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Per Curiam
SUPREME COURT OF THE UNITED STATES
MICHAEL SEXTON, WARDEN v.
NICHOLAS BEAUDREAUX
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17–1106. Decided June 28, 2018
PER CURIAM.
In this case, the United States Court of Appeals for the
Ninth Circuit reversed a denial of federal habeas relief, 28
U. S. C. §2254, on the ground that the state court had
unreasonably rejected respondent’s claim of ineffective
assistance of counsel. The Court of Appeals’ decision
ignored well-established principles. It did not consider
reasonable grounds that could have supported the state
court’s summary decision, and it analyzed respondent’s
arguments without any meaningful deference to the state
court. Accordingly, the petition for certiorari is granted,
and the judgment of the Court of Appeals is reversed.
I
Respondent Nicholas Beaudreaux shot and killed
Wayne Drummond during a late-night argument in 2006.
Dayo Esho and Brandon Crowder were both witnesses to
the shooting. The next day, Crowder told the police that
he knew the shooter from middle school, but did not know
the shooter’s name. Esho described the shooter, but also
did not know his name. Seventeen months later, Crowder
was arrested for an unrelated crime. While Crowder was
in custody, police showed him a middle-school yearbook
with Beaudreaux’s picture, as well as a photo lineup in-
cluding Beaudreaux. Crowder identified Beaudreaux as
the shooter in the Drummond murder.
Officers interviewed Esho the next day. They first
spoke with him during his lunch break. They showed him
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a display that included a recent picture of Beaudreaux and
pictures of five other men. Esho tentatively identified
Beaudreaux as the shooter, saying his picture “was ‘clos-
est’ to the gunman.” App. to Pet. for Cert. 4a. Later that
day, one of the officers found another photograph of
Beaudreaux that was taken “closer to the date” of the
shooting. Record ER 263. Beaudreaux looked different in
the two photographs. In the first, “ ‘his face [was] a little
wider and his head [was] a little higher.’ ” Id., at ER 262.
Between four and six hours after the first interview, the
officers returned to show Esho a second six-man photo
lineup, which contained the older picture of Beaudreaux.
Beaudreaux’s photo was in a different position in the
lineup than it had been in the first one. Esho again identi-
fied Beaudreaux as the shooter, telling the officers that
the second picture was “ ‘very close.’ ” Id., at ER 263–ER
264. But he again declined to positively state that
Beaudreaux was the shooter. Esho was hesitant because
there were “a few things” he remembered about the shooter
that would require seeing him in person. Id., at ER
283–ER 284. At a preliminary hearing, Esho identified
Beaudreaux as the shooter. At trial, Esho explained that
it “clicked” when he saw Beaudreaux in person based on
“the way that he walked.” Id., at ER 285. After seeing
him in person, Esho was “sure” that Beaudreaux was the
shooter. Ibid. At no time did any investigator or prosecu-
tor suggest to Esho that Beaudreaux was the one who shot
Drummond. Ibid.
Beaudreaux was tried in 2009 for first-degree murder
and attempted second-degree robbery. Esho and Crowder
both testified against Beaudreaux and both identified him
as Drummond’s shooter. The jury found Beaudreaux
guilty, and the trial court sentenced him to a term of 50
years to life. Beaudreaux’s conviction was affirmed on
direct appeal, and his first state habeas petition was
denied.
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In 2013, Beaudreaux filed a second state habeas peti-
tion. He claimed, among other things, that his trial attor-
ney was ineffective for failing to file a motion to suppress
Esho’s identification testimony. The California Court of
Appeal summarily denied the petition, and the California
Supreme Court denied review. Petitioner then filed a
federal habeas petition, which the District Court denied.
A divided panel of the Ninth Circuit reversed. The
panel majority spent most of its opinion conducting a
de novo analysis of the merits of the would-be suppression
motion—relying in part on arguments and theories that
Beaudreaux had not presented to the state court in his
second state habeas petition. See App. to Pet. for Cert.
