate the rationale for its determination or does not analyze the claim under federal constitutional law, a review of that court's application of clearly established federal law is not possible. See Delgado v. Lewis, 223 F.3d 976, 981-81 (9th Cir. 2000); see also 2 J. Liebman R. Hertz, Federal Habeas Corpus Practice and Procedure § 32.2, at 1424-1426 nn. 7-10 (4th ed. 2001). When confronted with such a decision, a federal court must conduct an independent review of the record and the relevant federal law to determine whether the state court's decision was "contrary to, or involved an unreasonable application of," clearly established federal law. Delgado, 223 F.3d at 982.
When a state court does not furnish a basis for its reasoning, we have no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context . . . [A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the `objectively reasonable' lens ground by Williams [v. Taylor, 529 U.S. 362 (2000)] . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. . . . Only by that examination may we determine whether the state court's decision was objectively reasonable.Id.
As for state court findings of fact, under § 2254(d)(2), a federal court may not grant a habeas petition by a state prisoner unless the adjudication of a claim on the merits by a state court 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)(2). The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under § 2254(d)(1) also applies in determining the "unreasonable determination of facts in light of the evidence" under § 2254(d)(2). See Torres v. Prunty, 223 F.3d 1103, 1107-1108 (9th Cir. 2000). To grant relief under 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Id. at 1108
DISCUSSION
I. Wright was not Denied Effective Assistance of Counsel Based on His Trial Counsel's Failure to Bring a Motion to Exclude the Evidence of the Eyewitness Identification Testimony
Wright argues that his Sixth Amendment right to counsel was violated when his counsel was excluded from post-lineup interviews with the victim, at which time the victim made an identification to the police. It is his trial counsel's failure to bring a motion to suppress evidence of this allegedly unconstitutional lineup that provides the basis for Wright's ineffective assistance of counsel claim currently before this court.
a. Background
A brief summary of the facts surrounding the lineup is helpful given the issues presented by the parties. On March 30, 1995, nearly eleven months after the incident, Wright was arrested in Kings County, Washington on a fugitive warrant based on the attempted murder and robbery stemming from the April 25, 1994 incident. See Exh. 15. Subsequently, on March 31, 1995, Wright appeared before a magistrate in Kings County, Washington, and was arraigned on the fugitive warrant for his arrest.
The fugitive warrant at issue is also referred to as a "Governor's Warrant."
The lineup at issue took place on April 6, 1995 in Kings County, Washington. At the time of the lineup, Wright was represented by a public defender — not his trial counsel. Wright's attorney was present for the actual viewing of the lineup by the victim. However, after the viewing concluded and Wright and others in the lineup left the viewing room, Wright's attorney was excluded from the post-lineup interview between the victim and the detective, at which time the victim identified Wright.
Subsequently, on April 12, 1995, an extradition hearing was held by the magistrate in Kings County, Washington, and Wright was subsequently extradited to California.
b. Analysis
As noted, Wright argues that he was deprived of his Sixth Amendment right to effective assistance of counsel when his trial counsel failed to move to suppress the lineup identification, which Wright alleges was in violation of his constitutional right to counsel.
Wright's trial counsel did, in fact, bring a motion to exclude the evidence of the lineup identification on the ground that the lineup was unduly suggestive. The trial court denied that motion to suppress. His trial counsel, however, did not move to suppress the identification on the basis that the lineup violated Wright's constitutional right to counsel.
A successful claim of ineffective assistance of counsel has two components. First, a defendant must show that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 688 (1984). Deficient performance is "representation that falls below the objective standard of reasonableness." Id. at 687. Accordingly, the relevant inquiry is not what defense counsel could have done, but whether the choices the defense counsel made were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
Second, having established deficient performance, a defendant must show that counsel's errors were serious enough to deprive the defendant of a fair, reliable trial. Id. at 687-88. The test for prejudice is not purely outcome determinative — the defendant need not show that the deficient conduct more than likely altered the outcome of the case. Id. Instead, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
In this case, the state superior court rejected the same claim brought by Wright before this court in state court habeas proceedings. The state court concluded that Wright could not show that his counsel "was deficient or ineffective" for failing to move to exclude the lineup evidence. Citing California and federal case law, the court noted the Wright's right to counsel extended only "to the time when actual identifications are made by the witnesses of the lineup. . . . not . . . at any subsequent interview with the witnesses." The superior court concluded that the fact that Wright's counsel "was not present when [the victim] identified Petitioner at the lineup supports [Wright's] contention that his right to counsel was violated."
