David Oliva v. Anthony Hedgpeth
375 F. App'x 697
9th Cir.
2010
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Docket

*1 nothing the IJ did rises “to the level process of a due violation.” Melkonian v. (9th

Ashcroft, 320 F.3d Cir.

2003). DENIED in part,

Petition and DIS- part.

MISSED in OLIVA,

David PINEDA Petitioner-

Anthony HEDGPETH, Warden,

Respondent Appellant. -

No. 09-55529.

United States of Appeals, 2010.* Marshall,

Marilee Marshall & Marilee Associates, Inc., for Peti- tioner-Appellee. panel unanimously R.App. concludes this case is Fed. suitable for decision without oral

698 (2) reasonableness; Kohm, a Costello, ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍of there is Marc Office of dard

Xiomara Generаl, Attorney Los An- probability the reasonable but for coun- California geles, Respondent-Appellant. errors, proceeding the result of the sel’s different). Cоnsidering

would have been circumstances, totality the of the see Neil 188, 199-200, 93 409 U.S. S.Ct. 375, (1972), photograph 34 L.Ed.2d 401 the procedure plainly imper- was identification FERNANDEZ, SILVERMAN, missibly ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍suggestive, seе Simmons v. Unit- States, 967, (1968) (“[A] pretrial 19 L.Ed.2d 1247 iden- ** by photograph tification will be set aside Anthony Hedgpeth, Respondent warden only if ground photographic on that the prisons, appeals of the state the California procedure impermis- identification was so grant corpus district court’s habeas sibly very suggestive give as rise to by Petitioner David Pineda petition irreparable substantial likelihood of mis- Oliva, prisoner. a California state Peti- identification.”). jury tioner was convicted aftеr a trial of magistrate judge explained As the imprison- murder and was sentenced to detail, greater the photographic identifica- years ment for 50 to lifе. Because Peti- impermissibly suggestive —and petition his habeas after April tioner filed Appeal’s analysis the California Court of 24, 1996, the Anti-Terrorism and Effective unreаsonably applied Supreme. prec- Court (“AEDPA”) Penalty Death Act of 1996 First, edent —for several reasons. the de- 2254; § governs. 28 U.S.C. Woodford conducting photograрh tectives the identi- Garceau, 202, 210, 123 1398, S.Ct. procedure fication did not tell E.R. that 155 L.Ed.2d 363 We review de photographic lineup, consisting of six novo, Budge, Tilcock v. — photographs, might might or not contain a (9th Cir.2008), denied, cert photograph suspect. of the —, 173 L.Ed.2d 132 thought at trial that she she “had (2009), affirm. and we pic- to make a selectiоn of one of these The state court’s decision that Peti Second, tures.” after E.R. selected the tioner had not the effective been denied photograph, effectively first the detectives assistance of counsel is unreasonable suggested person to her that the in that application Supreme precedent Thud, was not the photograph because, precedent, under that Petitioner’s praised immediately the detectives counsel was inеffective when he failed to photograph she selected number eyewitness ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍file a motion to three, photograph which was the of Peti- by six-year-old tioner. The detectives told E.R. that she child, E.R. See Strickland v. job.” did “awesome” work and a “fantastic 688, 694, 697, praise effectively per- Such eliminated the (1984) (holding remaining рhotographs sons in the counsel, establish ineffective assistance of (1) signaled to E.R. that she had made the petitioner prove must that: counsel’s reprеsentation objective “right” fell below an stan- choice. by ed Ninth Circuit Rule 36-3. cation and is not photograph existing

