Ricardo Sanders v. Vince Cullen , 873 F.3d 778 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO RENE SANDERS, No. 10-99009
Petitioner-Appellant,
D.C. No.
v. 2:96-cv-07429-JFW
VINCE CULLEN, Acting Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 11, 2017
Pasadena, California
Filed October 13, 2017
Before: Morgan Christen, Jacqueline H. Nguyen,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Christen
2 SANDERS V. CULLEN
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Ricardo
Rene Sanders’s habeas corpus petition challenging his
conviction and death sentence for four counts of first-degree
murder.
The panel held that because Sanders failed to prove that
any of four eyewitnesses provided material, false testimony
or that the prosecution knew they committed perjury, the state
court’s rejection of Sanders’s claims under Mooney v.
Holohan, 294 U.S. 103 (1935), and Napue v. Illinois, 360
U.S. 264 (1959), relating to those eyewitnesses was neither
contrary to clearly established federal law nor objectively
unreasonable. The panel held that the state court reasonably
denied Sanders’s Mooney-Napue claims relating to two non-
eyewitnesses.
The panel held that the state court reasonably denied
Sanders’s claims that the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose material,
exculpatory impeachment evidence about five trial witnesses.
The panel held that the state court reasonably denied
Sanders’s claims relating to the exposure of two
eyewitnesses, who provided in-court identifications of
Sanders, to a gag photograph of Sanders and a codefendant
holding fake guns. The panel wrote that assuming that the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SANDERS V. CULLEN 3
eyewitnesses’ exposure to the photograph was exculpatory
evidence that was not disclosed, Sanders did not demonstrate
that it was material under Brady because the eyewitnesses
identified Sanders at a lineup before they saw the photo.
Regarding Sanders’s claim that he was entitled to relief
under Mesarosh v. United States, 352 U.S. 1 (1956), which
applies in those rare situations where the credibility of a key
government witness has been wholly discredited by the
witness’s commission of perjury in other cases involving
substantially similar subject matter, the panel held that the
state court could have reasonably distinguished this case from
Mesarosh.
The panel held that the state court reasonably denied
Sanders’s claim that the prosecution failed to preserve a
witness’s lineup card in bad faith.
The panel held that the state court reasonably denied
Sanders’s claim under Massiah v. United States, 377 U.S. 201
(1964), that the prosecution planted a witness next to Sanders
in a jailhouse van after Sanders’s preliminary hearing in order
to obtain an incriminating statement in violation of his Sixth
Amendment right to counsel.
Regarding Sanders’s claim that counsel was ineffective
for failing to move to suppress a lineup, the panel held that
the state court could have reasonably determined that defense
counsel did not render deficient performance by failing to file
a motion that was unlikely to succeed.
The panel concluded that because Sanders did not show
that there were multiple deficiencies in his guilt-phase trial,
cumulative error does not require reversal of his convictions.
4 SANDERS V. CULLEN
COUNSEL
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.
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
SANDERS V. CULLEN 5
violation of Mooney v. Holohan, 294 U.S. 103 (1935), and
Napue v. Illinois, 360 U.S. 264 (1959), and that the State
failed to disclose material, exculpatory information as
required by Brady v. Maryland, 373 U.S. 83 (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.1 Two 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
1
The following account of the crime is derived from People v.
Sanders, 905 P.2d 420, 428–31 (Cal. 1995).
6 SANDERS V. CULLEN
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.
2
Rhonda Robinson was married after the crime occurred and changed
her last name. This opinion refers to her as “Robinson” throughout for
consistency.
3
Ismael Luna’s real name is Moreno Luna Cortez. He used his older
brother’s name to obtain employment at Bob’s Big Boy because he was
too young to work at the restaurant. He revealed his real name partway
through Sanders’s guilt-phase trial. Because the witnesses at trial referred
to him as “Ismael Luna,” this opinion does as well.
SANDERS V. CULLEN 7
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
4
“CRASH” stands for “Community Resources Against Street
Hoodlums,” a gang repression unit at the Los Angeles Police
Department’s West Bureau.
8 SANDERS V. CULLEN
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. Photograph No. 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
5
Givens told a private investigator working for codefendant Freeman
that this encounter took place in the first two weeks of September, but she
testified at Sanders’s trial that it happened the same day that another
murder took place near the Bob’s Big Boy restaurant. This other murder
took place a few blocks from Bob’s Big Boy on September 27, 1980,
around 9:15 p.m.
SANDERS V. CULLEN 9
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
6
Before Sanders’s trial, Givens told a private investigator working for
Freeman that Stewart was alone on the day that she warned Givens about
the robbery, and that she saw Stewart at the jail with one man on a
different day. She attended a lineup with Sanders and Freeman on
December 23, 1980, and selected both. On the lineup card identifying
Freeman, she wrote “I have seen him and Carletha both at the County Jail
while I was visiting.” She did not write any similar comments on
Sanders’s lineup card.
10 SANDERS V. CULLEN
Mitchell did not open the door. Stewart left before Givens
went home.7
B. Andre Gilcrest Implicated 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
7
Mitchell also testified at Sanders’s trial about Stewart’s visit to the
restaurant with Gilcrest on September 27, 1980. The parties stipulated
that if called to testify, store manager Kim Clark would have confirmed
that he was present with Mitchell when Givens told them about her
conversation with Stewart at the Los Angeles County Jail.
SANDERS V. CULLEN 11
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 Sanders show Stewart a
sawed-off, short-barrel shotgun. According to Gilcrest,
Freeman also had a short-barrel shotgun braced against his
leg. Gilcrest testified that after Sanders and Freeman left,
Stewart said that they had gone to rob Bob’s Big Boy. When
they did not return within an hour, Stewart told Gilcrest that
she was going to Bob’s Big Boy to find them. According to
Gilcrest, Stewart did not find them at the restaurant, but
Sanders called Stewart later that night to report that they did
not go through with the robbery because the manager did not
come out. Gilcrest and Stewart did not discuss the robbery
again.
Gilcrest heard about the December 14 robbery at Bob’s
Big Boy the day after the crime and he told his younger
brother about what had happened when he went to the
restaurant with Stewart on September 27. The brother told
their mother, and she confronted Gilcrest with the ultimatum
that she would call the police if Gilcrest did not come
forward. Gilcrest contacted the police roughly two days later.
C. Sanders’s Arrest
On December 22, 1980, roughly one week after the crime,
the police arrested Sanders, Stewart, and Freeman. Sanders
testified at a pretrial motions hearing that he did not resist,
but police officers kicked and beat him with a shotgun during
the course of the arrest. At trial the parties stipulated that X-
rays of Sanders’s chest taken on December 24, 1980, showed
12 SANDERS V. CULLEN
three fractured ribs and subcutaneous emphysema, which is
a type of swelling below the skin.
The police also executed search warrants at Sanders’s,
Stewart’s, and Freeman’s residences. They found a sawed-
off shotgun, a full-length shotgun, and shotgun shells in
Sanders’s bedroom, and additional shotgun rounds and an
empty holster in his father’s bedroom. The police found
another shotgun at Freeman’s father’s house, but the State’s
ballistics expert acknowledged that he could not connect any
of the guns or ammunition to the Bob’s Big Boy robbery. At
Stewart’s residence, the police found $90 in $1 bills and rolls
of coins in Bank of America wrappers. The money was not
conclusively linked to the crime, and no jewelry or other
personal property belonging to the victims was found.
D. The December 23, 1980 Lineup
The LAPD held a lineup that included Sanders and
Freeman on December 23, 1980, the day after their arrest.
The lineup consisted of two lines: Lines 3 and 4.8 Sanders
was Number 4 in Line 3 and Freeman was Number 3 in Line
4. The other men in Sanders’s line were of similar height,
weight, build, and complexion to Sanders. They all had some
facial hair. Sanders was the only one in his line with a Jheri
curl hairstyle, but the suspects had similar length hair.
Sanders was also the only person not wearing shoes. His feet
were not visible in the videotape of the lineup. All of the men
in the lineup were wearing long-sleeve shirts under their
prison uniforms and Sanders’s injuries from the alleged
8
The police held a live lineup on December 19, 1980, before Sanders
and Freeman were arrested, consisting of Lines 1 and 2. Sanders and
Freeman were not included in either line.
SANDERS V. CULLEN 13
police beating were not visible. Sanders was not represented
by counsel at the lineup because counsel was not appointed
until his arraignment, which took place the following day.
Three eyewitness employees attended the live lineup held
December 23: Logan, Robinson, and Ismael Luna. Logan
made an identification from each line, but selected neither
Sanders nor Freeman. Robinson selected Sanders from Line
3, and wrote “positive” next to her identification on the lineup
card, but she also noted that “No. 6 sounds like the robbers.”
Luna tentatively selected Sanders from Line 3.
Night manager Malloy viewed a videotape of the lineup
on December 23 because he arrived late. He selected Sanders
from Line 3, and wrote that he was “positive” about his
choice in the remarks section of the lineup card. At trial,
Malloy remembered writing “positive” on the card, but he
also testified that the handwriting on the card did not look
like his.
Rogoway and Irvin were both injured in the robbery and
unable to attend the December 23 lineup, but they watched
the videotape of it on January 2, 1981 after they were
discharged. Rogoway’s and Irvin’s lineup cards were lost
sometime after February 1981 and Rogoway gave conflicting
testimony at Sanders’s preliminary hearing and trial with
respect to whether she selected anyone from the lineup. At
the preliminary hearing, Rogoway testified that she did not
choose anyone, but at trial she watched the videotape again
and stated that she selected Sanders on January 2. After
watching the videotape at trial, she said she was “pretty
certain” about the identification when she selected Sanders on
January 2. Irvin also selected Sanders after viewing the
14 SANDERS V. CULLEN
videotape, but she did not testify at trial because the court
declared her incompetent to do so.
E. Bruce Woods Implicated Stewart After the Arrest
In late December, Bruce Woods came forward with
information after seeing a newspaper article about the
robbery. Woods was in county jail on a pending burglary
charge. According to Woods, he was riding in a car with
Stewart and a mutual friend in August 1980, when Stewart
asked the friend if he would like to make some money by
robbing Bob’s Big Boy. The friend replied, “Are you crazy?”
and the conversation ended. Woods explained that he met
Stewart through the mutual friend and had seen her five or six
times before this conversation took place.
F. Information and Preliminary Hearing
Sanders, Stewart, and Freeman were charged with four
counts of first-degree murder, six counts of robbery, two
counts of attempted robbery, seven counts of assault with a
deadly weapon, and one count of conspiracy to commit
robbery.9 The State alleged that the defendants committed
the murders under the special circumstances of multiple
murder and felony-murder robbery.
All seven surviving eyewitnesses testified at Sanders’s
and Stewart’s joint preliminary hearing held over the course
9
The information originally charged the defendants with three
murders but it was amended to add a fourth murder count after Cesario
Luna’s death.
SANDERS V. CULLEN 15
of five days on March 20 and March 23–26, 1981.10 The
prosecution asked five of the eyewitnesses—Malloy,
Rogoway, Robinson, Luna, and Logan—to identify Sanders
in court. Sanders was seated behind a blackboard while the
witnesses testified. The blackboard was removed at the end
of each witness’s testimony, and the witnesses were asked
whether they recognized Sanders. Malloy unequivocally said
that he recognized Sanders as the taller robber. Rogoway
also testified that she could positively identify Sanders as the
taller robber.
Robinson, Luna, and Logan were far less certain.
Robinson could not identify Sanders. She testified that she
did not know whether Sanders was one of the robbers nor
whether he even looked like the person she selected at the
December 23 lineup. Luna similarly testified that Sanders did
not “seem to be” one of the robbers, and that he was “not
really sure” whether Sanders was the man he selected. Logan
testified that Sanders was “a very good likeness,” but he
“couldn’t identify him positively.”11
Givens, Mitchell, Gilcrest, and Woods all testified about
their interactions with Stewart leading up to the robbery.
