Palacios v. Burge

07-0470-pr
Palacios v. Burge
1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 August Term 2008

5 (Argued: March 11, 2009 Decided: December 21, 2009)

6 Docket No. 07-0470-pr

7 -----------------------------------------------------x

8 DAVID PALACIOS,
9
10 Petitioner-Appellant,
11
12 -- v. --
13
14 JOHN W. BURGE, Superintendent, Auburn Correctional
15 Facility, and ANDREW CUOMO, New York State Attorney
16 General,*
17
18 Respondents-Appellees.**
19
20 -----------------------------------------------------x
21
22 B e f o r e : WALKER and SACK, Circuit Judges, and KOELTL,
23 District Judge.***

24 Petitioner-Appellant David Palacios appeals from the

25 judgment of the United States District Court for the Eastern

*
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
2 current Attorney General Andrew Cuomo is automatically
3 substituted for former Attorney General Eliot L. Spitzer as a
4 respondent.
**
1 We direct the Clerk of the Court to amend the official
2 caption as noted.
***
1 The Honorable John G. Koeltl, of the United States District
2 Court for the Southern District of New York, sitting by
3 designation.

1
1 District of New York (Frederic Block, Judge) denying his petition

2 for habeas corpus pursuant to 28 U.S.C. § 2254, which alleges

3 that his counsel rendered him ineffective assistance in violation

4 of the Sixth Amendment by failing to move to suppress evidence of

5 Palacios’s show-up identification and confession under the Fourth

6 Amendment. The show-up was limited in scope and duration, and

7 included individuals reasonably suspected of perpetrating a

8 recent, soon-to-be fatal stabbing. There was a strong showing

9 that the show-up was justified by exigent circumstances and,

10 based on the totality of the circumstances, was reasonable, and

11 that the show-up did not unconstitutionally taint Palacios’s

12 subsequent confession. Therefore, the state courts did not

13 unreasonably apply clearly established Supreme Court law in

14 denying his ineffective assistance claim. We therefore affirm

15 the district court’s denial of Palacios’s habeas petition.

16 AFFIRMED.

17 LAWRENCE T. HAUSMAN (Steven Banks,
18 on the brief), Legal Aid Society,
19 Criminal Appeals Bureau, New York,
20 NY, for Petitioner-Appellant.
21
22 JILL A. GROSS-MARKS (John M.
23 Castellano, on the brief),
24 Assistant District Attorneys, for
25 Richard A. Brown, District
26 Attorney, Queens County, Kew
27 Gardens, NY, for Respondents-
28 Appellees.
29
30 JOHN M. WALKER, JR., Circuit Judge:

31 Petitioner-Appellant David Palacios appeals from the

2
1 judgment of the United States District Court for the Eastern

2 District of New York (Frederic Block, Judge) denying his petition

3 for habeas corpus pursuant to 28 U.S.C. § 2254. Palacios claims

4 that he is entitled to a writ of habeas corpus because the state

5 courts unreasonably applied clearly established Supreme Court law

6 in rejecting his claim that counsel rendered ineffective

7 assistance by failing to move to suppress evidence of his show-up

8 identification and confession under the Fourth Amendment. The

9 police conducted a show-up near the crime scene, limited in scope

10 and duration, that included individuals who were reasonably

11 suspected of perpetrating a recent, soon-to-be fatal stabbing.

12 We find that the state courts did not unreasonably reject the

13 petitioner’s claim of ineffective assistance of counsel. It was

14 not ineffective assistance to fail to raise a Fourth Amendment

15 claim challenging the show-up, which involved exigent

16 circumstances and, based on the totality of the circumstances,

17 was reasonable. Similarly, it was not ineffective assistance to

18 fail to challenge the subsequent confession as the fruit of the

19 show-up where there was an insufficient showing that the show-up

20 was unconstitutional. Accordingly, we conclude that the state

21 courts did not unreasonably apply Strickland v. Washington, 466

22 U.S. 668, 688 (1984), when they rejected Palacios’s claim of

23 ineffective assistance. Thus, we affirm the district court’s

24 denial of Palacios’s petition for a writ of habeas corpus.

