Van Pilon v. Reed

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before GOODWIN, HALL, and THOMPSON; THOMPSON
• Citation: Van Pilon v. Reed, 799 F.2d 1332 (9th Cir. 1986)
• Decision Date: 16 September 1986
• Docket Number: No. 84-4408,84-4408
• Parties: Gary VAN PILON, Petitioner-Appellant, v. Amos REED, et al., Respondents-Appellees.

Page 1332

799 F.2d 1332

Gary VAN PILON, Petitioner-Appellant, v. Amos REED, et al., Respondents-Appellees.

No. 84-4408.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 7, 1986.

Decided Sept. 16, 1986.

Frances E. Pennell, Steve W. Berman, Bernstein, Litowitz, Berger & Grossman, Seattle, Wash., for petitioner-appellant.

Michael P. Lynch, Dept. of Corrections, Olympia, Wash., for respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN, HALL, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge:

Gary Van Pilon, a Washington prisoner, appeals the district court's grant of summary judgment denying his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. He sought relief from a 1980 state court conviction of two counts of first degree robbery, accompanied by a special finding that he was armed with a deadly weapon. We affirm.

BACKGROUND

On June 15, 1979, the Seattle police arrested Pilon for the robbery of a pharmacy that took place six days earlier. The next day the police conducted a lineup in which Pilon and five other inmates of the local jail participated. Five witnesses viewed the lineup. Pilon was identified positively by one of the lineup witnesses, tentatively by another, and alternatively by a third witness. At a pretrial hearing, Pilon moved to suppress the lineup identification. He claimed the circumstances surrounding the robbery and the eyewitness identification procedure rendered his identification as the robber impermissibly suggestive and unreliable. Pilon's suppression motion was denied and he proceeded to trial.

At trial, four of the witnesses to the lineup identified Pilon as the robber. The robbery had been committed by a man and a woman. The woman testified at Pilon's trial. She admitted she had participated in the robbery. She testified, however, that the person with whom she had committed the robbery was not Pilon but someone else. Pilon did not testify. A jury returned a special verdict finding Pilon guilty of two counts of first degree robbery while armed with a deadly weapon. Pilon was sentenced to two concurrent life terms. The Washington Court of Appeals affirmed his conviction and the Washington Supreme Court denied review.

Having exhausted his state remedies, Pilon petitioned the federal district court for a writ of habeas corpus alleging that the state court had committed errors of federal constitutional dimension in admitting the eyewitnesses' identification testimony at trial, in denying his in limine motion to exclude evidence of two prior convictions, and in failing to give the jury a separate instruction that it had to find beyond a reasonable doubt that the weapon used at the time of the robbery was a deadly weapon. Without holding an evidentiary hearing, the district court granted summary judgment denying Pilon's habeas corpus petition.

Pilon filed a timely appeal and applied for a certificate of probable cause. The district court issued a certificate with respect to the eyewitness identification claim but denied the certificate as to all other claims. A motions panel of this court referred to this panel the question of whether, as a matter of law, a certificate of probable cause may be limited.

ANALYSIS

I

Limited Certificate of Probable Cause

We address an issue of first impression in this circuit: does a district court's issuance of a limited certificate of probable cause restrict our review only to those issues stated in the certificate? ¹ The Third and Sixth Circuits hold that a limitation in a certificate has no legal effect. See United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 765 (3d Cir.1978); Houston v. Mintzes, 722 F.2d 290 (6th Cir.1983). The Second Circuit holds to the contrary. Barber v. Scully, 731 F.2d 1073, 1075 (2d Cir.1984). ² As the Sixth Circuit stated in Houston,

[T]he question as to the legal effect of the attempt by the district court to limit its certificate to specific issues is, we recognize, less than momentous; this is a prime example of a situation in which it may not be of great importance what the law is but it is important that the law be clear.

Houston, 722 F.2d at 292.

