FILED NOT FOR PUBLICATION SEP 18 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS BEAUDREAUX, No. 15-15345
Petitioner-Appellant, D.C. No. 5:13-cv-00351-BLF
v. MEMORANDUM* J. SOTO, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted February 16, 2017 San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and GARBIS,** District Judge.
Nicholas Beaudreaux appeals the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. He contends that (1) his trial
counsel provided him with ineffective assistance of counsel (“IAC”) at his trial on
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation. a first-degree murder charge by failing to object to, or move to exclude, the
testimony of one eyewitness as the product of impermissibly suggestive
photographic identification procedures; and (2) trial counsel’s deficient
performance prejudiced Beaudreaux’s defense. See Strickland v. Washington, 466
U.S. 668, 687 (1984).
1. The relevant inquiry with respect to the first Strickland prong is
whether a reasonably competent attorney would have made a motion to exclude or
raised an objection regarding witness Dayo Esho’s identification of Beaudreaux.
Id. at 687–88. Given the importance of Esho’s testimony, the significant chance of
succeeding on a suppression motion, and the absence of any plausible strategic
reason for not filing such a motion, a reasonably proficient attorney would have
filed it.
A reviewing court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at 689 (internal
quotation marks and citation omitted). Applying that presumption, we can find no
basis for concluding that trial counsel David Kelvin’s failure to object to, or to
2 move to exclude, Esho’s identification testimony was, or could have been, the
product of sound strategic consideration.
First, Kelvin submitted a declaration stating that he did not remember
considering filing a motion to exclude Esho’s identification testimony, and that his
failure to do so “denied Mr. Beaudreaux the effective assistance of counsel.” A
state court is not necessarily bound to accept trial counsel’s testimony regarding
whether a particular action at trial was “tactical” or simply a mistake. Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Edwards, however, is
inapposite. In Edwards, the relevant IAC claim concerned trial counsel’s decision
to allow a defendant to testify regarding conversations with his wife (thereby
waiving the marital communications privilege and permitting the defendant’s wife
to give inculpatory testimony). Id. at 1123–24. In such a case, an objectively
reasonable attorney might well have concluded that the potential benefit of his
client’s testimony regarding any privileged conversations would outweigh any
detriment from his wife’s testimony about the same communications. No such
tactical benefit could inure here, where prevailing on a motion to suppress would
have eliminated an identification of central importance to the prosecution’s case,
without any countervailing procedural or substantive risk to Beaudreaux. Cf.
Premo v. Moore, 562 U.S. 115, 126–27 (2011); Strickland, 466 U.S. at 673. Trial
3 counsel’s indication that there was no tactical reason for his failure to challenge
Esho’s identification is therefore quite plausible, and so merited some weight.
Second, although “it is not professionally unreasonable to decide not to file a
motion . . . clearly lacking in merit,” Tomlin v. Myers, 30 F.3d 1235, 1238 (9th Cir.
1994) (quoting United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991)), a
motion to exclude Esho’s in-court identification as the product of impermissibly
suggestive pretrial identification procedures would have had a significant chance of
success on the merits.
More than seventeen months expired between the shooting of Wayne
Drummond and the police’s interview of Esho. Police showed Esho two
successive “six-pack” photographic lineups containing six photographs of African-
American men. Both lineups included photographs of Beaudreaux; no other
individual appeared in both lineups. The officer who presented the photographic
arrays to Esho testified that it was not common practice to show the same
individual in successive arrays.
Esho did not make a positive identification from either photographic array.
He first stated that Beaudreaux’s photo was “closest” to the gunman, but that the
photograph showed a man whose “face [was] a little wider and his head a little
higher.” Esho testified that at that point, he was “pretty sure” that the man in the
4 photograph was not Drummond’s killer. After seeing a second photographic array
which also included Beaudreaux, Esho wrote that the photograph of Beaudreaux
was “very close.” Esho testified at trial that he may have unconsciously relied on
the first photographic lineup when viewing the second one. The suggestiveness of
identification procedures—and the danger of misidentification—increases when, as
here, “the police display to the witness . . . the pictures of several persons among
which the photograph of a single such individual recurs or is in some way
emphasized.” Simmons v. United States, 390 U.S. 377, 383 (1968); see also Foster
v. California, 394 U.S. 440, 442–43 (1969).
After the two photographic lineups, Esho still did not positively identify
Beaudreaux. He did so only after seeing Beaudreaux at a preliminary hearing.
Courtroom procedures such as the defendant’s preliminary hearing are
“undoubtedly suggestive” as to the defendant’s identity as the perpetrator.
Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see also Foster, 394 U.S. at
443. The pretrial identifications were therefore based on unduly suggestive
procedures.