3
1 BACKGROUND

2 David Palacios was convicted following a jury trial in New

3 York Supreme Court, Queens County, of single counts of assault

4 and murder, and sentenced respectively to consecutive,

5 indeterminate sentences of eleven to twenty-two years and twenty-

6 five years to life.

7 I. Underlying Events

8 The trial evidence showed that on the evening of April 27,

9 1997, undercover New York City police officers Richard Crespo,

10 James O’Boyle, and Daniel Corey conducted surveillance at the 30-

11 30 Club in Queens, New York, which was holding a “Mexican party.”

12 (Trial Tr. 101 Feb. 10-11, 1998.) The police had information

13 that “there might be problems there” between “rival Mexican

14 gangs.” (Trial Tr. 14, 101.)

15 The club opened at 9:00 p.m. After ten to fifteen minutes,

16 Officer Crespo saw several men whom he thought to be Hispanic

17 “run in front of . . . people . . . waiting” in line outside of

18 the club. (Trial Tr. 14-15.) Moments later, a BMW pulled up

19 across the street from the club, and a man, Edin Kolenovic,

20 emerged from the car shouting and waving his arms frantically.

21 When the officers approached Kolenovic, they saw that his shirt

22 was bloody, and that his passenger and brother-in-law, Sanin

23 Djukanovic, had been beaten and stabbed, and was bleeding

24 profusely. Djukanovic was unable to speak and died later that

4
1 night. Kolenovic told the officers that a group of Hispanic men

2 tried to steal the BMW, stabbed him and Djukanovic, and ran

3 towards the 30-30 Club. The police placed Kolenovic in an

4 ambulance stationed in front of the club to be treated for his

5 stab wounds.

6 In “secur[ing] the area” around the club, (Trial Tr. 18,)

7 the officers arranged with the club’s security personnel to let

8 into the club the forty or fifty individuals in line outside.

9 When one person, William Mero, stepped out of the line and tried

10 to leave, the police stopped him and walked him in front of the

11 parked ambulance to “conduct [] a show-up.” (Trial Tr. 103.)

12 Kolenovic identified Mero as “one of the guys,” (Trial Tr. 110,)

13 and Officer Corey handcuffed Mero and put him in an unmarked

14 patrol car with a view of the club. Mero denied any involvement

15 in the stabbing, but told the police that he had seen the fight

16 and could identify the individuals involved.

17 Inside the club, at the officers’ request, the club owner

18 stopped the music and announced that the police planned to escort

19 all the male patrons outside for a show-up to identify anyone

20 connected to the stabbing that had occurred. The officers sealed

21 the exits, separated out the women, and lined up at the front of

22 the club the approximately 170 men, all of whom looked to them to

23 be Hispanic and ranged in age from about eighteen to twenty-five

24 years. The police then had the men walk, one by one, out the

5
1 front door and in front of Kolenovic and Mero, who were in the

2 ambulance and the unmarked car, respectively. The show-up

3 process began at approximately 10:00 p.m., and ended less than

4 forty minutes later, after which the patrons outside were allowed

5 back into the club. During the show-up, Kolenovic and Mero

6 separately identified the same six men, including Palacios, as

7 being involved in the stabbings. The officers then took Palacios

8 to the precinct house.

9 The following day, after Detective Laurie Senzel read

10 Palacios his Miranda rights in both English and Spanish, Palacios

11 orally confessed to stabbing Djukanovic. Detective Senzel

12 manually transcribed this confession, which Palacios signed.

