                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 15 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CALVIN P. ROGERS,                                 No. 09-16152

              Petitioner - Appellant,             D.C. No. 3:07-cv-04658-CRB

  v.
                                                  MEMORANDUM *
KATHLEEN DICKINSON, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                            Submitted March 14, 2012 **
                               Berkeley, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

       Calvin P. Rogers appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging his conviction for robbery. Rogers contends

that insufficient evidence supported his identity as the perpetrator in one of the two


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
charged robberies (“the Milpitas robbery”). We have jurisdiction pursuant to 28

U.S.C. § 2253, and we affirm.

      We review de novo a district court’s denial of a state prisoner’s petition for

habeas corpus. Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011). Because

Rogers filed his petition after April 24, 1996, the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) governs his action. Id. We review the last

reasoned state court decision, here the California Court of Appeal’s decision. Id.

      Rogers argues that eyewitness testimony suggesting he was not the Milpitas

robber was so “extremely important and rare” that it “should establish a reasonable

doubt for any rational fact finder.” He further contends that the evidence of other

robberies, which the State used to establish Rogers’s identity as the Milpitas

robber, was not sufficiently probative to offset that eyewitness testimony. The

similarities between the robberies, he argues, were too general to support an

inference of identity.

      Although Rogers comments that the prior crimes evidence should not have

been admitted, his challenge on appeal is to the sufficiency of the evidence, not its

admission. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010) (per curiam)

(supporting the proposition that the “purpose of a Jackson analysis is to determine

whether the jury acted in a rational manner in returning a guilty verdict based on


                                          2
the evidence before it, not whether improper evidence violated due process”). The

California Court of Appeal held that a reasonable factfinder could have determined

the witnesses were simply in error in not identifying Rogers. Given the recognized

fallibility of eyewitness identifications, this conclusion is not unreasonable. See

Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012) (noting that “the reliability of

relevant testimony typically falls within the province of the jury to determine”).

The Court of Appeal also concluded that the eyewitness identifications of Rogers

as the perpetrator of related robberies supported an inference of identity, stating “it

would have required an astonishing, Ripley’s-Believe-It-Or-Not series of

coincidences for defendant not to have been the Milpitas robber.” We agree.

      The relevant inquiry in a sufficiency-of-the-evidence challenge is whether

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). A

reviewing court conducting a Jackson analysis “must respect the province of the

jury to determine the credibility of witnesses, resolve evidentiary conflicts, and

draw reasonable inferences from proven facts by assuming that the jury resolved

all conflicts in a manner that supports the verdict.” Walters v. Maass, 45 F.3d

1355, 1358 (9th Cir. 1995); see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir.

2004) (stating that a jury’s credibility determinations are entitled to “near-total


                                           3
deference”). Inferences drawn from circumstantial evidence, such as eyewitness

identifications of a person as the perpetrator of similar robberies, can sustain a

conviction, so long as those inferences are based on more than mere suspicion or

speculation. See Maass, 45 F.3d at 1358 (citation omitted). That principle is true

even if the evidence is “relatively weak.” Jones v. Wood, 207 F.3d 557, 563 (9th

Cir. 2000).

      The California Court of Appeal, considering the evidence in the light most

favorable to the prosecution, concluded that the trial court was not obligated to take

the eyewitnesses statements at face value, particularly when elements of the

testimony were implausible. The state court’s conclusion was not objectively

unreasonable.

      AFFIRMED.




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