696 F.2d 1244 (9th Cir. 1983), 78-2636, Mata v. Sumner

Docket Nº:78-2636.
Citation:696 F.2d 1244
Party Name:Robert MATA, Petitioner-Appellant, v. George W. SUMNER, Warden of the California State Prison at San Quentin, Respondent-Appellee.
Case Date:January 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1244

696 F.2d 1244 (9th Cir. 1983)

Robert MATA, Petitioner-Appellant,

v.

George W. SUMNER, Warden of the California State Prison at

San Quentin, Respondent-Appellee.

No. 78-2636.

United States Court of Appeals, Ninth Circuit

January 20, 1983

Argued and Submitted Aug. 15, 1979.

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Lennie Stein, Cal. State Public Defender, San Francisco, Cal., for petitioner-appellant.

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Jamie Jacobs-May, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ELY and SNEED, Circuit Judges, and TAKASUGI, [*] District Judge.

ELY, Circuit Judge:

Robert Mata appeals from the District Court's denial of his Petition for Writ of Habeas Corpus. The Petition followed Mata's murder conviction in California state court and his exhaustion of all available state court remedies. We reverse.

I.

In this opinion we endeavor for the third time to set forth the factual and legal bases for our firm conclusion that impermissibly suggestive pretrial photographic identification procedures violated Mata's constitutional right to due process of law. The United States Supreme Court vacated and remanded our initial disposition, Mata v. Sumner, 611 F.2d 754 (9th Cir.1979), citing our failure to apply the presumption of correctness mandated by 28 U.S.C. Sec. 2254(d) to the factual determinations made by the California Court of Appeal in this case. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). On remand we considered the state court's factual determinations in the context of 28 U.S.C. Sec. 2254(d) and concluded that, because we "substantially agree[d]" with the historical or basic facts adduced by the California court, the requirement of explaining by reasoned written references the justification for dispensing with the presumption was inapplicable. Mata v. Sumner, 649 F.2d 713, 715-16, 717 (9th Cir.1981). See Sumner v. Mata, 449 U.S. at 549, 101 S.Ct. at 770. The Supreme Court again vacated and remanded, citing our failure to heed the Court's earlier conclusion that certain of our factual findings were "considerably at odds" with the findings made by the state appellate court. Sumner v. Mata, --- U.S. ---, 102 S.Ct. 1303, 1305, 1307, 71 L.Ed.2d 480 (1982) (per curiam).

Having received additional briefing by the parties, we now attempt to review carefully the facts of this case, as reflected in the trial transcript and the findings of the California Court of Appeal, in compliance with 28 U.S.C. Sec. 2254(d) and the most recent mandate of the Supreme Court. In doing so we emphasize that the Court has not reached the merits of our prior conclusion that the pretrial photographic identification procedures were so impermissibly suggestive in this case as to give rise to a very substantial likelihood of irreparable misidentification. See 102 S.Ct. at 1307; 449 U.S. at 552, 101 S.Ct. at 771. Our reevaluation of the facts only strengthens our conviction that the state has denied Mata that fairness required by the Due Process Clause of the Fourteenth Amendment. See Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977).

II.

On October 19, 1972, inmate Leonard Arias was stabbed to death in a dormitory at the California Correctional Institution at Tehachapi, California. People v. Vargas, 5 Crim. 1735, slip op. at 2 (Cal.Ct.App. Aug. 4, 1975) (unpublished opinion by the Fifth Appellate District on Mata's direct appeal after trial) [hereinafter cited as Fifth District Opinion]; see Reporter's Transcript of Trial ("R.T.") at 365-96, 582-630 (eyewitness description of the incident). Three inmates were charged with the murder: Mata, David Gallegos, and Salvador Vargas. Each denied partaking in the attack and

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each produced evidence tending to show that he was at another place in the prison at the time of the attack. Fifth District Opinion at 2. The prosecution elicited testimony that the murder was the result of feuding between opposing prison factions--the "Mexican Mafia" and the "Nuestra Family." See R.T. at 805-51 (testimony of member of Mexican Mafia). The victim, Arias, was reputed to be a member of the Nuestra Family who had allegedly previously attacked a member of the Mexican Mafia during his term at San Quentin, another California prison facility. See id. Arias had arrived at Tehachapi the day before he was killed. Fifth District Opinion at 2.

A.

At about 1:30 p.m. on October 19, Arias and fellow inmates Rigoberto Almengor and Jay Allen were drinking coffee and talking near Allen's bunk in Dormitory Eight. Fifth District Opinion at 2; R.T. at 365-69, 582-84. A call over the institution's loud speaker ordered all new arrivals to report to the laundry room and, since Arias was a new arrival, Allen and Arias proceeded to the laundry room. Fifth District Opinion at 2; R.T. at 372-73, 584-85. Almengor, after starting to walk to the television room, decided to join Arias and Allen after Allen asked him to come along. R.T. at 372-73, 585.

