Featherstone v. Estelle

• Citation: 948 F.2d 1497
• Decision Date: 30 October 1989
• Docket Number: No. 89-55090,89-55090
• Parties: Garry Vincent FEATHERSTONE, Petitioner-Appellant, v. Wayne E. ESTELLE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1497

948 F.2d 1497

Garry Vincent FEATHERSTONE, Petitioner-Appellant, v. Wayne E. ESTELLE, Warden, Respondent-Appellee.

No. 89-55090.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 30, 1989. ^*

Submission Deferred July 16, 1990.

Resubmitted Oct. 24, 1991.

Decided Oct. 31, 1991.

William K. Rasmussen, Arcadia, Cal., for petitioner-appellant.

Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.

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

Before NORRIS, REINHARDT and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Petitioner was convicted by a jury in a California court of rape, burglary, robbery, and attempted robbery. His application for a writ of habeas corpus was denied, and he appeals the denial pro se. He claims the state trial court committed prejudicial errors that deprived him of due process by: (1) admitting evidence of an uncharged, nine-year-old prior rape of another woman to prove identity with respect to current counts involving victim Gay Austin; (2) joining counts involving victims Austin and Christine Emmons when the evidence of the uncharged prior incident of rape was relevant only to the Austin counts; (3) failing to instruct the jury to consider the evidence of the uncharged prior rape only with respect to the Austin counts; (4) admitting photo-lineup identification evidence based on full-face photos where the assailant wore a mask, and then destroying the photograph of petitioner used in that lineup; and (5) disregarding the prosecution's use during closing argument of a statistic not presented to the jury as evidence. Also, petitioner contends he did not receive effective assistance from either trial or appellate counsel in violation of the Sixth Amendment. The district court denied habeas relief. We affirm.

I

Petitioner, Garry Featherstone, was convicted by a jury in California Superior Court of rape, burglary, robbery, and attempted robbery. The trial joined incidents and counts arising from separate events involving two victims, Gay Austin and Christine Emmons.

The Austin Crimes

On the evening of March 28, 1981, a man knocked on the door of Austin's Venice home. He first claimed he was looking for the owner of a black Chrysler, and then asked if she knew of any apartments to rent. He left after she told him through a window that she did not know of any available. Later that evening, while she was on her way from her apartment to her car, the same man approached her. He carried a gun in his left hand. He forced her to return to her home, blindfolded her, demanded drugs, money, and jewelry, took money, ordered her to lie down on the bed, ordered her to "put it in," and kissed and raped her. Petitioner was charged with rape, robbery, and burglary. Ms. Austin died of natural causes after petitioner's preliminary hearing, and her testimony was introduced at his trial by way of the preliminary hearing transcript. Petitioner was convicted as charged.

The Emmons Crimes

On January 5, 1982, a man carrying a knife in his left hand awakened Emmons in her Venice home, threatened to kill her if she screamed, covered her head with a towel or blanket, demanded (and apparently took) money, ordered her to lie on the couch, opened her robe and pushed aside her undergarments, and left.

On January 21, 1982, a man knocked at Emmons' door claiming that a van was in his parking space and asking for the building manager's name. When she slightly opened the door, a man wearing a ski mask with cut-out eye holes and carrying a revolver kicked in the door. He threatened to kill her if she screamed, ordered her to lie on the floor, and demanded drugs, money, and jewelry. When a passing car's headlights shone through a window, he left. Apparently, Emmons never got a look at her assailant's full face; she saw only his eyes.

Petitioner was charged with robbery in connection with the January 5 episode and attempted robbery and burglary in connection with the January 21 episode. He was convicted as charged with respect to the January 21 crimes, but he was acquitted of all charges with respect to January 5.

II

The critical issue in petitioner's trial was whether he was Austin's and Emmons' assailant.

Austin could not positively identify anyone as her assailant from photographs shown to her by the police soon after the attack, but later she positively identified petitioner in a live lineup. She emphasized the way he moved, his voice, his hands, and his neck. She also identified him at the preliminary hearing held before she died of natural causes.

Before trial, Emmons identified petitioner's eyes from a lineup of full-face photographs. A police officer testified that she made the photo identification with "extreme caution." Although correct police procedure was to preserve a photograph that results in an identification, a police officer destroyed the photograph of Featherstone used in the photo lineup because he believed that the district attorney would not introduce a photo-lineup identification of a suspect's eyes at trial. (Petitioner concedes that the police did not destroy the photograph "maliciously.")

Immediately after the photo lineup, Emmons identified petitioner's physique and voice at a live lineup of masked men. She also identified his voice from a tape, identified him at the preliminary hearing, and identified a jacket and pair of pants as the type and color he wore.

At trial, Emmons identified petitioner, as well as the mask he was wearing, but tentatively selected a photograph of another's eyes (apparently a photograph of petitioner's brother) from a photo lineup conducted by defense counsel. Defense counsel presented to the jury the infirmities of the original photo lineup--i.e., that it showed Featherstone's whole face even though Emmons had seen only the perpetrator's eyes. The court instructed the jury that it could draw an adverse inference from the loss of the photograph used in the photo lineup.

To prove identity through a common modus operandi with respect to the Austin counts, ¹ the trial court admitted the testimony of Sharon Rollins about an uncharged prior rape. It is this testimony that forms the core of petitioner's main challenge to his conviction.

The Rollins Crimes

On the morning of October 31, 1974, Sharon Rollins saw a man knocking at the landlord's door at her Venice duplex. The man asked her if the landlord was in. Later, a man knocked at her door and identified himself through the closed door as the new landlord. When Rollins slightly opened the door, a man she later positively identified as petitioner, wearing makeup and a nylon stocking over his head and carrying a knife, forced his way into her apartment. He threw a blanket over her, threatened to kill her if she screamed, and conversed with her regarding his wish to kill her. Then he took the nylon stocking off his head, washed off his makeup, tried to kiss her, ordered her to lie on the bed, ordered her to "put it in," raped her, and stole money. During this episode, Rollins observed petitioner's face for approximately twenty minutes. Rollins later identified him from two photographs shown to her by police with hundreds of others in mugbooks. Subsequently, she identified petitioner at a police station and in a court hearing. She repeated her positive identification of him at his trial for the crimes involving victims Austin and Emmons. Petitioner had been incarcerated during the nine years between the Rollins and Austin incidents. He was never charged with any crime relating to the Rollins incident.

III

A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal law binding on the state courts. It is unavailable for alleged error in the interpretation or application of state law. Thus, it is not available when a petitioner merely alleges that something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts.

Middletown v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985) (citations omitted), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). As the Supreme Court observed last term:

[i]n the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.

Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). Thus, "a claim for deprivation of due process will succeed only if the trial court's errors rendered the trial arbitrary or unfair." McGuire v. Estelle, 902 F.2d 749, 753 (9th Cir.1990) (citation omitted), cert. granted, --- U.S. ----, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991). See also Pennywell v. Rushen, 705 F.2d 355, 357 (9th Cir.1983); Cassasa v. Nelson, 452 F.2d 1083, 1085 (9th Cir.1971); Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir.1968), cert. denied, 393 U.S. 889, 89 S.Ct. 208, 21 L.Ed.2d 167 (1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir.1960), cert. denied, 364 U.S. 934, 81 S.Ct. 379, 5 L.Ed.2d 366 (1961).

IV

To reach the first due-process issue generated by the Rollins testimony, we must be persuaded preliminarily that the state trial court erred in admitting her testimony. We find no such error. It is apparent from the record that the trial court held a full pretrial hearing on August 1, 1983, to consider the proffered testimony, and that the appropriate considerations on both sides of the...