Gilcrest positively identified Sanders, but the others were not
asked to do so. Woods testified over the course of two days
while still in custody for the pending burglary charge. On
March 20, Woods and Sanders were transported back to jail
in the same van even though Woods was in protective
10
Freeman’s preliminary hearing occurred roughly one month earlier,
in late February 1981.
11
Jackson and Irvin testified about their experiences during the
robbery, but were not asked to identify Sanders.
16 SANDERS V. CULLEN
custody and was supposed to be kept away from Sanders.
Woods had not met Sanders before the van ride.
Roughly one week after the preliminary hearing, Woods
informed two officers that Sanders had threatened him in the
van. Woods recounted the threat in his testimony at
Sanders’s trial, describing that Sanders told him not to testify
against the defendants because Stewart was young, and
because, if convicted, Sanders would get “the gas.” Woods
also testified that Sanders indicated “they” knew where
Woods lived, and that Woods’s family would “get involved”
if Woods talked.
G. Sanders’s Trial
The three codefendants were tried separately. Sanders’s
trial was held first, beginning in May 1982 and lasting for
roughly three months. The case was prosecuted by Deputy
District Attorney Harvey Giss. Sanders was represented by
Leslie Abramson.
The State’s case consisted primarily of eyewitness
accounts; testimony from Givens, Mitchell, and Gilcrest
about the events of September 27, 1980; Bruce Woods’s
testimony about his August 1980 encounter with Stewart and
their mutual friend; and the physical evidence found at
Sanders’s and Stewart’s homes. Four eyewitnesses identified
Sanders at trial with varying degrees of certainty. Malloy
was the State’s first witness, and he identified Sanders as the
taller robber without hesitation. Rogoway also identified
Sanders as the taller robber. Robinson identified Sanders as
one of the robbers, but admitted that she was unable to
identify him at the preliminary hearing. When Luna was
asked if there was anyone in the courtroom who was present
SANDERS V. CULLEN 17
on the night of the robbery, he answered “I think he’s there in
front of that lady,” and pointed to Sanders.
The defense attacked Gilcrest’s and Woods’s credibility
and the accuracy of the eyewitness identifications, pointing
out inconsistencies in their testimony and emphasizing the
lack of physical evidence from the crime scene. Defense
counsel also questioned the evidence found at Sanders’s and
Stewart’s homes because it was not conclusively linked to the
crime.
After deliberating for four days, the jury convicted
Sanders of all charges. The penalty phase started on August
25, 1982 and lasted for four days. After two-and-a-half days
of deliberations, the jury recommended a death sentence. The
court imposed a death sentence on December 3, 1982.12
II. Post-Trial Jailhouse-Informant Scandal
A. The Scandal
Six years after Sanders’s trial, a scandal erupted in Los
Angeles surrounding the use of jailhouse informants in
criminal prosecutions. In October 1988, Leslie White
demonstrated to the Los Angeles Sheriff’s Department how
he and other informants had obtained information “about
defendants they had never met” to fabricate claims that they
12
Stewart pleaded guilty to four counts of first-degree murder in
February 1983. She was sentenced to four concurrent terms of life with
the possibility of parole. A jury found Freeman guilty of four counts of
first-degree murder with special circumstances in December 1983.
Freeman’s first penalty-phase trial ended in a hung jury; in March 1985,
the second jury returned a verdict of life without the possibility of parole.
18 SANDERS V. CULLEN
heard confessions while in jail. Gonzalez v. Wong, 667 F.3d
965, 1004 (9th Cir. 2011) (W. Fletcher, J., concurring in
part). White explained that he was one of several prisoners
who gave bogus testimony about such confessions in order to
get better deals in their own cases, and for other privileges.
Id. at 1005 (9th Cir. 2011). A grand jury was empaneled to
look into the improper use of informant testimony by the Los
Angeles County District Attorney’s Office. Id. The grand
jury issued a 150-page report painting “a harrowing picture
of the role of jailhouse informants in the Los Angeles County
criminal justice system during this period” and noted the
“appalling number of instances of perjury or other
falsifications to law enforcement” by informants. Id. at
1005–06. The report found that informants were given
numerous benefits for their fabricated confessions, such as
being transferred to jails perceived to be more desirable. Id.
at 1007.
The District Attorney’s Office reviewed all cases from the
previous ten years in which: (1) a jailhouse informant
testified as a witness for the State “at a preliminary hearing or
trial to admissions or confessions made by a defendant to the
informant while the informant and the defendant were in
custody together;” or (2) Leslie White testified as a witness
for the State on any subject matter. Leslie White did not
testify at Sanders’s trial, but he was romantically linked to
one of the eyewitnesses who did, Tami Rogoway.
B. Leslie White’s Connection to Eyewitness Tami
Rogoway
Roughly one month before jury selection started for
Sanders’s trial, Deputy District Attorney Giss testified at a
discovery hearing about a connection between Tami
SANDERS V. CULLEN 19
Rogoway and Leslie White. Giss testified that White
forwarded a letter that had been written by a prospective
defense witness and prison inmate, Richard Quine. The letter
was addressed to Quine’s girlfriend, Gina Gutierrez.
Gutierrez was Rogoway’s friend and it was through these
mutual acquaintances that Rogoway met White. In his letter,
Quine offered himself as a fake informant against
codefendant Freeman. In relevant part, the letter stated:
I need you [Gina] to tell Tami that I can help
her out on putting Freeman away . . . . Ask
her if she is going to court on him still, and if
so, all she has to do is tell me about his case,
then call the D.A. and tell him she knows
someone that Freeman told he did what he is
in jail for . . . .
Giss testified that White told him about Quine’s offer to give
false testimony about five months before the discovery
hearing, and that the prosecution planned to produce a tape
recording of its follow up interview with White because the
interview might be relevant to defense efforts to impeach
Tami Rogoway. Defense counsel Abramson expressed
concern that White might have tampered with witnesses.
Giss responded, under oath, “Leslie White was never used as
an agent of the police,” and the prosecution “never made a
deal with him, never offered anything, never asked for
anything.”
The state trial court ruled that defense counsel could only
question Tami Rogoway about Richard Quine, Leslie White,
and the letter offering false testimony against Freeman if
Quine was first called to testify. Neither Quine nor White
were called. On May 15, 1982, roughly two weeks after
20 SANDERS V. CULLEN
Sanders’s trial started, White signed an affidavit stating that:
(1) he had no knowledge adverse to the defense in the Bob’s
Big Boy case; (2) he received no statements about the case
from Sanders or Freeman; (3) everything he knew about the
case he learned from his ex-girlfriend Tami Rogoway; (4) he
had not been asked by the prosecution to solicit information
from Sanders or Freeman; and (5) he was not “an informant
in any capacity.” Police notes from a contemporaneous
interview with White indicate he told the police that both
Sanders and Freeman approached him in prison and asked
him to testify that Rogoway said she did not know who shot
her on the night of the robbery. White’s May 15, 1982
affidavit made no mention of Sanders and Freeman
approaching White in prison.
On March 13, 1989, White testified as a defense expert on
the use of jailhouse informants in an unrelated state court
case, People v. Marshall.13 In that testimony, White claimed
that in 1981 a Deputy District Attorney who was not involved
with the Bob’s Big Boy case arranged for White to be
transferred from Chino State Prison to Long Beach City Jail,
where White was released on regular weekend furloughs.
Furlough orders—signed by a judge not involved in the Bob’s
Big Boy case—corroborate that White was released from jail
repeatedly for long weekends between October and
December 1981.
In the Marshall case, White testified that he gave
information to the prosecution in the Bob’s Big Boy case
during the period he was receiving furloughs. He
characterized his involvement as “basically behind the scenes
13
The case’s docket number in the Superior Court of the State of
California for the County of Los Angeles is A954922.
SANDERS V. CULLEN 21
in the sense [that Giss] was asking me to do certain things on
the street and in jail I was doing - - I would collect the
results.” White also testified in the Marshall case that he was
romantically involved with one of the eyewitnesses in the
Bob’s Big Boy prosecution, that Deputy District Attorney
Giss knew that White was “having sexual relations” with
Rogoway, and that over the course of his three month
relationship with Rogoway, he told her false information
from other jailhouse informants that was detrimental to
Sanders and Freeman, but he did not know what Rogoway did
with the information.
On August 8, 1989, White again testified about his
relationship with Rogoway, this time before the grand jury
investigating the jailhouse-informant scandal. He stated that
his relationship with Rogoway started before his furloughs
from the Long Beach City Jail, that he met Rogoway through
Gutierrez and Quine, and that he corresponded with Rogoway
while he was at Chino State Prison. White claimed that after
he was transferred to Long Beach City Jail, he was allowed
to have contact visits with Rogoway. He also testified that
Giss was aware of the situation, and that Giss told him “to
keep [his] mouth shut about the relationship.” According to
White, Giss asked him to find out anything he could related
to Quine or other defense witnesses, and asked White for any
letters Quine sent to Gutierrez.
III. Procedural History
In September 1995, while Sanders’s case was pending on
automatic appeal, Sanders filed a state habeas corpus petition
in the California Supreme Court. The California Supreme
Court affirmed Sanders’s conviction and death sentence in
November 1995. People v. Sanders, 905 P.2d 420 (Cal.
22 SANDERS V. CULLEN
1995). In February 1996, the California Supreme Court
summarily denied Sanders’s state habeas petition on the
merits, and Sanders’s conviction became final on October 7,
1996, when the United States Supreme Court denied his
petition for writ of certiorari. See Sanders v. California,
519 U.S. 838 (1996).
Sanders timely filed a federal habeas petition in the
Central District of California raising forty-five claims. In
1998 and 1999, the district court dismissed roughly half his
claims in response to dispositive motions filed by the State.
None of the claims dismissed in those orders are before this
court on appeal.
In December 1999, Sanders filed a motion for an
evidentiary hearing on seventeen of the eighteen claims that
are at issue in this appeal.14 The district court denied
Sanders’s motion for an evidentiary hearing and ruled that the
seventeen claims before this court did not have a “colorable
basis.” In January 2002, Sanders filed a motion to vacate the
order denying his request for an evidentiary hearing or,
alternatively, to reconsider. The parties had fully briefed this
motion by May 23, 2002, but the case was transferred several
times and the district court did not rule on it until October 20,
2009. The motion was denied. On May 6, 2010, the district
court denied Sanders’s federal habeas petition in its entirety,
issued a final judgment, and denied a certificate of
appealability as to all claims.
14
He did not request an evidentiary hearing on the claim that
cumulative error during the guilt-phase trial requires the court to reverse
his conviction.
SANDERS V. CULLEN 23
Sanders timely appealed and this court granted a
certificate of appealability on eighteen claims pertaining to
Sanders’s guilt-phase trial. We have jurisdiction under
28 U.S.C. § 1291.
STANDARDS OF REVIEW
We review de novo the district court’s denial of Sanders’s
habeas corpus petition. Hurles v. Ryan, 752 F.3d 768, 777
(9th Cir. 2014). The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) governs his petition. Under
AEDPA, a federal court may grant a writ of habeas corpus
only if the state court’s decision on the merits:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d); see also Glebe v. Frost, 135 S. Ct. 429,
430 (2014). As contemplated by AEDPA, “clearly
established Federal law . . . is the governing legal principle or
principles set forth by the Supreme Court at the time the state
court renders its decision.” Lockyer v. Andrade, 538 U.S. 63,
71–72 (2003) (internal quotation marks omitted).