On the way to the laundry room they passed three men who were standing by the bulletin board. These three then turned and attacked Arias. During the attack Arias was stabbed with a knife several times, causing his death. Fifth District Opinion at 2. Almengor testified that he was walking about even with Arias when the three men at the bulletin board area "turned around real fast" and began attacking Arias. R.T. at 373-74, 376. Almengor thought he should help Arias and approached the assailants. R.T. at 379, 393. The man Almengor later identified as Mata "slooped" away from attacking Arias and came at him with a knife. R.T. at 392, 747. Almengor and this man struggled for a few seconds, R.T. at 960, 747, 381. Almengor threw a kick at him, R.T. at 747, 380, then they both backed off each other. R.T. at 381, 747. The two then stood looking directly at each other, eye-to-eye, about six feet apart, for "several seconds, several minutes." R.T. at 381-82, 742, 747-49, 960. Almengor, who is nearsighted, was not wearing his glasses at the time, R.T. at 449-50, but he testified that he didn't need them for the distance involved in the attack, R.T. at 489-91.

Allen testified that he didn't see who was fighting with Almengor. R.T. at 589, 796-97. Allen stood in front of and was preoccupied by another of the attackers, later identified as Vargas, who carried a large knife. At one point, this assailant lunged at Allen. R.T. at 614-16, 796. Allen backed up and then turned away from the fight, yelling for help. R.T. at 628-29. "It happened fast," Allen testified. R.T. at 642. When he turned back around the three assailants had turned and were fleeing; he grabbed hold of the fatally wounded Arias and lay him down. R.T. at 629-30, 619-20. Allen later told an investigator for the defendants that he never got a good enough look at any of the assailants to identify them. R.T. at 1110.

B.

Prison investigators interviewed Allen and Almengor on several occasions after the stabbing, each time employing photographic arrays in an attempt to obtain an identification of the attackers:

October 19

Correctional Lieutenant Robert King and Investigator Maurice Higgins interviewed Almengor at about 5:00 p.m. on the day of the incident. Fifth District Opinion at 3; R.T. at 707-10. Almengor asked to see photographs of all the Mexican-American inmates in the facility; Lieutenant King showed him between two and five hundred mug shots of prison inmates. R.T. at 397, 285-86, 422, 739. Almengor made a "positive" identification of inmate Pete Nunez as one of the attackers. R.T. at 711. The record is conflicting as to whether Almengor

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named Nunez before or after he was shown Nunez' photograph. See R.T. at 398-400, 420, 707-19, 730-38. Lieutenant King told Almengor that Nunez could not have been involved in the incident because Nunez was not in the prison at the time of the stabbing. R.T. at 713. Almengor made a "possible," "tentative," but "never positive" identification of three to seven other inmates pictured in the mug shots. R.T. at 401-02, 432, 437-38, 712, 730-38. One of these was Vargas; also included were inmates Pete Ramirez and Jay Reymundo. Fifth District Opinion at 3; R.T. at 734. Almengor did not identify Mata as a participant. Id. Although Almengor requested to see the inmates in a line-up, a line-up was never held. R.T. at 781.

Lieutenant King and Officer Higgins also interviewed Allen on this date, but they did not show him any photographs. R.T. at 719-20. Allen said he could make no identification of the participants in the attack. R.T. at 720.

October 27

Almengor was shown a group of 24 photographs of inmates, including photographs of the three defendants. R.T. at 714-15. The defendants' photographs had been taken three to eight months earlier. R.T. at 917-18. Many of the other photographs in the array were considerably older--some as many as three, four, and even eight years old. R.T. at 918. Outside of Allen's presence, Almengor "possibly" identified Vargas, but it wasn't a "positive" identification. R.T. at 715. Again he failed to identify Mata. R.T. at 916. Almengor complained that the photographs were too old and requested up-to-date photographs. R.T. at 716, 916. Also, he repeated his request to see the inmates in a line-up. R.T. at 425, 496-97, 783, 932, 959.

Allen was shown the same group of photographs, but he did not identify anyone. Fifth District Opinion at 3; R.T. at 720-21. Like Almengor, he said the photographs appeared old. R.T. at 721.

October 27--October 30

Prison authorities shot new photographs of a number of inmates, including the defendants, but they were not useable because of photographer error. R.T. at 716. The photographs of the three defendants were the only ones taken a second time. R.T. at 754. Allen and Almengor, who were housed in segregation together...

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