13 II. Trial Court Proceedings

14 On June 17, 1997, Palacios’s then-counsel Paul Testaverde

15 filed a motion challenging the constitutionality of both the

16 identification procedure used by the police outside of the 30-30

17 Club, and the confession, which Palacios claimed that he had

18 given only under physical duress. On June 30, 1997, counsel

19 Robert R. Race, who replaced Testaverde, filed a separate motion

20 that challenged the reliability of Kolenovic’s pre-trial

21 identification and the voluntariness of Palacios’s statements,

22 but did not challenge the legality of the police seizure of

23 Palacios.

24 On September 22, 1997, after holding a combined pre-trial

6
1 hearing pursuant to United States v. Wade, 388 U.S. 218 (1967),

2 and People v. Huntley, 204 N.E.2d 179 (N.Y. 1965), the trial

3 judge determined that “all of the witnesses testified credibly,”

4 (Trial Tr. 160,) found the show-up evidence and confession to be

5 constitutionally permissible, and declined to suppress either

6 item of evidence at trial. In particular, the trial judge

7 “note[d] that the identification of the defendant through this

8 short [show-up] procedure was both tempora[l]ly and spatially

9 close to the events . . . in question.” (Trial Tr. 166.) As for

10 the confession, the trial judge determined that Palacios

11 knowingly, voluntarily, and intelligently waived his rights. The

12 trial judge then denied Palacios’s subsequent pro se motion to

13 suppress the confession.

14 At Palacios’s jury trial, Kolenovic was unable to identify

15 Palacios as a participant in the crime. Palacios testified that

16 he had not committed the crimes charged and that he had confessed

17 under physical duress.

18 The jury found Palacios guilty of both assault and murder,

19 and the trial judge sentenced Palacios to eleven to twenty-two

20 years for the former and twenty-five years to life for the

21 latter, to be served consecutively.

22 III. Subsequent Proceedings

23 In January 2002, Palacios, on appeal to the Appellate

24 Division, Second Department, argued that he had been deprived of

7
1 effective assistance of counsel under Strickland, 466 U.S. at

2 688, because his counsel unreasonably failed to challenge the

3 lawfulness of his show-up and detention, and failed to move to

4 suppress his confession as the fruit of the unlawful detention

5 under the Fourth Amendment. Palacios alleged that a Fourth

6 Amendment challenge to the show-up would have been successful,

7 because the show-up was not based upon any “individualized

8 suspicion” of a particular individual at the 30-30 Club. See

9 Palacios, 470 F. Supp. 2d at 219. The Appellate Division

10 affirmed Palacios’s conviction, concluding that he had received

11 “meaningful representation” at trial. People v. Palacios, 743

12 N.Y.S.2d 302, 302 (App. Div. 2002). Palacios’s application for

13 leave to appeal to the New York Court of Appeals was denied.

14 People v. Palacios, 779 N.E.2d 193 (N.Y. 2002) (table decision).

15 Palacios then filed the instant petition for federal habeas

16 relief, again raising the claim that trial counsel had rendered

17 ineffective assistance. In January 2007, the district court

18 denied the petition on the basis that Palacios had failed to show

19 that the trial court unreasonably applied Supreme Court precedent

20 in determining that the claim lacked merit. Palacios v. Burge,

21 470 F. Supp. 2d 215, 221 (E.D.N.Y. 2007). Although noting that a

22 show-up could run afoul of the United States Supreme Court’s

23 “individualized suspicion” requirement, the district court

24 determined that, “[i]n light of the generality with which the

8
1 requirement has been enunciated” by the Supreme Court, it would

2 not be “unreasonable” to conclude that the individualized

3 suspicion requirement was “satisfied in this case.” Id. at 223.

4 The district court concluded that under the “limited standard of

5 [habeas] review,” Palacios’s petition had to be denied. Id. at

6 224. The district court, however, issued a certificate of

7 appealability on Palacios’s ineffective assistance claim on the

8 basis that there was “room for reasonable debate . . . addressing

9 this ineffective-assistance/Fourth Amendment scenario.” Id.