The superior court nevertheless denied Wright's ineffective assistance of counsel claim because his trial counsel had "no reason to conclude that [the] victim could not make an in-court identification from an origin independent of the lineup." In support, the California court noted California case law providing that where "a witness identifie[s] a defendant in a lineup conducted in violation of the defendant's right to counsel, subsequent in-court identifications by that witness [are] inadmissible unless shown by clear and convincing evidence to have an origin independent of the illegal lineup." Id. (citing People v. Williams, 478 P.2d 942, 944-45 (Cal. 1971)). In concluding that there was an independent basis for the victim's in-court identification, the state superior court discounted the fact that prior to the lineup at issue, the victim had failed to identify Wright in a photographic lineup, and instead relied on the facts as stated by the California Court of Appeal: that the victim "saw the faces of the men who entered his home despite the fact that they wore baseball caps on their heads and hoods over the caps."
However, in a federal habeas challenge, a state court conclusion that counsel rendered effective assistance is not a fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). The inquiry regarding whether counsel was effective is a mixed question of law and fact. See Strickland, 466 U.S. at 698. Claims of ineffective assistance therefore require a review of the record.
While Wright has not alleged a free-standing claim for the violation of his Sixth Amendment right to counsel at the pretrial live lineup, it is helpful in analyzing the ineffectiveness of his counsel, to examine whether Wright's Sixth Amendment right to counsel was in fact violated at the pretrial corporeal lineup.
i. Right to Counsel at the Lineup
In its opposition to the habeas petition before this court, the state argues that at the time of the lineup, California had not filed any formal charges against Wright, and therefore, he had no right to an attorney pursuant to the Sixth Amendment. The initiation of proceedings, indicated by way of formal charge, preliminary hearing, indictment, information or arraignment, is required in order for the Sixth Amendment right to counsel to attach. Kirby v. Illinois, 406 U.S. 682, 688-91 (1972). Wright counters that at the time of the lineup, he had been arrested pursuant to a fugitive or governor's warrant, and that any extradition proceedings pursuant to such a warrant necessarily required formal charges by California, thereby giving rise to his Sixth Amendment right to counsel.
Wright claims that the Governor's or fugitive warrant that served as the basis for his March 30, 1995 arrest, prior to the April 6, 1995 lineup, constituted "the filing of formal charges to which attached the right to counsel" at the lineup. Traverse at 9. However, Wright also concedes that the information filed by the State of California charging him with the crimes against the victims was not filed until after the lineup on May 31, 1995. See Petition at par. 1, CT 5.
Under federal law, the law that this court must apply in this case, at the time of `the lineup, Wright had no clearly established Sixth Amendment right to counsel as established by the decisions of the United States Supreme Court. See Bittaker v. Enomoto, 587 F.2d 400, 402 (9th Cir. 1978) ("Federal courts must apply federal constitutional law in cases properly before them under the federal habeas statute."); accord Thomas v. Borg, 159 F.3d 1147, 1149 (9th Cir. 1998).
Here, at the time of the lineup, Wright had not been formally charged by California, but had been arrested pursuant to a Governor's or fugitive warrant. The right to counsel under the Sixth Amendment attaches when adversary criminal proceedings are initiated "byway of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 188 (1984); accord United States v. Hayes, 231 F.3d 663, 671-73 (9th Cir. 2000) (rejecting Sixth Amendment right to counsel at material witness depositions at which defendant was deposed where no formal charges had been filed, noting that "the [c]ourt has consistently held that the right to counsel attaches only after the initiation of formal charges").
