Cruz v. County of Santa Barbara

228 F. App'x 750

Opinion

MEMORANDUM

*

Appellant, Efren Cruz, appeals from the district court’s summary judgment dismissing his 42 U.S.C. § 1983 claims against the County of Santa Barbara and the City of Santa Barbara. Cruz alleges various constitutional violations arising from his 1997 convictions for second degree murder and attempted murder, which were later vacated. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment, Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.2006), and we affirm.

We reject Cruz’s contention that the district court erred when it granted summary judgment on the alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Concerning the alleged pre-trial Brady violations, the district court properly determined that five of the six documents at issue were disclosed to Cruz’s first attorney (Duval). Because the prosecution’s disclosure to Duval fully discharged its Brady obligations with respect to these five documents, Cruz did not raise a triable issue of fact when, in opposition to summary judgment, he presented a declaration by his second attorney (Lax) that Lax did not receive some of the material in Duval’s defense file.

Although a factual dispute exists concerning whether the prosecution disclosed before trial the handwritten notes by Detective Martel, the district court did not err in granting summary judgment because Cruz was not prejudiced by the alleged non-disclosure. Cruz cannot establish “a reasonable probability that the suppressed evidence would have produced a different verdict” because Cruz possessed equivalent exculpatory evidence that he deliberately chose not to present at trial, apparently to avoid implicating Gerardo Reyes as the shooter. See Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Cruz’s post-trial Brady claims, and his claims of improper post-conviction investigative techniques, also fail for lack of prejudice.¹ Cruz ultimately prevailed in his petition for habeas relief, and he has produced no evidence that the writ would have been granted earlier if not for the alleged constitutional violations.

The district court properly found no triable issue of fact concerning whether Cruz’s due process rights were violated by an overly suggestive pre-trial identification procedure. There is no evidence in the record that the video identification procedure was so “impermissibly suggestive” that it resulted in a “very substantial likelihood” of misidentification. See Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). As the district court noted, “Freese was shown a videotape that depicted numerous individuals, and he was admonished (prior to viewing the videotape) that the shooter may, or may not, appear on the videotape and that he was under no obligation to identify anyone.”

We have reviewed Cruz’s other arguments and find them to be without merit. Accordingly, the district court’s grant of summary judgment is AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . Because Cruz has not established prejudice, we need not determine whether the prosecution has a continuing duly to disclose exculpatory evidence after criminal proceedings have concluded.