MEMORANDUM **
Marlon Evans appeals the district courts dismissal of his 28 U.S.C. § 2254 habeas petition. He also asks us to remand his case to the district court for an evidentiary hearing on the viability of his “actual innocence” and Brady claims. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm the judgment of the district court and deny Evanss motion for remand.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), we review de novo a district courts denial of a habeas petition. See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). But de novo review of claims already adjudicated on the merits by a state court are permitted only where the state court adjudication “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Here, the California Supreme Court summarily denied Evanss due-process and ineffective-assistance-of-counsel claims. Therefore, as to these issues, Evans “can satisfy the ‘unreasonable application’ prong of § 2254(d)(1) only by showing that ‘there was no reasonable basis’ for the California Supreme Courts [summary] decision.” Cullen v. Pinholster, 563 U.S. 170, 188, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). Thus, we “must determine what arguments or theories could have supported the state courts decision; and then [we] 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 [the Supreme Court].” Id. The California Court of Appeal also denied Evanss misjoinder-of-charges claim in a reasoned opinion, after which the California Supreme Court denied review without comment. As to the misjoinder-of-charges claim, we “ ‘look through’ the [California Supreme Courts] unexplained decision and presume that the unexplained decision adopted the same reasoning” as the California Court of Appeal. See Wilson v. Sellers, ––– U.S. ––––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018). Thus, absent a showing the California Supreme Court relied on different grounds, we review “the specific reasons given by the state court and defer[ ] to those reasons if they are reasonable.” Id.
1. Due Process: The California Supreme Court summarily denied Evanss claim that identification procedures employed by the police and prosecution with witness Leroy Martin violated his due process rights. Evans argues that the identification procedures were unnecessarily suggestive because: (1) he was the only person in the arrays whose photo appeared twice; (2) the picture of him with a beanie was chosen to ensure an identification consistent with the witnesss statement; and (3) only three of the “suspects” in the photo array wore beanies. He argues that this parallels the unconstitutionally suggestive identification procedures in Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
We cannot say that the “state courts ruling on the claim ․ was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103, 131 S.Ct. 770. Unlike in this case, Foster involved two suggestive lineups – including one in which the petitioner stood out because of his height and clothing – and a one-on-one confrontation, which “made it all but inevitable that [the witness] would identify [the] petitioner.” Foster, 394 U.S. at 442-43, 89 S.Ct. 1127. See also Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (describing one-on-one confrontations as “widely condemned”). Evanss photo arrays contained similar-looking individuals, and the lineup only contained men of similar height, build, and appearance. Evanss identification procedures do not resemble any of the examples provided by the Supreme Court in United States v. Wade, 388 U.S. 218, 233, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) or any of the Courts other decisions. Consequently, fairminded jurists, like the members of the California Supreme Court, could disagree as to the suggestiveness of the identification procedures.
1
2. Ineffective assistance of counsel: The district court did not err in denying Evanss ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, Evans must prove that the performance of his trial counsel was deficient, and that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. He cannot demonstrate either. As noted, the California Supreme Courts denial of Evanss suggestive identification claim was not unreasonable. Thus, the California Supreme Courts denial of Evanss ineffective assistance of counsel claim was also not unreasonable. The state court could have reasonably concluded that the trial counsels decision not to object to the identification procedures (used by the police with Martin) was not unconstitutionally deficient, because the procedures were not “impermissibly suggestive” or that “under the totality of the circumstances, the identification was ․ reliable.” See Sexton v. Beaudreaux, ––– U.S. ––––, 138 S. Ct. 2555, 2560, 201 L.Ed.2d 986 (2018) (internal quotation marks omitted) (quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). As this court put it, a lawyers “failure to make a futile motion does not constitute ineffective assistance of counsel.” James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).
Additionally, both of the prosecutions witnesses, Leroy Martin and Clarence Lavan, inconsistently described the suspect, including at trial. At trial, Evanss counsel could have made the strategic choice to rely on these potential inconsistencies, rather than contest the identification process. A fairminded jurist could agree with the tactical merits of this approach, further undermining Evanss claim.
Inconsistences tend to create doubt, a defense lawyers best friend. Certainly, counsel could have made the strategic choice to challenge the identification process. As the dissent notes, a good lawyer might have made a challenge. But counsel could have instead decided to rely on the inconsistencies between Martins and Lavans accounts to introduce reasonable doubt about whether Evans was the shooter that the latter saw. Indeed, by introducing the two accounts, which shared only a description of the suspects hat and pants, Evanss counsel gave the jury reason to second guess the credibility of the witnesses’ identifications.