While the Supreme Court has not ruled as to whether the Sixth Amendment right to counsel applies in extradition proceedings, all circuits and lower federal courts have consistently determined that there is no such Sixth Amendment right. See Joseph G. Cook, 2 Constitutional Rights of the Accused 3d § 8:4, Right to Counsel: Extradition (June 2003). Wright's arrest pursuant to the fugitive warrant and his appearance at the arraignment hearing before the Washington state magistrate pursuant to the fugitive warrant and prior to the lineup did not give rise to a Sixth Amendment right to counsel under clearly established federal law. See Judd v. Vose, 813 F.2d 494, 497 (1st Cir. 1987) (where defendant arrested on fugitive warrant but not formally charged, right to counsel had not yet attached); Chewning v. Rogerson, 29 F.3d 418, 421-22 (8th Cir. 1994) (extradition hearings are not "critical states" during which right to counsel attaches); United States v. Doherty, 126 F.3d 769, 782 (6th Cir. 1997) (statutory right to counsel at extradition hearing under Uniform Crime Extradition Act does not trigger the Sixth Amendment right to counsel) abrogated on other grounds by Texas v. Cobb, 532 U.S. 162 (2001); Lopez-Smith v. Hood, 951 F. Supp. 908, 912 (D. Ariz. 1996) (no right to counsel at extradition proceedings); see also Lee v. County of Los Angeles, 240 F.3d 754 (9th Cir. 2001) opinion withdrawn and superseded on other grounds by Lee v. County of Los Angeles, 250 F.3d 668 (9th Cir. 2001) (defendant had no Sixth Amendment right to counsel at extradition proceedings); United States v. Harrison, 213 F.3d 1206, 1210-11 (9th Cir. 2000) (extradition hearing at which public defender represented defendant was "non-critical" stage for purposes of determining whether the right to counsel under the Sixth Amendment had attached). Therefore, applying federal law, the Sixth Amendment right to counsel had not attached at the time that the April 6, 1995 lineup took place.
California law, however, appears to be to the contrary. See Robert M. Weinberg, The Right to Court-Appointed Counsel in Extradition Proceedings, 59 Ala. Law. 94, 98 (March 1998) (noting that "no federal court has ever expressly held there exists a federal constitutional right to court appointed counsel in extradition proceedings," and that "[i]f such a right is to be found it will be in state court"). Pursuant to California law, "the Governor or Governor's agent must sign [the] warrant of arrest reciting the necessary facts." 4 Witkin, Cal. Crim. Law 3d, Jur. Ven. § 37, Governor's Warrant of Arrest (2000 ed). "The warrant authorizes the arrest and delivery of the accused to the agent of the demanding state." Id. (citations omitted). "The person arrested, however, must first be `taken forthwith before a magistrate,' who must inform the person of the demand and the crime charged, and of the right to counsel." Id. (citing Cal. Penal Code § 1550.1)("No person arrested upon such warrant shall be delivered over to the agent of the executive authority demanding him unless he is first taken forthwith before a magistrate, who shall inform him of the demand made for his surrender, and of the crime with which he is charged, and that he has the right to demand and procure counsel.").
However, even if this court were to determine that the Sixth Amendment right to counsel had attached at the time of the lineup, the court should nevertheless determine that Wright's counsel's exclusion from the post-lineup interview and identification did not violate clearly established federal law.
ii. Exclusion of Wright's Counsel from Post-Lineup Interview and Identification
A defendant has a right to counsel at a post-indictment lineup because it is a critical stage of the prosecution. See United States v. Wade, 388 U.S. 218, 236-37 (1967). The right recognized in Wade has been extended to the right to have counsel present for the entire lineup presentation, not just when the defendant steps forward for presentation. See United States v. LaPierre, 998 F.2d 1460, 1464 (9th Cir. 1993). The right attaches to the period `"during which an accused is within sight of a potential identification witness."' Id. (quoting United States v. Cunningham, 423 F.2d 1269, 1274 n. 3 (4th Cir. 1970)). The admission of testimony of a witness that he had identified defendant at a lineup conducted without defense counsel being present is per se inadmissible. See Gilbert v. California, 388 U.S. 263, 272-73.
