NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GERARDO AGUIRRE, No. 12-56107
Petitioner - Appellant, D.C. No. 2:10-cv-07126-JVS-AJW
v.
MEMORANDUM*
ELVIN VALENZUELA, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted March 2, 2015**
Pasadena, California
Before: GOULD and TALLMAN, Circuit Judges and KORMAN,*** Senior District
Judge.
*
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. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Petitioner first contends that trial counsel was ineffective by not using
peremptory strikes to remove jurors who gave answers biased against the defense
during jury selection. We disagree. The California Court of Appeal reasonably
concluded that Petitioner’s trial counsel’s decision not to use peremptory strikes
against Jurors 4, 5, and 12 was not deficient attorney performance under Strickland
v. Washington, 466 U.S. 668 (1984). These jurors generally indicated they
understood their obligations to consider evidence and apply the law or were
equivocal in other statements that are challenged, and each juror made statements
that may have been considered by defense counsel to be favorable to the defense.
It was not objectively unreasonable for the state appellate court to conclude that the
record did not rebut the presumption under Strickland of competent representation
by counsel.
Petitioner also contends that the California trial court violated his rights to
due process by failing to exclude identification evidence from an impermissibly
suggestive live police lineup. Again, we disagree. The California Court of Appeal
was not objectively unreasonable in concluding that the live police lineup was not
“unnecessarily suggestive” in light of the three other uncontested identifications
and because the lineup contained others with height and facial features similar to
Petitioner’s. See Simmons v. United States, 390 U.S. 377, 384 (1968).
2
AFFIRMED.
3