A summary denial from the California Supreme Court is
an adjudication on the merits for AEDPA purposes. See
Harrington v. Richter, 562 U.S. 86, 98 (2011); Cullen v.
24 SANDERS V. CULLEN
Pinholster, 563 U.S. 170, 187 (2011) (“Section 2254(d)
applies even where there has been a summary denial.”).
“Under California law, the California Supreme Court’s
summary denial of a habeas petition on the merits reflects
that court’s determination that ‘the claims made in th[e]
petition do not state a prima facie case entitling the petitioner
to relief.’” Pinholster, 563 U.S. at 188 n.12 (alterations in
original) (quoting In re Clark, 855 P.2d 729, 741–42 (Cal.
1993)). In evaluating a state habeas petition, the California
Supreme Court “generally assumes the allegations in the
petition to be true, but does not accept wholly conclusory
allegations, People v. Duvall, 886 P.2d 1252, 1258 (Cal.
1995), and will also ‘review the record of the trial . . . to
assess the merits of the petitioner’s claims.’” Id. (quoting
Clark, 855 P.2d at 742).
Because the California Supreme Court summarily
dismissed Sanders’s petition, he can satisfy “§ 2254(d)(1)
only by showing that ‘there was no reasonable basis’ for the
California Supreme Court’s decision.” Pinholster, 563 U.S.
at 187–88 (quoting Richter, 562 U.S. at 98). This court “must
determine what arguments or theories . . . could have
supporte[d] the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court.” Id. at 188 (first
alteration in original) (quoting Richter, 562 U.S. at 102).
Section 2254(d)(2) provides state prisoners an avenue for
relief only when the state court’s determination of the facts
was “not merely wrong,” but objectively unreasonable. See
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). Relief
under § 2254(d)(2) is proper only if the panel is “convinced
that an appellate panel, applying the normal standards of
SANDERS V. CULLEN 25
appellate review, could not reasonably conclude that the
finding is supported by the record.” Id. at 1000.
DISCUSSION
I. Mooney-Napue Claims Relating to the Four
Eyewitnesses
Sanders first argues that the four eyewitnesses who
identified him at trial—Malloy, Rogoway, Robinson, and
Luna—each provided material, false testimony in violation of
his constitutional rights to a fair trial and due process under
the Sixth and Fourteenth Amendments.15 The clearly
established Supreme Court precedent governing these claims
is Mooney v. Holohan, 294 U.S. 103 (1935), and Napue v.
Illinois, 360 U.S. 264 (1959).
Under Mooney, “a conviction obtained through the use of
false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.” Napue,
360 U.S. at 269 (describing Mooney, 294 U.S. at 112–13).
Napue held that the “same result obtains when the State,
although not soliciting false evidence, allows it to go
uncorrected when it appears.” Id. To demonstrate a
constitutional violation under Mooney-Napue, Sanders must
show: “(1) the testimony (or evidence) was actually false,
(2) the prosecution knew or should have known that the
testimony was actually false, and (3) the false testimony was
material.” Reis-Campos v. Biter, 832 F.3d 968, 976 (9th Cir.
15
This argument encompasses five claims from his federal habeas
petition: claims 1, 2, 6, 8, and 11.
26 SANDERS V. CULLEN
2016), cert. denied, 137 S. Ct. 1447 (2017) (quoting Jackson
v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008)).16
A. Tami Rogoway’s Allegedly False Testimony
In claims 1 and 2 of his federal habeas petition, Sanders
alleges that the prosecution suborned perjury and knowingly
presented false identification in Tami Rogoway’s trial
testimony. On appeal, Sanders no longer uses the word
“suborn,” but continues to maintain that the prosecution knew
or should have known Rogoway’s identification testimony
was false. Rogoway was one of the two customers at the
restaurant on the night of the robbery. She testified at trial
that she observed the taller robber for roughly eleven seconds
over the course of the robbery: three seconds when he first
entered through the front door and another eight seconds
while she was in the freezer. Sanders argues that Rogoway’s
testimony was false because: (1) her identification testimony
changed over time; and (2) she was allegedly unable to
identify Sanders until after the prosecution arranged for
jailhouse informant Leslie White to be released from jail on
illegal furloughs and White persuaded Rogoway to lie about
her ability to identify Sanders.
16
Sanders argues that he does not have to show that the prosecution
knew or should have known the testimony was false to prove a
constitutional violation, but he does not cite any clearly established
Supreme Court precedent for this point. Even if Sanders is not required
to prove prosecutorial knowledge, his Mooney-Napue claims fail because
he has not shown that any of the eyewitness testimony was false, as
explained in detail below.
SANDERS V. CULLEN 27
1. Changes in Rogoway’s Identification Testimony
Over Time
In the immediate aftermath of the crime, while Rogoway
was still in the hospital, she selected photograph No. 132
from the CRASH book (the photo of the man named David
Hall) as the taller robber. She initially stated that No. 132
“looked like the tall suspect,” but, upon further questioning,
she stated that No. 132 “was the tall suspect.” (Emphasis
added). By the time of Sanders’s trial, Rogoway could not
remember whether she selected anyone from the CRASH
book. Rogoway was given morphine for pain during the
initial stage of her treatment, and likely was taking morphine
when she viewed the CRASH book.
Rogoway did not attend the live lineup on December 23,
1980 because she was still hospitalized, but she viewed a
videotape of the lineup on January 2, 1981. The lineup card
she used to record her impressions was lost sometime after
February 1981 and she gave conflicting testimony at
Sanders’s preliminary hearing and trial about whether she
selected anyone when she watched the videotape. At the
preliminary hearing, Deputy District Attorney Giss asked a
series of questions about Freeman’s preliminary hearing and
lineup, and then asked “Now, you never picked anyone out of
any video tape line-ups; is that correct?” Rogoway answered:
“I don’t believe so.” Her response was consistent with the
uncontested fact that she did not select Freeman from the
lineup. At the end of Rogoway’s testimony, the blackboard
was moved so that it no longer blocked Sanders, and Giss
asked whether Rogoway could positively identify him as “one
of the two individuals involved with the incident that
evening.” She answered, “Yes . . . . He was there.”
28 SANDERS V. CULLEN
Outside the presence of the jury, the court held a
California Evidence Code section 402 hearing regarding the
loss of Rogoway’s lineup card.17 Officer Wesselink testified
that he was present on January 2 when Rogoway viewed the
videotape, that he was responsible for collecting her lineup
card and that he recalled Rogoway selected Sanders.
Detective Jacques also testified that he recorded Rogoway’s
selection in the police log after seeing the lineup card, and
similarly recalled that Rogoway picked Sanders. The police
log states “videotape of lineups shown to Rogoway and Irvin
at [Police Administrative Building]. Both picked Sanders.
Neither picked Freeman.” Rogoway testified at the 402
hearing that she selected someone from one of the two lines
as the taller robber.
During trial, Rogoway watched the videotape of the
lineup again and testified that she selected Sanders as the
taller robber when she originally saw the tape on January 2,
1981. She further stated that she was “pretty certain” about
the identification on January 2. In the courtroom, before the
jury, she identified Sanders as the taller robber.
The record shows that Rogoway’s in-court identifications
of Sanders, at his preliminary hearing and at trial, did not
change. She testified inconsistently about whether she
selected anyone at the video lineup, but Wesselink’s and
Jacques’s testimony at the 402 hearing suggests that it is
more likely that she misunderstood Giss’s question at the
preliminary hearing than that she gave false, or even
inconsistent, testimony. Giss asked Rogoway whether she
17
California Evidence Code section 402(b) permits a California trial
court to “hear and determine the question of the admissibility of evidence
out of the presence or hearing of the jury . . . .”
SANDERS V. CULLEN 29
ever selected anyone at the lineups after asking her a series of
questions about Freeman’s preliminary hearing and video
lineup. According to the police log, she did not make a
selection. The state court could have reasonably determined
that Rogoway’s identification testimony did not change and
that Rogoway thought Giss was only inquiring whether she
selected Freeman from a lineup. More to the point, in order
to prevail on these Sixth and Fourteenth Amendment claims,
Sanders would have to show that Rogoway gave false
testimony, not just that she testified inconsistently over time.
This he did not do.
2. Leslie White’s Impact on Rogoway’s
Identification Testimony
Sanders argues that Rogoway changed her identification
testimony due to Leslie White’s influence during illegal
furloughs. This argument fails because it does not account
for Rogoway’s identification of Sanders at his preliminary
hearing, before she began her relationship with White. The
furloughs took place between October and December 1981.
White testified that his relationship with Rogoway lasted for
three months coinciding with the period when he was at the
Long Beach City Jail in the fall of 1981. There is no
evidence in the record that Rogoway had any interactions
with White prior to the time she viewed the lineup on January
2, 1981, or before her identification of him at the preliminary
hearing in March 1981. At a sidebar during Sanders’s trial,
Deputy District Attorney Giss told the court that Rogoway’s
visit to Chino State Prison with Gina Gutierrez—which led to
her introduction to Leslie White—took place some time after
Sanders’s preliminary hearing.
30 SANDERS V. CULLEN
White testified before the grand jury investigating the
jailhouse-informant scandal that he told Rogoway false,
detrimental information about Sanders during his furloughs,
but this could not have influenced the preliminary hearing
testimony she had already given, and her identification of
Sanders at the preliminary hearing was consistent with her
identification of him at trial. Sanders has not shown that
Rogoway changed her identification of Sanders, or that White
could have influenced her pre-trial identification of Sanders.
The state court also could have reasonably rejected this
Mooney-Napue claim because Sanders did not show the
prosecution knowingly offered false testimony. Sanders
points to a note obtained from the District Attorney post-trial
pursuant to the Public Records Act and argues that Giss
knowingly allowed Rogoway to give false testimony. The
handwritten note, allegedly authored by Giss, states: “Les
had a conjugal visit with Tami. One regular visit (no forms
– police escort).” At best, the note shows that the prosecution
was aware of the relationship between White and Rogoway,
but that much is clear; Giss testified about the relationship at
the pretrial discovery hearing on February 24, 1982. It does
not indicate that the prosecution knew, or even suspected, that
Rogoway’s identification testimony was false.
It is also possible the state court reasonably determined
that Rogoway’s identification testimony was not pivotal in
the context of the State’s overall case because Michael
Malloy’s eyewitness testimony was much stronger. Malloy
was the night manager on duty at the time of the robbery and
he had a much longer opportunity to observe the taller robber
while removing money from the safe and collecting the
victims’ wallets, watches, and jewelry. Malloy testified at
trial that he “got a good three minute look” at the taller robber
SANDERS V. CULLEN 31
while they were in the office getting money from the safe,
and that he stared at the robber for roughly half that time.
Malloy never wavered in his identification of Sanders and he
was a more prominent part of the state’s case, testifying over
the course of eight days. The prosecutor also relied heavily
on Malloy’s testimony during closing argument. It would not
have been unreasonable for the state court to decide that the
jury would have convicted Sanders, even without Rogoway’s
testimony, based solely on the strength of Malloy’s
identification.
B. Michael Malloy’s Allegedly False Testimony
In claim 8 of his federal habeas petition, Sanders contends
that Michael Malloy’s trial testimony about how he knew to
go to the December 23, 1980 lineup was false. Sanders
points to an alleged inconsistency between Malloy’s trial
testimony and a deposition he gave after Sanders’s trial, in a
civil lawsuit Tami Rogoway filed against Bob’s Big Boy
restaurant. The district court ruled that the deposition
testimony did not contradict Malloy’s trial testimony and that
Sanders failed to prove Malloy’s trial testimony was false.
We agree with both rulings.
