Charles R. Tomlin v. E. Myers, Superintendent

KOZINSKI, Circuit Judge.

In this state habeas appeal, we consider petitioner was represented by con- stitutionally deficient counsel. years ago, Sixteen Charles Tomlin was convicted degree of first shooting murder for * Lloyd The Honorable George, D. sitting Chief by designation. Nevada, Judge States District for the District of present been entitled gone bad. drug deal during Stewart Daniel demonstrating in-court Leticia Laura girlfriend, Stewart convincing evidence through “clear and pounds of sell nine Mendez, arranged to upon based [wa]s in-court identification intermediary, Charles through an marijuana than suspect other of observations to take sale was night the Tillman. On v. States United lineup identification.” according to go to everything seemed place, 1939, 1926, 218, 240, 87 S.Ct. Men- and Stewart until directed plan Tillman (1967). Tomlin’s coun- Yet L.Ed.2d 1149 18 truck, their got out of alley and to an dez in-court iden- challenged never sel money. Sec- with to return promising fact, Men- and, elicited himself tification truck later, got man into an armed onds Tomlin identified testimony she’d dez’s wheel, Stewart, was at who and directed in a live gun his soon fired The assailant drive. to comply, get him to Tom us is whether direction issue Stewart’s them did, constitutionally then robbed deficient. lawyer and was lin’s which Stewart counsel, Stewart to of ordered assistance a few dollars To show ineffective each of refused made errors alley. that “counsel When Stewart must show an Tomlin down drive functioning as the man not weapon, was [he] reach for appeared to so serious head, drugs the defendant grabbed guaranteed the ‘counsel’ Stewart shot Amendment,” defi “the and that the Sixth fled. prejudiced the defense.” performance cient unharmed, immediately Mendez, was who 668, 687, Washington, v. 466 Strickland the assailant description of provided a (1984). 2064, 2052, 674 80 L.Ed.2d 104 S.Ct. man, twenty- approximately police: black that counsel’s presumption “strong is a There eight old; feet six five years about five range of ‘wide within the performance f[ell] stocky and tall,1 .pounds, 150-160 inches v. Kimmelman professional assistance.’” half broad-shouldered; a one and 2574, 365, 381, Morrison, 106 S.Ct. mustache; and and, perhaps, inch afro two (1986) Strick (quoting 2586, 305 L.Ed.2d Pendleton-type shirt. wearing jeans and a 2065). 689, land, 104 S.Ct. 466 U.S. at finger— pointed the 222, 226.2 She also RT that counsel’s held The district directly at picture, and then first at Tomlin’s deficient, constitutionally performance was during trial. line-up and him, in a live both prejudiced because not that Tomlin was but prosecution’s case.3 fact, was was derived identification in-court and would source independent from an II A claim under Wade4 been admissible is a mixed of counsel assistance ineffective however, illegal. Al- line-up, The live fact, de novo. law reviewed lawyer— question his represented, though (9th Reed, 847 F.2d v. part Mannhalt on the through inadvertence apparently Peterson, Cir.1988); see Adams notified and involved—was of the officers banc). (en Cir.1992) (9th therefore, state, participate. did not any evidence not adduce could Ill California, 388 U.S. Gilbert at his trial. has client who awith faced When L.Ed.2d 273-74, line-up, most challenged And —if —it Transcript of perpetrator." ing as the [Tomlin] points testified that We various 1. note ("Evidentiary Hearing Evidentiary being five height as between Habeas State described she'd tall. Hearing”) at 65. six seven inches feet police the assailant told Although Mendez first rejected claim another also district court 4.The up, picked Stewart had she and was a hitchhiker Tomlin, was ineffective raised description was at trial she testified always a certain investigate failing a rumor that the actual assailant. As Tomlin the murder. individual committed during the course stipulated, prosecution 3. The appeal, we do claim pursued this has not that Mendez’s proceedings, habeas state it. address ty- testimony "was the sole eyewitness attorneys would challenge defense the admis- not to that testimony. agree We sion all, evidence related to it. After a with the district court explanation that the “arguably defendant ... ‘everything has presented by simply the State is implau- too gain nothing filing to lose’ in a motion to support sible finding per- that counsel’s suppress,” Molina, States v. formance objectively reasonable. We Cir.1991), especially one in- also have serious doubts whether a compe- volving eyewit- the sole attorney tent position would have ness to the crime. predicted the state could make a better case course, Of professionally “it is not unrea- with Tillman’s than with that of an sonable to not to decide file a motion ... eyewitness. innocent was, all, Tillman after clearly lacking govern- merit.” Id. The apparent assailant’s accomplice, some- ment, however, argue does not sup- thing certain to affect credibility his pression here would motion have lacked mer- eyes fact, of the jury; in trial court would it, Rather, nor could it. it asserts that Tom- surely have jury instructed the to use caution lin’s counsel had tactical for failing reason in weighing testimony. his See CALJIC 3.18 to the admission of evidence, this 1988). And, ed. in order to secure a namely that the state call would Charles conviction using testimony, Tillman’s Tillman as a Transcript witness. See of Evi- State would need corroborating evidence con- dentiary Hearing at 250. Tillman had con- necting Tomlin to the offense. Cal.Penal functioning fessed to intermediary as an dur- (West § 1985); Code Price, People v. ing leading the events up to Stewart’s death. 324, 443-44, Cal.4th Cal.Rptr.2d It was he who led Stewart and Mendez to an P.2d 610 If line-up Mendez’s live alley disappeared, and then leaving Stewart in-court out, identifications kept and Mendez to the tender mercies of an only such evidence state would have had armed assailant. It would pretty seem safe was Mendez’s preline-up description of the bet he’d identity. know assailant’s And which, assailant below, as discussed differs in had, he according to the police, provided material respects from appearance, Tomlin’s nickname, them with Tomlin’s “Treetop,” and her identification of in photo him a line- when asked who’d committed the murder.5 which, up below, as also addressed she later In light scenario, of argues, the state testified ways suggestive. various it made sense for Tomlin’s counsel to avoid challenging Moreover, evidence—which the state’s version of events might suppression have to led of Mendez’s does not coincide with testimony counsel’s in-court identification —in order not to force the state evidentiary habeas hearing. Ac- the state to call Tillman as a witness. As the cording counsel, he “was almost certain theory goes, defense counsel believed that going [Tillman] was to be offered a deal the state would make a deal with Tillman for thing.” on the Transcript Evidentiary only if it lost Mendez’s in-court Hearing at 257. Not that this was contin- identification,6 thought and he Mendez’s tes- gent on whether identify Mendez would Tom- timony would easier to impeach than Till- indeed, not that it at all influenced lin— man’s. by that thought fact. He going it was In a hinges case so eyewitness’s happen. This does not type reflect the testimony, however, it’s deep difficult to assume strategic planning the state now attrib- that a reasonable tactical decision was made utes to Tomlin’s counsel. police