The Supreme Court, however, has not determined when the constitutional right to counsel during a pretrial lineup ends, and specifically, whether counsel's exclusion from the post-lineup interview is an unconstitutional deprivation of a defendant's right to counsel. See Kirby, 406 U.S. at 689 (the Sixth Amendment right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary indictment, information, or arraignment"); United States v. Ash, 413 U.S. 300, 317 (1973) (the Sixth Amendment did not grant the accused a right to have counsel present at government conducted post-indictment photographic displays containing a picture of the accused for purposes of attempted identification of the offender).
However, the Ninth Circuit, along with the Second, Fourth, Fifth, Eighth, and Tenth Circuits, has declined to extend the right to counsel outlined in Wade to post-lineup interviews. See Doss v. United States, 431 F.2d 601, 603-604 (9th Cir. 1970); accord United States v. Rich, 580 F.2d 929, 933 (9th Cir. 1978); United States v. Tolliver, 569 F.2d 724, 727 (2d Cir. 1978); United States v. Wilcox, 507 F.2d 364, 370 (4th Cir. 1974); United States v. White, 617 F.2d 1131 (5th Cir. 1980); United States v. Bierey, 588 F.2d 620, 624 (8th Cir. 1978); Hallmark v. Cartwright, 742 F.2d 584 (10th Cir. 1984). In Doss, the Ninth Circuit held that exclusion of the defendant's counsel during post-lineup interviews with the witnesses did not violate his Sixth Amendment right to counsel. 431 F.2d at 604. The court explained that allowing defense counsel to listen in on any remarks that pass between the spectators after the lineup proceeding, would essentially "permit defense counsel to `sit in' on conferences with [prosecution's] prospective witnesses." Id. at 604.
Subsequently, in Jordan v. DuCharme, the Ninth Circuit reiterated its distinction between "the subtle, highly suggestive visual influences that can adversely affect a lineup from verbal cues that might occur during the proceeding and immediately thereafter." 983 F.2d 933, 936 (9th Cir. 1993) (holding that under specific facts of case, counsel's exclusion from pre-lineup preparation did not violate petitioner's right to counsel). It noted that in Doss, "counsel's presence was not required because any improper verbal suggestions could be readily detected by witnesses and explored on cross-examination." Id.
Neither the Ninth Circuit nor the Supreme Court have ruled on the precise issue presented here: whether petitioner's Sixth Amendment right to counsel is violated when counsel is excluded from post-lineup interviews at which time the victim or witness makes an identification. The circuits that have addressed the issue, however, have consistently held that a defendant does not have the right to counsel at post-lineup interviews even when a witness delays his or her identification of the defendant as the perpetrator until after the lineup has terminated. See Sams v. Walker, 18 F.3d 167, 170 (2nd Cir. 1994); Bierey, 588 F.2d at 624-25; Cunningham, 423 F.2d at 1274.
In Sams, the Second Circuit affirmed the district court's denial of Sams' federal habeas petition, reiterating that "a defendant's right to counsel [is] satisfied when his attorney [is] present during a witness' viewing of the lineup even though the subsequent identification procedure was specifically designed so that the attorney would not observe the witness making his choice." Id. at 170 (citing Tolliver, 569 F.2d at 726). The court reasoned that "the actual identification from a line-up . . ., if made outside the presence of the defendant is constitutionally valid, since the actual confrontation is the only `critical stage' requiring the presence of counsel." Id. Post-Doss Ninth Circuit cases suggest that the Ninth Circuit would decide the issue similarly. See Rich, 580 F.2d at 933; Jordan, 983 F.2d at 937 (discussing Doss and noting that in considering whether there is a right to counsel involves "whether cross-examination can reveal any improper procedures that occur in counsel's absence," which "requires some analysis of the likelihood that witnesses will be able to detect adverse influences"); LaPierre, 998 F.2d at 1464 (noting that defendant's "right to counsel attached at the moment he and the other lineup members were within the sight of the witnesses"); United States v. Barker, 988 F.2d 77, 78 (9th Cir. 1993) (holding that defendants have no Sixth Amendment right to have counsel when a witness views a photographic lineup, and reasoning that the defendant "is not present when the photograph of the lineup is shown and thus cannot be `misled' or `overpowered,' and the `adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews") (citing Ash, 413 U.S. at 318).