1a–7a; Record ER 153–ER 154. It first determined that
counsel’s failure to file the suppression motion constituted
deficient performance. See App. to Pet. for Cert. 3a. The
circumstances surrounding Esho’s pretrial identification
were “unduly suggestive,” according to the Ninth Circuit,
because only Beaudreaux’s picture was in both photo
lineups. Id., at 4a. And, relying on Ninth Circuit prece-
dent, the panel majority found that the preliminary hear-
ing was unduly suggestive as well. Ibid. (quoting Johnson
v. Sublett, 63 F. 3d 926, 929 (CA9 1995)). The panel ma-
jority next concluded that, under the totality of the cir-
cumstances, Esho’s identification was not reliable enough
to overcome the suggestiveness of the procedures. App. to
Pet. for Cert. 5a. The panel majority then determined that
counsel’s failure to file the suppression motion prejudiced
Beaudreaux, given the weakness of the State’s case. Id.,
at 5a–6a. After conducting this de novo analysis of
Beaudreaux’s ineffectiveness claim, the panel majority
asserted that the state court’s denial of this claim was not
just wrong, but objectively unreasonable under §2254(d).
See id., at 6a–7a. Judge Gould dissented. He argued that
the state court could have reasonably concluded that
Beaudreaux had failed to prove prejudice. Id., at 8a.
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The State of California petitioned for certiorari.
II
Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), a federal court cannot grant habeas
relief “with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudica-
tion of the claim . . . resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by” this Court,
or “a decision that was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the
State court proceeding.” §2254(d). When, as here, there is
no reasoned state-court decision on the merits, the federal
court “must determine what arguments or theories . . .
could have supported the state court’s decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of this Court.” Har-
rington v. Richter, 562 U. S. 86, 102 (2011). If such dis-
agreement is possible, then the petitioner’s claim must be
denied. Ibid. We have often emphasized that “this stand-
ard is difficult to meet” “because it was meant to be.”
Ibid.; e.g., Burt v. Titlow, 571 U. S. 12, 20 (2013). The
Ninth Circuit failed to properly apply this standard.
A
To prove ineffective assistance of counsel, a petitioner
must demonstrate both deficient performance and preju-
dice. Strickland v. Washington, 466 U. S. 668, 687 (1984).
The state court’s denial of relief in this case was not an
unreasonable application of Strickland. A fairminded
jurist could conclude that counsel’s performance was not
deficient because counsel reasonably could have deter-
mined that the motion to suppress would have failed. See
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Premo v. Moore, 562 U. S. 115, 124 (2011).1
This Court has previously described “the approach
appropriately used to determine whether the Due Process
Clause requires suppression of an eyewitness identifica-
tion tainted by police arrangement.” Perry v. New Hamp-
shire, 565 U. S. 228, 238 (2012). In particular, the Court
has said that “due process concerns arise only when law
enforcement officers use[d] an identification procedure
that is both suggestive and unnecessary.” Id., at 238–239
(citing Manson v. Braithwaite, 432 U. S. 98, 107, 109
(1977), and Neil v. Biggers, 409 U. S. 188, 198 (1972);
emphasis added). To be “ ‘impermissibly suggestive,’ ” the
procedure must “ ‘give rise to a very substantial likelihood
of irreparable misidentification.’ ” Id., at 197 (quoting
Simmons v. United States, 390 U. S. 377, 384 (1968)). It is
not enough that the procedure “may have in some respects
fallen short of the ideal.” Id., at 385–386. Even when an
unnecessarily suggestive procedure was used, “suppres-
sion of the resulting identification is not the inevitable
consequence.” Perry, 565 U. S., at 239. Instead, “the Due
Process Clause requires courts to assess, on a case-by-case
basis, whether improper police conduct created a ‘substan-
tial likelihood of misidentification.’ ” Ibid. (quoting Big-
gers, supra, at 201). “[R]eliability [of the eyewitness iden-
tification] is the linchpin’ of that evaluation.” Perry,
supra, at 239 (quoting Manson, 432 U. S., at 114; altera-
tions in original). The factors affecting reliability include
“the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of his prior description of the criminal, the level
of certainty demonstrated at the confrontation, and the
——————
1 Judge Gould found that the state court could have reasonably con-
cluded that Beaudreaux failed to prove prejudice because the weight of
the evidence against him—even without Esho’s identification—would
have been sufficient to ensure his conviction. See App. to Pet. for Cert.
8a. We need not reach that issue.
