FILED
NOT FOR PUBLICATION APR 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
DAVID PINEDA OLIVA, No. 09-55529
Petitioner - Appellee, D.C. No. CV 08-03772-ODW (E)
v.
MEMORANDUM *
ANTHONY HEDGPETH, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted April 7, 2010**
Pasadena, California
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
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 convicted after a
jury trial of murder and was sentenced to imprisonment for 50 years to life.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Because Petitioner filed his habeas petition after April 24, 1996, the
Anti-Terrorism and Effective Death Penalty Act of 1996 (þAEDPAþ) governs. 28
U.S.C. y 2254; Woodford v. Garceau, 538 U.S. 202, 210 (2003). We review de
novo, Tilcocµ v. Budge, 538 F.3d 1138, 1143 (9th Cir. 2008), cert. denied, 129 S.
Ct. 926 (2009), and we affirm.
The state court's decision that Petitioner 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 Stricµland v. Washington, 466 U.S. 668, 688, 694, 697 (1984)
(holding that, to establish ineffective assistance of counsel, a petitioner must prove
that: (1) counsel's representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel'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 (1972),
the photograph identification procedure plainly was impermissibly suggestive, see
Simmons v. United States, 390 U.S. 377, 384 (1968) (þ[A] pretrial identification
by photograph will be set aside on that ground only if the photographic
2
identification procedure was so impermissibly suggestive as to give rise to a very
substantial liµelihood of irreparable misidentification.þ).
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 conducting 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 þhad to maµe a selection of one of these pictures.þ Second, after E.R.
selected the first photograph, the detectives effectively suggested to her that the
person in that photograph was not the shooter. Third, the detectives praised E.R.
immediately after she selected photograph number three, which was the
photograph of Petitioner. The detectives told E.R. that she did þawesomeþ worµ
and a þfantastic job.þ Such praise effectively eliminated the persons in the
remaining photographs and signaled to E.R. that she had made the þrightþ choice.
Because the photograph identification procedure was suggestive, we also
must decide whether the identification nevertheless was reliable. See Neil, 409
U.S. at 199-200. It was not. E.R. testified that she saw the shooter's face from a
distance and for a fleeting period of time. E.R.'s trial testimony regarding the
3
shooter's clothing was inconsistent with the description she had given to the police
immediately after the incident. Further, E.R. admitted at trial that she thought the
person in photograph number one looµed liµe the shooter, and she was unable to
identify anyone in the courtroom as the shooter.
For these reasons, the failure of Petitioner's counsel to file a motion to
suppress the identification made by E.R. was objectively unreasonable.
See Stricµland, 466 U.S. at 688. We next must consider whether Petitioner was
prejudiced by his counsel's error. Id. at 694. He was. In the absence of E.R.'s
identification, 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 misapply Supreme Court law, that assessment
does not excuse counsel's failure to bring a critical, meritorious motion that a
higher or federal court would liµely grant. A California court should have granted
such a motion under then-existing law as set forth by the Supreme Court.
AFFIRMED.
4
FILED
Oliva v. Hedgpeth, No. 09-55529 APR 13 2010
MOLLY C. DWYER, CLERK
FERNANDEZ, Circuit Judge, dissenting: U.S. COURT OF APPEALS
In my view, the strictures of 28 U.S.C. y 2254 will not permit us to overturn
the state courts' determination that counsel was not ineffective. Rather, those
courts could properly determine that this experienced attorney made a reasoned
tactical decision that it was pointless to maµe 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 lacµed 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, ÁÁÁ
U.S. ÁÁÁ, ÁÁÁ, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009). I fear 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
1
See Stricµland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065,
80 L. Ed. 2d 674 (1984).
2
Knowles, ÁÁÁ U.S. at ÁÁÁ, 129 S. Ct. at 1420.
3
Indeed, to have a constitutional violation there must be a ''very substantial
liµelihood 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
(continued...)
counsel was ineffective when he accurately assessed the situation he faced, and
then concentrated his efforts on demonstrating to the jury that the identification
was weaµ and unreliable. After all, counsel does not have to raise every possible
viable issue, and the Supreme Court has told us that '[t]here are countless ways to
provide effective assistance in any given case.' Stricµland, 466 U.S. at 689, 104
S. Ct. at 2065. Counsel chose one of those possible ways. We should not
'second-guess' him. Id. Thus, I respectfully dissent.
3
(...continued)
should be triply deferential in this area. By the way, I do not thinµ that standard
was met in any event.
2