In Sanders’s trial, Malloy was asked a series of questions
about what he knew before he went to the December 23
lineup:
Abramson: Had you heard before you were
told that you were going to go downtown to
identify anybody, had you heard that there
were suspects arrested and in custody for the
incident?
32 SANDERS V. CULLEN
Malloy: No, I didn’t.
Abramson: Did a policeman call you and tell
you you had to go downtown to try to identify
somebody?
Malloy: I don’t recall.
Abramson: Well, how did you know you had
to go down?
Malloy: I believe someone called me, but I
don’t know when.
Abramson: Okay. Apart from when, do you
know who?
Malloy: No, I can’t — no, I don’t.
Three years after Sanders’s trial, Malloy was asked at his
deposition when he first talked to anyone from Bob’s Big
Boy after the crime:
Attorney: When did anybody from Bob’s talk
to you after this incident?
Malloy: I believe after I got out of the
hospital.
Attorney: Who did you talk to?
Malloy: David Lind.
Attorney: Where?
SANDERS V. CULLEN 33
Malloy: I went in a lineup. I went downtown
to a lineup. . . .
Attorney: Is that the first time you saw Dave
Lind after this incident was at the lineup?
Malloy: At the lineup.
Attorney: Did he talk to you about the
incident?
Malloy: No. He just told me I was coming
downtown for a lineup, identify the guys.
Attorney: He called you and asked you if you
would come down to the lineup?
Malloy: LAPD called me.
Attorney: What did Dave Lind —
Malloy: Escorted me down.
In short, Malloy testified at Sanders’s trial that he could not
remember who called to tell him to come to the December 23
lineup, and at his deposition he testified that the LAPD called
him and David Lind, the Director of Safety and Security for
Bob’s Big Boy, escorted him to the lineup.
Whether Malloy’s recollection was accurate or not, the
fact that he later recalled being contacted by LAPD about
attending the lineup does not come close to demonstrating
that his trial testimony was false or that the prosecution knew,
or should have known, that it was wrong. Nor does Sanders
34 SANDERS V. CULLEN
explain how this detail calls into question Malloy’s
identification of Sanders at the video lineup, much less his in-
court identification. The state court could have reasonably
decided that Sanders failed to prove any of the three Mooney-
Napue elements with respect to Malloy’s testimony.
C. Rhonda Robinson’s Allegedly False Testimony
In claim 6 of his federal habeas petition, Sanders
maintains that Rhonda Robinson’s trial testimony was false
because it was inconsistent with testimony she gave at a
hearing in Freeman’s case about whether she had seen a
photograph of Sanders and Stewart before Freeman’s
preliminary hearing. Rhonda Robinson was a Bob’s Big Boy
waitress. The shorter robber ordered her to lay on the floor
in the kitchen before she was told to enter the freezer. She
testified at trial that she observed the taller robber for three to
four seconds in the freezer. The district court correctly ruled
that there was “no conflict between Robinson’s testimony at
Petitioner’s trial and her testimony at Freeman’s trial.”
During the December 1981 search of Sanders’s
apartment, the police seized a carnival photograph of Sanders
and Stewart holding fake guns. The trial court initially ruled
that the photograph was inadmissible, but after a detective
who participated in the search mentioned it during his
testimony, the defense introduced the photograph and the
court admitted it into evidence. Defense counsel also called
Richard Price, who took the photograph, to testify that in
December 1980 he managed a photographic studio near an
amusement park where people could pose with props and
costumes. Price testified that Sanders and Stewart posed for
such a photograph with a replica gun and a toy gun as a gag.
SANDERS V. CULLEN 35
In an effort to undermine the reliability of Robinson’s
identification testimony, defense counsel questioned whether
Robinson and other witnesses saw the gag photo while they
were waiting to testify at Freeman’s February 1981
preliminary hearing. The photograph was apparently in a
blue notebook inside a cardboard evidence box. Defense
counsel Abramson asked Robinson whether she remembered
seeing a blue notebook while she was waiting to testify at
Freeman’s preliminary hearing, and Robinson answered, “I
don’t remember.” Abramson then asked whether she
remembered “any of the witnesses going through any
notebooks or making comments about any photographs,” to
which Robinson answered “Yes.” After a sidebar about a
hearsay objection, Abramson inquired whether Robinson
remembered the other witnesses “mentioning Ricky
Sanders’[s] name” or “suggesting that Ricky Sanders was one
of the guys who did this thing.” Robinson again answered
“Yes.” The transcript of the sidebar discussion suggests that
Abramson asked these questions to explore whether Robinson
identified Sanders at trial because she heard other witnesses
say that he was one of the robbers, but Robinson was not
asked whether she saw the photograph itself.
At a hearing in Freeman’s trial held pursuant to California
Evidence Code section 402, Robinson was again asked about
what happened while she was waiting to testify at Freeman’s
preliminary hearing. Robinson said she remembered seeing
a cardboard box and that she remembered people looking
inside the box. She could not recall who, “but someone
opened the notebook, and [the witnesses] saw a photo.”
Robinson further testified that it was a blue notebook, and
that it contained a photograph of Sanders and a girl “standing
together holding a gun.”
36 SANDERS V. CULLEN
The only inconsistency between Robinson’s testimony at
Sanders’s trial and Robinson’s testimony at the hearing held
during Freeman’s case concerns whether she recalled seeing
the blue notebook; Robinson did not deny seeing the
photograph at either proceeding, and the fact that she
remembered seeing the notebook at Freeman’s evidentiary
hearing does not show that she lied at Sanders’s trial.
Sanders maintains that the prosecution knew Robinson
lied about her memory of the notebook because the police
showed the photograph to her. But the only evidence he cites
to support this argument is Robinson’s testimony at
Freeman’s evidentiary hearing, and it only establishes that the
police had Robinson wait in the same room with the evidence
box and notebook. There is no evidence the prosecution had
reason to doubt the testimony Robinson actually gave, that
she did not recall the blue notebook. Nor does Sanders
explain how Robinson’s memory about the blue notebook
might have made a material difference to the jury. She
testified at Sanders’s trial that other witnesses made
comments about a photograph while they were waiting to
testify at Freeman’s preliminary hearing, but she was not
asked whether she saw the photograph nor whether the
photograph had any impact on her identification of Sanders.
As discussed in more detail below, Robinson had already
identified Sanders in person, at the December 23, 1980
lineup. The state court could have reasonably determined that
Sanders failed to support any of the three Mooney-Napue
elements with respect to Robinson’s testimony.
D. Ismael Luna’s Allegedly False Testimony
In claim 11, Sanders asserts that Ismael Luna admitted at
Freeman’s trial that he testified falsely about his ability to
SANDERS V. CULLEN 37
distinguish black people and his ability to identify Sanders.
Ismael Luna was a busboy at Bob’s Big Boy, and his father
died several months after the crime as a result of injuries he
sustained during the robbery. The district court ruled that
Luna’s testimony was neither perjurious nor material. We
agree with the district court. Luna’s identification of Sanders
was always qualified and the jury heard him testify at
Sanders’s trial that he had difficulty identifying black people.
Luna tentatively selected Sanders from Line 3 at the
December 23, 1980 lineup. He wrote on his lineup card, “It
seems to be No. 4.” At Sanders’s preliminary hearing, Luna
testified that Sanders did not “seem to be” one of the robbers,
and that he was “not really sure” whether Sanders was the
man he selected at the lineup. He acknowledged that Sanders
looked like the man he selected, but with “a little more hair.”
At Sanders’s trial, Luna was asked “to look in this courtroom
and see if you see one of the two men in this room that was
there that night.” Luna responded, “Well, I think he’s there
in front of that lady,” and pointed to Sanders. But on cross-
examination Luna admitted, “in general, young black men
tend to look a lot alike” to him. He said that the man he
selected at the lineup looked like the taller robber, while
Sanders now looked more like the shorter robber, and he
could not say for sure whether Sanders was the same man he
selected at the lineup. In her closing argument, defense
counsel emphasized that Luna admitted “all black men
basically look alike to him.”
During Freeman’s trial, Luna was again asked about his
selection of Sanders at the lineup. He testified, “it was kind
of difficult to identify the black person,” and admitted: “It is
very difficult for me to identify black people due to the fact
that I don’t live with black people.” Although his testimony
38 SANDERS V. CULLEN
at Freeman’s trial more explicitly stated that Luna had trouble
identifying black people, it does not demonstrate that the
uncertain testimony he gave at Sanders’s trial was false. The
state court could have reasonably determined that Luna’s
testimony was neither perjurious nor material because he was
consistently uncertain. Sanders does not point to any
evidence that the prosecution knew or suspected that Luna’s
identification testimony was false.
Because Sanders failed to prove that any of the
eyewitnesses provided material, false testimony or that the
prosecution knew they committed perjury, we hold that the
state court’s rejection of Sanders’s Mooney-Napue claims
relating to Rogoway, Malloy, Robinson, and Luna was
neither contrary to clearly established federal law nor
objectively unreasonable. We affirm the district court’s
denial of Sanders’s habeas petition with respect to these
claims.
II. Mooney-Napue Claims Relating to Rodell Mitchell and
Bruce Woods
Sanders also argues that the prosecution knowingly used
material, false testimony from two non-eyewitnesses—Rodell
Mitchell and Bruce Woods—in violation of Mooney-Napue.
This argument encompasses claims 20 and 22.
A. Rodell Mitchell’s Allegedly False Testimony
Rodell Mitchell was one of the Bob’s Big Boy managers
whom Brenda Givens told about her encounter with Stewart
at the Los Angeles County Jail. In claim 20, Sanders
maintains that Mitchell lied when he claimed that he
responded by calling the police and filing an internal incident
SANDERS V. CULLEN 39
report. Sanders points to deposition testimony from
Detective Stallcup, who participated in the initial
investigation of the robbery, and a declaration David Lind
gave in Tami Rogoway’s civil suit, to demonstrate that
Mitchell’s trial testimony was false. The district court
correctly ruled that Sanders’s argument was “conclusory,”
and that it did not establish that Mitchell gave false
testimony.
At Sanders’s trial, Mitchell testified that he called the
police after Givens told him about her conversation with
Stewart. According to Mitchell, he called the police about
fifteen to twenty minutes before the police arrived to ask
about a different murder that took place near the restaurant
that night. He told the police about his conversation with
Givens in his phone call, and pointed out Stewart and Gilcrest
to them when they visited the restaurant. Mitchell testified
that he called the police more than once and they came to the
restaurant multiple times that night. He also said he mailed
an incident report to David Lind, head of security for Bob’s
Big Boy, sometime after September 27, 1980. David Lind
denied receiving such a report.
During Rogoway’s civil lawsuit, a police detective
testified that he checked logs maintained by the sergeant who
served as LAPD Watch Commander on September 27, 1980,
and found no record of any report of an impending robbery.
He explained that a “robbery call” would have been a “high
priority” and “procedure would have been to have something
done” such as setting up immediate surveillance of the
location and eventually confronting any individuals believed
to be involved.
40 SANDERS V. CULLEN
The declaration David Lind submitted in the civil suit
stated that he had not received an incident report regarding
the Stewart robbery threat, and that store manager Kim
Clark—as opposed to night manager Rodell Mitchell—would
have been the correct employee to file such a report. But
according to Lind, this was also not the type of incident that
would have triggered a reporting requirement because Bob’s
Big Boy only required managers to report incidents occurring
on restaurant premises. Stewart allegedly told Givens about
her plans to rob the restaurant at the county jail.
Neither the detective’s testimony nor David Lind’s
declaration show that Mitchell testified falsely at Sanders’s
trial. At most, this record demonstrates that the prosecution
was aware of Mitchell’s and Lind’s conflicting accounts
about the incident report. Nor has Sanders shown how
Mitchell’s testimony was material. Givens’s report about her
conversation with Stewart at the county jail was corroborated
by Givens’s trial testimony and the stipulation concerning
what Kim Clark would say if called to testify. Stewart’s visit
to the restaurant on the night of September 27 was
corroborated by Givens’s and Gilcrest’s trial testimony.