10 This appeal followed.

11 DISCUSSION

12 We review de novo the district court’s decision to deny

13 Palacios habeas relief. See Jenkins v. Artuz, 294 F.3d 284, 290

14 (2d Cir. 2002). Under the deferential standard of review

15 established by the Antiterrorism and Effective Death Penalty Act

16 of 1996 (AEDPA), where the petitioner’s claim “was adjudicated on

17 the merits in State court proceedings,” as here, we may only

18 grant habeas relief if the state court’s adjudication “was

19 contrary to, or involved an unreasonable application of, clearly

20 established Federal law as determined by the Supreme Court of the

21 United States,” or “was based upon an unreasonable determination

22 of the facts in light of the evidence presented.” 28 U.S.C. §

23 2254(d).

24 Although Stone v. Powell, 428 U.S. 465, 494 (1976), bars us

9
1 from considering Fourth Amendment challenges raised in a

2 petitioner’s petition for habeas relief, this appeal does not

3 squarely present a Fourth Amendment challenge. Instead,

4 Palacios’s habeas petition brings a “Sixth Amendment ineffective

5 assistance of counsel claim[] which [is] founded primarily on

6 incompetent representation with respect to a Fourth Amendment

7 issue.” Kimmelman v. Morrison, 477 U.S. 365, 380 (1986).

8 Specifically, Palacios argues that the state court unreasonably

9 applied the Supreme Court’s decision in Strickland, 466 U.S. at

10 688, by rejecting his claim that his counsel rendered

11 constitutionally deficient performance by failing to raise a

12 Fourth Amendment challenge seeking to suppress the identification

13 evidence and the “fruits of [Palacios’s] illegal detention.”

14 Pet’r Br. at 31. We may grant habeas claim for such a hybrid

15 Sixth and Fourth Amendment claim, Kimmelman, 477 U.S. at 380-83;

16 however, its “elements of proof”

17 differ[] significantly from [those] applicable to a
18 straightforward Fourth Amendment claim. Although a
19 meritorious Fourth Amendment issue is necessary to the
20 success of a Sixth Amendment claim like [Palacios]’s, a
21 good Fourth Amendment claim alone will not earn a
22 prisoner habeas relief. Only those habeas petitions
23 who can prove under Strickland that they have been
24 denied a fair trial by the gross incompetence of their
25 attorneys will be granted the writ and will be entitled
26 to retrial without the challenged evidence,
27
28 id. at 382.

29 “[I]n light of Strickland . . . , a Sixth Amendment

30 ineffective assistance of counsel claim necessarily invokes

10
1 federal law that has been ‘clearly established’ by the Supreme

2 Court within the meaning of AEDPA.” Mosby v. Senkowski, 470 F.3d

3 515, 518-19 (2d Cir. 2006) (internal quotation marks omitted);

4 see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000)

5 (recognizing the test set forth in Strickland as “clearly

6 established” law for AEDPA purposes).

7 Strickland requires that a “criminal defendant asserting

8 that counsel is constitutionally deficient” meet both a

9 “performance” test, showing that counsel’s representation “‘fell

10 below an objective standard of reasonableness,’” and a

11 “prejudice” test, demonstrating that “‘there is a reasonable

12 probability that, but for counsel’s unprofessional errors, the

13 result of the proceeding would have been different.’” Bell v.

14 Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quoting Strickland, 466

15 U.S. at 688, 694). Under Strickland, there is a “strong

16 presumption that counsel’s conduct falls within the wide range of

17 reasonable professional assistance.” 466 U.S. at 689.

18 Furthermore, on habeas appeal it is not enough for Palacios to

19 show a constitutional violation. He must also show that the

20 state court’s “application of Strickland was not merely

21 incorrect, but objectively unreasonable.” Hemstreet v. Greiner,

22 491 F.3d 84, 89 (2d Cir. 2007) (internal quotation marks

23 omitted). Specifically, Palacios must establish unreasonableness

24 in light of Supreme Court precedent regarding the state courts’

11
1 Fourth Amendment determination, which underlies the ineffective

2 assistance claim.

