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Yowell v. Baca

United States District Court, D. Nevada

January 7, 2020

ROBERT STEVEN YOWELL, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.

         This represented habeas matter by Petitioner Robert Steven Yowell (“Petitioner” or “Yowell”) under 28 U.S.C. § 2254 is pending for a decision on the merits of the two remaining grounds. Following review, the Court finds that oral argument would assist the Court in addressing Yowell's petition. The Court notes the issues relating to the remaining two grounds, as well as the specific points that the parties should be prepared to address.

         I. ISSUES PERTAINING TO GROUND 4

         In Ground 4, Yowell alleges that he was denied effective assistance of trial counsel when counsel failed “to move to preclude the admission of the highly suggestive photographic lineup and identification procedure.” (ECF No. 23 at 44-46; ECF No. 58, at 12-15.)

         It appears that the state supreme court's decision affirming the rejection of the related claim presented in the state courts arguably was based in large part upon the premise that “even if counsel successfully objected and precluded the admission of the photographic lineup, ‘the jury would still have heard the unequivocal and uncontradicted identification of [Yowell] as the man that had abducted the victim from Wal-Mart and raped her.'” (ECF No. 14-7 at 3 (bracketed material in original).) However, this premise would appear to be contrary to clearly established federal law as determined by the United States Supreme Court.

         Under controlling Supreme Court precedent, when the police have used an unnecessarily suggestive pretrial identification procedure, “reliability is the linchpin in determining the admissibility of identification testimony” under the Due Process Clause. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Courts considering a claim that admission of identification evidence violates due process apply multiple factors outlined in Neil v. Biggers, 409 U.S. 188 (1972), to determine the reliability of the identification evidence under a totality of the circumstances standard. Id.; see also Id. at 110-11, 113- 14.

         Critically, this same reliability standard governs the admissibility of both the initial identification and any subsequent in-court identification. As the Supreme Court explained in a case where the question was whether the pretrial identification also should be excluded in addition to any subsequent in-court identification:

Some general guidelines emerge from [our prior] cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster [v. California, 394 U.S. 440 (1969)]. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. . ..

Biggers, 409 U.S. at 198 (with emphasis added and footnote deleted).

         Thus, if following an unnecessarily suggestive pretrial identification procedure the challenged identification is reliable under the totality of the circumstances, “then testimony as to it and any identification in its wake is admissible.” Brathwaite, 432 U.S at 110 n.10 (emphasis added). And the converse also is true. In Brathwaite, both the majority and the dissent understood that “Biggers . . . clearly adopts the reliability of the identification as the guiding factor in the admissibility of both pretrial and in-court identifications.” Id. at 105 n.9 (emphasis added) (the dissent believed that Biggers thereby departed from prior law; the majority instead that it synthesized it). Consistent with the foregoing, it was the admissibility of the in-court identification evidence that followed an allegedly suggestive pretrial identification procedure that was at issue in Simmons, supra, and Coleman v. Alabama, 399 U.S. 1 (1970). Id. at 105 n.8. And in Foster, supra, the Supreme Court reversed and remanded on a successful due process challenge where both the pretrial suggestive identification and the subsequent in-court identification evidence were admitted at trial. Id.

         In short, there is no dichotomy under the governing Supreme Court caselaw where the suggestive pretrial identification is excluded on a successful due process challenge- which was a premise assumed by the state supreme court in rejecting the claim-while later in-court identifications still are admitted. The admissibility of both are governed by the same standard, in a single analysis that controls the admissibility of all of the identification evidence. The Due Process Clause prevents all identification evidence- including in-court identification evidence by the witness-reaching the jury after an unnecessarily suggestive police pretrial identification procedure has created an undue likelihood of misidentification (i.e., unreliable identification evidence), which taints all following identification evidence by the prospective witness. That had been the law going back continuously for over forty years before the state supreme court's February 13, 2014, decision on Yowell's postconviction appeal. Accord United States v. Domina, 784 F.2d 1361, 1367-68 (9th Cir. 1986); United States v. Bagley, 772 F.2d 482, 491-94 (9th Cir. 1985).[1]

         The state supreme court's explicit acceptance of a premise that only the photo lineup evidence would have been excluded on a successful due process challenge while the subsequent in-court identifications would have been admitted thus appears to be contrary to clearly established federal law as determined by the Supreme Court.

         However, proceeding to a decision on federal habeas review based upon a holding to that effect would appear to be problematic on the existing record and arguments for multiple reasons.

         First, Yowell does not appear to argue here that the state supreme court's decision was contrary to clearly established federal law on this basis. Yowell does argue that the state court decision was contrary to clearly established federal law because the decision did not explicitly discuss each one of the Biggers factors. (See ECF No. 58 at 11-12, 15.) But he does not appear to argue that the state court decision was contrary to clearly established federal law on the potential basis discussed herein.

         Second, Yowell did not argue in the state courts that it was contrary to Supreme Court precedent to proceed on the premise that the in-court identification testimony still would have been admitted following a successful due process challenge to the photo lineup. When the state presented this premise in the state district court, state postconviction counsel did not challenge the premise; and he instead appeared to implicitly accept the premise as a potentially valid one. (See ECF No. 14-2 at 22-24, 91- 92, 95-100.) And after the state district court accepted this premise in its rulings, state postconviction counsel did not challenge the district court's fundamental legal error either in the lower court or in his postconviction appeal briefing. (See Id. at 104-06; ECF No. 14-3 at 6-7; ECF No. 14-4 at 5-6, 10-13, 22-25, 29-33; ECF No. 14-8; ECF No. 14-10.) Yowell thus never presented an argument to the state supreme court that it was ...


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