Wright, however, argues that his right to counsel was violated based on California law, the application of which may have led to a contrary result. However, as noted previously, on federal habeas review, this court applies federal law. See Bittaker, 587 F.2d at 402; Thomas, 159 F.3d at 1149. Therefore, under federal law, `specifically United States Supreme Court cases, the law that this court must apply in this case, Wright had no clearly established Sixth Amendment right to counsel at the post-lineup interview, even though that is when the identification actually occurred.
California courts, like federal courts, agree that the defendant is not entitled to counsel during post-lineup interviews. See People v. Mitchum, 824 P.2d 1277, 1305 (Cal. 1992); People v. Carpenter, 15 Cal.4th 312, 369 (Cal. 1997). However, California courts, unlike federal courts, have held that a defendant is entitled to counsel at post-lineup interviews where an identification is made. See Williams, 478 P.2d at 944-45; Carpenter I, 15 Cal.4th at 369 (noting that "[t]he right to counsel extends only to the actual identification, not to postidentification interviews") (emphasis added). This principle was, however, recently called into question by the California Supreme Court. See People v. Carpenter, 988 P.2d 531, 550 (Cal. 2000) (noting that court saw "no basis to exclude any evidence even if either or both of the witnesses had actually [identified] the witness in [defendant's] counsel's absence" at post-lineup interview).
The state's opposition is no more helpful on this point. It erroneously asks this court to consider Washington state law, the state where the lineup occurred.
Hi. Ineffective Assistance Claim
The first prong of the Strickland ineffective assistance of counsel analysis is whether counsel's performance was deficient, falling below an objective standard of reasonableness. Strickland, 466 U.S. at 687-688. Wright alleges that his trial counsel was deficient in failing to bring a motion to exclude the evidence of his pretrial lineup identification on the basis that it occurred in violation of his constitutional right to counsel.
However, an examination of federal law, as determined previously, supports the conclusion that Wright did not in fact have a right to counsel during the post lineup interview, during which the victim made his identification of Wright. See Doss, 431 F.2d at 603-604; Ash, 413 U.S. at 317. Therefore, Wright's attorney did not fall below objective standards of reasonableness by failing to bring a motion under authority that would not have supported such an argument.
This case differs significantly from Tomlin v. Myers, in which the Ninth Circuit held that the defense counsel's failure to seek suppression of a witness' lineup identification, conducted outside of the petitioner's counsel's presence, fell below Strickland's objective standard of reasonableness in a murder prosecution. See 30 F.3d 1235, 1238-39 (9th Cir. 1994). In Tomlin, the lineup was clearly illegal. The lineup occurred after formal charges were brought by the state, and although the petitioner was represented, his lawyer inadvertently was not notified of the lineup, and therefore was not present for any part of the lineup. See id. at 1237. Concluding that failure to bring a motion to suppress was unreasonable, the Ninth Circuit asserted that "[w]hen faced with a client who has been identified in an illegal lineup, most defense attorneys would challenge the admission of any evidence related to it. . . . [because] a defendant . . . has everything to gain and nothing to lose in filing a motion to suppress". Id. (citation omitted).
