Jackson v. Ylst

• Citation: 921 F.2d 882
• Decision Date: 10 January 1990
• Docket Number: No. 88-15605,88-15605
• Parties: Vernon JACKSON, Petitioner-Appellant, v. Eddie YLST, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 882

921 F.2d 882

Vernon JACKSON, Petitioner-Appellant, v. Eddie YLST, Respondent-Appellee.

No. 88-15605.

United States Court of Appeals Ninth Circuit.

Submitted Jan. 10, 1990 ^*.

Submission Vacated Jan. 30, 1990.

Resubmitted Aug. 20, 1990.

Decided Dec. 13, 1990.

Arthur W. Ruthenbeck, Federal Public Defender, Sacramento, Cal., for petitioner-appellant.

Jane N. Kirkland, Supervising Deputy Atty. Gen., Sacramento, Cal., for respondent-appellee.

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

Before WALLACE, ALARCON and LEAVY, Circuit Judges.

ALARCON, Circuit Judge:

Vernon Jackson, a state prisoner, appeals from the district court's denial of his habeas corpus petition filed pursuant to 28 U.S.C. Sec. 2254. A jury convicted him of armed robbery in a California state court. He was sentenced to serve eight years in prison.

Jackson claims that his conviction was obtained in violation of the federal Constitution. He contends that the state trial judge deprived him of due process, equal protection, the right to the effective assistance of counsel in presenting his motion for new trial, and the sixth amendment right to represent himself during the sentencing proceedings. We disagree and affirm.

I. FACTS

Jackson was convicted of armed robbery. The victim, Manuel Gouvaia, is the owner of a coin shop. Gouvaia testified that he knew Jackson because Jackson had been to the coin shop on previous occasions to purchase baggies. The store's security system required Gouvaia to press a button that unlocked the front door and allowed patrons to enter. On the day of the robbery, Gouvaia opened the door for Jackson because he recognized him from previous visits. Gouvaia testified that once inside, Jackson pulled a gun and demanded money. He then forced Gouvaia to lie on the floor and opened the door for his accomplice, Curtis Matthews.

While Jackson and Matthews were looking around in the back of the store, Gouvaia tripped a silent alarm. The police arrived and ordered Matthews and Jackson to come out with their hands up. Matthews came out but Jackson did not. Police fired tear gas into the shop. They ordered anyone present in the shop to step outside. Jackson did not respond or leave the building. When no one came out, the police searched the shop. They found Jackson hiding in the attic. Jackson was the only person in the store at the time of his arrest. The police searched Jackson's car, which was parked near the coin shop. They found Matthews's wallet and a bullet.

Jackson's theory of defense at trial was that Gouvaia mistakenly identified him as one of the robbers because his photograph had appeared in the newspaper after his arrest and he had been in the shop previously. Jackson also attempted to impeach Gouvaia's identification testimony by offering evidence that he was not wearing his glasses and had poor eyesight.

On direct examination, Matthews testified as a defense witness. Matthews testified that he did not know Jackson. On cross-examination, however, he testified that he was afraid of Jackson because Jackson had threatened him with violence if he were not acquitted.

Jackson testified that he had innocently gone to Gouvaia's shop to buy baggies in which to pack his marijuana. When he entered Gouvaia's shop, a man allegedly drew a gun on him and a second person struck him on the head. Jackson said the men then tied him up with a belt and left him alone. Being a self-proclaimed expert with knots, he was able to free himself and, for purposes of "self-preservation," climb into the attic.

Jackson testified that he did not come out of the building when the police ordered him to do so, because he did not commit any robbery. He said he remained in the attic hoping the police would find him. Jackson testified that he did not respond when the police entered the attic and called out to him because he had "dozed off" in his excitement.

After being taken into custody, Jackson refused to identify himself to the officers. He explained to the jury that he refused to identify himself to the police because he was on parole and didn't want to go back to the "pen", and he didn't want his "name slandered ... [y]ou know, Vernon Jackson [seen] coming out of the coin shop."

