Jose Caro v. Dalinda Harman , 628 F. App'x 545 ( 2016 )


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  •                             NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FILED
    FOR THE NINTH CIRCUIT
    JAN 12 2016
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    JOSE GUADALUPE CARO,                             No. 12-55136
    Petitioner - Appellant,            D.C. No. 2:06-cv-02432-GHK-JC
    v.
    MEMORANDUM*
    DALINDA HARMAN,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    George H. King, Chief District Judge, Presiding
    Argued and Submitted September 1, 2015
    Pasadena, California
    Before: KOZINSKI, O’SCANNLAIN, and BYBEE, Circuit Judges.
    The facts and procedural posture of this case are known to the parties, and
    we do not repeat them here. Jose Guadalupe Caro, a state prisoner, appeals the
    federal district court’s denial of his habeas petition. We have jurisdiction under 28
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    U.S.C. § 2253, we review de novo, Sandgathe v. Maass, 
    314 F.3d 371
    , 376 (9th
    Cir. 2002), and we affirm.
    I
    The state court’s conclusion that the in-field show-up procedure complied
    with the Constitution was not contrary to or an unreasonable application of federal
    law. See 28 U.S.C. § 2254(d)(1); Perry v. New Hampshire, 
    132 S. Ct. 716
    , 724
    (2012) (noting that due process concerns arise “when law enforcement officers use
    an identification procedure that is both suggestive and unnecessary”); Manson v.
    Brathwaite, 
    432 U.S. 98
    , 113–16 (1977) (holding that, if police procedures are
    unduly suggestive, identification will be excluded if its reliability does not
    outweigh corrupting influence of suggestive procedure); Neil v. Biggers, 
    409 U.S. 188
    , 199–200 (1972); Stovall v. Denno, 
    388 U.S. 293
    , 302 (1967).
    First, contrary to Caro’s claim, the police did not attempt to sway the
    witnesses prior to the show-up. It is true that one of the witnesses—Jose
    Salamanca—testified at trial that the police didn’t give him a choice when he was
    making his identification. But when asked whether he “pick[ed] out these guys
    just because someone told [him] to,” he answered, “No.” Salamanca also testified
    that he identified his attackers from memory and that he recognized the attackers’
    faces when he arrived at the show-up. Moreover, all three witnesses were properly
    2
    admonished prior to the show-up that the individuals gathered were not necessarily
    involved in the crime. Israel Uriarte testified that he felt no pressure to identify
    anyone. And Rigoberto Trinidad’s testimony does nothing to support Caro’s claim
    that the witnesses were pressured. According to Trinidad, the officers simply
    “ask[ed] us if those were the guys and ask[ed] me which guy did what.”
    Second, even though the witnesses made their identifications in each others’
    presence, there is no evidence that this influenced their decision. Uriarte identified
    only two of the three suspects (failing to identify Caro); Trinidad identified Caro
    and only one other suspect; and Salamanca identified all three. Officer Couso,
    who was in the car with the witnesses when they made their identifications,
    reported that the witnesses did not coach each other or tell one another who to
    point out. Uriarte confirmed this account when he testified that neither of his
    friends pointed anyone out to him during the show-up.
    Finally, Caro complains of being called a “suspect,” being handcuffed, the
    presence of police officers, there being only three men in the show-up, the
    presence of a BMX bicycle used in the crime, and the fact that Caro was the only
    man in the show-up wearing a blue sweater. None of these factors, individually or
    collectively, is unduly suggestive under clearly established federal law. Thus, Caro
    3
    is not entitled to habeas relief with respect to his due process claim. See 
    Perry, 132 S. Ct. at 724
    –26.
    II
    Caro next argues that his trial counsel was constitutionally deficient because
    he failed to challenge the admissibility of the identifications obtained at the show-
    up. Claims under Strickland v. Washington, 
    466 U.S. 668
    (1984), brought in the
    AEDPA context are reviewed with “doubl[e]” deference. See Harrington v.
    Richter, 
    562 U.S. 86
    , 104–05 (2011). And because we reject Caro’s due process
    claim, we similarly reject his claim that his attorney was deficient for failing to
    challenge the identifications. The state court’s holding on this point was not
    contrary to or an unreasonable application of Strickland.
    III
    We GRANT Caro’s motion to expand the certificate of appealability. See
    Slack v. McDaniel, 
    529 U.S. 473
    , 483–84 (2000). But Caro is unable to show that
    any error with regard to the exclusion of Saldana’s testimony had a “substantial
    and injurious effect or influence in determining the jury’s verdict.” Brecht v.
    Abrahamson, 
    507 U.S. 619
    , 623 (1993) (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 776 (1946)); see also Fry v. Pliler, 
    551 U.S. 112
    , 121–22 (2007). Even
    if Trinidad had been impeached, Salamanca’s testimony would not have been
    4
    affected. Salamanca identified Caro both at the show-up and at trial. Moreover,
    Uriarte recognized Caro by his clothing even though he was not definitively able to
    remember Caro’s face.
    AFFIRMED.
    5