The second prong of the Strickland ineffective assistance of counsel analysis is whether counsel's errors prejudiced the defendant. See Strickland, 466 U.S. at 687-688. It is, however, unnecessary for a federal court considering a habeas ineffective assistance claim to address the prejudice prong of the Strickland test if the petitioner cannot establish incompetence under the first prong. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
Nevertheless, even if this court were to reach the issue, Wright cannot show prejudice. In order to show prejudice, Wright must demonstrate that: (1) had the motion been brought, it would have been granted and (2) if the motion had been granted, the outcome of the case would necessarily have been different. In other words, Wright must show that his counsel's errors were the "but for" cause of his conviction. See id. at 694. Applying federal law, as this court must do on federal habeas review, Wright cannot demonstrate prejudice because the motion to exclude evidence would not have been granted as Wright was not denied his federal constitutional right to counsel during his pretrial lineup.
It bears mentioning that at the time of the trial, this motion would have been brought in a California state court under the authority of a California Supreme Court decision. Therefore, pursuant to the California Supreme Court's decision in Williams, there is a possibility that the trial court may have granted the motion, and therefore excluded the eyewitness identification testimony on those grounds. See Williams, 3 Cal.3d at 856. However, it is also possible that the state court may have distinguished Williams on its facts in accordance with Carpenter. See Carpenter, 21 Cal.4th at 1046. Although the facts of Williams are similar to those of this case, one important distinguishing element is that the post-lineup interview conducted between the victim and the police in this case was tape-recorded (RT 621); whereas, in Williams, the identification was not. See Williams, 3 Cal.3d at 855-856. Therefore, it is just as likely that the state trial court would have followed the California Supreme Court's reasoning in Carpenter, noting that the tape recording "minimized the concerns that led to the adoption of the Williams rule . . . and thus [ ]'fully apprised'[ ] what occurred" during the post lineup interview, thereby denying any motion to suppress on this basis. See Carpenter, 21 Cal.4th at 1046.
Assuming, however, that the motion to exclude evidence was meritorious under California Supreme Court authority, Wright still must prove that "but for" this motion, he would not have been convicted. See Strickland, 466 U.S. at 694. Wright argues that without the evidence of the lineup identification, the prosecution would not have been able to prove by clear and convincing evidence that the in-court identification was independent from the illegal lineup. See Wade, 388 U.S. at 241; Gilbert, 388 U.S. at 272.
The state superior court denied Wright's motion on this issue, however, because the record shows that the victim saw the assailants' faces when they barged into his home, despite the fact that they were wearing baseball caps and hooded sweatshirts over their caps. (Exh. 11); (RT 384-386, 395-397.) Furthermore, there is other sufficient evidence of Wright's guilt in the record, independent of the lineup identification. First, the getaway car was linked to Wright. (RT 194-195.) Second, Wright's father testified that the car was parked in front of his house the morning of the incident. (RT 369, 372.) Third, Wright left for Seattle the day after the incident, and during pre-trial litigation, the prosecution uncovered that Wright falsely tried to secure an alibi in Seattle. (RT 593-596.) Although Wright's girlfriend, Young, testified that she had loaned the car to her "other boyfriend," Young's credibility may have been suspect by the jury, due to the fact she had lied to the police previously and that she was the mother of Wright's child. (RT 226-228, 538).
In sum, there is not a reasonable probability that, but for defense counsel's error, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694.
CONCLUSION
The petition for habeas corpus relief is DENIED because Wright has not shown that he was denied effective assistance of counsel when his trial counsel failed to move to suppress the pre-trial lineup identification. The basis on which Wright has alleged ineffective assistance of counsel, namely the violation of his right to counsel at the pretrial corporeal lineup, is not supported by federal law. Nevertheless, even if Wright did have a basis for which to bring this claim, he cannot meet the standard to prove ineffective assistance of counsel under clearly established law as determined by the United States Supreme Court.
This order fully adjudicates the motion listed at No. 1 of the clerk's docket for this case and terminates all other pending motions. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
Pursuant to the Order Denying Petition for Writ of Habeas Corpus signed today, this action is DISMISSED.IT IS SO ORDERED AND ADJUDGED.