NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALVIN RANKIN, Jr., No. 14-15634
Petitioner - Appellant, D.C. No. 3:09-cv-00145-LRH-
VPC
v.
JACK PALMER and NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted August 11, 2015
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
Nevada state prisoner Alvin Rankin, Jr. appeals the district court’s denial of
his writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 and
review the denial of his writ de novo. Barker v. Fleming, 423 F.3d 1085, 1091 (9th
Cir. 2005). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Just after midnight on July 3, 2004, Victor Sangines, his brother Mario, and
friend Jesus Lara were robbed at gunpoint by two men in a dimly lit parking lot
behind the Sangines’ apartment. One of the robbers shot Lara in the arm before
they fled. Victor called 911 and he continued to deal with the authorities as Mario
and Lara were receiving medical attention. A few minutes later, a police officer
stopped Rankin half a mile away because he appeared to the officer to resemble
Victor’s description of one of the robbers. Rankin looked like he had been
running: he was sweaty, dirty, and scraped. After rejecting several other suspects,
Victor identified Rankin as the robber he had observed.
Rankin was convicted of armed robbery and brings two challenges. First, he
argues that he was prejudiced by the trial court’s limits on his cross-examination of
a police witness. Second, he contends that his lawyers were ineffective for failing
to get his clothes tested for gunpowder or blood spatter, because a negative test
result might have helped show that he was not a participant in the robbery.
At trial, all three victims identified Rankin as one of the robbers. Rankin
maintained that he was not involved. He noted that Mario and Lara had identified
him only in court, not in a line up or photo array, which would have been far more
reliable. Rankin also pointed to discrepancies between Victor’s initial description
of the robber (5'10", 185 lbs, wearing a red shirt) and his actual appearance (5'6",
2
145 lbs, wearing a black shirt). The trial court, commendably, allowed Rankin to
call an expert witness to explain to the jury that eyewitness identification is often
unreliable, particularly where the witness was under substantial stress during the
incident. Nevertheless the jury found Rankin guilty.
The court exhibited little interest in Rankin’s attempt to show that the police
investigation had been shoddy. During cross-examination of a police witness, the
court blocked Rankin’s counsel from eliciting testimony that the officers had not
tested Rankin for gunpowder or blood spatter, which might have tended to show
that he had not taken part in the robbery. On direct appeal, the Nevada Supreme
Court found that limiting Rankin’s cross-examination violated his Sixth
Amendment rights, but that the error was harmless beyond a reasonable doubt in
light of the “convincing” evidence against him. Rankin v. State, No. 45697, slip
op. at 5 (Nev. Nov. 13, 2006) (citing Chapman v. California, 386 U.S. 18, 24
(1967)). The Nevada Supreme Court “note[d] that Rankin was identified as a
participant in the robbery by three different eyewitnesses,” and that he was found
close to the scene looking like he had been running from a crime. Id. Rankin
challenges this harmlessness finding.
Like the district court, we find the prosecution’s evidence less compelling
than did the Nevada Supreme Court, particularly with respect to the value of Mario
3
and Lara’s in-court identifications. Still, Victor’s identification, after he rejected
multiple other suspects, along with Rankin’s appearance when he was detained was
sufficient evidence to persuade the jury of his guilt beyond a reasonable doubt.
The additional cross-examination would not have affected the balance of the
evidence. This is not a case in which the court blocked Rankin from introducing
evidence that someone else committed the crime and that the police did not follow
up on it. Instead, the police’s failure to perform two possibly relevant tests was
only weakly probative of Rankin’s innocence or guilt. We cannot say that the
Nevada Supreme Court was unreasonable within the wide latitude given by 28
U.S.C. § 2254(d) in concluding that the error was harmless beyond a reasonable
doubt. See Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).
Rankin also contends that his lawyers were ineffective in refusing his
request that they test his clothes for gunpowder and blood spatter. The state court
misunderstood Rankin’s claim, deciding that it would have been pointless for
Rankin’s trial counsel to test his hands for gunpowder because that lawyer was not
appointed until sixth months after the robbery, when any trace of gunpowder
would be long gone from Rankin’s body. Rankin v. State, No. 50277, slip op. at 4
(Nev. Mar. 3, 2009). Thus we agree with the district court that the state court did
not decide the issue on the merits (or if it did, it applied federal law unreasonably);
4
therefore, we examine de novo Rankin's claim under Strickland v. Washington, 466
U.S. 668 (1984). See also Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012) (finding
de novo review under Strickland was warranted in part because “the state court
[only] made . . . irrelevant observation[s] and mischaracterized respondent’s
claim”).
Under Strickland, Rankin bears the burden of showing both that his lawyers
were ineffective and that there is a “reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” 466
U.S. at 694. Regardless of whether Rankin has shown ineffective assistance, he
has not demonstrated prejudice because he has not established, even roughly, how
exculpatory a negative test result would have been. We cannot assess the
likelihood that, if Rankin was the shooter or else was within in a few feet of the
shooter, his clothes would have tested positive for gunpowder or blood spatter.
There is nothing in the record on this question and these are hardly facts that come
within our everyday experience. Nor has the clothing actually been tested, so we
have no idea whether there was residue on it or not.
This absence of evidence prevents us from determining that Rankin carried
his burden as to prejudice. Rankin’s failure to do so is conceivably attributable to
his not having representation during the state court’s evidentiary hearing, but he
5
does not argue in his briefs before this Court that this excuses his failure to put
sufficient evidence into the record. Nor does he challenge the district court’s
refusal to conduct an evidentiary hearing.1 Accordingly, any potential excuses for
Rankin’s failure to carry his evidentiary burden are waived. United States v.
Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (failure to raise an issue in the opening
brief generally waives it and “we will not apply an exception on our own accord”).
Although this case is not one in which the eyewitness identification is
particularly strong, the jury made a finding that we are not free to reverse,
particularly under the stringent rules that the Supreme Court has held to be
controlling under AEDPA. Accordingly, whether or not there may be a possibility
that Rankin is innocent, we are compelled by controlling Supreme Court decisions
to affirm the district court’s denial of the writ.
AFFIRMED.
1
Rankin made a general request for “a hearing at which proof may be offered
concerning the [various] allegations in” his Third Amended Petition before the
district court, but he similarly did not argue below that his lack of representation at
the state evidentiary hearing had inhibited him from creating a proper record in
general or concerning forensic testing.
6
FILED
Alvin Rankin Jr v Jack Palmer 14-15634
SEP 25 2015
Callahan, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the majority’s result.