375 F. App'x 697
9th Cir.
2010

Lead Opinion

MEMORANDUM **

Respondent Anthony Hedgpeth, warden of the California state prisons, appeals the district court’s grant of a habeas corpus petition filed by Petitioner David Pineda Oliva, a California state prisoner. Petitioner was convictеd after a jury trial of murder and was sentenced to imprisonment for 50 years to life. Because Petitioner filed his habeаs petition after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs. 28 U.S.C. § 2254; Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). We review de novo, Tilcock v. Budge, 538 F.3d 1138, 1143 (9th Cir.2008), cert denied, — U.S. —, 129 S.Ct. 926, 173 L.Ed.2d 132 (2009), and we affirm.

The state court’s decision that Petitiоner had not been denied the effective assistance of counsel is an unreasonable application of Supreme Court precedent because, under that precedent, Petitioner’s counsel was ineffective when he failed to file a motion to suppress the eyewitness identification made by the six-year-old child, E.R. See Strickland v. Washington, 466 U.S. 668, 688, 694, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that, to еstablish ineffective assistance of counsel, a petitioner must prove that: (1) counsel’s representation fеll below an objective standard of reasonableness; ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍and (2) there is a reasonable probability that, but for cоunsel’s errors, the result of the proceeding would have been different). Considering the totality of the circumstances, see Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), thе photograph identification procedure plainly was imper-missibly suggestive, see Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (“[A] pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermis-sibly suggestive аs to give rise to a very substantial likelihood of irreparable mis-identification.”).

As the magistrate judge explained in greater detail, the photographic identification was impermissibly suggestive — and the California Court of Appeal’s analysis unreasonably applied Supreme. Court precedent — for several reasons. First, the detectives conduсting the photograph identification procedure did not tell E.R. that the photographic lineup, consisting of six photographs, might or might not contain a photograph of the suspect. Indeed, E.R. testified at trial that she thought she “had to mаke a selection of ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍one of these pictures.” Second, after E.R. selected the first photograph, the dеtectives effectively suggested to her that the person in that photograph was not the shooter. Thud, the detectives praised E.R. immediately after she selected photograph number three, which was the photograph of Pеtitioner. The detectives told E.R. that she did “awesome” work and a “fantastic job.” Such praise effectively eliminatеd the persons in the remaining photographs and signaled to E.R. that she had made the “right” choice.

*699Because the рhotograph identification procedure was suggestive, we also must decide whether the identification nevertheless was reliable. See Neil, 409 U.S. at 199-200, 93 S.Ct. 375. It was not. E.R. testified that she saw the shooter’s face from a distance and for a fleeting periоd of time. E.R.’s trial testimony regarding the shooter’s clothing was inconsistent with the description she had given to the police immеdiately after the incident. Further, E.R. admitted at trial that she thought the person in photograph number one looked like the shooter, and she was unable to identify anyone in the courtroom as the shooter.

For these reasons, the failurе of Petitioner’s counsel to file a motion to ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍suppress the identification made by E.R. was objectively unreasonable. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. We next must consider whether Petitioner was prejudiced by his counsel’s error. Id. at 694, 104 S.Ct. 2052. He was. In the absence of E.R.’s identificаtion, only scant evidence pointed to Petitioner as the shooter. It is reasonably probable that, without E.R.’s identification, the trial would have yielded a different outcome. The state court’s contrary decision fails even under the deferential AEDPA standard. Even if counsel may have correctly guessed that the California Court of Appeal would misаpply Supreme Court law, that assessment does not excuse counsel’s failure to bring a critical, meritorious motion that a higher or federal court would likely grant. A California court should have granted such a motion under then-existing ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍law as set fоrth by the Supreme Court.

AFFIRMED.

Notes

This disposition is not appropriate for publication and is not precedent exceрt as provided by Ninth Circuit Rule 36-3.



Dissenting Opinion

FERNANDEZ, Circuit Judge, dissenting:

In my view, the strictures of 28 U.S.C. § 2254 will not permit us to overturn the state courts’ determination that counsel was nоt ineffective. Rather, those courts could properly determine that this experienced attorney made a reasoned tactical decision that it was pointless to make a motion to suppress because that motion would have been denied out of hand. He was of the opinion that, it “would require a far greater showing of any suggestiveness or coercion” to succeed. The state Court of Appeal agreed with his assessment, and even declared that the “tactical decision not to bring a suppression motion that lacked merit was reasonable.” Nor will it do to suggest that a motion to suppress should have been filed anyway because there was “ ‘nothing to lose.’ ” Knowles v. Mirzayance, — U.S. -, -, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). I feаr that the majority has ‍​​‌‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​‌‌​‌​‌​​‌​‌‌‌​​​​​‌​‌​‌‌‍fallen prey to the hindsight fallacy,1 and has failed to conduct the “doubly deferential”2 review that is demanded in this area.3 I cannot agree that counsel was ineffective when he accurately assessed the situation he faced, and then concentrated his efforts on demonstrating to the jury that thе identification was weak and unreliable. After all, counsel does not have to raise every possible viable issue, and the Supreme Court has told us that “[tjhere are countless ways to provide effective assistance in any given *700case.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Cоunsel chose one of those possible ways. We should not “second-guess” him. Id. Thus, I respectfully dissent.

. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

. Knowles, - U.S. at -, 129 S.Ct. at 1420.

. Indeed, to have a constitutional violаtion there must be a " 'very substantial likelihood of ... misidentification.' " Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Thus, it might almost be said that review should be triply deferential in this area. By the way, I do not think that standard was met in any event.