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time between the crime and the confrontation.” Id., at
114. This Court has held that pretrial identification pro-
cedures violated the Due Process Clause only once, in
Foster v. California, 394 U. S. 440 (1969). There, the
police used two highly suggestive lineups and “a one-to-
one confrontation,” which “made it all but inevitable that
[the witness] would identify [the defendant].” Id., at 443.2
In this case, there is at least one theory that could have
led a fairminded jurist to conclude that the suppression
motion would have failed. See Richter, supra, at 102.3
The state court could have reasonably concluded that
Beaudreaux failed to prove that, “under the ‘totality of the
circumstances,’ ” the identification was not “reliable.”
Biggers, supra, at 199. Beaudreaux’s claim was facially
deficient because his state habeas petition failed to even
address this requirement. See Record ER 153–ER 154.
And the state court could have reasonably concluded that
the totality of the circumstances tipped against
Beaudreaux. True, Esho gave a vague initial description
of the shooter, see Manson, supra, at 115 (noting the
detailed physical description the witness gave “minutes
after”), and there was a 17-month delay between the
shooting and the identification, see Biggers, supra, at 201
(determining that “a lapse of seven months . . . would be a
seriously negative factor in most cases”). But, as the
——————
2 In the first lineup, the suspect was nearly six inches taller than the
other two men in the lineup, and was the only one wearing a leather
jacket like the one the witness described the robber as wearing. Foster,
394 U. S., at 441, 443. Police then arranged a “one-to-one confronta-
tion” in which the witness sat in the same room as the suspect and
spoke to him. Id., at 441. And in the second lineup, the suspect was
the only one in the five man lineup who had been in the original lineup.
Id., at 441–442.
3 Because our decision merely applies 28 U. S. C. §2254(d)(1), it takes
no position on the underlying merits and does not decide any other
issue. See Kernan v. Cuero, 583 U. S. ___, ___ (2017) (per curiam) (slip
op., at 7); Marshall v. Rodgers, 569 U. S. 58, 64 (2013) (per curiam).
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District Court found, Esho had a good opportunity to view
the shooter, having talked to Beaudreaux immediately
after the shooting. See App. to Pet. for Cert. 66a. He also
was paying attention during the crime and even remem-
bered Beaudreaux’s distinctive walk. See id., at 64a, 66a.
Esho demonstrated a high overall level of certainty in his
identification. He chose Beaudreaux’s picture in both
photo lineups, and he was “sure” about his identification
once he saw Beaudreaux in person. Record ER 285; App.
to Pet. for Cert. 63a–64a, 66a. There also was “little pres-
sure” on Esho to make a particular identification. Man-
son, supra, at 116. It would not have been “ ‘ “objectively
unreasonable” ’ ” to weigh the totality of these circum-
stances against Beaudreaux. White v. Woodall, 572 U. S.
415, 419 (2014).
B
The Ninth Circuit’s opinion was not just wrong. It also
committed fundamental errors that this Court has repeat-
edly admonished courts to avoid.
First, the Ninth Circuit effectively inverted the rule
established in Richter. Instead of considering the “argu-
ments or theories [that] could have supported” the state
court’s summary decision, 562 U. S., at 102, the Ninth
Circuit considered arguments against the state court’s
decision that Beaudreaux never even made in his state
habeas petition.
Additionally, the Ninth Circuit failed to assess
Beaudreaux’s ineffectiveness claim with the appropriate
amount of deference. The Ninth Circuit essentially evalu-
ated the merits de novo, only tacking on a perfunctory
statement at the end of its analysis asserting that the
state court’s decision was unreasonable. But deference to
the state court should have been near its apex in this case,
which involves a Strickland claim based on a motion that
turns on general, fact-driven standards such as sugges-
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tiveness and reliability. The Ninth Circuit’s analysis did
not follow this Court’s repeated holding that, “ ‘[t]he more
general the rule . . . the more leeway [state] courts have.’ ”
Renico v. Lett, 559 U. S. 766, 776 (2010) (brackets in origi-
nal). Nor did it follow this Court’s precedents stating that,
“because the Strickland standard is a general standard, a
state court has even more latitude to reasonably deter-
mine that a defendant has not satisfied that standard.”
Knowles v. Mirzayance, 556 U. S. 111, 123 (2009). The
Ninth Circuit’s essentially de novo analysis disregarded
this deferential standard.
* * *
The petition for a writ of certiorari and respondent’s
motion to proceed in forma pauperis are granted. The
judgment of the United States Courts of Appeals for the
Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BREYER dissents.