Robert Strickland, Jr. v. Larry Small

444 F. App'x 178

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2011
• Docket: 08-56590
• Status: Unpublished

Opinion

MEMORANDUM **

Robert Strickland, Jr., appeals the district court’s denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. We affirm.

In order to prevail, Strickland must meet the standards set forth in 28 U.S.C. § 2254(d), which, in effect, direct us to be highly deferential and to give state court decisions the benefit of the doubt. See Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (per curiam). Where, as here, the claim is that the state courts unreasonably applied clearly established Supreme Court law, 1 a petitioner must show that there was no reasonable basis for the state courts’ decision; 2 Strickland “has failed to meet that high threshold.” 3

(1) Strickland asserts that his due process rights were violated because the presence of his victims at his preliminary hearing resulted in an impermissible identification procedure, which irreparably caused his misidentification at trial. We disagree. Although the witnesses did have an opportunity to see him at the preliminary hearing, that was not unnecessary or impermissible, 4 and cannot be said to have resulted in a “very substantial likelihood of irreparable misidentification.” 5

(2) Strickland also claims that his counsel on direct appeal was constitutionally ineffective because he did not properly raise the above identification issue. Suffice it to say that even if counsel was ineffective, Strickland was not prejudiced because the identification issue itself is meritless. See Pinholster, — U.S. at -, 131 S.Ct. at 1403; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

(3) The state courts’ exclusion of testimony that one witness, who did not give identification testimony, had made an earlier misidentification was not a violation of Strickland’s due process rights. 6 See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991); Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990); Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985); see also Clark v. Arizona, 548 U.S. 735, 770, 126 S.Ct. 2709, 2731-32,165 L.Ed.2d 842 (2006).

AFFIRMED.

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

1 .To the extent that Strickland also alludes to the possibility of improper fact-finding by the state courts, he has not developed that issue on appeal and has, therefore, waived it. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999).

2 . Cullen v. Pinholster, U.S.-, ——, 131 S.Ct. 1388, 1402, 179 L.Ed.2d 557 (2011); see also Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003).

3 . Pinholster, - U.S. at -, 131 S.Ct. at 1403.

4 . See Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995); Baker v. Hooker, 496 F.2d 615, 617 (9th Cir.1974); see also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

5 . See Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir.1986); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

6 .Strickland argues on appeal for the first time that he should have been able to expand the record in the district court with a transcript of his preliminary hearing. He raises the issue too late. See Manta v. Chertoff, 518 F.3d 1134, 1144 (9th Cir.2008); Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996).