Ricardo Sanders v. Vince Cullen

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.