FILED
NOT FOR PUBLICATION NOV 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT GUY BAKER, No. 11-15004
Petitioner - Appellant, D.C. No. 2:07-cv-01170-JAM-
JFM
v.
MATTHEW C. KRAMER, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 4, 2013
San Francisco, California
Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.
Petitioner Robert Baker seeks habeas relief on the ground that the admission
of Lopez’s in-court identification violated his due process rights. Baker
procedurally defaulted this claim in state court, and he must therefore show cause
and prejudice to excuse the default. He attempts to do so by asserting a claim of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ineffective assistance of counsel, which requires him to show both deficient
performance by counsel and resulting prejudice. Strickland v. Washington, 466
U.S. 668, 687 (1984). On direct appeal, the California Court of Appeal held that,
even if Baker’s counsel rendered deficient performance, Baker has not shown
prejudice.
We cannot say that the state court’s no-prejudice determination represents an
unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1); Walker v.
Martel, 709 F.3d 925, 944 (9th Cir. 2013). The prosecutor expressly told the jury
during closing arguments not to rely on Lopez’s in-court identification because it
was unreliable. Moreover, the jury heard testimony from three other witnesses
who directly or by implication identified Baker as the shooter, which was sufficient
standing alone to support Baker’s conviction. To be sure, the credibility of each of
these witnesses was challenged at trial. But the California Court of Appeal could
reasonably conclude that Lopez’s in-court identification was not the difference-
maker in this case.
AFFIRMED.
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