Whether Mitchell called the police or filed an incident report
were not important facts, and the jury was aware of the
inconsistency between Mitchell’s and Lind’s version of
events. The state court reasonably denied the Mooney-Napue
claim related to Mitchell’s testimony.
B. Bruce Woods’s Allegedly False Testimony
Bruce Woods was the jailhouse informant who testified
at Sanders’s and Stewart’s joint preliminary hearing about
Stewart’s August 1980 attempt to solicit their mutual friend
to rob Bob’s Big Boy. In claim 22, Sanders contends that
SANDERS V. CULLEN 41
Woods provided material, false testimony at Sanders’s trial
about statements Sanders allegedly made to Woods in a van
after the preliminary hearing, including Sanders threatening
Woods’s family.
In support of the claim that Woods’s testimony was false,
Sanders points to “the grand jury findings about the
widespread practice of using jailhouse informants, the sheer
improbability that Sanders would have made incriminating
admissions to Woods, and the evidence of other misconduct.”
The state court reasonably denied this claim because Sanders
did not support the claim that Woods lied or that the
prosecution knew his testimony was false. We affirm the
district court’s denial of Sanders’s habeas petition with
respect to the Mitchell and Woods Mooney-Napue claims.
III. Brady Claims
Sanders next argues that the prosecution violated Brady
v. Maryland, 373 U.S. 83 (1963), by failing to disclose
material, exculpatory impeachment evidence about five trial
witnesses: Tami Rogoway, Michael Malloy, Andre Gilcrest,
Gilcrest’s mother, and Brenda Givens.18
Under Brady, “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment.” 373 U.S. at 87. “Evidence favorable to the
accused” includes evidence that would help the defendant
impeach a witness. Giglio v. United States, 405 U.S. 150,
154–55 (1972). In United States v. Bagley, the Supreme
Court “held that regardless of request, favorable evidence is
18
This argument encompasses claims 3, 7, 18, and 19.
42 SANDERS V. CULLEN
material, and constitutional error results from its suppression
by the government, ‘if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.’” Kyles v. Whitley,
514 U.S. 419, 433–34 (1995) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985) (Blackmun, J.)). To
establish a Brady violation, Sanders must show: “(1) the
evidence at issue is favorable to the accused, either because
it is exculpatory or because it is impeaching; (2) the evidence
was suppressed by the government, regardless of whether the
suppression was willful or inadvertent; and (3) the evidence
is material to the guilt or innocence of the defendant.” United
States v. Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013).
With respect to materiality, “[t]he question is not whether
the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Kyles, 514 U.S. at 434.
Suppressed evidence must be considered “collectively, not
item by item.” Id. at 436.
A. Failure to disclose that the prosecution obtained
illegal furloughs and conjugal visits for Leslie White
so that White could persuade Tami Rogoway to
falsely identify Sanders at trial
In claim 3, Sanders argues that the prosecution failed to
disclose evidence that Leslie White was released from the
Long Beach City Jail on illegal furloughs to have sex with
Tami Rogoway and persuade her to testify falsely. Sanders
contends that this evidence could have been used to impeach
Rogoway’s identification testimony because Rogoway was
unable to identify Sanders until after her “secret liaisons”
SANDERS V. CULLEN 43
with White. To support this claim, Sanders points to the
same evidence cited in support of his claim that the
prosecution knowingly used Rogoway’s false identification
testimony at trial.
1. The prosecution disclosed the Rogoway-White
relationship
As a preliminary matter, defense counsel was aware of the
relationship between Rogoway and White because Deputy
District Attorney Giss testified to its existence at the pretrial
discovery hearing held on February 24, 1982. At the
evidentiary hearing about the loss of Rogoway’s lineup card,
Abramson informed the court that she intended to cross-
examine Rogoway about whether she knew Quine and White,
and whether she had discussed her identification of Freeman
with them. The court expressed concern about suggesting to
the jury that Rogoway had attempted to procure perjured
testimony against Freeman without any concrete proof, but
expressed its willingness to convene a hearing outside the
presence of the jury in which Quine and White could be
questioned. Abramson indicated that she intended to call
Quine as a witness during the defense part of the case, but
ultimately chose not to call Quine or White.
2. Sanders failed to prove that White was an agent
of the prosecution
Sanders acknowledges that the prosecution disclosed the
Rogoway-White relationship at the pretrial discovery hearing,
but argues that the prosecution did not disclose that it
obtained illegal furloughs and conjugal visits for Leslie White
so that the prosecution could use White as an agent to
influence Rogoway’s identification testimony. This argument
44 SANDERS V. CULLEN
assumes: (1) that White had a conjugal visit with Rogoway
before Sanders’s trial; (2) that White was working as an agent
of the prosecution in the months leading up to Sanders’s trial;
and (3) that Rogoway changed her identification of Sanders
after she became involved with White.
At the pretrial discovery hearing, Giss did not testify
about the conjugal visit mentioned in the handwritten note
obtained from the District Attorney because the note had not
yet been produced. The handwritten note states, “Les had a
conjugal visit with Tami. One regular visit (no forms – police
escort).” The note is dated “2-17-82” at the top of the page,
but then refers to something that happened on “12-12-82” in
the first paragraph of text. Thus, it is not clear whether the
note was written before the pretrial discovery hearing on
February 24, 1982 or after Sanders’s guilt- and penalty-phase
trials had concluded. The court sentenced Sanders on
December 3, 1982.
Giss did not mention furloughs at the pretrial discovery
hearing, but he did testify that “Leslie White was never used
as an agent of the police,” and the prosecution “never made
a deal with him, never offered anything, never asked for
anything.” To support his theory that the prosecution
obtained the furloughs for White and used White as an agent,
Sanders points to White’s testimony before the grand jury
investigating the jailhouse-informant scandal in 1989, seven
years after Sanders’s trial, and the testimony he gave as a
defense expert in People v. Marshall, which also took place
in 1989.
Before the grand jury and in Marshall, White explained
that Deputy District Attorney Andrew Diamond, who was not
involved with the Bob’s Big Boy case, arranged for White to
SANDERS V. CULLEN 45
be transferred to the Long Beach City Jail so that White could
have regular weekend furloughs between October and
December 1981. According to White, a state court judge not
involved in Sanders’s case signed the furlough orders. White
testified that he gave information to the prosecution in the
Bob’s Big Boy case during this period. He described his
involvement as “basically behind the scenes in the sense [that
Giss] was asking me to do certain things on the street and in
jail I was doing - - I would collect the results.” White
testified that Giss asked him to find out anything he could
related to Quine or other defense witnesses.
White also testified about his relationship with Rogoway.
He recalled that the relationship started before he was
transferred to the Long Beach City Jail, continued during the
furloughs, and lasted for three months. White testified that
Giss knew White was “having sexual relations” with
Rogoway, and told White “to keep [his] mouth shut about the
relationship.” White also testified that he told Rogoway false
information that was detrimental to the defense during their
relationship, but that he did not know what Rogoway did with
the information.
White did not mention any conjugal visits with Rogoway
or that he ever attempted to persuade Rogoway to change her
identification testimony for Sanders’s trial, but he did
contradict Giss’s pretrial testimony about whether the
prosecution used White as an agent.
The state court could have reasonably decided to credit
Deputy District Attorney Giss’s sworn testimony that he did
not use White as an agent over the testimony of a jailhouse
informant who admitted to providing false evidence on
numerous occasions. Furthermore, as discussed, Sanders fails
46 SANDERS V. CULLEN
to account for the evidence that Rogoway identified Sanders
at the lineup and in court at the March 1981 preliminary
hearing, before White claims their relationship started and
before there is any record of him obtaining his furloughs from
the Long Beach City Jail. Sanders’s assertion that Rogoway
changed her identification of Sanders as a result of her
relationship with White is speculative and it ignores her
earlier identifications. The state court could also have
reasonably determined that the evidence was not material due
to the relative weakness of Rogoway’s testimony compared
to Malloy’s identification. Defense counsel thoroughly cross-
examined Rogoway, exposing inconsistencies in her
testimony about Sanders, and Abramson chose not to call
Quine or White to try to further impeach Rogoway. On this
record, we cannot say the state court unreasonably denied
Sanders’s Brady claim pertaining to Rogoway.
B. Failure to disclose that David Lind told Michael
Malloy to “identify the guys” before the December
23, 1980 lineup
In claim 7 of his federal habeas petition, Sanders contends
that the prosecution failed to disclose that David Lind told
Malloy “that the right suspects had been arrested and he
should go down and identify them.” Sanders argues that
David Lind was a de facto prosecution agent, and that Malloy
testified at a deposition in Tami Rogoway’s civil suit that
Lind told him to identify the suspects before the December 23
lineup.19 The district court concluded that Sanders: (1) failed
19
Sanders also relies on a statement by Derwin Logan, another
restaurant employee, made outside the courtroom during Freeman’s trial.
Allegedly, prior to the lineup, Lind told Logan the police had arrested
someone they believed committed the crime. Even assuming that this
SANDERS V. CULLEN 47
to prove that Lind was an agent of the prosecution or that the
prosecution otherwise had knowledge of Lind’s pre-lineup
statement; (2) failed to show how his statement was
unnecessarily suggestive; and (3) failed to establish
materiality under Brady. We affirm.
Sanders maintains that Lind was a de facto prosecution
agent because he sat at the prosecution’s counsel table during
the preliminary hearing, cooperated with the LAPD
investigation, and assisted with transporting Bob’s Big Boy
employees to and from the courthouse. Sanders also
emphasizes that Deputy District Attorney Giss wrote a letter
to Bob’s Big Boy after the trial praising Lind and thanking
Bob’s Big Boy for Lind’s assistance “with the details and
logistics” of the trial. Although Sanders cites to Supreme
Court cases holding that the Fourth Amendment applies when
the government uses private citizens to conduct searches, he
does not cite to any established Supreme Court authority for
the proposition that a citizen qualifies as a member of the
prosecution team for Brady purposes based on the type of role
David Lind played in the Bob’s Big Boy case. Sanders also
mischaracterizes the deposition testimony Malloy gave in
Rogoway’s civil suit. Roughly three years after Sanders’s
guilt-phase trial, Malloy gave deposition testimony in which
he said that Lind “escorted” him to the lineup and told Malloy
to go “downtown for a lineup, identify the guys.” When read
in context, Malloy’s testimony suggests that Lind simply
explained that a police lineup was going to occur, not that he
instructed Malloy to make a selection. The state court could
have reasonably determined that Sanders did not show that
statement was true, it cannot be assumed that Lind said the same thing to
Malloy.
48 SANDERS V. CULLEN
Lind made any improperly suggestive statements to Malloy
that could have been used to impeach Malloy’s identification.
Even assuming Lind’s statement amounted to a “mandate
to identify the suspects,” as Sanders argues, Sanders does not
explain how this statement suggested to Malloy that he
should select Sanders. In United States v. Bowman, this court
rejected the defendant’s argument that a lineup was
unnecessarily suggestive because the witnesses “knew that
suspects were in custody and they should make a pick.”
215 F.3d 951, 965–66 (9th Cir. 2000). The court explained
that the defendant’s “fear that the lineups were impermissibly
suggestive because witnesses knew that the suspects were in
custody [was] misplaced” because “it stands to reason that
there is a suspect at the lineup stage.” Id. at 966. The court
noted that the police told the witnesses “they need not make
an identification if they were not confident” before the lineup.
Id.