Even if a pretrial identification procedure is unduly suggestive, an in-court
identification may still be admissible. Neil v. Biggers, 409 U.S. 188, 199–200
(1972). “[T]he factors to be considered in evaluating the likelihood of
5 misidentification include the opportunity of the witness to view the criminal at the
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FILED NOT FOR PUBLICATION SEP 18 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS BEAUDREAUX, No. 15-15345
Petitioner-Appellant, D.C. No. 5:13-cv-00351-BLF
v. MEMORANDUM* J. SOTO, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted February 16, 2017 San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and GARBIS,** District Judge.
Nicholas Beaudreaux appeals the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. He contends that (1) his trial
counsel provided him with ineffective assistance of counsel (“IAC”) at his trial on
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation. a first-degree murder charge by failing to object to, or move to exclude, the
testimony of one eyewitness as the product of impermissibly suggestive
photographic identification procedures; and (2) trial counsel’s deficient
performance prejudiced Beaudreaux’s defense. See Strickland v. Washington, 466
U.S. 668, 687 (1984).
1. The relevant inquiry with respect to the first Strickland prong is
whether a reasonably competent attorney would have made a motion to exclude or
raised an objection regarding witness Dayo Esho’s identification of Beaudreaux.
Id. at 687–88. Given the importance of Esho’s testimony, the significant chance of
succeeding on a suppression motion, and the absence of any plausible strategic
reason for not filing such a motion, a reasonably proficient attorney would have
filed it.
A reviewing court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at 689 (internal
quotation marks and citation omitted). Applying that presumption, we can find no
basis for concluding that trial counsel David Kelvin’s failure to object to, or to
2 move to exclude, Esho’s identification testimony was, or could have been, the
product of sound strategic consideration.
First, Kelvin submitted a declaration stating that he did not remember
considering filing a motion to exclude Esho’s identification testimony, and that his
failure to do so “denied Mr. Beaudreaux the effective assistance of counsel.” A
state court is not necessarily bound to accept trial counsel’s testimony regarding
whether a particular action at trial was “tactical” or simply a mistake. Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Edwards, however, is
inapposite. In Edwards, the relevant IAC claim concerned trial counsel’s decision
to allow a defendant to testify regarding conversations with his wife (thereby
waiving the marital communications privilege and permitting the defendant’s wife
to give inculpatory testimony). Id. at 1123–24. In such a case, an objectively
reasonable attorney might well have concluded that the potential benefit of his
client’s testimony regarding any privileged conversations would outweigh any
detriment from his wife’s testimony about the same communications. No such
tactical benefit could inure here, where prevailing on a motion to suppress would
have eliminated an identification of central importance to the prosecution’s case,
without any countervailing procedural or substantive risk to Beaudreaux. Cf.
Premo v. Moore, 562 U.S. 115, 126–27 (2011); Strickland, 466 U.S. at 673. Trial
3 counsel’s indication that there was no tactical reason for his failure to challenge
Esho’s identification is therefore quite plausible, and so merited some weight.
Second, although “it is not professionally unreasonable to decide not to file a
motion . . . clearly lacking in merit,” Tomlin v. Myers, 30 F.3d 1235, 1238 (9th Cir.
1994) (quoting United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991)), a
motion to exclude Esho’s in-court identification as the product of impermissibly
suggestive pretrial identification procedures would have had a significant chance of
success on the merits.
More than seventeen months expired between the shooting of Wayne
Drummond and the police’s interview of Esho. Police showed Esho two
successive “six-pack” photographic lineups containing six photographs of African-
American men. Both lineups included photographs of Beaudreaux; no other
individual appeared in both lineups. The officer who presented the photographic
arrays to Esho testified that it was not common practice to show the same
individual in successive arrays.
Esho did not make a positive identification from either photographic array.
He first stated that Beaudreaux’s photo was “closest” to the gunman, but that the
photograph showed a man whose “face [was] a little wider and his head a little
higher.” Esho testified that at that point, he was “pretty sure” that the man in the
4 photograph was not Drummond’s killer. After seeing a second photographic array
which also included Beaudreaux, Esho wrote that the photograph of Beaudreaux
was “very close.” Esho testified at trial that he may have unconsciously relied on
the first photographic lineup when viewing the second one. The suggestiveness of
identification procedures—and the danger of misidentification—increases when, as
here, “the police display to the witness . . . the pictures of several persons among
which the photograph of a single such individual recurs or is in some way
emphasized.” Simmons v. United States, 390 U.S. 377, 383 (1968); see also Foster
v. California, 394 U.S. 440, 442–43 (1969).
After the two photographic lineups, Esho still did not positively identify
Beaudreaux. He did so only after seeing Beaudreaux at a preliminary hearing.
Courtroom procedures such as the defendant’s preliminary hearing are
“undoubtedly suggestive” as to the defendant’s identity as the perpetrator.
Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see also Foster, 394 U.S. at
443. The pretrial identifications were therefore based on unduly suggestive
procedures.