We agree with the Third and Sixth Circuits that the scope of our review cannot be limited by a certificate of probable cause. Nothing in the language or legislative history of 28 U.S.C. Sec. 2253 suggests that Congress intended this provision to permit a judge to limit the issues on appeal. Section 2253 provides that an appeal may not be taken "from the final order in a habeas corpus proceeding ... unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause" (emphasis added). This language is consistent with the general rule that appeals lie from final judgments or orders, not from determinations of legal issues. See Hickey, 571 F.2d at 765; cf. New York City Health and Hospitals Corp. v. Blum, 678 F.2d 392, 396-97 (2d Cir.1982) (28 U.S.C. Sec. 1292(b), which speaks of interlocutory appeal of certain orders, allows appeal of orders, not of issues).

Moreover, the purpose of the requirement of a certificate of probable cause is to prevent abuse of the writ through frivolous appeals. Barefoot v. Estelle, 463 U.S. 880, 892-93 n. 3, 103 S.Ct. 3383, 3394 n. 3, 77 L.Ed.2d 1090 (1983). To obtain a certificate of probable cause, the petitioner must make a "substantial showing of the denial of [a] federal right." Id. at 893, 103 S.Ct. at 3394 (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)). By issuing a certificate, the district court notifies this court that in its opinion the petitioner is not abusing the writ through frivolous litigation. The requirement of a certificate, therefore, tends to screen out frivolous appeals. ³

To the extent that limited certificates of probable cause represent an effort to eliminate frivolous issues from consideration on appeal, they have little practical effect. A single circuit judge may issue a certificate that dissolves the limited certificate. See 28 U.S.C. Sec. 2253. As the Second Circuit has recognized, circuit judges by statute may broaden the scope of an appeal that was limited by a district judge if it is just under the circumstances. Barber, 731 F.2d at 1075; see 28 U.S.C. Sec. 2106; see also Vicaretti, 645 F.2d at 102 (limitation in certificate is not jurisdictional and it authoritatively limits issues only when acted upon by a panel of three circuit judges). Also, whenever the district judge denies a request for a certificate of probable cause and the applicant files a notice of appeal, the application is automatically forwarded to the judges of this court for our consideration. Fed.R.App.P. 22(b). Presumably, if the district judge does not deny, but limits the certificate, the application will receive similar treatment: the notice of appeal will be forwarded to this court and will be construed, as it was here, as a request to expand the certificate. Thus, whether the district judge denies or limits a certificate, this court will in any event be called upon to assess the substantiality of the issues. Appellants will likely raise uncertified issues in the hope that we will exercise our authority to broaden the scope of the appeal in the interests of justice, just as they frequently appeal after the district judge denies a certificate entirely.

Because we decline to give legal effect to the district court's limitation in the certificate of probable cause, we must address all of Pilon's assertions of error in addition to his claim that the eyewitness identifications were improperly admitted.

II Eyewitness Identification Evidence

Pilon contends the district court erred by granting summary judgment on his challenge to the eyewitness identification procedures without granting an evidentiary hearing and viewing photographs of the pretrial lineup. He claims his identification as the robber was impermissibly suggestive and unreliable. Specifically he argues: (1) he did not sufficiently resemble lineup coparticipants; (2) an officer at the lineup unduly focused the witnesses' attention on him by interrupting the lineup to adjust tape which had been placed on his face; and (3) the prosecution arranged for the identification witnesses to be present at a pretrial suppression hearing at which Pilon was also present.

A. Standard of Review

We review de novo the denial of habeas corpus relief. Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir.1986) (per curiam). We must presume the correctness of any underlying state court findings of historical fact. 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Austad v. Risley, 761 F.2d 1348, 1350 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 163, 88 L.Ed.2d 135 (1985). The presumption does not apply when one of the defects enumerated in 28 U.S.C. Sec. 2254(d)(1)-(7) is present or when the district court in a habeas proceeding concludes that the state court finding of fact is not fairly supported by the record. Sumner 449 U.S. at 550, 101 S.Ct. at 770; Adamson v. Ricketts, 789 F.2d 722, 727-28 n. 5 (9th Cir.1986) (en banc); Austad, 761 F.2d at 1350; Bashor v. Risley, 730 F.2d 1228, 1232 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).

The ultimate question of the constitutionality of pretrial identification procedures is a mixed question of law and fact, Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam), which this court reviews de novo. United States v. Bagley, 772 F.2d 482, 492 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986); Ponce v. Cupp, 735 F.2d 333, 336 (9th Cir.1984).

B. Background

The lineup witnesses included the two robbery victims (John and Judith Groen), a customer...