Metcalf v. Newland

20 F. App'x 663

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2001
• Docket: No. 99-17451; DC No. CV-97-06030-OWW
• Status: Published

Opinions

MEMORANDUM²

Clark Harold Metcalf was convicted by a jury of two counts of second-degree robbery and two counts of possession of a firearm by a convicted felon. He filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. The district court denied the petition, and Mr. Metcalf now appeals. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and we affirm.

I.

We review de novo the district court’s decision to deny Mr. Metcalfs habeas petition. See Lockhart v. Terhune, 250 F.3d 1223, 1228 (9th Cir.2001). Because the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs Mr. Metcalfs case, we may grant habeas relief only if the state court’s decision (1) “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) “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).

II.

A.

Mr. Metcalf argues first that comments made by the trial judge violated his Fifth Amendment right not to testify at his trial. Both Mr. Metcalf and the government agree that the trial judge’s comments constituted error under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). However, Griffin errors are trial errors, not structural errors, and are subject to harmless error review. See Rice v. Wood, 77 F.3d 1138, 1143 (9th Cir.1996).

The California appellate court concluded that the Griffin error in Mr. Metcalfs case was harmless. In light of the evidence presented in this case, we find that it was not clear error for the California appellate court to conclude that the Griffin error was harmless. See Van Tran v. Lindsey, 212 F.3d 1143,1152 (9th Cir.), cert, denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000).

B.

Mr. Metcalf argues next that his Sixth Amendment right to counsel was violated because defense counsel was not present at the post-indictment live lineup, even though a defense investigator was. In support of his argument, Mr. Metcalf relies primarily on United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

We need not decide whether Mr. Met-calfs Sixth Amendment right to counsel was in fact violated under the circumstances. Assuming that there was a violation, there was still clear and convincing evidence that the eyewitnesses’ in-court identifications of Mr. Metcalf were based upon observations of him other than at the live lineup. See id. at 241, 87 S.Ct. 1926 (adopting the test established in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

C.

Finally, Mr. Metcalf contends that his Sixth Amendment right to counsel was violated because trial counsel rendered ineffective assistance by failing to object to the admission of the lineup evidence. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (discussing standard for ineffective assistance of counsel). We conclude that, even if trial counsel was ineffective for not objecting to the lineup evidence, Mr. Metcalf suffered no prejudice as a result.

Accordingly, the judgment of the district court is AFFIRMED.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.