NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICKY BENJAMIN, No. 12-56664
Petitioner - Appellant, D.C. No. 2:11-cv-02899-JVS-SH
v.
MEMORANDUM*
CONNIE GIPSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted February 2, 2016
Pasadena, California
Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.
This is an extremely troubling case. Ricky Benjamin appeals the district
court’s denial of his pro se habeas petition, which challenges his 2006 convictions
for first-degree murder and attempted second-degree robbery. We review under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and we
affirm.
1. Benjamin first argues that insufficient evidence existed for the jury to
conclude that he committed the offenses. The state offered the following evidence
relevant to his identity as a perpetrator. First, the victim’s sister Angelica, who
was 11 years old at the time of the offenses, testified that she saw a man with a gun
jump on the hood of her brother’s car, that she turned to grab a phone, and then
heard, but did not see, a shot fired. Because the man was wearing a hood and
baseball cap, she said that she saw only the bottom half of his face. Angelica first
identified another man as the perpetrator after viewing a photo lineup. She initially
reiterated that identification at the preliminary hearing, but, after a lunch break,
recanted her testimony and identified Benjamin. At the trial, she explained that she
had switched her identification to Benjamin during lunchtime because his chin was
“a bit more full than the other guy’s” (she had stated at the preliminary hearing that
she saw only the shooter’s chin). A neighbor testified that she heard a single shot
and saw only a man’s back, but not his face, as he ran from the scene. Relying
solely on the man’s “height” and “build,” the neighbor picked Benjamin out of a
photo lineup and reiterated that identification at trial. The victim’s brother Moses
also testified, saying that Benjamin told him that someone else in the neighborhood
2
had committed the crime and that Moses could borrow Benjamin’s guns to get
revenge. Moses further testified that Benjamin described one of his guns as a .380
caliber, which is the same caliber as the murder weapon. The state also introduced
the testimony of Denise White, a self-described “crackhead” who said that she
overheard Benjamin say that he shot “that ese,” which White defined as referring
to a “white boy” or “Hispanic person.” When asked how she could be sure which
shooting Benjamin was talking about, White stated that she was sure because she
had witnessed him fleeing after the shooting, although her description of the
incident was inconsistent with the rest of the state’s evidence.1 Finally, the state
introduced forensic evidence demonstrating that a number of individuals’ DNA
was present on the headband of a baseball cap found at the scene and that
Benjamin, who lived in the neighborhood, was one of those individuals.
Our review of a sufficiency of the evidence challenge under AEDPA is
subject to the “twice-deferential standard” of Jackson v. Virginia, 443 U.S. 307
(1979), and AEDPA. Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). The
1
White maintained that the shooting happened at midnight, while all other
witnesses testified that it happened between 6 and 7PM, during daylight hours.
White also said that she heard “two, three, maybe four” shots, while the bulk of the
evidence, especially the forensic evidence, was that only one shot had been fired.
Finally, White testified that she saw two perpetrators fleeing in a green car, while
another eyewitness, who observed a perpetrator getting into a getaway car, testified
unequivocally that the car was white.
3
evidence of Benjamin’s identity as a participant in the crimes is weak, as much of
the testimony offered by the state was either of low probative value or suffered
from clear credibility defects (or both). Under Jackson and AEDPA, however, we
are not permitted to weigh witness credibility. See Bruce v. Terhune, 376 F.3d
950, 957 (9th Cir. 2004). We therefore are compelled to hold that “the state court’s
determination that a rational jury could have found that there was sufficient
evidence of guilt . . . was [not] objectively unreasonable.” Boyer v. Belleque, 659
F.3d 957, 965 (9th Cir. 2013).
2. Benjamin next argues that his counsel was ineffective for failing to move
to suppress Angelica’s eyewitness identification. See Strickland v. Washington,
466 U.S. 668 (1984). Benjamin’s counsel’s performance was not deficient,
however, because any such motion would likely have been unsuccessful. Although
Angelica’s identification was exceedingly unreliable, courts suppress eyewitness
identifications only when they are the product of improperly suggestive conduct by
the police. See Perry v. New Hampshire, 132 S. Ct. 716, 721 (2012).2 Because
2
Although Perry was decided after Benjamin’s trial, California courts
appear to have made the same requirement explicit prior to Perry. See, e.g., People
v. Peggese, 102 Cal. App. 3d 415, 422 (1980); People v. Boothe, 65 Cal. App. 3d
685, 691 (1977).
4
there is no evidence of such conduct in this case, we affirm the district court’s
denial of Benjamin’s ineffective assistance of counsel claim.
3. Benjamin’s next claim is a Confrontation Clause challenge to the
admission of the DNA evidence. At trial, the state introduced the inculpatory
DNA evidence through the testimony of an analyst who had not actually conducted
the DNA testing. Benjamin argues that this arrangement violated Melendez-Diaz
v. Massachusetts, 557 U.S. 305 (2009). The state argues that the state court was
not unreasonable in determining that Melendez-Diaz is distinguishable.3 In
Melendez-Diaz, no analyst testified as to the procedures underlying the forensic
reports. 557 U.S. at 308-09. Here, by contrast, a forensic analyst familiar with the
DNA laboratory’s procedures testified and was subject to cross-examination.
