Sanders v. Cullen

• Decision Date: 13 October 2017
• Docket Number: No. 10-99009.,10-99009.
• Citation: 873 F.3d 778
• Parties: Ricardo Rene SANDERS, Petitioner–Appellant, v. Vince CULLEN, Acting Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

873 F.3d 778

Ricardo Rene SANDERS, Petitioner–Appellant,

v.Vince CULLEN, Acting Warden, Respondent–Appellee.

No. 10-99009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2017 Pasadena, California

Filed October 13, 2017

Verna J. Wefald(argued), Pasadena, California; William J. Genego, Santa Monica, California; for Petitioner–Appellant.

Dana Muhammad Ali(argued), Michael J. Wise, and A. Scott Hayward, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent–Appellee.

Before: Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Ricardo Rene Sanders appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.Sanders was convicted of four counts of first-degree murder in 1982 stemming from his involvement in a robbery at a Bob's Big Boy restaurant in December 1980.He is currently on death row in California.

The witnesses against Sanders at trial included four eyewitnesses and two informants.Sanders did not present an alibi; instead, he argued that the eyewitnesses incorrectly identified him as one of the gunmen and the police arrested the wrong person.Sanders's trial counsel attacked the accuracy of the eyewitness identifications and the informants' credibility through vigorous cross-examination.In his federal habeas petition, Sanders continues to attack both.

Sanders's petition argues that the prosecution knowingly used perjured testimony from witnesses at his trial in violation of Mooney v. Holohan , 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791(1935), andNapue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217(1959), and that the State failed to disclose material, exculpatory information as required by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).Sanders also argues that the prosecution improperly influenced two in-court identifications, failed to preserve exculpatory evidence and planted a jailhouse informant in a van with Sanders to obtain an incriminating statement from him.Finally, Sanders raises one ineffective assistance of counsel claim for the failure to move to suppress eyewitness identifications made at a lineup shortly after the crime occurred.Because we conclude that the California Supreme Court's resolution of Sanders's claims was not contrary to clearly established federal law nor based on an unreasonable determination of the facts, we affirm the district court's denial of the petition for a writ of habeas corpus.

BACKGROUND

I.Facts

At around 2 a.m. on December 14, 1980, there was an armed robbery at Bob's Big Boy restaurant on La Cienega Boulevard in Los Angeles, California.¹Two customers and nine employees were inside when two men forced their way into the restaurant, just as it was closing.Four of these individuals died as a result of injuries suffered during the course of the robbery.Four of the surviving witnesses identified Sanders at trial: Tami Rogoway, one of the customers; Michael Malloy, the night manager; Rhonda Robinson, a waitress;² and Ismael Luna, a busboy.³

Night manager Malloy was in the office preparing to count money from the cash register when the cook, Derwin Logan, told Malloy that the two remaining customers wanted to be let out.As the door opened, two robbers shoved their way inside.The robbers did not wear masks or otherwise cover their faces.The taller of the two men (allegedly Sanders) said, "It's a jack.It's a stickup."He grabbed the keys and the shorter robber (allegedly codefendant Franklin Freeman Jr.) hit one of the employees on the head with the butt of his shotgun.

The taller robber took Malloy, Rogoway, Logan, and David Burrell, the other customer, to the back of the restaurant and ordered them to lie on the floor in a hallway outside of a walk-in freezer and the office.He asked for the manager and Malloy stood up.The taller robber ordered Malloy to give him the money in the safe, which amounted to roughly $1,300.Some of the coins were wrapped in Bank of America coin wrappers.

The taller robber then told Malloy, Rogoway, Logan, and Burrell to "get up off the floor ... We are going to the back.You're going to get hurt."He directed them into the freezer, where the employee who had been hit with the rifle was lying on the floor unconscious.The rest of the employees were waiting there as well.The taller robber said: "I want watches, wallets, and jewelry."Malloy gathered the items in a bucket, and handed it to the taller robber.No one resisted, but some people pleaded for the robbers not to hurt them.The robbers ordered everyone to turn around to face the wall and kneel.The two men then fired their guns into the backs of the group until they ran out of ammunition.Then they closed the freezer door and left.

