Osumi

MEMORANDUM **

Christopher Sadao Osumi was convicted in California state court for robbing a 7-11 convenience store with a knife on two separate occasions. The same clerk was on duty both times, and the crimes were committed only sixteen days apart. The clerk’s eyewitness testimony was crucial to the prosecution’s case. The state courts affirmed Osumi’s conviction and sentence on direct appeal and denied his petitions for post-conviction relief. Osumi then filed this federal petition for habeas corpus, which the district court denied. Osumi appeals two certified issues of ineffective assistance at trial.

Osumi’s first certified issue is that his trial counsel provided ineffective assistance by failing to challenge the pretrial photo array from which the 7-11 clerk first identified him as the robber. He claims that the photo array was impermissibly suggestive because his photo had a different color cast from that in the other five pictures. “[C]onvictions 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…