3 For the reasons that follow, we find that Palacios failed to

4 satisfy the “performance” prong of the Strickland test, see 470

5 F. Supp. 2d at 221-23, and thus, that Palacios failed to meet

6 Strickland’s “rigorous” standard, Bell, 500 F.3d at 155 (internal

7 quotation marks omitted). There is therefore no cause for us to

8 reach the “prejudice” prong.

9 Because Palacios has not shown that his trial counsel was

10 ineffective for failing to raise a Fourth Amendment challenge to

11 his show-up, he has similarly failed to show that his counsel was

12 ineffective for failing to challenge his subsequent jailhouse

13 confession as the fruit of the poisonous tree. See, e.g., United

14 States v. Guarno, 819 F.2d 28, 32 (2d Cir. 1987) (finding that

15 “derivative evidence” need not be suppressed where the predicate

16 evidence was “properly obtained”).

17 I. Strickland’s “Performance” Prong: Palacios’s Fourth

18 Amendment Unreasonable Seizure Claim

19 A. Exigent Circumstances in the Absence of

20 Individualized Suspicion

21 The Fourth Amendment protects individuals “against

22 unreasonable searches and seizures.” U.S. Const. amend. IV. “A

23 search or seizure is ordinarily unreasonable in the absence of

24 individualized suspicion of wrongdoing,” such as in cases in

12
1 which the “primary purpose of the [seizure] is ultimately

2 indistinguishable from the general interest in crime control.”

3 City of Indianapolis v. Edmond, 531 U.S. 32, 37, 48 (2000). The

4 Supreme Court, however, has made clear that

5 [t]he touchstone of the Fourth Amendment is
6 reasonableness, not individual suspicion. Thus, while
7 th[e] Court’s jurisprudence has often recognized that “to
8 accommodate public and private interests, some quantum of
9 individualized suspicion is usually a prerequisite to a
10 constitutional search or seizure,” . . . the “Fourth
11 Amendment imposes no irreducible requirement of such
12 suspicion.”
13
14 Samson v. California, 547 U.S. 843, 855 n.4 (2006) (quoting

15 United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976))

16 (emphasis added); accord Nat’l Treasury Employees Union v. Von

17 Raab, 489 U.S. 656, 665 (1989) (reaffirming the “longstanding

18 principle” that no “measure of individualized suspicion . . . is

19 an indispensable component of reasonableness in every

20 circumstance”); Skinner v. Ry Labor Executives’ Ass’n, 489 U.S.

21 602, 624 (1989) (“[A] showing of individualized suspicion is not

22 a constitutional floor, below which a search must be presumed

23 unreasonable.”).

24 Accordingly, the Supreme Court has recognized “limited

25 circumstances in which the usual rule [requiring individualized

26 suspicion] does not apply.” Edmond, 531 U.S. at 37.

27 Individualized suspicion is not needed, for example, in cases

28 involving “an exigency that justifies immediate action on the

29 police’s part.” Georgia v. Randolph, 547 U.S. 103, 117 n.6

13
1 (2006); see also id. (collecting and summarizing exigent

2 circumstances that may justify warrantless searches); Edmond, 531

3 U.S. at 44 (recognizing circumstances involving “exigencies” that

4 permit seizures without individualized suspicion); United States

5 v. Harper, 617 F.2d 35 (4th Cir. 1980). Specifically, the

6 Supreme Court has indicated that such an exigency exists when the

7 police utilize an “appropriately tailored” seizure “set up . . .

