     07-0470-pr
     Palacios v. Burge
1                          UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3

4                                 August Term 2008

5          (Argued: March 11, 2009             Decided: December 21, 2009)

6                               Docket No. 07-0470-pr

7    -----------------------------------------------------x

 8   DAVID PALACIOS,
 9
10                 Petitioner-Appellant,
11
12                            -- v. --
13
14   JOHN W. BURGE, Superintendent, Auburn Correctional
15   Facility, and ANDREW CUOMO, New York State Attorney
16   General,*
17
18                 Respondents-Appellees.**
19
20   -----------------------------------------------------x
21
22   B e f o r e :       WALKER and SACK, Circuit Judges, and KOELTL,
23                       District Judge.***

24            Petitioner-Appellant David Palacios appeals from the

25   judgment of the United States District Court for the Eastern

     *
1         Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
2    current Attorney General Andrew Cuomo is automatically
3    substituted for former Attorney General Eliot L. Spitzer as a
4    respondent.
     **
1         We direct the Clerk of the Court to amend the official
2    caption as noted.
     ***
1         The Honorable John G. Koeltl, of the United States District
2    Court for the Southern District of New York, sitting by
3    designation.

                                           1
1    District of New York (Frederic Block, Judge) denying his petition

2    for habeas corpus pursuant to 28 U.S.C. § 2254, which alleges

3    that his counsel rendered him ineffective assistance in violation

4    of the Sixth Amendment by failing to move to suppress evidence of

5    Palacios’s show-up identification and confession under the Fourth

6    Amendment.   The show-up was limited in scope and duration, and

7    included individuals reasonably suspected of perpetrating a

8    recent, soon-to-be fatal stabbing.    There was a strong showing

9    that the show-up was justified by exigent circumstances and,

10   based on the totality of the circumstances, was reasonable, and

11   that the show-up did not unconstitutionally taint Palacios’s

12   subsequent confession.   Therefore, the state courts did not

13   unreasonably apply clearly established Supreme Court law in

14   denying his ineffective assistance claim.    We therefore affirm

15   the district court’s denial of Palacios’s habeas petition.

16        AFFIRMED.

17                                  LAWRENCE T. HAUSMAN (Steven Banks,
18                                  on the brief), Legal Aid Society,
19                                  Criminal Appeals Bureau, New York,
20                                  NY, for Petitioner-Appellant.
21
22                                  JILL A. GROSS-MARKS (John M.
23                                  Castellano, on the brief),
24                                  Assistant District Attorneys, for
25                                  Richard A. Brown, District
26                                  Attorney, Queens County, Kew
27                                  Gardens, NY, for Respondents-
28                                  Appellees.
29
30   JOHN M. WALKER, JR., Circuit Judge:

31        Petitioner-Appellant David Palacios appeals from the

                                      2
1    judgment of the United States District Court for the Eastern

2    District of New York (Frederic Block, Judge) denying his petition

3    for habeas corpus pursuant to 28 U.S.C. § 2254.   Palacios claims

4    that he is entitled to a writ of habeas corpus because the state

5    courts unreasonably applied clearly established Supreme Court law

6    in rejecting his claim that counsel rendered ineffective

7    assistance by failing to move to suppress evidence of his show-up

8    identification and confession under the Fourth Amendment.    The

9    police conducted a show-up near the crime scene, limited in scope

10   and duration, that included individuals who were reasonably

11   suspected of perpetrating a recent, soon-to-be fatal stabbing.

12   We find that the state courts did not unreasonably reject the

13   petitioner’s claim of ineffective assistance of counsel.    It was

14   not ineffective assistance to fail to raise a Fourth Amendment

15   claim challenging the show-up, which involved exigent

16   circumstances and, based on the totality of the circumstances,

17   was reasonable.   Similarly, it was not ineffective assistance to

18   fail to challenge the subsequent confession as the fruit of the

19   show-up where there was an insufficient showing that the show-up

20   was unconstitutional.   Accordingly, we conclude that the state

21   courts did not unreasonably apply Strickland v. Washington, 466

22   U.S. 668, 688 (1984), when they rejected Palacios’s claim of

23   ineffective assistance.   Thus, we affirm the district court’s

24   denial of Palacios’s petition for a writ of habeas corpus.