When Malloy arrived at the police station on December
23, 1980, he was shown a videotape of the lineup because he
was too late to attend the live lineup. In the video, officers
provided preliminary instructions to the witnesses, including:
“If you cannot identify anyone, please so indicate.” Although
their instruction did not explicitly state that the witnesses
need not identify anyone if they were not confident, the state
court could have reasonably determined that the officers’
instruction communicated as much, and cured any suggestion
conveyed by Lind’s comment. The state court’s denial of
Sanders’s Brady claim was not unreasonable.
SANDERS V. CULLEN 49
C. Failure to disclose that Andre Gilcrest and his mother
were promised reward money in exchange for their
testimony
In claim 18, Sanders contends that the prosecution failed
to disclose that Andre Gilcrest and his mother were tacitly or
explicitly promised a $10,000 reward in exchange for their
testimony. As Stewart’s ex-boyfriend and an early informant
in the case, Gilcrest told the police that Stewart confided in
him on September 27, 1980, about Sanders’s and Freeman’s
plan to rob the restaurant. Both Gilcrest and his mother
testified at Sanders’s trial.
Bob’s Big Boy restaurant and its parent company, the
Marriott Corporation, offered a $10,000 reward, “in exchange
for information leading to the apprehension, arrest and final
conviction of the person, or persons, responsible for” the
Bob’s Big Boy robbery. In a December 16, 1980 letter
notifying the LAPD about the reward, the Marriott
Corporation stated: “The final determination as to whom
shall be eligible to receive all, or part, of the aforesaid reward
shall be made by the Police Department of the City of Los
Angeles.” Neither the Marriott Corporation nor the LAPD
have any record of who received the reward, but an April 25,
1995 letter from the Los Angeles City Attorney to Sanders’s
current counsel states that Deputy District Attorney Giss said
“that he thought reward money was paid to Andre and his
mother and to one of the victims . . . well after the trial was
over.” The district court correctly ruled that Sanders failed to
show the prosecution promised Gilcrest money or suppressed
any information about the reward.
First, Sanders points to Giss’s notes, handwritten on a
discovery motion in Freeman’s trial, as evidence that the
50 SANDERS V. CULLEN
prosecution promised Gilcrest the reward. The notes state:
“Reward of $10,000 no [sic] are promised anything except
Gilcrest talks of $.” If anything, the notes suggest that the
prosecution did not promise any witness the reward, but that
Gilcrest expressed an interest in it.
Second, the defense was well aware of the reward at the
time of the trial. Gilcrest was cross-examined extensively
about his motivations for coming forward and although he
denied making a written request for the reward, he admitted
that he may have verbally asked for it. He also conceded that
he originally told the police he came forward “[f]or the
money and being a good citizen.” Based on this testimony,
the state court could have reasonably determined that the
prosecution did not suppress any information about the
reward or Gilcrest’s motives.
Sanders also cites to Giss’s later testimony at a
suppression hearing in People v. Garmanian, and a Los
Angeles County District Attorney manual on how to manage
informants, as evidence of an implicit or express promise for
the reward. In the Garmanian case, Giss acknowledged that
informants are likely to ask for “some quid pro quo,” and
testified that “you couldn’t find an informant in this state that
would [] say I’ve let him down.” The District Attorney
manual warns: “If you alienate the informant, you run the
risk of his recanting the testimony you agreed to use.”
Neither Gilcrest’s statements nor the manual establish
anything about this case and the state court did not
unreasonably deny the Brady claim pertaining to Gilcrest, his
mother, and the reward money.
SANDERS V. CULLEN 51
D. Failure to disclose that Givens received mental health
treatment after the robbery
In claim 19 of his federal habeas petition, Sanders
contends that he was denied due process and a fair trial based
on the failure to disclose that Brenda Givens received mental
health treatment after the robbery and before testifying at
trial. Givens was the Bob’s Big Boy waitress whom Stewart
warned about the robbery when the two ran into each other at
the Los Angeles County Jail. Givens was not at the restaurant
on the night of the murders, but she testified at Sanders’s trial
about the conversation she had with Stewart at the county jail,
and Stewart’s visit to the restaurant that night.
Sanders maintains that neither Givens nor the prosecution
disclosed that Givens received psychiatric treatment, took
medication, and was hospitalized before trial. He argues that
he was deprived of the opportunity to question her about this
treatment. He cites to both Brady and Mooney-Napue case
law to support this argument. Regardless of how the issue is
framed, the state court reasonably denied this claim.
Sanders concedes that neither the prosecution nor the
defense questioned Givens about her mental state or any
treatment for it at his trial. He relies on testimony Givens
gave at a hearing during Freeman’s trial. There, she testified
that she saw a psychiatrist after the robbery but denied taking
any medication or ever being hospitalized. She stated that
she went to see Dr. Robert Kovan starting in March or April
1981, and met with him twice a month for about two months
after suffering a miscarriage. Dr. Kovan gave a conflicting
description of Givens’s treatment at Freeman’s trial. He
stated that he first began treating her in November 1981, that
she was hospitalized for a few days in February 1982 due to
52 SANDERS V. CULLEN
extreme anxiety and depression, and that she was treated with
antidepressants and sleeping medication while she was in the
hospital. Dr. Kovan also testified that the cause of Givens’s
anxiety and depression was a combination of difficulties she
was having at home with the man with whom she was living
and the Bob’s Big Boy robbery. He did not recall her ever
telling him about a miscarriage.
The state court could have reasonably determined that
Sanders failed to assert a Mooney-Napue violation because
Givens did not testify about mental health treatment at his
trial. The state court also could have reasonably concluded
that Sanders failed to prove a Brady violation because he did
not show that the prosecution knew about Givens’s mental
health treatment before Freeman’s trial.
Even assuming the prosecution was aware that Givens
received this treatment and withheld the information from
defense, the state court could have reasonably determined that
the suppression of this evidence did not undermine its
confidence in the outcome of the trial. The issue at trial was
the identity of the robbers, and Givens did not identify either
of them. The testimony she did provide at Sanders’s trial was
corroborated by Rodell Mitchell, who stated that she reported
the conversation she had with Stewart at the county jail to
several managers at Bob’s Big Boy. The parties stipulated
that Kim Clark would testify to the same effect. Mitchell and
Gilcrest also corroborated Givens’s testimony concerning
Stewart’s visit to the restaurant that night. The state court
had ample reason to deny this claim.
SANDERS V. CULLEN 53
IV. Improper Influence on Robinson’s and Malloy’s
In-Court Identifications
Sanders next maintains that the prosecution improperly
influenced Rhonda Robinson’s and Michael Malloy’s in-court
identifications by exposing them to the gag photograph of
Sanders and Stewart holding fake guns before Freeman’s
preliminary hearing in February 1981.20 The district court
concluded “Malloy’s and Robinson’s identification testimony
was not prejudiced by exposure to the photo because by that
time they had already identified Petitioner from the lineup.”
This claim was properly denied.
Sanders’s legal characterization of these claims has
shifted over time from an improperly influenced
identification claim to a Brady claim. In his state and federal
habeas petitions, Sanders argued that the improperly
influenced identifications violated his constitutional rights to
a fair trial and due process. He cited United States v. Wade,
388 U.S. 218 (1967) and Simmons v. United States, 390 U.S.
377 (1968) as the clearly established Supreme Court
precedent governing these claims.
In Wade, the Supreme Court held that a post-indictment
lineup is a “critical stage of the prosecution” at which the
accused is entitled to counsel. 388 U.S. at 236–37. In
discussing the importance of pretrial lineups, the Court noted
that a “major factor contributing to the high incidence of
miscarriage of justice from mistaken identification has been
the degree of suggestion inherent in the manner in which the
prosecution presents the suspect to witnesses for pretrial
identification.” Id. at 228. Simmons held that “convictions
20
This argument encompasses claims 5 and 9.
54 SANDERS V. CULLEN
based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground
only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” 390 U.S. at 384.
In Neil v. Biggers, the Supreme Court distilled “general
guidelines” from the cases governing “the relationship
between suggestiveness and misidentification.” 409 U.S.
188, 198 (1972). Biggers emphasized that courts must
determine, under the totality of the circumstances, whether an
in-court identification was reliable even though a pretrial
identification procedure was suggestive. Id. at 199. The
Court outlined five factors “to be considered in evaluating the
likelihood of misidentification,” including “the opportunity
of the witness to view the criminal at the time of the crime,
the witness’[s] degree of attention, the accuracy of the
witness’[s] prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation,
and the length of time between the crime and the
confrontation.” Id. at 199–200.
On appeal, Sanders frames these claims as Brady
violations for the first time and asserts that the prosecution
failed to disclose that Robinson and Malloy saw the gag
photograph. He still cites to Wade and Simmons and argues
that the fact that Robinson and Malloy saw the photograph
constitutes exculpatory impeachment evidence because the
photo was unnecessarily suggestive.
As explained in the discussion of the Robinson Mooney-
Napue claim, Robinson was not asked at Sanders’s trial
whether she saw the photograph of Sanders and Stewart
holding fake guns. At a hearing held in Freeman’s case, she
SANDERS V. CULLEN 55
stated that she saw the photograph while waiting to testify at
Freeman’s preliminary hearing in February 1981. Likewise,
Malloy was not asked about the photograph during Sanders’s
trial, but he testified at Freeman’s trial that he saw it while
waiting to testify at the preliminary hearing. Neither
Robinson nor Malloy saw who put the photograph in the
room where the witnesses were waiting, nor who opened the
blue notebook that contained the photograph, but they both
testified that police officers escorted them to the room.
Assuming that the prosecution intentionally placed the
gag photo in the room where the witnesses for Freeman’s
preliminary hearing were waiting, it remains that both
Robinson and Malloy identified Sanders at the December 23,
1980 lineup, roughly one week after the crime and two
months before they saw the fake gun photograph at
Freeman’s preliminary hearing.
Furthermore, the state court could have reasonably
determined that Robinson’s and Malloy’s in-court
identifications at trial, after they saw the fake gun photo, were
reliable under the Biggers factors. Malloy had three
opportunities to view the taller robber: (1) when the two
robbers forced their way into the restaurant; (2) when Malloy
removed the money from the safe; and (3) when Malloy
handed the victims’ personal belongings to the taller robber
in the freezer. In all, Malloy estimated that he had “a good
three minute[s]” to view the taller robber. While Robinson
had less of an opportunity to see the robbers, she was able to
observe the taller robber for three to four seconds. Both
Robinson and Malloy demonstrated a high level of certainty
when they selected Sanders at the lineup shortly after the
crime, and they were confident in their identifications at trial.
56 SANDERS V. CULLEN
Assuming that Robinson’s and Malloy’s exposure to the
gag photograph was exculpatory evidence that was not
disclosed, Sanders has not demonstrated that it was material
under Brady because Robinson and Malloy identified Sanders
at the lineup before they saw the photo. The state court
reasonably denied Sanders’s claims relating to Robinson’s
and Malloy’s exposure to the fake gun photograph, and we
affirm the district court’s denial of Sanders’s habeas petition
with respect to these claims.
V. Mesarosh Claim Relating to Gilcrest
In claim 17, Sanders maintains that Gilcrest’s testimony
at Freeman’s trial revealed that “Gilcrest was a complete and
total liar.” Stewart’s ex-boyfriend, Gilcrest was one of the
first informants to implicate Sanders in the robbery and his
trial testimony about his visit to Bob’s Big Boy with Stewart
on September 27 was critical to establishing the existence of
a conspiracy. The district court analyzed this claim under
Mooney-Napue, but Sanders has consistently cited Mesarosh
v. United States, 352 U.S. 1 (1956) as the clearly established
Supreme Court precedent for this claim.
