Juan Trevino v. John J. Dahm, Warden , 2 F.3d 829 ( 1993 )

BEAM, Circuit Judge.

Juan Trevino appeals from the district court’s denial of his habeas petition. We affirm.

I. BACKGROUND

After a jury trial, Trevino was convicted of second-degree murder, attempted murder, first degree assault, and three counts of use of a firearm to commit a felony. He was sentenced to life imprisonment for the second-degree murder conviction; fifteen to thirty years for the attempted murder conviction; three to six years for the first-degree assault conviction; and six years imprisonment for the firearms convictions. With the exception of the sentence for first-degree assault, all of Trevino’s sentences are to be served consecutively. On direct appeal, the Nebraska Supreme Court affirmed Trevino’s convictions. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988). Trevino filed a habe-as petition in the federal district court for the District of Nebraska pursuant to 28 U.S.C. § 2254. In that petition, he raised five principal claims. He alleged that he was deprived of his right to due process when the district court: (1) permitted the prosecution’s forensic expert to testify about an inconclusive test performed on a blood stain found on petitioner’s clothing; (2) admitted evidence of several cartridges allegedly found in Trevino’s possession; (3) admitted identification testimony which had been tainted by prejudicial pretrial procedures; and (4) refused to permit Trevino’s expert witness to testify on the subject of human perception and memory. Trevino’s fifth claim alleged that his convictions were based on insufficient evidence. The magistrate judge determined that claims two and four were procedurally barred and that the other three claims were meritless. The district court adopted the magistrate judge’s recommendations and denied Trevino’s habeas petition. Trevino appeals.

II. DISCUSSION

On appeal, Trevino first argues that his claims are not procedurally barred. He also reasserts the merits of all five of his habeas claims.

A. Procedural Bar

The district court determined that Trevino raised for the first time on habeas a due process challenge to the district court’s decision excluding his proffered expert testimony on the reliability of witness identifications. After reviewing the record of the state court proceedings, the district court concluded that Trevino had previously contested the exclusion of this evidence solely on state law grounds. The district court further found that Trevino’s constitutional objections to the admissibility of certain cartridges found in his possession during a jailhouse strip search had not been presented to the Nebraska Supreme Court in any form. A federal habeas petitioner must fairly present the substance of any federal habeas corpus claim to the state courts, and thereby provide the state courts with a “fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). Accordingly, the district court found that Trevino had procedurally defaulted these claims. After careful examination of the trial transcript and of the record on appeal, we find no error in the district court’s conclusion that these claims were defaulted and are therefore procedurally barred.

When a petitioner has failed to present the substance of a claim to the state courts, the federal courts are procedurally barred from considering the merits of the claim. Coleman v. Thompson, — U.S. -, -, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). In order to overcome a procedural bar, a habeas petitioner must demonstrate either “cause and prejudice,” id.; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or a “fundamental miscarriage of justice.” Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992). Trevino made no attempt to demonstrate “cause” and “prejudice” before the district court nor does he do so on appeal. Instead, he focuses on the “fundamental miscarriage of justice” exception to procedural default. He asserts that his due process claims are rooted in “fundamental fairness.” Therefore, if the claims are found to be meritorious, Trevino argues that their resolution would automatically result in the correction of a fundamental miscarriage of justice. Trevino contends that this possibility is sufficient to overcome the procedural bar, and to permit the federal courts to consider the merits of his appeal.

We do not agree with this broad interpretation of the “fundamental miscarriage of justice” approach to procedural default. The Supreme Court has repeatedly emphasized the narrow scope of this exception, limiting it almost exclusively to a showing of actual innocence. McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Sawyer, — U.S. at -, 112 S.Ct. at 2519. Trevino cannot meet this stringent standard, and therefore the district court did not err in concluding that these claims were procedurally barred.¹

B. Forensic Evidence

Trevino claims that the trial court erred when it admitted testimony of Ms. Khreiss, the State’s serologist. Khreiss’s testimony related to tests she performed on a bloodstain found on Trevino’s clothing. Trevino alleges that the procedures Khreiss employed in blood-typing the stain were inadequate and inconclusive. He further alleges that Khreiss failed to perform necessary tests to determine background contamination levels for his clothing. He also complains that Khreiss consumed the entire specimen during her testing, thereby depriving him of the opportunity to conduct an independent analysis.