                                      3
1                               BACKGROUND

2         David Palacios was convicted following a jury trial in New

3    York Supreme Court, Queens County, of single counts of assault

4    and murder, and sentenced respectively to consecutive,

5    indeterminate sentences of eleven to twenty-two years and twenty-

6    five years to life.

7    I.   Underlying Events

8         The trial evidence showed that on the evening of April 27,

9    1997, undercover New York City police officers Richard Crespo,

10   James O’Boyle, and Daniel Corey conducted surveillance at the 30-

11   30 Club in Queens, New York, which was holding a “Mexican party.”

12   (Trial Tr. 101 Feb. 10-11, 1998.)       The police had information

13   that “there might be problems there” between “rival Mexican

14   gangs.”   (Trial Tr. 14, 101.)

15        The club opened at 9:00 p.m.      After ten to fifteen minutes,

16   Officer Crespo saw several men whom he thought to be Hispanic

17   “run in front of . . . people . . . waiting” in line outside of

18   the club.    (Trial Tr. 14-15.)   Moments later, a BMW pulled up

19   across the street from the club, and a man, Edin Kolenovic,

20   emerged from the car shouting and waving his arms frantically.

21   When the officers approached Kolenovic, they saw that his shirt

22   was bloody, and that his passenger and brother-in-law, Sanin

23   Djukanovic, had been beaten and stabbed, and was bleeding

24   profusely.    Djukanovic was unable to speak and died later that


                                        4
1    night.   Kolenovic told the officers that a group of Hispanic men

2    tried to steal the BMW, stabbed him and Djukanovic, and ran

3    towards the 30-30 Club.   The police placed Kolenovic in an

4    ambulance stationed in front of the club to be treated for his

5    stab wounds.

6         In “secur[ing] the area” around the club, (Trial Tr. 18,)

7    the officers arranged with the club’s security personnel to let

8    into the club the forty or fifty individuals in line outside.

9    When one person, William Mero, stepped out of the line and tried

10   to leave, the police stopped him and walked him in front of the

11   parked ambulance to “conduct [] a show-up.”    (Trial Tr. 103.)

12   Kolenovic identified Mero as “one of the guys,” (Trial Tr. 110,)

13   and Officer Corey handcuffed Mero and put him in an unmarked

14   patrol car with a view of the club.   Mero denied any involvement

15   in the stabbing, but told the police that he had seen the fight

16   and could identify the individuals involved.

17        Inside the club, at the officers’ request, the club owner

18   stopped the music and announced that the police planned to escort

19   all the male patrons outside for a show-up to identify anyone

20   connected to the stabbing that had occurred.    The officers sealed

21   the exits, separated out the women, and lined up at the front of

22   the club the approximately 170 men, all of whom looked to them to

23   be Hispanic and ranged in age from about eighteen to twenty-five

24   years.   The police then had the men walk, one by one, out the


                                      5
1    front door and in front of Kolenovic and Mero, who were in the

2    ambulance and the unmarked car, respectively.       The show-up

3    process began at approximately 10:00 p.m., and ended less than

4    forty minutes later, after which the patrons outside were allowed

5    back into the club.   During the show-up, Kolenovic and Mero

6    separately identified the same six men, including Palacios, as

7    being involved in the stabbings.       The officers then took Palacios

8    to the precinct house.

9          The following day, after Detective Laurie Senzel read

10   Palacios his Miranda rights in both English and Spanish, Palacios

11   orally confessed to stabbing Djukanovic.       Detective Senzel

12   manually transcribed this confession, which Palacios signed.