Inside the freezer people lay piled on top of each other and on the floor.One of the customers and two employees were dead.Ismael's father, Cesario Luna, who was also a restaurant employee, died several months later from complications related to a bullet wound in his brain.Night manager Malloy was shot in the right eye, which he lost.Rogoway, the other customer, suffered shotgun injuries to her back and spine, resulting in numbness on her right side and the periodic inability to walk.Two other employees sustained serious injuries, including Dionne Irvin, a waitress.The three remaining victims—Ismael Luna, Robinson, and Logan—were physically unharmed.

A.The Initial Investigation

Later that day, the police showed many of the eyewitnesses photographs from the West Los Angeles Division CRASH book,⁴ which contained photographs of suspected gang members in the West Los Angeles area.The book did not include photos of Sanders or codefendant Freeman.Rogoway, Robinson, and Logan all selected photograph No. 132 as the taller robber.PhotographNo. 132 depicted a man named David Hall, a person who bore a striking resemblance to Sanders according to the state trial court.

On the morning after the robbery, the police interviewed several Bob's Big Boy employees who were not at the restaurant during the robbery the night before.The employees suggested that a former waitress, codefendant Carletha Stewart, may have been involved in the crime.Stewart and Sanders were dating at the time of the robbery and Freeman was Stewart's cousin.None of the employees mentioned Sanders or Freeman as possible suspects.

Brenda Givens, a waitress at Bob's Big Boy, worked with Stewart at the restaurant for several months.Givens provided a statement to the police about an encounter she had with Stewart in September 1980, when she ran into Stewart while visiting her boyfriend at Los Angeles County Jail.⁵

According to Givens, Stewart said that it was a "good thing" that the two women ran into each other "because they gonna rob Bob's Big Boy tonight."Stewart told Givens that she did not want Givens to get hurt, but did not say who specifically was going to rob the restaurant.At Sanders's trial, Givens testified that two men were at the jail with Stewart on the day Stewart warned her about the robbery, but the men were not present for the conversation.Givens testified that she told the police about the two men when she was interviewed on December 14, but the men were not mentioned in her signed statement.⁶

On the same day Givens saw Stewart at the jail, she reported for her evening shift at Bob's Big Boy and told four managers about her conversation with Stewart.Store manager Kim Clark and night manager Rodell Mitchell were among the managers to whom Givens reported.According to Givens, Stewart came to the restaurant that night with another man at around 11:30 p.m. Givens later learned the man's name was Andre Gilcrest.

Givens testified that Stewart called her after leaving the restaurant with Gilcrest that evening.She asked what time Givens would be leaving and how many employees remained in the restaurant, and Givens answered that she did not know.Givens recalled staying until after the restaurant closed at 2 a.m. and remembered that Stewart knocked on the front door and window shortly after closing while employees were cleaning their assigned stations.The door was locked and Mitchell did not open the door.Stewart left before Givens went home.⁷

B. Andre GilcrestImplicated Sanders Shortly After the Crime

Within days after the December 14 robbery, several other individuals came forward with information implicating Sanders.On December 20, 1980, Andre Gilcrest went to the Los Angeles Police Department(LAPD) and gave a statement implicating Sanders, Stewart, and Freeman.Gilcrest was Stewart's ex-boyfriend and he had been romantically involved with her on and off for about five years.According to Gilcrest, he went with Stewart to Bob's Big Boy sometime before the robbery.Gilcrest could not recall the precise date of this nighttime visit, but, like Givens, he recalled that there had been another murder a few blocks away that night.

Gilcrest was given immunity and testified at Sanders's trial.He testified that before he and Stewart went to the restaurant on September 27, Stewart told him that Sanders and Freeman were going to rob Bob's Big Boy that night.Gilcrest described going with Stewart to the restaurant between 11:30 p.m. and 12:30 a.m. to drink coffee because Stewart wanted to see how many people were working.Gilcrest testified that while they were there Stewart asked the waitresses which managers were working and how many people were still there.They left about fifteen minutes before closing and went to Stewart's house.Gilcrest believed that the robbery would take place after they left, and he testified that he saw Sanders and Freeman at Stewart's house later that night.Gilcrest saw Stewart talking to Sanders and Freeman in a blue Cadillac, and also saw...