FILED
NOT FOR PUBLICATION JAN 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN F. MENDOZA, No. 12-56792
Petitioner - Appellant, D.C. No. 5:11-cv-01644-JST-JPR
v.
MEMORANDUM*
DOMINGO URIBE, Jr., Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted December 12, 2014**
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
In 2007, petitioner Ruben F. Mendoza was convicted and sentenced to life
with the possibility of parole after seven years for attempted murder and one year
for shooting at an occupied motor vehicle. On timely appeal from the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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court’s denial of his 28 U.S.C. § 2254 habeas petition, Mendoza argues that the
state court unreasonably held that his trial counsel was not ineffective for failing to
bring a motion to suppress the victim’s out-of-court identification of him in a one-
on-one show-up several hours after the shooting. We have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253(a). Mendoza has neither demonstrated that the state
court’s denial of his constitutional claim was contrary to or an unreasonable
application of clearly established Supreme Court precedent – Strickland v.
Washington, 466 U.S. 668 (1984) – nor that it was based on an unreasonable
determination of the facts. We affirm.
Mendoza’s ineffective assistance claim fails because it was not unreasonable
for the state court to have decided that any suppression motion would not have
been granted. The record amply supports the conclusion that Mendoza was not
prejudiced by the show-up or by Officer Griego’s statements immediately prior to
the show-up: (1) the victim had two opportunities to view Mendoza in a well-lit
apartment the night of the shooting; (2) the victim made his identification less than
five hours after the shooting; and (3) Mendoza’s identification was corroborated by
other evidence, including his DNA extracted from a straw left at the victim’s
girlfriend’s apartment, the fact that the police found the vehicle involved in the
shooting parked at his mother’s house several hours after the shooting, and
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Mendoza’s efforts from jail to persuade the victim’s girlfriend to recant her
previous identification of him. It is not ineffective assistance for counsel to fail to
bring a futile motion. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005);
Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).
The state court’s determination that there was “more than sufficient evidence
to sustain the identification of [Mendoza] as one of the shooters” was not an
unreasonable determination of the facts. It is clear that the court was referring –
correctly – to Mendoza’s role as the driver of the car. Mendoza aggressively
chased the victim and positioned the car alongside the victim so that the sole
passenger could fire directly at him.
The court construes Mendoza’s briefing with respect to the victim’s
girlfriend’s identification as a motion to expand the certificate of appealability, and
we deny the same.
AFFIRMED.