                                                                             FILED
                            NOT FOR PUBLICATION                               APR 13 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT

DAVID PINEDA OLIVA,                               No. 09-55529

              Petitioner - Appellee,              D.C. No. CV 08-03772-ODW (E)

  v.
                                                  MEMORANDUM *
ANTHONY HEDGPETH, Warden,

              Respondent - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                              Submitted April 7, 2010**
                                Pasadena, California

Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.

       Respondent Anthony Hedgpeth, warden of the California state prisons,

appeals the district court's grant of a habeas corpus petition filed by Petitioner

David Pineda Oliva, a California state prisoner. Petitioner was convicted after a

jury trial of murder and was sentenced to imprisonment for 50 years to life.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Because Petitioner filed his habeas petition after April 24, 1996, the

Anti-Terrorism and Effective Death Penalty Act of 1996 (þAEDPAþ) governs. 28

U.S.C. y 2254; Woodford v. Garceau, 538 U.S. 202, 210 (2003). We review de

novo, Tilcocµ v. Budge, 538 F.3d 1138, 1143 (9th Cir. 2008), cert. denied, 129 S.

Ct. 926 (2009), and we affirm.

      The state court's decision that Petitioner had not been denied the effective

assistance of counsel is an unreasonable application of Supreme Court precedent

because, under that precedent, Petitioner's counsel was ineffective when he failed

to file a motion to suppress the eyewitness identification made by the six-year-old

child, E.R. See Stricµland v. Washington, 466 U.S. 668, 688, 694, 697 (1984)

(holding that, to establish ineffective assistance of counsel, a petitioner must prove

that: (1) counsel's representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for counsel's

errors, the result of the proceeding would have been different). Considering the

totality of the circumstances, see Neil v. Biggers, 409 U.S. 188, 199-200 (1972),

the photograph identification procedure plainly was impermissibly suggestive, see

Simmons v. United States, 390 U.S. 377, 384 (1968) (þ[A] pretrial identification

by photograph will be set aside on that ground only if the photographic




                                           2
identification procedure was so impermissibly suggestive as to give rise to a very

substantial liµelihood of irreparable misidentification.þ).

      As the magistrate judge explained in greater detail, the photographic

identification was impermissibly suggestive - and the California Court of Appeal's

analysis unreasonably applied Supreme Court precedent - for several reasons.

First, the detectives conducting the photograph identification procedure did not tell

E.R. that the photographic lineup, consisting of six photographs, might or might

not contain a photograph of the suspect. Indeed, E.R. testified at trial that she

thought she þhad to maµe a selection of one of these pictures.þ Second, after E.R.

selected the first photograph, the detectives effectively suggested to her that the

person in that photograph was not the shooter. Third, the detectives praised E.R.

immediately after she selected photograph number three, which was the

photograph of Petitioner. The detectives told E.R. that she did þawesomeþ worµ

and a þfantastic job.þ Such praise effectively eliminated the persons in the

remaining photographs and signaled to E.R. that she had made the þrightþ choice.

      Because the photograph identification procedure was suggestive, we also

must decide whether the identification nevertheless was reliable. See Neil, 409

U.S. at 199-200. It was not. E.R. testified that she saw the shooter's face from a

distance and for a fleeting period of time. E.R.'s trial testimony regarding the


                                           3
shooter's clothing was inconsistent with the description she had given to the police

immediately after the incident. Further, E.R. admitted at trial that she thought the

person in photograph number one looµed liµe the shooter, and she was unable to

identify anyone in the courtroom as the shooter.

      For these reasons, the failure of Petitioner's counsel to file a motion to

suppress the identification made by E.R. was objectively unreasonable.

See Stricµland, 466 U.S. at 688. We next must consider whether Petitioner was

prejudiced by his counsel's error. Id. at 694. He was. In the absence of E.R.'s

identification, only scant evidence pointed to Petitioner as the shooter. It is

reasonably probable that, without E.R.'s identification, the trial would have yielded

a different outcome. The state court's contrary decision fails even under the

deferential AEDPA standard. Even if counsel may have correctly guessed that the

California Court of Appeal would misapply Supreme Court law, that assessment

does not excuse counsel's failure to bring a critical, meritorious motion that a

higher or federal court would liµely grant. A California court should have granted

such a motion under then-existing law as set forth by the Supreme Court.

      AFFIRMED.




                                           4
                                                                            FILED
Oliva v. Hedgpeth, No. 09-55529                                             APR 13 2010

                                                                        MOLLY C. DWYER, CLERK
FERNANDEZ, Circuit Judge, dissenting:                                     U.S. COURT OF APPEALS



      In my view, the strictures of 28 U.S.C. y 2254 will not permit us to overturn

the state courts' determination that counsel was not ineffective. Rather, those

courts could properly determine that this experienced attorney made a reasoned

tactical decision that it was pointless to maµe a motion to suppress because that

motion would have been denied out of hand. He was of the opinion that, it 'would

require a far greater showing of any suggestiveness or coercion' to succeed. The

state Court of Appeal agreed with his assessment, and even declared that the

'tactical decision not to bring a suppression motion that lacµed merit was

reasonable.' Nor will it do to suggest that a motion to suppress should have been

filed anyway because there was ''nothing to lose.'' Knowles v. Mirzayance, ÁÁÁ

U.S. ÁÁÁ, ÁÁÁ, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009). I fear that the

majority has fallen prey to the hindsight fallacy,1 and has failed to conduct the

'doubly deferential'2 review that is demanded in this area.3 I cannot agree that


      1
       See Stricµland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065,
80 L. Ed. 2d 674 (1984).
      2
          Knowles, ÁÁÁ U.S. at ÁÁÁ, 129 S. Ct. at 1420.
      3
        Indeed, to have a constitutional violation there must be a ''very substantial
liµelihood of . . . misidentification.'' Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct.
375, 381, 34 L. Ed. 2d 401 (1972). Thus, it might almost be said that review
                                                                         (continued...)
counsel was ineffective when he accurately assessed the situation he faced, and

then concentrated his efforts on demonstrating to the jury that the identification

was weaµ and unreliable. After all, counsel does not have to raise every possible

viable issue, and the Supreme Court has told us that '[t]here are countless ways to

provide effective assistance in any given case.' Stricµland, 466 U.S. at 689, 104

S. Ct. at 2065. Counsel chose one of those possible ways. We should not

'second-guess' him. Id. Thus, I respectfully dissent.




      3
       (...continued)
should be triply deferential in this area. By the way, I do not thinµ that standard
was met in any event.
                                          2