5. The officer who Instead, interviewed Tillman af- assailant. he went trial and was ter his arrest claimed Tillman had written the convicted robbery. of murder and Id. at 270-78. name "Treetop” piece paper on a when asked however, identify failed, the assailant. He lawyer 6. Tomlin's apparently unaware of paper. retain the Evidentiary Tillman's stead, testify against refusal Tomlin. In- Hearing at evidentiary 285-87. At the hearing, thought falsely Tillman had identified having Tillman denied having done so and ever assailant, Tomlin out of fear of the actual pointed finger fact, at Tomlin. In he claimed might again do so at trial. at 257. to have turned down a year deal for three sentence testify if he would that Tomlin was the by Tomlin’s counsel questioning response to finding for any other basis is there Nor (“And you later made on cross-examination “the result to have counsel’s actions line-up in the Kern at a an identification Strick- judgment.” professional At that Jail, ... that correct? County at 2066. land, not have you did person identified time the evidentiary later, years seven Some 216). prosecution Afro, RT he?” did explain that he seemed hearing, counsel re- on the issue on immediately pounced then in-eourt think didn’t questions about direct, number of asking a had been because “there excluded have been mostly designed to con- illegal line-up, line-up that would previous in fact Tomlin. selected firm had Mendez line-up and would poisoned be a not gap created the narrow Tearing open wide Evidentiary Transcript of admitted.” inquiry, hapless counsel’s defense indicate that But he did Hearing at officer who questioned prosecutor later not to he chose basis on was the how it was line-up about had conducted if he would fact, asked when object. pho- conducted, into and introduced objecting [a live reason “have Finally, in his time. taken at the tographs counsel],” he re- absence line-up in the jury that he stressed closing statement fact, certainly this was “No. sponded, —if in a live line- object- have certainly should retrospect, in fair, and line-up that the had up and “derelict” himself called He Id. 254. ed.” at photographs at the jury to look the reminded grounds. these on making a motion of it. such an we deem could Nor at 258-59. Id. reasonable, about defense Although indication concerned absent some we’re approach the bring evidence of lacking in merit. decision have been counsel’s the motion would failure and his jury, the line-up is none. before Molina, illegal 1447. There F.2d at prosecutor’s bring challenge the extent the it, failure the And without it, quite we’re also exploitation of subsequent error major constitutional a attention court’s This is actions. prosecutor’s product of troubled is not the case prosecution’s where a defense first case certainly not the judgment. professional kind of evidence this lawyer elicit decided to the district agree with therefore We See, eyewitness. of an cross-examination below fell performance counsel’s that defense 220, at 1928- S.Ct. at e.g., of reasonableness. objective standard 159, Patton, 721 F.2d 29; United States Cir.1983).7 government’s But the IV initial here, its own the face of in behavior line-up, illegal conducting an as to in culpability a determination making Before error,8 later correct doing nothing note of an we first take prejudice, possible acceptable re- limits of hard on the pushes Mendez troubling aspect of this case: Clemons, De- at 1246: court; buttal, in also identify just Tomlin didn’t cf. essentially asked in a counsel fense previously him testified she’d hairstyle Tomlin’s questions about couple of without is That evidence live 216-17; him, atRT Gilbert, the time she identified at at under doubt excludable to drive opportunity this is, prosecutor used Men The twist 273-74, at 1957. 87 S.Ct. had identified jury that Mendez in home line-up evidence first revealed dez Tomlin, present. Mendez's with defense explained in Clemons the D.C. Circuit 7. As pick was (D.C.Cir. first States, might indicated have reactions United police. 1968), regards the in-court influenced judge or somehow in error “If may, Also, government defense ... knowing well that the admissible identification full tactics, bring out the line-up, decide illegal it conducting of trial as a matter culpable in itself, hoping it can pre-trial possible confrontation limit certainly have might weight jury oth from thus detract ruling pretrial on whether seeking damage by identification.” the in-court erwise accord properly could in-court Mendez's Clemons, 408 See Wade. under be introduced illegal line- prosecutor learned 8. After the 1237. F.2d at line-up, arranged for a up, might second included involving panels not all of which several line-up, There, in a live line-up Tomlin recognized Court dangers “the been fair and that Mendez had “no eyewitness doubt” inherent in identification and the Tomlin, picked her mind when she RT at suggestibility inherent in the context of the pretrial 220.9 identification.” Id. at 87 S.Ct. at 1936. requires The Court counsel to be Tomlin, however, raised the issue of this present in-person line-ups good rea- for the first time in major son: “A contributing factor high to the paragraph supplemental one letter few miscarriage justice incidence of from mis- days argument court, in this submit- taken identification has been degree ting pages relevant the trial transcript from suggestion inherent the manner in which directing us to our recent decision in prosecution presents suspect to wit- LaPierre, States v. 998 F.2d 1460 nesses for identification.” (9th Cir.1993), dealing with testimony re- 87 S.Ct. at Although may a witness garding illegal line-up. It’s not clear deny later there suggestiveness —as arguing is that this testimo- Mendez did at trial here —that witness ny not have should been admitted at all. “[un]likely to be schooled the detection of But, is, argument whatever his we cannot suggestive influences.” Id. at (c). 2254(b), § address now. 28 U.S.C. at 1934. goes The same for the defendant. Nor can we examine the issue the con- And, Id. at 87 S.Ct. at 1934. reality text of Tomlin’s ineffective assistance claim. is, of the situation once a picked witness has All along, the basis for this claim has been suspect out a influenced —whether counsel failed to the admission police doing so or easily not —she will not relating illegal line-up, go back on her word. Id. at that he opened himself the door to such 1933.10 opened evidence at trial and thus the door light concerns, In for follow-up. the state’s massive these we must assess Because Tomlin likelihood part did not raise this as that Mendez’s of his in-court identifi- below, cation ineffective was free illegal assistance from the taint of claim we’re un- line-up by able considering to act on it. such factors as prior opportunity to observe al- Y leged act, criminal any existence of discrepancy any between pre-lineup look, then, de- We scription and the defendant’s de- actual in-eourt identification have been would ad scription, any prior lineup identification under preju mitted Wade. can show person, another dice identification showing probability picture of the prior defendant to the line- government had the been called to the up, identify failure to task, the defendant on a it would have unable satisfy prior occasion, lapse and the requirements: time be- Wade’s “to establish clear alleged tween the act lineup and the and identi- convincing in-court fication. upon identification[ ] [was] based observa tions suspect of the other than lineup Id. at addition, at 1940. In S.Ct. we identification.” 388 U.S. at 87 look to particulars lighting as the condi- S.Ct. at 1939. tions under which Mendez viewed the assail-