8 to catch a dangerous criminal who is likely to flee by way of a

9 particular route.” Edmond, 531 U.S. at 44. The show-up in this

10 case involves that exact exigency: The police knew that the

11 perpetrators were within the finite group of men, whom the

12 officers understood to be Hispanic, inside or lined up outside of

13 the 30-30 Club near the stabbing, and the show-up was

14 contemporaneous to the stabbings and aimed to identify and arrest

15 dangerous criminals who were likely to flee the club and

16 surrounding area were it not for the police seizure. Moreover,

17 there was a high risk that the two witnesses who could identify

18 the perpetrators would not be available at a later time: the

19 first, one of the stabbed victims, had severe wounds, and the

20 second was a suspect who had tried to leave the scene. Thus, the

21 challenged seizure does not violate the Fourth Amendment simply

22 because it was made without individualized suspicion.

23 A different result is not mandated by Ybarra v. Illinois,

24 444 U.S. 85, 91-92 (1979), which found unreasonable body frisks

14
1 of a tavern’s patrons based on an informant’s tip that one of the

2 tavern’s bartenders possessed heroin. The Ybarra Court found

3 that the “rash and unreasonable interferences with privacy” at

4 issue were based solely on “a person’s mere propinquity to others

5 independently suspected of criminal activity.” Id. at 91, 95-96

6 (internal quotation marks omitted). And, most importantly, the

7 seizure in Ybarra was not justified by any exigent or emergency

8 circumstances. Here, the police knew to a virtual certainty that

9 the perpetrators whom they hoped to identify were among the

10 patrons and likely to escape, and briefly detaining these patrons

11 and instructing them to walk outside, unlike the body frisks in

12 Ybarra, was minimally intrusive. See Martinez-Fuerte, 428 U.S.

13 at 561 (explaining that body searches are “ordinarily afforded

14 the most stringent Fourth Amendment protection”). Therefore,

15 there was a strong showing in this case that the show-up was

16 justified by emergency and exigent circumstances that did not

17 require a showing of individualized suspicion, and “no

18 particularized reason need exist to justify it,” id. at 563. Our

19 decision in this case in no way affects the need for

20 individualized suspicion in cases primarily “relat[ing] to

21 ordinary crime control,” Edmond, 531 U.S. at 44, and not

22 involving exigencies similar to those presented here. Finding

23 exigent circumstances, however, does not alone answer the

24 question of whether the show-up comports with the Fourth

15
1 Amendment. We must still examine whether it was reasonable,

2 which remains the “touchstone of the Fourth Amendment,” Samson,

3 547 U.S. at 855 n.4. We now turn to that question.

4 B. Totality of the Circumstances

5 “[T]o determine whether a search is reasonable within the

6 meaning of the Fourth Amendment,” courts “examine the totality of

7 the circumstances.” Samson, 547 U.S. at 848 (internal quotation

8 marks and alteration omitted). In considering the “totality of

9 the circumstances--the whole picture,” United States v. Cortez,

10 449 U.S. 411, 417 (1981), we take into account “the facts known

11 to the officers,” Alabama v. White, 496 U.S. 325, 330-31 (1990),

12 and “balance the privacy-related and law enforcement-related

13 concerns,” Illinois v. McArthur, 531 U.S. 326, 331 (2001).

14 Here, the police knew that two serious stabbings had

15 occurred (one soon-to-be fatal), and they were armed with

16 reliable information that the perpetrators were among the group

17 of individuals inside or lined up outside of the 30-30 Club. The

18 police could have reasonably believed that the delay necessary to

19 procure a warrant would thwart the possibility of ever finding

20 the perpetrators, by increasing the likelihood that one or more

21 of them would be able to get away. See United States v. Gordils,

22 982 F.2d 64, 69 (2d Cir. 1992) (holding that “a likelihood that

23 the suspect will escape” supports a finding of exigency). The

24 police had two eyewitnesses who were able to identify the

16
1 perpetrators, but who may have been unable or unwilling to do so

2 in the future: One was grievously wounded, and the other was a

3 suspect who had already attempted to flee the scene. The police

4 had reason to believe that the perpetrators posed an immediate

5 danger to others inasmuch as they were armed, in a crowded place,

6 and had just engaged in an act of extreme violence. In light of

7 these circumstances, it was not unreasonable for the police to

8 settle on the show-up procedure that they adopted.