In Mesarosh, the defendants were convicted of violating
the Smith Act for advocating the violent overthrow of the
United States government. 352 U.S. at 3. When the case
reached the Supreme Court on direct review, the Solicitor
General informed the Court that one of the principal
government witnesses had given false testimony in other
similar proceedings, which raised serious doubt as to his
veracity in the Mesarosh case. Id. at 4–7. In fact, the
Solicitor General conceded that without the witness’s
testimony, the conviction of two of the five defendants could
not stand. Id. at 10. The government suggested that the case
SANDERS V. CULLEN 57
be “remanded to the District Court for a full consideration of
the credibility of the testimony” of the witness. Id. at 8.
Instead, the Supreme Court reversed the judgments below and
directed the lower court to grant the defendants a new trial.
Id. at 14. The Court explained: “The dignity of the United
States Government will not permit the conviction of any
person on tainted testimony. This conviction is tainted, and
there can be no other just result than to accord petitioners a
new trial.” Id. at 9.
The Court deemed the situation in Mesarosh “entirely
different” from “a motion for a new trial initiated by the
defense, . . . presenting untruthful statements by a
Government witness subsequent to the trial as newly
discovered evidence affecting his credibility.” Id. at 9–10.
One of the reasons cited by the Court was that the
government questioned the credibility of its own witness
based on testimony “in other proceedings in the same field of
activity,” some of which was “positively established as
untrue.” Id. at 10. The Supreme Court concluded it would be
unreasonable to find the witness “testified truthfully in this
case . . . , yet concurrently appeared in the same role in
another tribunal and testified falsely.” Id. at 13.
Mesarosh applies in “those ‘rare’ situations ‘where the
credibility of a key government witness has been “wholly
discredited” by the witness’[s] commission of perjury in other
cases involving substantially similar subject matter.’” United
States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010) (quoting
United States v. Krasny, 607 F.2d 840, 845 (9th Cir. 1979)).
We have granted habeas relief twice in factual circumstances
that closely paralleled those found in Mesarosh. See Williams
v. United States, 500 F.2d 105 (9th Cir. 1974); United States
v. Chisum, 436 F.2d 645 (9th Cir. 1971). In both cases, the
58 SANDERS V. CULLEN
government’s case relied heavily on the testimony of
narcotics agents who were subsequently charged with perjury
and conspiracy to deprive a defendant of his civil rights “in
an investigation similar in nature and contemporaneous in
time” to the investigation of the habeas petitioners. See
Williams, 500 F.2d at 106–08; Chisum, 436 F.2d at 646–48.
This case is not one of the rare situations governed by
Mesarosh. Sanders identifies a series of inconsistencies
between Gilcrest’s testimony at Sanders’s trial and Gilcrest’s
testimony at Freeman’s trial but they are a far cry from
testimony “in the same field of activity” that was “positively
established as untrue.” The first alleged inconsistency
pertains to Gilcrest’s testimony at Sanders’s trial that he went
to the restaurant “just to drink coffee with [Stewart],” and that
Stewart “wanted to go to see how many people [were]
working that night.” At Freeman’s trial, Gilcrest testified that
Stewart “wanted to see who all was going to work that night
or how many people [were] going to be there during closing,”
and was then asked: “You have never told us this before, have
you?” Gilcrest answered, “No,” apparently forgetting that he
gave very similar testimony during Sanders’s trial.
Second, Gilcrest was asked explicitly at Freeman’s trial
whether he was part of a plan or conspiracy with the people
who told him they were going to rob Bob’s Big Boy, and
whether he willingly joined such a plan. Gilcrest answered
“yes.” When asked what he meant by that, Gilcrest stated:
“I went to the restaurant with her to do the planning. I knew
what was going down.” But Gilcrest also denied that he
intended to take part in the robbery on September 27 and
testified that he was not involved in the events of December
14.
SANDERS V. CULLEN 59
Third, at Sanders’s trial, Gilcrest testified that he may
have asked for the $10,000 reward, but at Freeman’s trial he
unequivocally stated that he asked for the money.
Fourth, at Freeman’s trial, Gilcrest admitted that he often
lied about his name to avoid getting in trouble and that he
used a fake name for traffic tickets and to forge stolen money
orders. Asked about his use of false names, Gilcrest testified
that he did not have a “moral objection to lying to the police”
or to Deputy District Attorney Giss, and admitted that he lied
at Sanders’s and Stewart’s joint preliminary hearing about
whether he wore glasses for farsightedness.
Gilcrest also admitted that he lied to the police in his
initial statement about a conversation he allegedly had with
Sanders, Stewart, and Freeman. He testified at Freeman’s
trial that he had never spoken to Sanders, and that he made up
the conversation because he “was nervous at the time.”
Finally, Sanders argues that Gilcrest may have lied about
his income and employment when he testified at Freeman’s
trial that he could make $10,000 in six months and that he
made “pretty good money.” After testifying that he did
electrical work, painting, and plumbing “under somebody
else’s license,” the court appointed an attorney to advise
Gilcrest, and he thereafter refused to answer questions about
his income and employment on the grounds of self-
incrimination.
Gilcrest’s testimony at Freeman’s trial demonstrates that
he lied on a number of occasions and had little hesitation
about doing so. He was certainly much more forthcoming
about his role in planning the failed robbery attempt at
60 SANDERS V. CULLEN
Freeman’s trial,21 but Gilcrest was also exposed as a liar at
Sanders’s trial.
For example, Sanders’s defense counsel cross-examined
Gilcrest about two letters that he sent to Stewart in jail after
she was arrested. Defense counsel went through the letters
line-by-line with Gilcrest, eliciting multiple admissions that
the letters were replete with lies that Gilcrest told Stewart to
make himself “look good.” In her closing argument at
Sanders’s trial, defense counsel emphasized that the letters
contained thirty-seven lies. Also during Sanders’s trial,
defense counsel cross-examined Gilcrest extensively about
his motivations for coming forward shortly after the crime,
and argued in closing that Gilcrest was motivated by the
reward money, by jealousy of Sanders’s relationship with
Stewart, and by a desire to protect himself from being
implicated in the crime.
The state court could have distinguished the present case
from Mesarosh on at least three grounds. First, unlike the
witnesses in Mesarosh, Williams, and Chisum, Gilcrest was
not a government agent. Second, Gilcrest’s testimony was
only critical to the conspiracy conviction and it was
corroborated, at least in part, by Givens’s and Mitchell’s
testimony at Sanders’s trial.
Finally, the state court could have reasonably
distinguished Mesarosh because Sanders’s jury had multiple
reasons to doubt Gilcrest’s credibility, and their findings with
21
Giss described Gilcrest as “everything we all despise and detest,”
“slippery,” “evasive,” “selfish,” “possibly immoral,” “an opportunist,” and
a “type of sleaze,” among other disparaging remarks, in his closing
argument at Freeman’s trial.
SANDERS V. CULLEN 61
respect to the overt acts of the conspiracy demonstrate that
they did not believe all of what Gilcrest had to say. The jury
found that Stewart went to the restaurant on September 27,
1980 “for the purpose of planning and facilitating a robbery,”
and that she went to the restaurant “a second time to take
Brenda Givens home.” Contrary to Gilcrest’s testimony, the
jury found that Stewart did not meet with Sanders and
Freeman that night for the purpose of planning the robbery.
This suggests that the jury may have only believed the parts
of Gilcrest’s testimony that were corroborated by Givens and
Mitchell. For all of these reasons, we affirm the district
court’s denial of Sanders’s habeas petition with respect to the
Gilcrest Mesarosh claim.
VI. Failure to Preserve Rogoway’s Lineup Card
In claim 13 of his federal habeas petition, Sanders
contends that the prosecution failed to preserve Tami
Rogoway’s lineup card in bad faith. Sanders bases this
argument on Rogoway’s testimony at Sanders’s preliminary
hearing that she did not pick anyone at the lineup, and the
loss of her lineup card sometime after Freeman’s preliminary
hearing. The clearly established Supreme Court precedent
governing this claim is California v. Trombetta, 467 U.S. 479
(1984), and Arizona v. Youngblood, 488 U.S. 51 (1988).
Under Trombetta, the government’s failure to preserve
evidence violates a defendant’s due process rights if the
unavailable evidence “possess[ed] an exculpatory value that
was apparent before the evidence was destroyed, and [is] of
such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.”
467 U.S. at 489. In Youngblood, the Supreme Court held that
“unless a criminal defendant can show bad faith on the part
62 SANDERS V. CULLEN
of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” 488 U.S.
at 58. “Youngblood’s bad faith requirement dovetails with
the first part of the Trombetta test: that the exculpatory value
of the evidence be apparent before its destruction.” United
States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993). “The
presence or absence of bad faith turns on the government’s
knowledge of the apparent exculpatory value of the evidence
at the time it was lost or destroyed.” Id. The district court
ruled that this claim was not unreasonably denied because
Sanders failed to show Rogoway’s lineup card was lost in bad
faith.
As discussed, the state court held a California Evidence
Code section 402 hearing regarding the loss of Rogoway’s
lineup card. Officer Wesselink and Detective Jacques
testified that they saw the card after the lineup, and that it
reflected that Rogoway selected Sanders. From the card,
Detective Jacques recorded Rogoway’s selection in the police
log.
Rogoway similarly testified at the 402 hearing and at trial
that she attended the lineup and selected Sanders. Based on
this testimony, the state court could have reasonably
concluded: (1) that Sanders did not show the lineup card
possessed an exculpatory value before it was lost; and (2) that
Sanders was able to obtain comparable evidence of what the
card indicated from witness testimony and the police log.
The state court reasonably denied Sanders’s claim that the
prosecution failed to preserve Rogoway’s lineup card in bad
faith, and we affirm the district court’s ruling on this claim.
SANDERS V. CULLEN 63
VII. Massiah Claim Relating to Bruce Woods
In claim 21, Sanders maintains that the prosecution
planted Bruce Woods next to Sanders in a jailhouse van after
Sanders’s preliminary hearing in order to obtain an
incriminating statement from Sanders in violation of his Sixth
Amendment right to counsel. This claim is based on the same
evidence cited in support of the claim that Woods testified
falsely. In brief review, Woods testified at Sanders’s and
Stewart’s joint preliminary hearing about a conversation
between Stewart and a mutual friend in August 1980, in
which Stewart asked if the friend wanted to make some
money by robbing Bob’s Big Boy. At Sanders’s trial, Woods
testified about threatening remarks Sanders allegedly made
on the way back to county jail after Sanders’s preliminary
hearing. The clearly established Supreme Court precedent
governing this claim is Massiah v. United States, 377 U.S.
201 (1964).
Massiah prohibits the government from “deliberately
elicit[ing]” incriminating statements from a defendant after
the Sixth Amendment right to counsel attaches. 377 U.S. at
206. United States v. Henry, 447 U.S. 264 (1980) extended
this prohibition to “the use of jailhouse informants who relay
incriminating statements from a prisoner to the government.”
Randolph v. California, 380 F.3d 1133, 1143 (9th Cir. 2004)
(describing Henry, 447 U.S. at 270–71). But “the Sixth
Amendment is not violated whenever—by luck or
happenstance—the State obtains incriminating statements
from the accused after the right to counsel has attached.”
Maine v. Moulton, 474 U.S. 159, 176 (1985). “[A] defendant
does not make out a violation of that right simply by showing
that an informant, either through prior arrangement or
voluntarily, reported his incriminating statements to the
64 SANDERS V. CULLEN
police. Rather, the defendant must demonstrate that the
police and their informant took some action, beyond merely
listening, that was designed deliberately to elicit
incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436,
459 (1986).