In making determination, ant, we are distraction, her level of and any hesi- mindful of Supreme concerns Court’s re- tation on part her in making garding pretrial line-ups set forth in Wade. Crews, identifications. United States v. 9. questions Tomlin's pertain- counsel asked viously four anything cannot disclose happened ing line-up; prosecutor twenty. asked LaPierre, in the witness See room. 998 F.2d at (videotape line-up where pictures there line-up That were of the miti- present satisfy did not Wade's concerns because gates prejudice, but does not remove it. Al- anything it did not record that occurred in wit- though pictures would show the other indi- room). ness participated viduals who line-up, they ob- 1244, 1251 identify petitioner 18, 100 allowed n. court.” n. S.Ct. ER 20. L.Ed.2d 537 novo,12 Reviewing findings its de Crews, factors in the Court Applying these part company with the district court’s deter finding of an inde- trial court’s held that the “independent mination there an for courtroom the victim’s pendent source for in-court source” identification. support[ed]” “ampl[y] recognized, district Mendez had As the had her at the victim viewed assailant where opportunity to observe the assailant for five to ten minutes under range close And, points four to five minutes. as the state and with no lighting conditions “excellent out, at that she Mendez testified trial had distractions,” provided description had good chance look at assailant’s face. defendant, “closely had matched” the which RT 208. circumstances under she identify anyone else had twice failed him, however, limit to some extent viewed defendant, only a had week identified the reliability observations Mendez and her first iden- passed between crime suddenly made. Not did the assailant at him. S.Ct. tification of barge into while the truck she Stewart case, however, did involve 1250-51. stopped alley, in a dark but he also sat suggestive pretrial line-up, but possibly him, next to her. To observe merely arrest where “court-or- head, had to turn her and even then it would 1247-48, dered,” id. at him have been difficult see full-face. legal was conducted. presumably things one of the assailant did When the first range close gun was to fire his within the factors, analyzing the the dis- After Wade cab, space truck it’s enclosed of the doubtful in-court here held that Mendez’s trict court spent then have much time Mendez would indepen- from an identification was derived him, calmly noting his turned towards facial so, relied doing on sever- dent source.11 aspects appearance. and other of his features place “significant events” that took al very The situation is thus different from here illegal line-up: Mendez’s observations Crews, where victim viewed crime; her the assailant at time frontally for five to ten minutes her assailant po- subsequent description of Tomlin to the bright lights public of a restroom. under the lice; picture high in a selection of his Crews, 18, n. 445 at 473 100 S.Ct. at yearbook and in a line- school n. 18. 1251 analysis that one up. problem One its It “significant these events” didn’t occur: suspect a who also don’t have here We Tomlin’s, picture, not Tillman’s “closely given by was description matched yearbook. are robbery.” from the We immediately Mendez selected Id. after the victim found, also left to wonder whether the district Contrary to the district court what government’s identiffy] “immediately into burden took account did Mendez proof seeking petitioner that the in-court ER 20. police show a officer.” She man, twenty-five years in was constitutional—which black tall, heavy by proof eight “clear con- age, five feet six to inches would have build, an inch vincing” possible 87 with a mustache and 388 U.S. at evidence. afro, wearing considering blue After and a half to two-inch at 1939. the Wade S.Ct. Tomlin, by factors, jeans Pendleton-type merely “rea- and a shirt. the court was stated contrast, black man who was then although sonable to conclude that Mendez would referring put way, of law as Although magistrate’s it another whether the rule we are 11. recommendations, findings they were applied or is not violat to the established facts is ’’ by (9th adopted court. in full district Risley, 878 ed.’ Norris v. F.2d 1989) (quoting McConney, Cir. United States Mendez’s identification was derived 12. Whether (9th Cir.1984) (en banc)) independent question is a mixed from source (alteration question original). As the mixed " fact, are of law and 'the historical facts rights, de novo re involves constitutional here established, rule of undis- admitted or law is appropriate. particularly view is satisfy puted, the issue is whether the facts standard, or to [relevant] [constitutional] ... old, tall, twenty-six years tranquilizers, is six-feet and at ence of and that when she was thin time was and wore a shoulder- photograph, shown Tomlin’s the detectives length, straightened permanent style. hair exchanged glances that led her to choose it. 345-46, 348-49; Transcript RT see of Evi- She also expressed said that she’d uncertain- dentiary Hearing at 14. Tomlin and other time, ty at the and told the officers she witnesses testified that he did not own a suspect person needed to see the as it was Pendleton-type shirt. RT 348. Considering “hard to photo.” tell from heavy clothing worn the assailant and Evidentiary Hearing 116-120. the fact that Mendez description based her The state court testimony concluded her height on her estimation while she sat evidentiary hearing credible, was not him, 208, might next to RT discount the we accord this presumption determination a difference between description 2254(d); § of correctness. 28 U.S.C. height Tomlin’s actual Mar However, and build.13 Lonberger, 422, 434, shall v. discounting discrepancy there’s no be- 843, 850-51, style tween Tomlin’s hair and Mendez’s 74 L.Ed.2d de- To scription.14 physical description reject While finding, this we must conclude that it rehable, perfect need not be to be see support’ “laek[s] even ‘fair in the record.” Monks, States v. 956-57 432, 103 Id. at S.Ct. at 850. The record from Cir.1985), discrepancies here —never evidentiary however, hearing, indicates mentioned the district court —east addi- Mendez considerably waffled _ between re tional reliability doubt on the of Mendez’s canting testimony her trial and confirming it. description. Their shadow thus extends to The number of contradictions and uncertain her later in-court identification. reading ties we find in through it leads us to support” find “fair for the state court’s