Ultimately, a habeas petition is not the appropriate vehicle to second-guess litigation strategy. Instead, we apply the “strong presumption that counsels conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Hence, the only question properly before us is whether declining to contest an identification process to introduce discreditable witnesses’ testimony can be “the result of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. We conclude that it can.
Finally, even if trial counsels failure to object to the identification procedures was deficient, Evans failed to establish that “there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Notably, Martin was one of two eyewitnesses to identify Evans at trial, and the other eyewitness, unlike Martin, identified Evans as the shooter. Thus, there is not a “reasonable probability” that the absence of Martins testimony would have resulted in a different outcome. See Harrington, 562 U.S. at 104, 112, 131 S.Ct. 770 (“The likelihood of a different result must be substantial, not just conceivable”). See also Premo v. Moore, 562 U.S. 115, 124, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011) (identifying “the relevant question under Strickland” as whether a “competent attorney would think a motion ․ would have failed,” and explaining that, if “suppression would have been futile ․ his representation was adequate under Strickland, or at least ․ it would have been reasonable for the state court to reach that conclusion”).
3. Misjoinder of charges: The state courts rejection of Evanss misjoinder-of-charges claim was not contrary to, or an unreasonable application of, federal law. The California Court of Appeal considered, and rejected, Evanss misjoinder-of-charges claim in an opinion relying on state and federal law. See also Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) (“explaining that the Supreme Court has not clearly established that misjoinder could rise to the level of a constitutional violation”) (citing United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)). The Court of Appeal reasoned that, because the jury did not convict Evans for attempted murder, joinder did not prevent the jury from weighing the evidence separately.
The state court also applied the correct prejudice analysis under federal law. See Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (“There is no prejudicial constitutional violation unless simultaneous trial of more than one offense ․ actually render[ed] petitioners state trial fundamentally unfair and hence, violative of due process”). Likewise, the California Court of Appeal considered the appropriateness of the joinder at multiple phases of the trial. Nevertheless, it found no evidence of prejudice.
4. Motion for remand: Under 28 U.S.C. § 2106 a “court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” But a motion for indicative ruling and relief from judgment cannot be appealed. See Defenders of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir. 2000) (“A district court order declining to entertain or grant a Rule 60(b) motion is a procedural ruling and not a final determination on the merits ․ [b]ecause there is no final judgment on the merits, the underlying issues raised by the 60(b) Motion are not reviewable on appeal”) (citation omitted). Here, Evans filed a Rule 60(b) motion with the district court submitting new evidence and asserting his innocence. Evanss § 2601 motion is nothing more than an improper attempt to appeal the 60(b) ruling. Without an appealable final judgment on the merits, we lack jurisdiction to entertain Evanss motion.
Further, Evans cannot resort to the “actual innocence gateway” as established in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), because the district court already heard Evanss claims and evidence. See Detrich v. Ryan, 740 F.3d 1237, 1248 (9th Cir. 2013) (recognizing “[a] standard practice ․ to remand to the district court for a decision in the first instance”) (emphasis added). See also Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (remanding because the district court “failed to address petitioners actual innocence, perhaps because [he] failed to raise it initially in his § 2255 motion”); Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002) (remanding because the district court failed to consider petitioners properly raised Schlup claim). There has been no change in controlling law, and, without one, Evans cannot relitigate his petition. Id. at 1242.
AFFIRMED.
Marlon Darrel Evans was sentenced to life imprisonment for a quadruple murder that there is a very good chance he did not commit. There was no confession or physical evidence connecting him with the crime. Evanss conviction was based in significant part on the testimony of an eyewitness who said he was “75 percent sure” that Evans was a person he saw at the crime scene—and not with a weapon. Despite this conceded uncertainty and evidence of suggestive tactics by the police, Evanss trial counsel did not move to exclude the witnesss identification. The majority holds that the state court acted reasonably in rejecting Evanss claim of ineffective assistance of counsel based on this failure. I respectfully disagree. Any reasonable criminal defense attorney would have challenged the admissibility of this testimony. Because I believe that the California Supreme Courts rejection of this claim was unreasonable, I would reverse.