To show that the State violated his Sixth Amendment
rights by obtaining and using Woods’s testimony, Sanders
must establish that Woods “was acting as an agent of the
State when he obtained the information” and that Woods
“made some effort to ‘stimulate conversations about the
crime charged.’” Randolph, 380 F.3d at 1144 (quoting Henry,
447 U.S. at 271 n.9). The district court ruled that this claim
was reasonably denied because Sanders failed to show either
element. We affirm.
Sanders relies on the grand jury’s findings about the
widespread practice of using jailhouse informants and the
“sheer improbability that Woods would have found himself
seated next to Sanders by happenstance when there was a
keep away order.” But unlike Massiah and Henry, there is no
evidence that Woods’s conversation with Sanders was
recorded or that Woods had agreed to report back to the
government. See Massiah, 377 U.S. at 203 (informant
allowed government agent to install a radio transmitter in his
car to transmit a conversation with the defendant); Henry,
447 U.S. at 270 (informant acted under government
instructions and was paid for his services).
Woods testified at trial that he pleaded no contest to a
burglary charge on February 23, 1981, roughly one month
before Sanders’s and Stewart’s joint preliminary hearing, and
he said that he entered his plea before he “ever had any kind
of understanding with any law enforcement authorities
SANDERS V. CULLEN 65
worked out” related to the Bob’s Big Boy case. The parties
stipulated at trial that Woods’s sentencing was held off until
after he testified at the preliminary hearing. He was
sentenced immediately after the hearing, and Giss informed
the sentencing judge that Woods was a witness in the Bob’s
Big Boy case.
By the time of Sanders’s trial, Woods was no longer in
jail and had moved to Alabama. The prosecution paid for
Woods to fly back to Los Angeles to testify, but Sanders did
not show that Woods stood to gain further benefit from
testifying against Sanders; Woods had already finished
serving his sentence for the burglary charge. Based on this
record, the state court could have reasonably concluded that
Sanders did not show that Woods agreed to serve as the
prosecution’s agent.
There is also no evidence that Woods initiated the
conversation with Sanders in the van or made any effort to
elicit incriminating statements. Woods did not testify that he
asked Sanders any questions or otherwise attempted to
engage him in conversation. The state court reasonably
denied Sanders’s Massiah claim.
VIII. Ineffective Assistance of Counsel
In claim 14, Sanders alleges ineffective assistance of
counsel for the failure to move to suppress the December 23,
1980 lineup. “The clearly established federal law for
ineffective assistance of counsel claims, as determined by the
Supreme Court, is Strickland v. Washington, 466 U.S. 668
(1984).” Andrews v. Davis, No. 09-99012, 2017 U.S. App.
LEXIS 13960, at *43 (9th Cir. Aug. 1, 2017). To prevail on
this claim, Sanders must establish that his counsel’s
66 SANDERS V. CULLEN
performance was constitutionally deficient and “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687.
The “deficient performance” prong requires a defendant
to show “that counsel’s representation fell below an objective
standard of reasonableness” such that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687–88. In evaluating counsel’s
performance, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689
(internal quotation marks omitted). The “prejudice” prong
requires a defendant to show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
“Under [] AEDPA, the primary issue is whether the state
court adjudication of the Strickland claims was objectively
reasonable.” Woods v. Sinclair, 764 F.3d 1109, 1131 (9th
Cir. 2014); see also Richter, 562 U.S. at 101. “The standards
created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Richter, 562 U.S. at 105 (internal citations and
quotation marks omitted). Thus, even if a federal court would
find—on de novo review—that the petitioner proved
constitutionally deficient performance under Strickland,
“AEDPA requires that a federal court find the state court’s
contrary conclusions [] objectively unreasonable before
granting habeas relief.” Woods, 764 F.3d at 1132.
SANDERS V. CULLEN 67
Sanders argues that his trial counsel should have moved
to suppress the lineup on two grounds: (1) Sanders was not
represented by counsel at the lineup; and (2) the lineup was
impermissibly suggestive. The district court rejected both
arguments, concluding that Sanders’s right to counsel had not
attached at the time of the lineup and the lineup was not
impermissibly suggestive. We affirm.
A. Right to Counsel at the Lineup
In Kirby v. Illinois, a plurality of the Supreme Court held
that the “Sixth and Fourteenth Amendment right to counsel
attaches only at or after the time that adversary judicial
proceedings have been initiated against [the defendant].”
406 U.S. 682, 688 (1972). The Supreme Court confirmed this
holding in a long line of subsequent cases. See United States
v. Gouveia, 467 U.S. 180, 187–88 (1984) (collecting cases).
The government may initiate judicial criminal proceedings
“by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Kirby, 406 U.S. at 689. Thus,
while a defendant has a right to counsel at a post-indictment
lineup, see Wade, 388 U.S. at 236–37, there is no clearly
established right to counsel at a pre-charge lineup.
Sanders was arrested on December 22, 1980, but was not
arraigned until December 24, the day after the lineup.
Charges were not filed against him until March 18, 1981.
Since Sanders’s right to counsel did not attach until after the
lineup, it is unlikely that the court would have granted a
motion to suppress on this basis. The state court could have
reasonably determined that trial counsel was not ineffective
for failing to file a motion to suppress on this ground because
an attorney is not ineffective for failing to file an
68 SANDERS V. CULLEN
unmeritorious motion. Sexton v. Cozner, 679 F.3d 1150,
1157 (9th Cir. 2012).
B. Impermissibly Suggestive
It is always necessary to scrutinize any pretrial
identification because the “Due Process Clause of the Fifth
and Fourteenth Amendments forbids a lineup that is
unnecessarily suggestive and conducive to irreparable
mistaken identification.” Kirby, 406 U.S. at 691; see also
Simmons, 390 U.S. at 384. Sanders argues that the December
23 lineup was impermissibly suggestive because he was the
only suspect with a Jheri curl hairstyle and not wearing shoes,
and was conspicuously in pain from the police beating he
suffered during his arrest.
Having examined the record carefully, we conclude that
the state court could have reasonably determined that the
lineup was not unnecessarily suggestive. The videotape and
photograph of the lineup show that all six suspects were
similar in height, weight, build, and complexion. They had
similar hair color and all had some facial hair. Although
Sanders was the only one with a Jheri curl, all the suspects
had roughly the same length hair. The suspects appear to be
in the same age range. They were dressed in identical
clothing, with the exception of their footwear. Two of the
suspects were wearing slippers, three were wearing tennis
shoes, and Sanders was barefoot.
The record shows that the suspects’ feet are not visible in
the videotape, so neither Michael Malloy nor Tami Rogoway
saw that Sanders was barefoot when they selected him from
the recorded lineup. The record does not make clear whether
Sanders’s feet were visible to the witnesses who attended the
SANDERS V. CULLEN 69
live lineup, including Rhonda Robinson and Ismael Luna, but
Detective Stallcup testified at trial that he did not “believe
they could have seen [Sanders’s] feet,” based on the physical
layout of the auditorium where the lineup was held.
Detective Stallcup also testified that there was no evidence in
the case suggesting that the robbers were barefoot when they
committed the crime.
Sanders had three fractured ribs and subcutaneous
emphysema, which is a type of swelling below the skin, on
the day of the lineup. Sanders’s argument that the lineup was
impermissibly suggestive because he was conspicuously in
pain from the alleged police beating also fails because the
state court could have reasonably determined that he was not
noticeably in pain. Sanders acknowledges that his clothing
covered all of his injuries, but argues that when he was asked
to repeat key phrases from the robbery, he had difficulty
speaking up. He was instructed to speak louder several times
and closed his eyes when he finally spoke loud enough. The
video recording shows that four other suspects in the lineup
were also instructed to speak louder and it is not clear
whether Sanders closed his eyes in pain or in frustration at
being asked to repeat himself. He moved somewhat more
slowly than the other suspects, but did not appear to have
difficulty walking.
On this record, the state court could have reasonably
determined that the lineup was not unnecessarily suggestive
and that a suppression motion would have been unlikely to
succeed. “The failure to raise a meritless legal argument does
not constitute ineffective assistance of counsel.” Baumann v.
United States, 692 F.2d 565, 572 (9th Cir. 1982). In light of
the “doubly” deferential standard created by Strickland and
§ 2254(d), the state court could have reasonably concluded
70 SANDERS V. CULLEN
that Sanders failed to show his counsel’s performance was
constitutionally deficient. We affirm the district court’s
denial of Sanders’s habeas petition with respect to the
ineffective assistance of counsel claim for the failure to move
to suppress the lineup.
IX. Cumulative Error
Finally, in claim 27, Sanders contends that the cumulative
effect of the guilt-phase errors rendered his trial
fundamentally unfair and requires reversal of his convictions.
Sanders is correct that “prejudice may result from the
cumulative impact of multiple deficiencies,” Woods, 764 F.3d
at 1139 (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333
(9th Cir. 1978)), but Sanders has not shown that there were
multiple deficiencies in his guilt-phase trial.
The prosecution disclosed Tami Rogoway’s relationship
with notorious jailhouse informant Leslie White before trial,
and the best indication we have is that the relationship began
several months after Rogoway identified Sanders at his
preliminary hearing and at the December 23, 1980 lineup.
Sanders has not demonstrated that White was in a position to
influence Rogoway’s identification before the lineup or the
preliminary hearing, and has similarly failed to prove that
Rogoway’s lineup card had exculpatory value before it was
lost.
Although Rhonda Robinson and Michael Malloy were
exposed to the photograph of Sanders and Stewart holding
fake guns, they both identified Sanders at the lineup two
months before they saw the photo. Defense counsel was
aware of the risk that they had seen the photograph at trial.
SANDERS V. CULLEN 71
At most, Robinson testified incorrectly about whether she
saw the blue notebook that contained the photograph.
Whether or not Malloy incorrectly recalled who told him
to attend the December 23 lineup, he had the best opportunity
to observe the taller robber and he never wavered in his
testimony identifying Sanders. David Lind’s statement to
Malloy to attend the lineup to “identify the guys” did not
suggest that Malloy should select Sanders. Ismael Luna’s
identification was always weak and he admitted at both
Sanders’s and Freeman’s trials that he had difficulty
identifying black people.
Brenda Givens was not asked at Sanders’s trial whether
she received mental health treatment after the robbery, and
there is no evidence that the prosecution suppressed this
information. Givens’s testimony about her conversation with
Stewart at the county jail was corroborated by Rodell
Mitchell’s testimony and the stipulation that, if called to
testify, Kim Clark would have stated that he was also present
when Givens told Mitchell about the robbery threat.
Detective Stallcup’s deposition testimony and David Lind’s
declaration in Rogoway’s subsequent civil suit do not
demonstrate that Mitchell lied about calling the police or
filing an incident report. The jury heard conflicting
testimony from Mitchell, the police, and David Lind about
the phone calls and the incident report, and had the
opportunity to evaluate Mitchell’s credibility.
Andre Gilcrest’s testimony at Freeman’s trial
demonstrates that he lied on many extraneous details, and had
little compunction about lying. But he was also exposed as
a liar with dubious motivations at Sanders’s trial, and it is
clear that the jury did not accept all of his testimony. The
72 SANDERS V. CULLEN
facts of this case are distinguishable from Mesarosh. Sanders
offers only general evidence about the jailhouse-informant
scandal to support his claim that the prosecution planted
Bruce Woods in the jailhouse van to obtain incriminating
remarks, and there is no evidence in the record that Woods
was a government agent or took any action to solicit the
threats from Sanders. Finally, the state court could have
reasonably determined that defense counsel did not render
deficient performance by failing to file a motion to suppress
because such a motion was unlikely to succeed. Cumulative
error does not require reversal of Sanders’s convictions.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
denial of Sanders’s petition for a writ of habeas corpus.
AFFIRMED.