Even if a pretrial identification procedure is unduly suggestive, an in-court
identification may still be admissible. Neil v. Biggers, 409 U.S. 188, 199–200
(1972). “[T]he factors to be considered in evaluating the likelihood of
5 misidentification include the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the accuracy of the witness’
prior description of the criminal, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the crime and the
confrontation.” Id. These factors would have supported a finding that Esho’s in-
court identification was not reliable.
Esho had a good opportunity to view the gunman at the time of the crime
and paid close attention to the gunman. But the other three factors weigh against
the state. Seventeen months elapsed between the shooting and the photographic
lineups. Esho’s initial description of the gunman portrayed a man several inches
taller than Beaudreaux with a significantly darker complexion. And Esho’s initial
identifications evinced considerable uncertainty; only after repeated exposure to
Beaudreaux’s photograph did Esho positively identify him at the preliminary
hearing, itself a suggestive situation.
2. Given the weakness of the state’s case, there is a “reasonable
probability” that a jury would have reached a different result had the motion been
filed. See Strickland, 466 U.S. at 694 (“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”).
6 Esho’s identification testimony was essential to the state’s case. Without
Esho’s identification, the strongest evidence against Beaudreaux was the
eyewitness testimony of Brandon Crowder, which included identification of
Beaudreaux. But Crowder was likely not regarded as a credible witness. He
initially lied to police over the course of several interrogations regarding the crime
at issue, and cooperated only after he had been arrested and charged with a separate
crime. And Crowder was himself charged with Drummond’s murder; he testified
against Beaudreaux pursuant to a plea agreement in which he pled no contest to the
lesser offense of voluntary manslaughter and received a sentence of probation, with
no prison term. In contrast to Crowder, a known liar and criminal offender with a
strong incentive to identify Beaudreaux as the killer, Esho had no criminal record,
and his testimony was not induced by any deal with the government.
The third piece of evidence on which the state relied at trial—the recording
of a conversation between Beaudreaux and Crowder in a police van transporting
the two suspects to prison—was not enough to dissipate the prejudice related to
Esho’s identification. The recording is certainly persuasive evidence that
Beaudreaux was extremely angry at Crowder for fingering him as a murderer. But
there was no statement in the recording revealing whether Beaudreaux was livid
because he had committed the murder or because he had not and was being falsely
7 identified. If the jury was not convinced by Crowder’s testimony identifying
Beaudreaux, there is a reasonable probability that it would not have regarded the
recorded conversation as sufficient to conclude beyond a reasonable doubt that
Beaudreaux was the murderer.
3. The state has the benefit of “doubly deferential” review on Strickland
claims subject to AEDPA. Cullen v. Pinholster, 563 U.S. 170, 190 (2011); see 28
U.S.C. § 2254(d)(1). But Beaudreaux meets his high burden here.
In light of the merits of the motion to suppress, the importance of the
evidence subject to suppression, the lack of any apparent tactical advantage in
declining to raise the issue, and Kelvin’s declaration that he recalled no strategic
motives, a conclusion by the state court that Kelvin’s representation was not
deficient was not reasonable. Cf. Kimmelman v. Morrison, 477 U.S. 365, 385–86
(1986).
On the second prong of Strickland, Beaudreaux’s conversation with
Crowder offered the jury some basis for convicting Beaudreaux in the absence of
Esho’s identification. But the question on the second prong of Strickland is not
whether a jury could have convicted Beaudreaux absent the ineffectiveness of his
counsel, but whether there is a reasonable probability that it would have. See Vega
v. Ryan, 757 F.3d 960, 969–70, 974 (9th Cir. 2014). The only reasonable
8 conclusion, given the weakness of the state’s case and the critical importance of
Esho’s identification, is that a more favorable verdict was “reasonably likely”
absent the ineffective representation. Strickland, 466 U.S. at 696; see 28 U.S.C.
§ 2254(d)(1).
We conclude that the stringent requirements of AEDPA are met here. We
therefore REVERSE and REMAND to the district court with instructions to grant
the writ of habeas corpus.
9 FILED Beaudreaux v. J. Soto, 15-15345 SEP 18 2017 GOULD, J. Dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent. Relying on corroborated accomplice testimony and
recorded comments made by Beaudreaux, it would also be reasonable for a state
court to conclude that, under Strickland v. Washington, 466 U.S. 668 (1984), any
ineffective assistance of trial counsel in how eyewitness identification evidence
was handled did not prejudice Beaudreaux. Assuming there was an error in the
identification procedure, I am not persuaded that it had a substantial and injurious
effect on the verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). In
short, it cannot be said that the state appellate court decision to not give relief to
Beaudreaux was an objectively unreasonable application of Supreme Court
precedent. Harrington v. Richter, 562 U.S. 86, 102–03 (2011). So relief under
AEDPA is not warranted.