BACKGROUND
A. Offense conduct and police investigation 1
On December 13, 1992, Henry Broomfield and Donta Bavis, members of the Six Eight faction of the Crips gang, drove into a Los Angeles gas station located in the territory of the Six Deuce faction, with which the Six Eights were feuding. Evans was a Six Deuce. Several “regulars” were at the gas station, including Leroy Martin and Clarence Lavan. Martin saw a man walking around before Broomfield and Bavis arrived; he said the man walked to the gas station from a nearby alley, stood in front of the cashiers window, surveyed the scene, and returned to the alley.
Lavan then saw a man with an AK-47 rifle begin to shoot at Baviss car. Bavis got into the car and sped off with Broomfield as the man continued shooting. Bavis was injured, and Broomfield was killed, as were three bystanders. The man with the AK-47 fired at Lavan, but he was not injured. Lavan saw the man run from the gas station to a burgundy SUV that was in an alley.
Several hours after the shooting, Martin provided police an account of what he had seen. Weeks later, Martin was shown several photo arrays. Two of them (the first and sixth) included Evanss photo; Evans was the only person whose photo appeared twice. Martin did not identify Evanss photo from the first array. He did choose Evanss photo from the sixth array, which showed Evans wearing a beanie, saying he was “75 percent sure” that Evans was the person he had seen. Later, during a live lineup, Martin failed to identify Evans and, on his witness admonition card, wrote “none” when asked for the position of the suspect. However, in the remarks section of the card, Martin wrote that “number five,” Evans, “came the closest” to the man he observed at the gas station. At trial, Martin stated that he didnt identify Evans as the suspect because he didnt see Evans holding a gun.
Police interviewed Lavan and recorded the interview. Lavan was also shown photo arrays. In one of them, Evans was wearing a beanie (Lavan told officers that the shooter wore a hat of this type). After viewing the first array, Lavan identified Evans as the shooter, but then hedged, saying that he “looks like the guy.” (Lavan has since recanted his identification of Evans.) He asked the detectives if they had “one with a beanie”; one detective said yes. After Lavan expressed concern for his and his familys safety, authorities agreed to relocate them and provide other assistance. Later in the same interview, officers showed Lavan another array in which all six of the men were wearing something on their heads, three (including Evans) with beanies. Lavan chose Evanss photo, saying that he didnt know if this photo and the earlier photo were of “the same people” and that he “couldnt identify him without the hat.”
B. Evanss Trial
Lavan was unavailable to testify at Evanss trial, so his testimony from the preliminary hearing, in which he identified Evans as the shooter, was read into the record. This included significant impeachment based on the circumstances recounted above.
Martin identified Evans as the man he had seen at the gas station (without a gun). He stated that he did not see the shooter and was only 75 percent sure that he saw Evans that evening. Martin testified that he wrote “none” on his lineup identification card because “I wasnt a hundred percent sure that that was him. I said he looked like him.” “I seen someone that looked like him. I dont know if that was him or not.” When trial counsel asked Martin if he ever saw a weapon in the defendants hands, Martin repeated, “No, no, no. No, no, I didnt.”
The jury found Evans guilty of two counts of first-degree murder, two counts of second-degree murder, and one count of possession of a short-barreled rifle. He was sentenced to life imprisonment without possibility of parole, plus 108 years.
C. Post-conviction history
Evans appealed his conviction to the California Court of Appeal, which affirmed his conviction. His petition for certiorari to the California Supreme Court was denied. State collateral review was similarly unhelpful to him. Next, Evans filed a petition for writ of habeas corpus with the California Supreme Court, which was denied.
In 1998, Evans filed a habeas petition in federal court, which a district judge dismissed because it contained both exhausted and unexhausted claims. His habeas petition was reinstated by the district court in October 2011 due to changes in Ninth Circuit precedent. The district court denied the petition with prejudice in late 2012. Regarding Evanss ineffective-assistance-of-counsel claim, the district court held that the trial counsel was not ineffective because Martins in-court identifications werent tainted and a motion to suppress them would have been futile. This court granted a certificate of appealability and appointed counsel to represent Evans. Counsel have thoroughly reinvestigated the case from top to bottom.
DISCUSSION
As the majority states, issuance of a writ of habeas corpus on a claim already adjudicated on the merits by a state court is allowed only where the state court adjudication “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
I focus here on Evanss Sixth Amendment claim of ineffective assistance based on his trial counsels failure to challenge the admission of Martins identification. On a § 2254 petition, judicial review of a claim under Strickland is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). “The question is not whether a federal court believes the state courts determination under the Strickland standard was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Id. (internal quotation marks omitted).