We must deter pre-lineup pic- also consider mination that evidentiary ture hearing identifications. Mendez chose Tomlin’s picture photographic line-up photographic line-up. from a At suggestive trial, time of was not she testified that there credible.15 The result had been therefore, line-up, no undue influence the detective involved remains reliable.16 when she made identification. And it cuts in the government’s When favor that testifying during evidentiary the state there hear- passed short time that ing however, petition, Tomlin's habeas between the crime and this first identification Crews, indicated at the time of this of Tomlin. 445 U.S. at 473 n. line-up, likely she was under the influ- most S.Ct. at 1251 n. 18. description weight 13. Her fairly ry Hearing of his accu- Although she first stated rate, way but this seems cut the other during consid- photographic line-up the detec- ering height discrepancy. A five "exchanged foot seven glances” tives when she reached weighs pounds signifi- individual who looks photo, Tomlin's on cross-examination she testi- cantly different from sixa foot individual at that going through fied that when she was the line- weight. up, stopped photograph because, she at Tomlin's time, at the like looked the assailant. Id. at 117, 131. argues 14. The state we shouldn't that be influ- by discrepancy, enced arresting because the that, evidentiary hearing officer testified at the at determining 16.In preju- whether Tomlin was the crime, days time of Tomlin's several arrest after the diced challenge counsel's failure Men- way he had his hair combed in such a that identification, dez's in-court we note that had he it could look like a natural in the dark. short evidentiary hearing demanded an on the inde- Perhaps possible shoulder-length it's comb a issue, pendent source Mendez's would straightened style so it looks like a that short afro key. argues, have been As now Tomlin we don't but, considering vastly are these different hair- might know what have come out at that time styles, entirely we signifi- cannot discount the concerning photo line-up; the conduct of discrepancy. cance of this perhaps details would have been along elicited the lines of some of her statements at the eviden- example, 15. For point tiary hearing Mendez at one judge testified have led would the trial that she'd photo truthful had no doubt at the to exclude the evidence. The bur- den, all, time pretrial she'd made trial and identifications after was on the state to establish an Tomlin, independent but later stated she was unsure at the source convincing clear and time Wade, she identified proof. him. of Evidentia- at 87 at U.S. S.Ct. in- ence, point by that had and who Mendez course, significant that it is also Of murder approximately the as- volved individual as another identified never Petition- cases, in this one. Crews, counsel became did and, victim in as had sailant Tomlin, charged er, had been Ray Charles trial. identify Tomlin before shooting Stewart death Daniel with police But at 1939-40. at S.Ct. drug hold-up in connection with during a to identi- other chance one Mendez gave acquainted Two other individuals deal. illegal line- assailant, that was fy her line-up n place that that took some events live consider the up. And we cannot Mendez, One, was Laura Leticia evening. in-court identification:17 her to bolster the as- pickup truck between sitting in the as- identifications accurate “[T]he shot when assailant and Stewart they sailant only to the extent significance sume other, Charles the head. identify Stewart ability to witness’ that the indicate intermediary during Tillman, as an had acted any police miscon- respondent antedated transaction, drug and had exited Crews, at n. ...” duct. arrival. the assailant’s moments before noted, truck prosecu- As 1251 n. 18. at arrested, later and was had been Tillman its effects of nothing mitigate the tion did robbery par- for his turn, of murder which, convicted misconduct, supra, n. see ticipation the crime. heavy carry burden helped its would independent source. showing an prose- knew that trial counsel Tomlin’s line- Before an as a witness close case. use Mendez This is a intended to cution conducted, after and soon He had listened Tomlin at trial. up was ever against pho- preliminary testify Tomlin at the shooting, in detail Mendez Mendez Yet, ob- although she did hearing Tillman’s involvement tographic about at the her at incident, for a few minutes and had cross-examined serve assailant murder, nec- of his various constraints identifications length regarding time of im- And was her observations. that Mendez essarily limited Counsel client. believed afterward, police a gave the was mistak- mediately truthfully, that she testifying but sig- that differed assailant description of the as to the identification. en appearance. actual nificantly Tomlin’s from prosecution also knew Counsel evidence, cannot Considering all of the Tillman in could, necessary, offer a deal if find, requires, “a as Strickland testimony against Tomlin. exchange for his ob- had Tomlin’s probability” inter- as the Tillman had identified gov- in-court jected to the Tomlin had identified mediary, and Tillman to show— have been able would ernment was police. Counsel the assailant abil- convincingly clearly and —that that because Tomlin concerned further identify was not influenced ity Tomlin Tillman, prosecution tried before be preju- illegal line-up. Tomlin thus a deal offer Tillman position in a be would lawyer’s failure to by his diced any point. And, there identification. in-court His wife addition, alibi. fact, was, in that Tomlin is a serious risk testify mother-in-law peti- His as the assailant. wrongly identified recalling neighbor night, with home that granted. tion must home parked at car remained Tomlin’s REVERSED. Accordingly, murder. time of on mistak- based developed a defense counsel dissenting: GEORGE, Judge, District alibi, pursued en identification and strategy at trial. I. arose, the issue of When petitioner’s trial years ago, fifteen Some a deci- faced with would have thir- counsel, attorney approximately counsel with conducted line-up was live Because continual, active, experi- sion. criminal

ty years of point. See ily on this unreliable somewhat that the line- although testified Again, 17. 230, S.Ct. at 1933-34. 87 testimony 388 U.S. necessar- up suggestive, her was not 1244 (2) presence, ness, his Mendez’s