Accordingly, the state court’s decision was not an unreasonable application of
Melendez-Diaz. See Flournoy v. Small, 681 F.3d 1000, 1005 (9th Cir. 2012)
(noting that Melendez-Diaz did not address “the degree of proximity the testifying
witness must have to the scientific test”).
4. Finally, Benjamin asks that we remand his case to the district court so
that he may seek leave to amend his habeas petition to add newly-discovered
3
The Supreme Court had yet to decide Bullcoming v. New Mexico, 131 S.
Ct. 2705 (2011), and Williams v. Illinois, 132 S. Ct. 2221 (2012), when Benjamin’s
convictions became final in 2009.
5
claims. After Benjamin appealed the district court’s denial of his pro se habeas
petition, this court appointed counsel, who discovered two unraised potential
claims: an ineffective assistance of counsel claim based on defense counsel’s
failure to present alibi evidence, and a Brady4 claim based on the prosecution’s
failure to disclose exculpatory evidence, that “Denise White’s” actual name is
Rochelle Thomas, and that she served as a paid police informant in this and other
cases.
Benjamin is currently pursuing these two new claims in state court. He
seeks to amend his habeas petition to include them in case the state court should
not grant relief so that the claims may be brought outside of AEDPA’s limitations
on “second or successive” petitions.5 See 28 U.S.C. § 2244(b)(2).
A remand at this point, however, would be futile. Because the district court
addressed the claims in Benjamin’s pro se petition on the merits and issued final
judgment, Benjamin cannot now amend his habeas petition without filing a Federal
4
Brady v. Maryland, 373 U.S. 83 (1963).
5
We grant Benjamin’s motion for judicial notice, supplemental motion for
judicial notice, and motion to file under seal because the attachments to these
motions arise out of “proceedings in other courts . . . [that] have a direct relation to
matters at issue” in this proceeding. Trigueros v. Adams, 658 F.3d 983, 987 (9th
Cir. 2011). The motion to seal is granted subject to reconsideration should further
proceedings be initiated in this court.
6
Rule of Civil Procedure 60(b) motion for relief from the judgment. See Bonin v.
Vasquez, 999 F.2d 425, 427 (9th Cir. 1993) (“Because final judgment already had
been entered . . . when Bonin first sought to raise six new issues, the district court
properly construed Bonin’s motion as a request for relief from the judgment
pursuant to Rule 60(b).”). The time in which Benjamin could file such a motion
has elapsed. See Fed. R. Civ. Pro. 60(c)(1). Even if Benjamin could file a Rule
60(b) motion, the Supreme Court has held that such motions that raise new
“claims” should ordinarily be considered under AEDPA’s provisions governing
“second or successive” petitions. Gonzalez v. Crosby, 545 U.S. 524, 530-31
(2005).
The result in this case is troubling for many reasons, including the question
regarding the sufficiency of the evidence. It is especially troubling, however, with
respect to Benjamin’s Brady claim. Given the minimal evidence offered at trial
and the state’s alleged failure to disclose critical exculpatory evidence, we note that
there may well be a reasonable probability that the result of the jury trial would
have been different absent the Brady violation. Benjamin could not have included
any such claim in his first habeas petition, however, because the state allegedly
failed, in violation of Brady, to disclose material exculpatory information to the
defense, and Benjamin did not learn of this fact until after the time within which to
7
file a habeas claim had expired. Should the case return to this court at any point,
we might be required to consider whether Benjamin’s new claims satisfy the
provisions governing “second or successive” petitions or, in the case of the Brady
claim, whether that claim is excused from satisfying those requirements. See
United States v. Lopez, 577 F.3d 1053, 1064-67 (9th Cir. 2009) (leaving open the
question whether material Brady claims are excused from satisfying the provisions
governing “second or successive” petitions). The panel retains jurisdiction over
any further claims that may be placed before this court as a result of the
convictions we consider today.
AFFIRMED.
8
FILED
BENJAMIN v GIPSON 12-56664
FEB 18 2016
M. SMITH, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in all but the final paragraph of the memorandum disposition, with
which I disagree for the following reasons: (a) Every legal issue before us has been
disposed of in the previous paragraphs of the memorandum disposition, so the last
paragraph is wholly unnecessary to the disposition of this case; (b) Under AEDPA,
we are generally required to defer to the state courts in the first instance, but the
final paragraph of this memorandum disposition seems clearly designed to signal
to any state court hereafter considering the matter, as well as the attorneys
involved, the results favored by the panel majority concerning the Brady claim and
whether any new claims satisfy the provisions governing “second or successive”
petitions; and (c) to make certain the state courts “get the message,” the panel
majority has indicated that the panel will retain jurisdiction over the case, even
though there would normally be no reason for the panel to do so.
Accordingly, I dissent from the last paragraph of this memorandum
disposition.