Because the identifica law as set forth Supreme Court. procedure suggestive, we also must decide whether the identification nev AFFIRMED. *3 Neil, ertheless was reliable. See FERNANDEZ, Judge, at 375. It was not. Circuit dissenting: that she sаw the shooter’s face from distance and for a fleeting period of view, my the strictures of 28 U.S.C. testimony time. E.R.’s trial regarding the § 2254 will permit not us to overturn the clothing shoоter’s was inconsistent with state courts’ determination that counsel description given police she had to the Rather, was not ineffective. those courts Furthеr, immediately after the incident. properly could determine that experi- this enced attorney admitted at trial that she made a thought the reasoned tactical decision that it pointless person in to make a photograph number one looked suppress motion to because that shooter, mоtion like the and she was unable to would have been denied out of hand. He identify anyone in the courtroom as the was of opinion require “would shooter. fаr greater showing any suggestiveness reasons, For these the failure of Peti- or coercion” to succeed. The state Court tioner’s counsel to file a motion to sup- Appeal assessment, agreed with his press the E.R. was even declared that the “tactical decision Strickland, objectively unreasonablе. See bring to a suppression motion that 466 U.S. at 104 S.Ct. 2052. We next lacked merit was reasonable.” Nor will it must consider whether Petitioner was do suggest ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍that a motion to prejudiced by his counsel’s error. Id. at should have been anyway because 694, 104 S.Ct. 2052. He was. In the “ ‘nothing there was to lose.’ Knowles identification, absence of only E.R.’s scant — U.S. -, -, Mirzаyance, 129 S.Ct. pointed evidence to Petitioner as the 1411, 1419, (2009). I fear reasonably It is probable the majority has fallen prey to the identification, without E.R.’s the trial hindsight fallacy,1and has failed to conduct yielded would have a different outcome. “doubly deferential”2 review that is The state court’s contrary decision fails demanded in this area.3 agree I cannot even under the deferential AEDPA stan- that counsel was ineffective when he accu- dard. Even if may correctly сounsel have rately faced, assessed the situation he guessed that the California Ap- Court of then concentrated his efforts on demon- peal misapply law, would Supreme Court strating to the jury that the identification that assessment does not excuse counsel’s all, was weak and unreliable. After coun- criticаl, bring failure to meritorious mo- sel every does not have to raise possible that a higher or federal court would issue, viable and the Supreme has likely grant. A “[tjhеre California court should told us that ways are countless granted have such a motion under then- provide effective any given assistance in " 1. See Strickland v. оf ... misidentification.' Neil 2052, 2065, 188, 198, 104 S.Ct. L.Ed.2d 674 409 (1984). Thus, might L.Ed.2d 401 almost triply said that review should be deferential in Knowles, - U.S. at -, 2. 129 S.Ct. at 1420. By way, this area. I do not think that any standard was met event. to have a constitutional violation " 'very there must be a substantial likelihood Strickland, 466 at case.” chose one of those at 2065. Counsel should not “second- ways. We Thus, respectfully I him. Id.

guess” sent. ' SILVERMAN, FERNANDEZ, *4 court’s appeals

Dale Boles district attorney’s fees. of his motion for denial that the mo- The district court determined INTERNATIONAL BROWN JORDAN timely. We affirm. INC., corporation, a Florida request for fees followed Boles’ Plaintiff-Appellee, denying a motion to trict court’s order v. by Brown Jor- reopen that had been filed BOLES, individual, (“BJI”). Dale an International, Inc. Review dan Defendant-Appellant. ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍that it was a final plain that order makes it adju- fully the motion. It determination of Inc., a Brown Jordan International and evidenced the dis- dicated the issues corporation, Plaintiff- Florida ‘“intention that trict court’s Albertson’s Casey final act.’ v. court’s (9th Cir.2004); Inc., 1254, 1258 362 F.3d Boles, individual, Dale Corp. see also Ford MCI Commc’ns Dеfendant-Appellant. Plan, Health & Welfare (9th Cir.2005); Beaudry Motor Nos. 09-55498. 1079-80 Inc., 780 F.2d Props., v. Abko Co. Appeals, United States Court (9th Cir.1986). fact, Boles’ mo- 754-55 plain that he under- tion for fees made 6, 2010.* final.1 stood that the order was days to file his mo- Boles had fourteen fees,2 file attorney’s for but he did not Bailey, Anglin, Flewelling, A. Robert Rasmussen, etc., Pasadеna, CA, days for Plain- twenty-seven motion until his however, He, tiff-Appellee. argues entry of the order. yet to file motion had not that the time his Aman, Kalley Cogan, R. Efrat M. Es- separate no docu- begun to run because Steinberg, Esquire, Lawrence B. quire, setting forth the denial of the motion ment PLC, Buchalter Nemer Fed. R. reopen had beеn filed. See Civ. Defendant-Appellant. them. unanimously appeal. We will not consider panel this case suitable those on finds Fed. R. Indep. for decision without оral Wash. v. See Towersof App. (9th Cir.2003). P. F.3d 929-30 54(d)(2)(B)(i); and is not cation see also 2. See Fed. R. Civ. 9th Cir. R. 36-3. C.D. Cal. R. 54-12. arguments 1. Boles alludes to other regarding finality, developed but he has not