Jackson was found guilty and sentenced to state prison. The California State Court of Appeal affirmed Jackson's conviction on March 25, 1987, and the California Supreme Court denied review on June 24, 1987. The California Supreme Court also denied Jackson's petition for habeas corpus on December 31, 1987. On February 17, 1988, having exhausted his state remedies, Jackson filed a petition for habeas corpus in federal district court. On October 4, 1988, the district court entered a judgment dismissing Jackson's petition. Jackson timely appealed.

II. APPOINTMENT OF EXPERT ON EYEWITNESS IDENTIFICATION

Jackson argues that the state court violated his right to due process, to equal protection, and to the effective assistance of counsel in refusing to authorize funds for the appointment of an expert witness on eyewitness identification. He also argues that California has created a protected liberty interest in having an eyewitness expert appointed under the fourteenth amendment which was violated. Before his trial in state court, Jackson made a motion for appointment of an expert on eyewitness identification based on People v. McDonald, 37 Cal.3d 351, 690 P.2d 709, 208 Cal.Rptr. 236 (1984). The California Supreme Court held in McDonald that:

[w]hen an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.

37 Cal.3d at 377, 208 Cal.Rptr. 236, 690 P.2d 709. The Court stated that the decision whether to admit or exclude such expert testimony "remains primarily a matter within the trial court's discretion; ... in the usual case the appellate court will continue to defer to the trial court's discretion in this matter." Id.

We begin our analysis of this contention by noting that we have no authority to review a state's application of its own laws. Guzman v. Morris, 644 F.2d 1295, 1297-98 (9th Cir.1981). Our duty is to determine whether the prisoner's constitutional or other federal rights have been violated. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871-874, 79 L.Ed.2d 29 (1984). Therefore, Jackson can prevail only if he can demonstrate that, prior to the date his direct appeal became final, he had a federal constitutional right to have an eyewitness identification expert appointed, or that the McDonald case creates a liberty interest in the appointment of such an expert that is cognizable under the fourteenth amendment.

A. Jackson's Federal Claim Under Ake v. Oklahoma

Because Jackson's claim of a federal constitutional violation "is before us on collateral review, we must first determine whether the relief sought would create a new rule under [the Supreme Court's] holdings." Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 1259, 108 L.Ed.2d 415 (1990). "If so, we will neither announce nor apply the new rule ... unless it would fall into one of two narrow exceptions." Id. at 1259-60. A new rule is "a rule that 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or was not 'dictated by precedent existing at the time the defendant's conviction became final.' " Id. at 1260 (quoting Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989)) (emphasis in original). The relevant inquiry is "whether a state court considering [petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution." Id. The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (1990).

In the instant matter, Jackson would have us extend the Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to encompass an indigent defendant's request for the appointment of an expert on eyewitness identification. In Ake, the Supreme Court held that, upon request, a trial court must appoint a psychiatrist for an indigent if his or her sanity will "be a significant factor at trial." Id. at 83, 105 S.Ct. at 1096.

No issue was presented to the Supreme Court in Ake concerning the right of an indigent to the appointment of an expert on eyewitness identification. The parties have not cited any authority that holds that the federal constitution requires the appointment of such an expert. Thus, a holding by this court that, as a matter of due process, a state court must appoint an expert on eyewitness identification, would create a "new rule" which would "impose[ ] new obligation on the [s]tates." Teague v. Lane, 109 S.Ct. at 1070. In fact, in prior cases we have concluded that the district court did not abuse its discretion in denying an application for the appointment of an expert on eyewitness identification because cross-examination is sufficient to "alert jurors to specific conditions that render a particular eyewitness identification unreliable." United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987); see also United States v. Brewer, 783 F.2d 841, 842-43 (9th Cir.), cert. denied, 479 U.S. 831, 107 S.Ct. 118, 93 L.Ed.2d 64 (1986) (upholding trial court's decision not to appoint eyewitness expert under 18 U.S.C. Sec. 3006A(e)(1...