9 We find instructive the Supreme Court’s decision in Illinois

10 v. Lidster, 540 U.S. 419, 424 (2004), which held that the police

11 did not run afoul of the Fourth Amendment by stopping motorists

12 at a highway checkpoint to ask them about a fatal hit-and-run

13 accident that had taken place a week earlier on that highway,

14 notwithstanding the lack of individualized suspicion. 540 U.S.

15 at 423-27. Lidster, like the case at hand, involved law

16 enforcement’s need to acquire information about a recent crime

17 that had occurred in the vicinity. There is even more reason to

18 find the show-up procedure in the instant case to be

19 constitutionally permissible than the purely “information-

20 seeking” traffic stop in Lidster, id., because the police had

21 reason to believe that the club patrons included the perpetrators

22 of the stabbings. Moreover, unlike Lidster, in which the traffic

23 stop took place a week after the accident being investigated, the

24 show-up in this case took place immediately after the stabbings

17
1 and involved exigent circumstances, as detailed above. While the

2 length of the detention in this case was greater than the

3 duration of the stop in Lidster, the urgency for immediate police

4 action was also substantially greater. There was a strong

5 showing in this case that, as in Lidster, the challenged seizure

6 was “reasonable in context,” id. at 426, and “hence

7 constitutional,” id. at 421.

8 The balance of interests further supports this conclusion.

9 A search, or in this case, an identification procedure, may be

10 reasonable where privacy concerns are minimal, the government

11 interest is furthered by the intrusion, and the intrusion is

12 properly tailored in time and scope to this interest. See, e.g.,

13 id. at 424-25 (upholding a brief information-seeking highway

14 stops without any individualized suspicion); McArthur, 531 U.S.

15 at 330-34 (affirming the temporary restraint of an individual in

16 a home believed to contain evidence of a crime and unlawful

17 drugs); Pennsylvania v. Labron, 518 U.S. 938, 940-41 (1996) (per

18 curiam) (upholding an automobile search); Skinner, 489 U.S. at

19 623 (affirming a warrantless drug-testing of railroad employees);

20 Michigan v. Summers, 452 U.S. 692, 702-05 (1981) (upholding a

21 temporary, warrantless detention of suspect without arrest to

22 prevent flight); Martinez-Fuerte, 428 U.S. at 560-62 (affirming

23 checkpoint border stops to guard against illegal immigration);

24 Terry v. Ohio, 392 U.S. 1, 27 (1968) (upholding a temporary stop

18
1 and limited search for weapons).

2 Here, strong public interest and law enforcement concerns

3 supported the need for the intrusion, because “the government’s

4 interest in dispensing with the warrant requirement is at its

5 strongest when . . . ‘the burden of obtaining a warrant is likely

6 to frustrate the governmental purpose behind the search.’”

7 Skinner, 489 U.S. at 623 (quoting Camara v. Mun. Court, 387 U.S.

8 523, 533 (1967)); e.g., Gordils, 982 F.2d at 69. As we have

9 explained, the crime was serious and time was of the essence if

10 identifications were to be made.

11 Moreover, privacy concerns were reduced in this case. The

12 show-up procedure on the street outside the club neither

13 constituted a “search[] nor [affected] the sanctity of private

14 dwellings, ordinarily afforded the most stringent Fourth

15 Amendment protection.” Martinez-Fuerte, 428 U.S. at 561. And

16 the club itself, which was open to the public, did not yield the

17 same expectations of privacy as a private setting: The show-up

18 procedure, whereby the officers simply directed Palacios to line

19 up inside the club and walk outside when so instructed, was far

20 less invasive than, for example, a body frisk, which constitutes

21 “a serious intrusion upon the sanctity of the person,” “may

22 inflict great indignity,” and “is not to be undertaken lightly.”

