Terrence Dunson v. Raul Lopez , 428 F. App'x 692 ( 2011 )

FILED
NOT FOR PUBLICATION APR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TERRENCE ANTONIO DUNSON, No. 08-56799
Petitioner - Appellant, D.C. No. 2:07-cv-05209-AHS-
RNB
v.
RAUL LOPEZ, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, Senior District Judge, Presiding
Submitted April 13, 2011 **
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Petitioner Terrence Antonio Dunson was convicted of second degree murder
and assault with a firearm in California state court for shooting the driver of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
white Honda in the heart. He now appeals the district court’s denial of his petition
for a writ of habeas corpus.
Dunson argues that his trial counsel provided ineffective assistance by
failing to challenge the pretrial photographic line-up from which one witness
identified him as the shooter and from which another witness tentatively identified
him as one of the two individuals fleeing from the scene of the crime immediately
after the shooting. He contends that the photo array was impermissibly suggestive
because his photo had a different background color than the other five photos and
because there were only two individuals in the line-up, including himself, who had
corn row hair. Because the state court’s rejection of this claim did not “result[] 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,”
we affirm the district court’s denial of habeas relief. 28 U.S.C. § 2254(d)(1).
“[C]onvictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification.” Simmons v.
United States, 390 U.S. 377, 384 (1968). We find that this high standard is not met
simply because Dunson’s photograph had a different background color than the
2
rest, especially since the background color of the photos in the line-up varied
generally (aside from the greenish-gray background of Dunson’s photograph, four
had a blue background and one had a more purple background), both witnesses
testified that they did not notice the background colors of the photographs, and,
prior to examining the line-ups, the police admonished both witnesses not to pay
attention to any stylistic differences among photographs. See United States v.
Burdeau, 168 F.3d 352, 357 (9th Cir. 1999) (holding that a photographic array was
not impermissibly suggestive even though the defendant’s picture “was placed in
the center of the array, was darker than the rest, and was the only one in which the
eyes were closed”); Mitchell v. Goldsmith, 878 F.2d 319, 323 (9th Cir. 1989)
(holding that “[t]he various background colors among . . . photographs and the
1981 date on [defendant’s] photo [did] not make the line-up unduly suggestive”).
Similarly, we hold that having only two individuals with corn row hair in the
line-up did not improperly focus the witnesses’ attention on Dunson. The first
witness, Leon Richards, was unaware that the perpetrator of the crime had corn
row braids in his hair; he described the perpetrator as wearing ladies’ pantyhose or
something like a black rag over his head. Accordingly, the line-up could not have
improperly suggested to Richards that Dunson was the perpetrator. The second
witness, Gregory Moore, was aware of the perpetrator’s hairstyle, but he was
3
admonished by the police prior to viewing the photo array that hairstyles can be
easily changed. Additionally, Moore had previously examined a different
photographic line-up—a line-up that did not contain Dunson but that did contain
two or three other individuals with corn row hair—and did not identify anyone
from this line-up. Under these circumstances, we cannot conclude that having only
two individuals with corn row hair in the line-up was “so impermissibly suggestive
as to give rise to a very substantial likelihood” that Moore would misidentify
Dunson. Simmons, 390 U.S. at 384; see also United States v. Nash, 946 F.2d 679,
681 (9th Cir. 1991) (finding a photographic line-up “to be a balanced presentation
that was not suggestive” despite defendant’s argument that only he and one other
individual “had afro hairstyles”).
Because the line-up was not impermissibly suggestive, Dunson cannot show
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 694 (1984). Accordingly, Dunson is not entitled to relief on his
ineffective assistance of counsel claim.
AFFIRMED.
4