Questions concerning the admissibility of evidence are matters of state law, and are reviewable in federal habeas corpus proceedings only when the alleged error infringes upon a specific constitutional protection or is so prejudicial that it amounts to a denial of due process. Manning-El v. Wyrick, 738 F.2d 321, 323 (8th Cir.1984). As long as the defendant has an adequate opportunity to impeach the reliability of a scientific test, and the qualifications of the person administering the test, due process is not implicated by a state’s good faith failure to preserve a sample for independent testing. See California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

It is undisputed that Trevino had an opportunity, at trial, to rigorously cross-examine Khreiss about perceived flaws in her testing methodology, and to introduce his own expert testimony identifying the inadequacies inherent to that type of testing. Therefore, even assuming that Trevino is correct in his characterization of the testing protocol, we find no deprivation of due process, and Trevino cannot prevail on this claim.

C. Witness Identification

Trevino also assigns error to the trial court’s decision to admit the testimony of eyewitnesses who identified him as the perpetrator of the crimes. The incident took place outside of a bar. After the shootings occurred, the gunman fled the area on foot, and a crowd began to gather around the victims in the street. When the police arrived, they parked their cruisers near the scene of the shootings and consequently near the crowd. Trevino was arrested behind a building adjacent to the scene of the crime. He was handcuffed and was escorted to a sheriffs cruiser between two deputies. En route to the cruiser, the crowd approached the deputies shouting that the officers had arrested the perpetrator. Trevino argues that the witnesses were inevitably influenced by the overly suggestive sight of him being led to a police car in handcuffs by two law enforcement officials. Trevino claims that this “show up” constituted a suggestive pretrial identification procedure which so contaminated the reliability of the eyewitness identifications that admission of the eyewitness testimony deprived him of due process of law.

A conviction based on eyewitness identification at trial will be set aside only when pre-trial identification procedures were so impermissibly suggestive that they give rise to a very substantial likelihood of irreparable harm.² Manson v. Brathwaite, 432 U.S. 98, 109-14, 97 S.Ct. 2243, 2250-53, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The central question is whether, under the totality of the circumstances, the identification was reliable despite any suggestive or inappropriate pretrial identification techniques. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors to consider in evaluating the likelihood of misidentification include: the opportunity a witness has 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, 93 S.Ct. at 382-383.

We have previously held the evaluation of the Biggers factors to be a factual determination. Graham v. Solem, 728 F.2d 1533, 1542 (8th Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984). In reviewing a habeas petition from a state court conviction, the federal courts must accord the state court findings of fact a high measure of deference. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curium); see also 28 U.S.C. § 2254 (state court factual determinations are entitled to a presumption of correctness on habeas review). The Nebraska Supreme Court considered the Biggers factors, and found that the witnesses had an ample opportunity to observe Trevino during a period of at least thirty minutes leading up to the shooting, during the shooting, and immediately following the shootings. State v. Trevino, 230 Neb. 494, 432 N.W.2d at 516. The Nebraska court also concluded that several of the witnesses had their attention fixed on Trevino during this time period, though others gave him only passing attention prior to the shootings. Id. Additionally, the Nebraska court found that the eyewitnesses who identified Trevino in court exhibited a high degree of certainty in their identifications, and that the time period between the crime and the subsequent confrontation was only about 20 minutes. Id.

Reviewing the facts found by the state court, we find that the eyewitness identifications had sufficient indicia of reliability to warrant their admission at trial. Therefore, the admission of that testimony did not deprive Trevino of any constitutional rights.

D. Sufficiency of the Evidence

Trevino also contends that there was insufficient evidence to support his conviction. We can grant habeas relief only if we find, upon a review of the evidence presented at trial, that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). After a careful review of the entire record, we find that the evidence, though not overwhelming, was more than adequate to support the verdicts.

We have carefully considered Trevino’s other contentions and find them without merit.

III. CONCLUSION

For the reasons discussed above, the decision of the district court denying the writ of habeas corpus is affirmed.

1 . We note that even if Trevino’s expert testimony claim was not procedurally barred, he could not prevail on the merits of this issue. We doubt that such testimony would have been relevant or appropriate in this case. Furthermore, even if we were to find that the expert testimony should have been admitted, and that the trial court erred by excluding it, we do not think this kind of an evidentiary ruling presents an issue of constitutional proportions.

2 . For purposes of this discussion, we assume, without deciding, that Trevino is correct in his contention that the circumstances of his arrest constituted an impermissibly suggestive pre-trial identification procedure.