Because the California Supreme Court offered no reasons for denying Evanss claim, we must “conduct an independent review of the record to determine what arguments or theories could have supported” its decision. See Bemore v. Chappell, 788 F.3d 1151, 1161 (9th Cir. 2015) (alterations accepted) (internal quotation marks omitted). And because Evans argues that the state courts decision was an unreasonable application of Supreme Court precedent, we must also determine whether “the state courts application of Supreme Court precedent to the facts of his case was not only incorrect but objectively unreasonable.” Larson v. Palmateer, 515 F.3d 1057, 1061 (9th Cir. 2008) (internal quotation marks omitted).
To establish an ineffective assistance claim, a habeas petitioner must demonstrate that the attorneys performance was deficient and that this prejudiced his defense. Andrews v. Davis, 944 F.3d 1092, 1108 (9th Cir. 2019). “The ultimate focus ․ is the fundamental fairness of the proceeding whose result is being challenged.” Id. (internal quotation marks omitted).
A. Ineffective Assistance—Counsel’s Performance
To meet the performance element, the petitioner must establish that counsels representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is “a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; ․ the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).
The Supreme Court has long recognized that the Due Process Clause requires the exclusion of evidence of a pretrial identification of the defendant when, based on the totality of the circumstances, the identification procedures: (1) were both “suggestive and unnecessary”; and (2) “created a substantial likelihood of misidentification.” See Perry v. New Hampshire, 565 U.S. 228, 238–39, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). (internal quotation marks omitted); see also Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (“Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.”).
This court has recognized that “[w]hen faced with a client who has been identified in an illegal line-up, most defense attorneys would challenge the admission of any evidence related to it.” Tomlin v. Myers, 30 F.3d 1235, 1237–38 (9th Cir. 1994)
2
; see also Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005) (holding that trial counsels failure to move to suppress pre-trial identification was unreasonable and lacking in sound trial strategy). “After all, a defendant arguably has everything to gain and nothing to lose in filing a motion to suppress, especially one involving an identification by the sole eyewitness to the crime.” Tomlin, 30 F.3d at 1238 (alterations accepted) (citations and internal quotation marks omitted).
With the above framework in mind, even applying the “strong presumption” that Strickland requires, I cannot think of a single plausible strategic basis that could support Evanss counsels failure to object to the admission of Martins identification. This is especially so because the trial essentially “hinge[d] on an eyewitnesss testimony.” See id. I disagree with the majoritys contrary conclusion because, in my view, it is premised upon a number of erroneous determinations.
To start with, the majority concludes that a motion by Evanss trial counsel to exclude Martins pre-trial and in-court identifications would have been futile given that the state supreme courts summary rejection of the suggestive-identification claim was not unreasonable.
3
See Majority Op. 516–17, 517–18. This incorrectly elides two separate questions. The fact that there is room for fairminded jurists to disagree about the admissibility of Martins identification does not mean that a motion to exclude the identification was futile, doomed to fail, or anything of the kind. A federal courts determination that a state court decision was not unreasonable is not a determination of the merits; its one step removed. Thus, the fact that we have rejected Evanss suggestive-identification-procedures claim cannot, on its own, provide the basis for rejecting the ineffective assistance claim.
Next, the majority posits that “Evanss counsel could have made the strategic choice to rely on [ ] potential inconsistencies [between Martins and Lavans] identifications rather than contest the identification process” and that “[i]nconsistencies tend to create doubt, a defense lawyers best friend.” Majority Op. 517. There are two problems with this, each of which in my view undermines the majoritys point.
First, the majoritys hypothesis that counsel could have made a strategic choice not to seek exclusion of Martins identification in favor of pointing out inconsistencies between that identification and Lavans does not withstand scrutiny. It is certainly true that in cases like this one, where the state court never held a hearing or actually engaged with the merits of an ineffective assistance claim, a federal court reviewing a habeas corpus petition may (or must) attempt to hypothesize plausible strategic reasons why trial counsel acted or failed to act. But one would expect a hypothetical strategic reason to have some basis in the record. Here there is none: Evanss trial counsel did not argue inconsistencies between the two witnesses’ descriptions to the jury. There was no mention of this point—none—in counsels closing argument. It cannot possibly make sense to uphold a state courts ruling based on a hypothesized strategic choice that is affirmatively contradicted by the record.
