                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 10 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

GERARDO AGUIRRE,                                 No. 12-56107

              Petitioner - Appellant,            D.C. No. 2:10-cv-07126-JVS-AJW

  v.
                                                 MEMORANDUM*
ELVIN VALENZUELA, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                            Submitted March 2, 2015**
                               Pasadena, California

Before: GOULD and TALLMAN, Circuit Judges and KORMAN,*** Senior District
Judge.




        *
             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. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Petitioner first contends that trial counsel was ineffective by not using

peremptory strikes to remove jurors who gave answers biased against the defense

during jury selection. We disagree. The California Court of Appeal reasonably

concluded that Petitioner’s trial counsel’s decision not to use peremptory strikes

against Jurors 4, 5, and 12 was not deficient attorney performance under Strickland

v. Washington, 466 U.S. 668 (1984). These jurors generally indicated they

understood their obligations to consider evidence and apply the law or were

equivocal in other statements that are challenged, and each juror made statements

that may have been considered by defense counsel to be favorable to the defense.

It was not objectively unreasonable for the state appellate court to conclude that the

record did not rebut the presumption under Strickland of competent representation

by counsel.

      Petitioner also contends that the California trial court violated his rights to

due process by failing to exclude identification evidence from an impermissibly

suggestive live police lineup. Again, we disagree. The California Court of Appeal

was not objectively unreasonable in concluding that the live police lineup was not

“unnecessarily suggestive” in light of the three other uncontested identifications

and because the lineup contained others with height and facial features similar to

Petitioner’s. See Simmons v. United States, 390 U.S. 377, 384 (1968).


                                           2
AFFIRMED.




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