outside of in-eourt but for counsel’s errors rea- identification of Tomlin would not be admissi- probability sonable exists that the result of show, prosecution ble unless the could proceeding would have been different. evidence, convincing clear and the iden- 687, Id. at 104 A S.Ct. district independent tification was based on a source court’s dismissal of a claim of ineffective sup- Counsel could move to novo, assistance counsel is reviewed de but identification, press motion, the state court’s findings given factual are successful, if increased the likelihood that the presumption of correctness. Sumner v. prosecution would strike a deal for Tillman’s Mata, 591, 591-92, 1303, 455 U.S. 102 S.Ct. more, damaging testimony. more What’s 1303-04, (1982) curiam); 71 L.Ed.2d (per 480 counsel believed that the Mendez’s in-court Horodner, 191; United v. States 993 F.2d independent identification was based on an (9th Cir.1993) 2254(d). 28 U.S.C. source, and that the motion would not be circumstances, Counsel must be successful. Under the allowed wide latitude with trial regard judgment very making counsel’s could to reasonably tactical decisions. Strick land, try suppress 689-90, been not in- 466 U.S. at 104 S.Ct. at 2065- 66; at the risk of Tillman Kincheloe, Campbell 1453, v. 829 F.2d testifying prosecution. for the After a full Cir.1987), denied, cert. evidentiary hearing, the state court found 948, (1988); 109 S.Ct. 102 L.Ed.2d 369 that it inwas Tomlin’s best interests fore- Murray, States v. 751 F.2d go to Mendez’s in-court identifi- (9th Cir.), denied, 979, 106 cert. cation.1 (1985) (tactical 88 L.Ed.2d 335 unreviewable). essentially decisions has While taken somewhat differ- and, may disagree tactics, ent with view of the facts based on counsel’s such has performance determined that tactics do not fall counsel’s outside the wide ambit of objectively reasonably representation reasonable. merely cannot concur. because subject, their wisdom is to second-guessing. II. California, See Morris v. 966 F.2d (9th Cir.) (defendant pre failed to overcome guarantees right The sixth amendment sumption object that counsel’s failure to effective assistance of counsel. Strickland certain 668, 686, character evidence Washington, constituted sound U.S. 104 S.Ct. — 2052, 2063-64, strategy), denied, trial -, 80 L.Ed.2d cert. prevail (1992); Hughes order the ineffective L.Ed.2d 57 assistance claim, (1) (9th Cir.1990) Borg, Tomlin must show that: (counsel’s provided by the assistance objectively counsel fell conduct was not unrea objective below standard of reasonable- sonable where counsel took into eonsider- 1. The state court reasoned: dant testimony than was the identification Leticia person- Mendez. Tillman knew Tomlin Had the in-court identification of defendant ally. There would have been no issue of excluded, prosecution Mendez been mistaken identification him. go would have been forced to proceed Counsel’s through choice to trial available, namely, identification source Charles trying without to exclude Mendez’s in-court People Tillman. The would have been forced light identification was wide in of her lack of exchange to offer Tillman some deal in for his any acquaintance worst, with defendant Tomlin. Be- testimony complete offered im- this, cause of explore defense counsel munity could testimony to him in order to obtain his discrepancies description against in Mendez’ defendant Tomlin. height, style killer's his build and hair Tillman could as com- have identified defendant. He Tomlin, pared they person could have defendant testified that Tomlin was the were. he, Tillman, defense, prospects of a had contacted to make successful cou- marijuana buy; pling agreed defendant Tomlin's defendant alibi impeachment purported meet the purchase; victim for the of Mendez' identification was promising that defendant had confided that he much more had no than it would have been contraband, buying against intention testimony by pros- but in- Charles Tillman as a stead, (rob) rip-off intended to the victim. Till- ecution witness. Order, testimony (October man’s Opinion would have been much and No. 2926 at 8-10 stronger 23, damaging 1986). against and evidence defen-

1245 drug petitioner’s prior regarding circumstances); questions v. States all ation testimony Cir.) (a petitioner’s (9th Assuming that 369, differ use. 376 F.2d Mayo, 646 inadmissible, con- the court nonetheless trial tactics appropriate as to opinion of ence could rea- advocate that an effective denial of effective cluded level of to the not rise does nom., object because not to counsel), sonably have decided denied sub cert. of assistance drug could States, prior 102 to use admission petitioner’s v. United Dondich jury credibility the with 115 have bolstered L.Ed.2d However, testimony. “[e]ven to her other as in of that a claim teaches precedent Our case, the not to be turned out if upon be based cannot competence of counsel object not to would decision tactical pursue a constitutional choice not counsel’s it was made.” at the time been that, by possibility if challenge there Chrans, F.2d Williams See may to his client so, harmful doing Cir.1990) (failure reliability California, 346 Nelson In be admitted. proper since of a witness’s identification denied, (9th Cir.), cert. F.2d 73 to a have called challenge could attention (1965), the L.Ed.2d identification). previous detrimental more re appellant had held Circuit Ninth de representation satisfactory legal ceived ease, majority no defer- pays In the challenge the failure trial counsel’s spite deci- to counsel’s tactical whatsoever ence of incriminating search constitutionality anof they ob- analyzing when sions deter apartment. court appellant’s First, majority the jectively seasonable. object, on decision to that counsel’s mined assessment about counsel’s questions raises inquiry immateriality, to an ground of the testimony impact of Tillman’s possible the of proba of question to the was relevant majority, According to Tomlin.2 the against assis cause, constitute ineffective did not ble accomplice was Tomlin’s that Tillman fact the because, cause probable if of tance credibility his adversely affect issue, testimo additional made been had de- Tomlin’s argument overlooks jury. That might have appellant, ny, possibly harmful alibi, identity however. and mistaken of fense at 80. Id. admitted. more con- recognized, no court the state As of Tom- could be made vincing Morris, Ninth personally accomplice who by his than to call lin not that counsel’s decision held Circuit functioning him, confessed to who had within knew behalf was petitioner’s witness leading during the intermediary events representation range professional wide death, had led Stewart who called, up to Stewart’s had witness because assailant, had who and to the have linked possibly” prosecution “could Furthermore, no police. identified prior involve- petitioner and the witness to Tomlin’s be done damage could greater held drugs. The court also with ment Tomlin’s Tillman detail than to have pre- alibi to overcome had petitioner failed execution planning strategy participation when coun- trial sumption of sound crime. object prosecutor’s not to sel decided What followed Hearing at 261. tiaiy during eviden- points majority out

