                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 23 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TONY EUGENE SAFFOLD,                              No. 09-15329

              Petitioner - Appellant,             D.C. No. 2:98-cv-01040-JAM-
                                                  JFM
  v.

ANTHONY C. NEWLAND,                               MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted November 5, 2012
                             San Francisco, California

Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.




       Saffold appeals from the district court’s decision denying his federal petition

for writ of habeas corpus. We review a district court’s denial of a habeas corpus




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition de novo. Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009). We

have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.




       There has been extensive litigation about whether Saffold’s state and federal

habeas petitions were timely filed. See Saffold v. Carey, 312 F.3d 1031 (9th Cir.

2002). The district court denied Saffold’s petition on the merits. The timeliness

issue is complex, and we need not decide it because assuming without deciding

that Saffold did not procedurally default and that his claims were timely in all

respects, he still cannot prevail.




       Saffold claims that trial counsel rendered ineffective assistance in two ways.

First, he contends that trial counsel was ineffective because he failed to obtain

timely adjudication of his motion to exclude identification evidence, which motion

Saffold argues was meritorious. Saffold also contends that trial counsel was

ineffective because he failed to impeach sufficiently the government’s key

identification witness. The Superior Court of California rejected Saffold’s first

ineffective assistance of counsel claim on the merits. Saffold raised his failure to

impeach claim in a subsequent petition to the California Supreme Court, which

denied the claim “on the merits and for lack of diligence.”


                                           2
      “The standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington

v. Richter, 131 S.Ct. 770, 788 (2011) (citations omitted).




      The government’s key witness was the widow of the victim. She was

present when her husband was shot and killed. The deferential review required

under the Antiterrorism and Effective Death Penalty Act and Richter does not

permit the conclusion that the California Supreme Court was objectively

unreasonable in rejecting Saffold’s ineffective assistance claim. The California

Supreme Court could have reasonably concluded that trial counsel made a

reasonable tactical decision to be no more aggressive than he was in attacking the

widow’s credibility.




      As for defense counsel’s motion to suppress identification evidence, the

Superior Court of California concluded that “the delay in the motion was due to the

failure of the prosecution to produce the original photo line-up,” and that “there is

no evidence that [Saffold’s] counsel failed in any other manner to adequately

litigate identification issues.” This judgement was well within the range of

deference we are required to apply.


                                           3
AFFIRMED.




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