Second, even if one disregards what I have just stated, and assuming there were meaningful inconsistencies between the witnesses’ descriptions of the shooter, the failure of Evanss trial counsel to seek to exclude Martins identification could not possibly have been a strategic choice based on “the result of reasonable professional judgment.” See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Aside from Martins identification, the only evidence implicating Evans was preliminary hearing testimony by Lavan that was read into the record along with its impeachment, and Evanss membership in a gang. Evanss trial counsel plainly realized this; he acknowledged to the jury that this case was “one obviously of identity,” and he argued to jurors that Martin was mistaken.
If Evanss defense at trial was that he was wrongly identified, what tactical basis could there be not to challenge the identification and testimony of Martin, the only live witness who identified him? There is no question that such a motion would have been colorable: (1) Martin was only 75 percent certain that Evans was the man he saw; (2) detectives placed Evanss photo, and only his photo, in two separate arrays—with Martin identifying him only in the second array; (3) the picture Martin chose was taken so that it would match a description of the shooter (who wore a beanie); and (4) at the lineup, when Martin was seeing Evans for the third time during an identification procedure, he was able to say only that Evans came closest to the man he had seen before the shooting. Evans and his counsel had “everything to gain and nothing to lose in filing a motion to suppress.” See Tomlin, 30 F.3d at 1238 (alterations accepted) (citations and internal quotation marks omitted).
The majority says that “[i]nconsistencies tend to create doubt, a defense lawyers best friend.” Majority Op. 517. With respect, this misstates the point. The real issue is how doubt is shown. The majority seems to be saying that having two identification witnesses with some inconsistencies in their descriptions is somehow better for a defendant than a single identification witness whose testimony, as in this case, can be impeached. I cannot imagine a reasonably competent defense lawyer who would agree with that. If defense lawyers have a best friend, it is less or no evidence on a critical point, not inconsistencies.
* * *
The Strickland reasonableness determination is case-specific. I do not believe there was or is a reasonable strategic basis in Evanss case for not challenging the admissibility of Martins identification. Without this, “the failure to bring to the courts attention a major constitutional error in the prosecutions case is not the product of reasonable professional judgment.” See Tomlin, 30 F.3d at 1239.
B. Ineffective Assistance—Prejudice
To prove prejudice, a habeas petitioner “must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
I believe there is a reasonable probability a motion to suppress would have prevailed had trial counsel filed one. An identification procedure is suggestive where it “[i]n effect ․ sa[ys] to the witness ‘This is the man.’ ” Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). At least two procedures would have supported a challenge to Martins identification as impermissibly suggestive: (1) the detectives’ placement of Evanss photo, and only his photo, in two separate arrays, and (2) the picture Martin chose was taken so that it would match a description of the shooter (who wore a beanie). Both of those procedures are arguably similar to tactics deemed impermissible in Foster. See id. at 442–43, 89 S.Ct. 1127. The State argues that Martins identification would survive a totality-of-the-circumstances inquiry, but two facts make that unlikely: (1) Martin was only ever 75 percent certain when he saw Evanss photo with the beanie and could not make a positive identification when he saw Evans in person at the lineup; and (2) the length of time between the commission of the crime and Martins identification.
Of course, “reasonable probability” in this context is more than the likelihood that Evans would have succeeded on the motion to suppress Martins identification; it also concerns the likelihood that the trial would have come out differently. Evans clears this bar too. Although Martin was not the prosecutions sole witness, this case arguably hinged on his identification and related testimony. Again, Lavan did not testify live at Evanss trial. It was Martin the jury saw questioned, Martin whose credibility they were able to evaluate based on first-hand observation, and Martin whose testimony was the only evidence to corroborate the cold transcript of Lavans preliminary hearing testimony. And in addition to hearing Lavans testimony from the preliminary hearing, the jury heard his admission of doubts during his recorded interview and the promises authorities made to obtain his cooperation. With all this in mind, I agree with Evans that, absent Martins corroborating testimony, there is a reasonable probability that one or more jurors would have had reasonable doubt of Evanss guilt.
CONCLUSION
For the foregoing reasons, I would hold that the California Supreme Court unreasonably applied clearly established federal law in concluding that Evanss counsel was constitutionally adequate. I concur with the majority in all other respects.
FOOTNOTES
1
. Because there is a reasonable basis to conclude that the identification procedures were not impermissibly suggestive, we need not address Evanss additional due process arguments.
2
. “While Supreme Court precedent is the only authority that is controlling under AEDPA, [this court views its] case law as persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application of Supreme Court law.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (internal quotations mark omitted).
3
. The district court offered similar reasoning.
Partial Concurrence and Partial Dissent by Judge KENNELLY