2. The memory Tillman and denial a failure having hearing, denied tiary Tillman related to virtually of the events testified, regarding all con- Vincent Officer Tomlin. did Tillman was convicted. crime for which trary, had identified Tomlin that Tillman up the set telling that he Vincent name, surprised recollect Treetop. I am somewhat street "Treetop.” He drug Stewart deal between dispute between would raise that the paper. "Treetop” writing on the did not recollect Vincent testimony and Officer of Tillman telling police that he adoption He did remember express light court's of the state drug at all. arranging a deal had been involved Opinion No. Order See Vincent’s version. meeting Stewart Mendez and 23, 1986). (October finding denied must He That at 3 drug deal alley directing where them to fairly supported. U.S.C. given if deference arranged for happen. denied that he He was to 2254(d). substance look One need having He denied person them. meet another hearing to under- evidentiary Tillman’s He Mendez. Stewart or contact rejected At the why it. stand state having heard having Tomlin or denied known testimony, asserted beginning Tillman of that at 278-79. at all. him Eviden- privilege, to no avail. fifth amendment significant suggestion I find it that no has whether counsel was deficient failing for meaningful- been made that counsel failed to preserve line-up appeal, issue for howev- ly testimony er, test the substance Mendez’s ground is a new for relief not before this forego deciding to her panel. analysis And the question of that in-court identification Tomlin. Even “stra- raises the line-up same substantive issues tegic complete choices made after less than already that we have declined to consider. investigation precisely are reasonable to the singular retrospective Counsel’s concern professional judg- extent reasonable preserve was he failed to appellate support ments the limitations investiga- issue. He never suggested once that his Strickland, 690-91, tion.” object identification, decision to not to the Here, S.Ct. at 2066. trial counsel in- was made, it time was was not in Tomlin’s preliminary hearing. volved in the He heard circumstances, best interests. Under those I account Mendez’s detailed and cross-exam- majority’s differ with the conclusion that extensively. ined her His assessment testimony counsel’s was not consistent with Mendez was truthful but mistaken her objectively strategy. Tomlin, identification of and his choice of her sum, In counsel’s selection of mistaken witness, Tillman, opposed as a identity and alibi as defenses was consistent therefore an informed one. with his decision not to risk the introduction majority The if next asserts that Tillman’s of Tillman’s if Mendez’s identifica testimony were used to secure Tomlin’s con- tion suppressed. say cannot viction, State, law, under California such a professionally decision is unsound. corroborating would need evidence connect- Henry See v. Mississippi, 379 U.S. ing Tomlin to position the offense. That (1965) (defendant 13 L.Ed.2d 408 unjustifiably assumes that the authorities successfully could not maintain an ineffective gained would have no additional corroborat- assistance claim ground on the that counsel ing coopera- evidence as a result of Tillman’s had eschewed one of reasonably several more, tion. majority What’s so much as mutually litigation exclusive alternatives acknowledges that even absent Mendez’s in- another); McCotter, favor of Martin v. description of the (5th Cir.1986) (where F.2d 813 strat defense police assailant to and her identification of egy suggestiveness was not one of photo photo line-up him in the provide themselves graphic line-up, alibi, but rather counsel’s necessary the corroboration for admissibility admission that photographic line-up not testimony.3 of Tillman’s suggestive, assistance), was not ineffective Finally, majority points out during denied, cert. evidentiary hearing the state some seven L.Ed.2d 985 years later, counsel stated that “in retro- There is another reason that deference spect” objected he should have to the live given should be In case. seizes, The further as did evidentiary hearing, trial counsel was court, upon the district counsel’s admission asked proceeded how he would have in terms that he must have been “derelict” for not of the entire identification issue had the in- making grounds. a motion on those But it person line-up suppressed, but not the completely passes why over the reason coun- photographic lineup. He stated: professed sel moving dereliction: suppress Well, pre- he had failed to my feeling that it would not have serve appeal. Evidentiary issue suppressed judge because Hearing question at 259. The there had previous been a majority challenges admissibility, corroboration corroborating evidence. (1) pointing alleged out differences in Men- As to evidentiary hearing testimony, Mendez's description appearance, dez’s and Tomlin's majority accepted credibility the state court's (2) evidentiary hearing testimony view, rejecting my determination it. photo line-up which she testified that the stay rejection, forthrightly should true to that suggestive. description/appearance discrep- disregard Mendez's recantations. ancies, exist, go weight, extent suppress was failure to move to line- Counsel’s poisoned not be line-up that in- product of deliberate thus admitted. been would have up and oversight or inadver- decision not formed Transcript at 258. Re- Evidentiary Hearing court, remote from appellate As an tence. a motion not make why he did garding arena, to second- we are reluctant the trial line-up, coun- photographic suppress judgments experi- considered guess the testified: sel Particularly is this so counsel. enced trial why I would you Frankly, I cannot tell sound, judgments appear even such when I felt may be that It well attempted. have enjoying the by a tribunal after evaluation at the legally suppressible it was not that hindsight and time for reflec- benefits in certainly be error I could time. Now Here, in convinc- nothing the record tion. clarify law, not —this it but was pretrial photo identification es us that the tried perhaps I things, at this time process elaborat- violated the due standard maybe I vicinity somewhere —or Simmons in Supreme Court ed in the vicini- somewhere involved had been States, S.Ct. I had cases. homicide ty of 175 the cir- Under 19 L.Ed.2d day in day after practice active practice, cumstances, why perceive no reason years. odd for some 30 courts criminal advocacy require the should conscientious knowledge of a fair that I had I felt hearing. formality suppression of a futile that evidence, trials at criminal law of if I say is that time, I can I can’t—all but omitted). (footnotes Id. at 353-54 think it, didn’t it because didn’t do was ease, nothing the record In this there is effective. have been it would that photo- suggest that the may be used to that at 252-53. Id. tainted line-up given to was graphic counsel, eight years, after Thus, while say, in we can I do not see how way. exactly why he remembered might not have identification, that photographic of the view that it explanation was object, his best didn’t faulty anticipat- for was judgment counsel’s light of the have been effective would not in it an court would find ing that trial photo- untainted previous of the existence identifica- for the in-court independent basis Indeed, not deter- we need line-up.4 graphic how, question tion; assuming nor fail- explanation for counsel’s the actual mine case,” Tomlin has over- a “close is at best his actions fall within object, long as so ure in favor of strong presumption come representation. range of performance. effective counsel’s Morris, 456. at Smith, In United States III. attorneys (D.C.Cir.1976), were the defense demon prejudice, Tomlin must To show had obtained government apprised that errors, that, a reason for counsel’s but strate identifications from photographic of the result exists probability able identify de- expected to who witnesses been different. would have proceeding object They declined in court. fendants Strickland, 687, 104 at 2064. regarding the con- judgment on their based upon whether Here, determination rests photographic identifica- stitutionality of the by the tainted credibility the in-court identification weight and though the tions even convincing evi If illegal line-up. clear and subject dispute. might be the evidence the courtroom fail- dence shows that counsel’s appeals held basis, independent then on an rests ineffective object constitute did not ure admissible identification