23 Terry, 392 U.S. at 17; see also Ybarra, 444 U.S. at 95-96; Terry,

24 392 U.S. at 16-17, 17 n.13. Thus, this case did not involve

19
1 heightened privacy interests that outweigh the law enforcement

2 needs that prompted the show-up.

3 In addition, because the police took “reasonable efforts to

4 reconcile their law enforcement needs with the demands of

5 personal privacy,” McArthur, 531 U.S. at 332, there was

6 appropriate tailoring. The detention was limited in scope: The

7 police separated out the women and briefly held only the possible

8 male suspects followed by the request that the men line up and

9 walk out of the club one-by-one. The seizure was also limited in

10 duration and was “no longer than necessary for the police, acting

11 with diligence,” to identify the perpetrators. Id. at 332; see

12 also id. (finding reasonable a two-hour time restraint of an

13 individual in his home).

14 Finally, the show-up is not realistically susceptible to an

15 argument that it could have been less restrictive.

16 “[R]easonableness under the Fourth Amendment does not require

17 employing the least intrusive means . . . .” Earls, 536 U.S. at

18 837. Indeed, finding to the contrary could “raise insuperable

19 barriers to the exercise of virtually all search-and-seizure

20 powers,” Martinez-Fuerte, 428 U.S. at 556 n.12, and “unduly

21 hamper the police’s ability to make swift, on-the-spot

22 decisions,” United States v. Sokolow, 490 U.S. 1, 11 (1989). In

23 the situation at hand, the police could not have reduced further

24 the number of potential suspects nor would it have been

20
1 practicable to bring the witnesses into the crowded club: One

2 was grievously wounded and the other was himself a suspect. We

3 are not inclined to “indulge in [such] unrealistic second-

4 guessing” as to other methods that might have been employed. Id.

5 (internal quotation marks omitted).

6 Rather than supporting a “good Fourth Amendment claim,”

7 Kimmelman, 477 U.S. at 382, the “totality of the circumstances,”

8 Cortez, 449 U.S. at 417, and the “balance [of] privacy-related

9 and law enforcement-related concerns,” McArthur, 531 U.S. at 331,

10 undermine Palacios’s claim that the police show-up, following the

11 Djukanovic and Kolenovic stabbings, violated Palacios’s Fourth

12 Amendment rights and tainted his subsequent arrest and

13 confession. Accordingly, we conclude that Palacios has not shown

14 that counsel’s decision not to pursue a Fourth Amendment

15 challenge respecting the show-up rose to the level of

16 “incompetence” as “unreasonable under prevailing professional

17 norms” and “not sound strategy.” Kimmelman, 477 U.S. at 381; see

18 also Strickland, 466 U.S. at 687-88.

19 II. Strickland’s “Prejudice” Prong

20 Because Palacios’s claim fails to demonstrate

21 constitutionally deficient “performance,” the first prong of the

22 Strickland test, this court need not reach the second “prejudice”

23 prong.

24 CONCLUSION

21
1 For the reasons we have stated, Palacios has failed to meet

2 his burden regarding his ineffective assistance of counsel claim.

3 Palacios cites to, and we have found, no Supreme Court case that

4 establishes that show-ups of the sort employed here, immediately

5 following the commission of a violent crime in the vicinity, are

6 unlawful seizures under the Fourth Amendment. It necessarily

7 follows that the state court’s denial of Palacios’s ineffective

8 assistance claim was not an unreasonable application of clearly

9 established federal law as determined by the Supreme Court. Upon

10 reviewing the state court’s determination that Palacios did not

11 receive ineffective assistance of counsel, see id. at 90 n.2, we

12 conclude that Palacios is not entitled to a writ of habeas

13 corpus, and that the district court properly denied his petition.

14 For the foregoing reasons, the judgment of the district

15 court is AFFIRMED.
16

22