would courtroom assistance, remarking: photo- makeup of the line-up determining graphic for basis 4. Counsel had substantial also exam- graphic array. Id. at 48-49. Counsel line-up photographic trial that before the Vincent, presented the who had hearing, ined Detective During preliminary untainted. at 82-84. line-up Id. photographic to Mendez. present, Mendez testified counsel was photographs moved have Counsel himself suggestive. ques- and used them marked Hearing at 4-5. Preliminary Counsel tioning photo- Vincent. the conduct her on cross-examined proceedings and the results of the no differ- setting basis for aside Tomlin’s conviction Again, ent. it is Tomlin's burden Simmons, to show while, time, under at the same hearing conducted, had a Wade could fail to form an independent basis for the court would excluded Mendez’s tes- the in-court identification under Wade. timony. is no There license here to make The district court below found that Tomlin assumptions finding of a preju- favor of prejudiced. had not that, I believe dice. disagreement its conclusion, with that the admits, majority As the Mendez identified majority draws some unwarranted conclu- legally photographic in a line-up Tomlin valid sions, which, without prej- affirmance on the illegal in-person conducted the before line- aspect udice appropriate. would be That, up. coupled opportuni- assailant, ty majority points to view the should be sufficient The to the district court’s finding independent basis for Men- mistaken conclusion that Mendez identified dez’s in-court identification. See Simmons yearbook v. from the as evidence that States, 377, 384, United 390 U.S. may 88 S.Ct. the not have taken into account 967, 971, (1968) (convictions 19 L.Ed.2d 1247 government’s the proof burden of in seeking eye-witness in which an identification follows to show that the in-court identification was previously pretrial held photographic iden- fact, constitutional. In year- since Mendez’s tification will not be set aside unless the book occurred, identification of Tomlin never “photographic procedure identification and therefore would not have been consid- impermissibly suggestive give so as to rise to ered in a hearing, Wade I am at a loss to see very substantial irreparable likelihood of how its “shadow” could extend to the in-court misidentification.”); United States ex rel. end, identification. In the our focus be must Illinois, (7th Burke v. 465 F.2d on what could have made a difference aat Cir.1972) (in independent basis determina- hearing, Wade not what would not have made tion, great weight placed non-suggestive on a difference.5 photographic line-up). Similarly, majority the hypothesizes object hearing of a is to Wade deter hearing might Wade something elicited mine whether the in-court identification had suggestive about an independent source. United States v. speculation Such contrary is to Strickland’s Wade, 218, 242, 1926, 1940, 87 S.Ct. requirement that Tomlin preju- show actual 18 L.Ed.2d photo line-up dice, contrary majority’s acceptance of singularly provides the “means sufficiently credibility determination, state court’s distinguishable purged to be of the primary contrary and to the record as we have it. illegal lineup].” taint [of Id. at S.Ct. at photographic line-up determining 1939. The oc in-court identi- curred illegal line-up. independent source, before the It fication has an is com a court (1) pletely distinguishable from the description should consider opportunity of the police, Mendez offered to suspect remains witness to view the at the time of the (2) crime, rehable. It seems somewhat inconsistent existence of discrepancy photographic line-up could not be between a pre-line-up description and the majority brings up point 5. The way, prosecutor in a compelled minor another up, ends doesn't much. It raises capitalize upon matter the issue jury it. The per- could have of the regarding introduction line-up ceived a piece identification as a crucial illegal line-up, drops then it because it is prosecutor not one of evidence. Yet the had not raised of Tomlin's examination, claims. But not before an the issue obiter on direct and could not proclamation prosecutor’s obligation dictum explain a jury to the the reason that he hadn't. response Instead, to confine his when the line-up point, prosecutor at that had to testimony is elicited the first completely dispel instance any implication that he had not case, defense. majority In this forthcoming by making announces line-up the live prosecutor that the asking ques- too far part went identification of his case. Once line-up tions about placed Mendez's jury by the defense line-up, cross-examination, Tomlin and the conduct per on exclusionary se arguing jury line-up to the longer that the applicable. rule is no fair. States However, raised, Patton, after the Cir.1983). issue was even 4n. once, and that Men- (3) gun fired it any identi ished appearance, actual defendant’s him. to see per have to turn her head another dez would line-up of prior fication circumstances, by picture of defen (4) Under son, the identification (5) states, then have line-up, the failure Mendez would “it’s doubtful prior dant occasion, him, calmly prior spent time turned towards identify the defendant much (6) crime aspects lapse noting time between features and other his facial supposition, confrontation. For all its appearance.” 1940; Big Neil see also facts law and 87 S.Ct. cannot obscure the statement 199-200, analysis. guiding our gers, should (due (1972) process 382-83, L.Ed.2d extraordinary opportunity Mendez had an factor the level including as a analysis assailant, advantage of and took to view her witness). by the certainty demonstrated neglects point out that opinion it. The reliability that the majority concedes outside the the assailant Mendez first saw identification remains to her even before door next passenger side passed short time that unequivocal, gun a shot was had a and before she knew he identification the first the crime and between Nor does the at 185. fired. Trial Tomlin, never and that Mendez and the assail- that Mendez opinion mention forAs the assailant.6 as individual another during the en- and interacted ant conversed majority description, the accuracy assailant, sitting next who was counter. The difference between correctly discounts money; Mendez, had her if she asked Tomlin’s actual description and thought she had five replied that she Mendez United States See height and build. dollars; purse in and handed found it her she (D.C.Cir.1972) Smith, opinion does And it to him. Id. at 188. 4-5 height difference of (description did of the encounter explain that most victim where viewed understandable inches alley,” but while place in a “dark not take car). sitting in he was while defendant driving the streets.7 out on appraisal of Mendez’s is is left What enough, testimony weren’t if trial As her assailant, and the opportunity view hearing testi- however, preliminary hair Tomlin’s discrepancy between alleged of whether question mony should settle police. description style and Mendez’s face good at the assailant’s got look majority’s treat- very I am troubled testimony reads: That during crime. opportunity to view of Mendez’s ment you But Daly, counsel]: Q: [by defense con- unwarranted again It draws assailant. long were how pretty scared. So were evi- uncontroverted and overlooks clusions say in you person you with di- Mendez looked the record dence the car? face at distance rectly at the assailant’s four, maybe Say majority points [by out that Men- about Mendez]: A: foot. The one assail- to observe the opportunity five had minutes. dez and that Mendez to five minutes for four ant right next sitting Q: you were And good she had chance at trial that testified him? Despite face. the assailant’s look at A: Yes. second-guesses the extent majority you while at his face Q: you looked And she was may have seen what Mendez car? in the sat that the assailant looking at. It remarks truck, Yes! A: pickup brand- “next” to Mendez in (due (9th Cir.1987) process is prosecutor majority that the asserts line-ups pretrial long preserved live as some duty additional so to conduct suggestive). mitigate impermissibly effect of the procedure order Perhaps is illegal line-up sole had been the if the cany argument would matter, suggestion is there no 7. For that suggested until weight. seen I have never to see the dark Mendez it was too record that however, now, prosecutor is so encum- features. assailant’s photographic identification when a bered reliable Johnson, 820 States v. See also exists.

Q: you got You looked his face when robber, cause that teller interacted with the

the car? case, Mendez did assailant in this the court held that she was necessarily pay- right car, got A: Yes—not when ing full to him. attention Id. at 956. The no. other teller observed the robber from a Q: during you But this time did look at (“between slightly greater distance a custom- his face. Is that correct? teller”) er and a for about two minutes. The A: Yes. court held that her focus necessarily Q: him, sitting And next to put this would be on the robber once she robbery realized a you about one from foot his face. Is taking place, just as Mendez’s focus that correct? would be on assailant episode once the About, yeah. A: involving ease, began. her In this how- Preliminary Hearing Transcript at 47-48. ever, just finds the opposite— situation, because of the stress of the Nothing, absolutely nothing, in the record Mendez was not attentive disputes observation Mendez’s close-up and unobstructed presumption the assailant. wholly That view the assailant’s face. The fact that unjustified, and reverses the burden on Tom- nothing point raises in the record to lin to prejudice. show actual exactly long out may how directly at looked the assailant severely style This, The hair view, my issue. is handicaps attempt meet his burden of perhaps point major- best-directed showing prejudice. accept I cannot the ma- ity’s prejudice analysis. it, too, Yet falls jority’s suggestion that there is something short. When Mendez described the assailant insignificant or unreliable about Mendez’s ob- police attack, soon after the said she servation of the because she may assailant that he had an inch and a half to two inch “spent not have much time turned towards Tomlin, however, afro. is said to have had a assailant], calmly noting [the his facial fea- straightened, permanent, shoulder-length aspects tures and appearance.” of his style hair at the time of the attack. The The time factor in case is a relative majority that discrepancy remarks can- Indeed, any close-up matter. look at a face not be discounted. I agree. do not could leave an impression indelible in the During trial, cross-examination at Mendez mind of a victim of a violent crime. The testified that when she described the assail- upon impression arguably Mendez could afro, ant’s hair as an short indicating she was deeper all in view of the fact that how far it head, came out from the assailant’s gun she witnessed the assailant fire a across not whether straight his hair was curly.8 or her, shooting dead the man she loved. Pre- Trial Transcript at 210. prelimi- liminary Hearing Transcript at 12. Laying nary hearing testimony was consistent: aside, supposition though: there is simply Q: [by Daly, Well, you defense counsel]: nothing majority’s here that supports the say possibly didn’t that he had a short degradation, dismissal, and almost literal of Afro, you? did so vital an observation. A: I don’t believe so. Monks, In United States v. 774 F.2d 945 Q: pretty You were sure he had a short (9th Cir.1985), the Ninth Circuit found suffi- Afro, you? weren’t cient indicia positive reliability iden- really A: I didn’t look at his hair that tifications two robber, tellers of a bank just much. trying, you know, though even line-ups the photographic were saying was, about how far the hair that unduly suggestive. robber two is what it appeared. away teller, feet from one who looked at his Preliminary Hearing Transcript at 48-49. for face about three to four minutes. That is than less the amount addition, time that In at the state evidentiary hear- view the assailant in this ing, case. Be- investigating officer, arresting Monks, (9th Cir.1985), 774 F.2d at “pock 956 n. 10 descrip- meant the term marks" in her accepted explanation we a witness’s of what she tion of the defendant. 382-83; Gregory, United States time at Vincent, at the testified Detective Cir.1989). high degree A the F.2d days after arrest several of Tomlin’s certainty an identification is one of way about in such a crime, hair combed had his important considerations the reli- most natural like a short look that it could Monks, 774 ability determination. possible that it is majority admits dark. (certainty photo line-up and at so 956-57 straightened hair shoulder-length comb trial). indisputable from the record afro, It is but contends like short it looks regard- no doubt us that Mendez had vastly styles are different. hair of Tomlin. Without ing her identification no However, contains record reservation, non- picked him out she anything other description was that Mendez’s line-up, photographic and consis- be, suggestive that Tom- or meant than what accuracy tently of that identi- reaffirmed than style was different hair lin’s hearing and at preliminary present fication at the crime. Nor time hair, or trial. at the assailant’s ourselves look credibility Vincent’s Mendez’s and judge undeniably op- excellent Mendez had record, Considering the they testified. when identi- the assailant. She portunity to view very argu- discrepancy style alleged hair Tomlin. She person besides fied no other at all. discrepancy ably is not of Tomlin made a reliable never failed to line-up. She discrep style assuming the hair Even any prior occasion. The identify enough material, not substantial it is ancy crime and the time between lapse of independent ba finding of an change the major are no short. There dangers confrontation was correctly cites sis. The description and discrepancies in Mendez’s and the eyewitness identification inherent Even if the hair appearance. Tomlin’s actual suggestiveness inaccurate, it description would be style cru points out other consider- inconsequential view of the pre as it was prosecution’s case cial to not have been ations. And could single uncorrob testimony of a sented. I have her identifications. any surer about witness, however, can be sufficient orated these cir- difficulty holding under v. real States conviction. See United support cumstances, (9th identification Cir.1977), Mendez’s in-eourt 1361, Smith, F.2d 1363 563 independent basis. lacks an denied, of Tomlin 98 S.Ct. cert. (1978). And, L.Ed.2d description need not be physical

recognizes, a IV. case, all In this where rehable. perfect to be failing to was not ineffective Counsel reliability of factors favor dem- Nor has Tomlin issue. raise the Wade pos the effect of the the writ Denial of prejudice. onstrated style must con discrepancy in be hair sible affirmed. should be inconsequential. See United States sidered be a Cir.1991) majority decision will (9th I fear that Dring, 930 F.2d v. must jurists who regrettable obstacle reli found agent’s identification (government of ineffective in claims identify weigh legal burdens failed to despite fact able — counsel, respect lower U.S. -, who must denied, beard), assistance cert. suspect’s decide (1992); findings, or who must court see L.Ed.2d 113 S.Ct. be undone should Cook, eyewitness identification States also single description of Cir.) perhaps inexact in- (finding independent bases for way as the characteristic physical despite de witnesses’ his hair. suspect combs in hair color differences scriptions of denied, cert. length),

457, 34 L.Ed.2d certainty of Mendez’s identifi-

Finally, the also considered. must

cations 199-200, 93 S.Ct. Biggers, 409

Neil

Case Details

Case Name: Charles R. Tomlin v. E. Myers, Superintendent

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 28, 1994

Citation: 30 F.3d 1235

Docket Number: 93-15247

Court Abbreviation: 9th Cir.