13   II.   Trial Court Proceedings

14         On June 17, 1997, Palacios’s then-counsel Paul Testaverde

15   filed a motion challenging the constitutionality of both the

16   identification procedure used by the police outside of the 30-30

17   Club, and the confession, which Palacios claimed that he had

18   given only under physical duress.      On June 30, 1997, counsel

19   Robert R. Race, who replaced Testaverde, filed a separate motion

20   that challenged the reliability of Kolenovic’s pre-trial

21   identification and the voluntariness of Palacios’s statements,

22   but did not challenge the legality of the police seizure of

23   Palacios.

24         On September 22, 1997, after holding a combined pre-trial


                                        6
1    hearing pursuant to United States v. Wade, 388 U.S. 218 (1967),

2    and People v. Huntley, 204 N.E.2d 179 (N.Y. 1965), the trial

3    judge determined that “all of the witnesses testified credibly,”

4    (Trial Tr. 160,) found the show-up evidence and confession to be

5    constitutionally permissible, and declined to suppress either

6    item of evidence at trial.    In particular, the trial judge

7    “note[d] that the identification of the defendant through this

8    short [show-up] procedure was both tempora[l]ly and spatially

9    close to the events . . . in question.”    (Trial Tr. 166.)    As for

10   the confession, the trial judge determined that Palacios

11   knowingly, voluntarily, and intelligently waived his rights.     The

12   trial judge then denied Palacios’s subsequent pro se motion to

13   suppress the confession.

14        At Palacios’s jury trial, Kolenovic was unable to identify

15   Palacios as a participant in the crime.    Palacios testified that

16   he had not committed the crimes charged and that he had confessed

17   under physical duress.

18        The jury found Palacios guilty of both assault and murder,

19   and the trial judge sentenced Palacios to eleven to twenty-two

20   years for the former and twenty-five years to life for the

21   latter, to be served consecutively.

22   III. Subsequent Proceedings

23        In January 2002, Palacios, on appeal to the Appellate

24   Division, Second Department, argued that he had been deprived of


                                       7
1    effective assistance of counsel under Strickland, 466 U.S. at

2    688, because his counsel unreasonably failed to challenge the

3    lawfulness of his show-up and detention, and failed to move to

4    suppress his confession as the fruit of the unlawful detention

5    under the Fourth Amendment.   Palacios alleged that a Fourth

6    Amendment challenge to the show-up would have been successful,

7    because the show-up was not based upon any “individualized

8    suspicion” of a particular individual at the 30-30 Club.       See

9    Palacios, 470 F. Supp. 2d at 219.     The Appellate Division

10   affirmed Palacios’s conviction, concluding that he had received

11   “meaningful representation” at trial.    People v. Palacios, 743

12   N.Y.S.2d 302, 302 (App. Div. 2002).    Palacios’s application for

13   leave to appeal to the New York Court of Appeals was denied.

14   People v. Palacios, 779 N.E.2d 193 (N.Y. 2002) (table decision).

15        Palacios then filed the instant petition for federal habeas

16   relief, again raising the claim that trial counsel had rendered

17   ineffective assistance.   In January 2007, the district court

18   denied the petition on the basis that Palacios had failed to show

19   that the trial court unreasonably applied Supreme Court precedent

20   in determining that the claim lacked merit.    Palacios v. Burge,

21   470 F. Supp. 2d 215, 221 (E.D.N.Y. 2007).    Although noting that a

22   show-up could run afoul of the United States Supreme Court’s

23   “individualized suspicion” requirement, the district court

24   determined that, “[i]n light of the generality with which the


                                      8
1    requirement has been enunciated” by the Supreme Court, it would

2    not be “unreasonable” to conclude that the individualized

3    suspicion requirement was “satisfied in this case.”    Id. at 223.

4    The district court concluded that under the “limited standard of

5    [habeas] review,” Palacios’s petition had to be denied.    Id. at

6    224.    The district court, however, issued a certificate of

7    appealability on Palacios’s ineffective assistance claim on the

8    basis that there was “room for reasonable debate . . . addressing

9    this ineffective-assistance/Fourth Amendment scenario.”    Id.

10          This appeal followed.

11                              DISCUSSION

12          We review de novo the district court’s decision to deny

13   Palacios habeas relief.    See Jenkins v. Artuz, 294 F.3d 284, 290

14   (2d Cir. 2002).    Under the deferential standard of review

15   established by the Antiterrorism and Effective Death Penalty Act

16   of 1996 (AEDPA), where the petitioner’s claim “was adjudicated on

17   the merits in State court proceedings,” as here, we may only

18   grant habeas relief if the state court’s adjudication “was

19   contrary to, or involved an unreasonable application of, clearly

20   established Federal law as determined by the Supreme Court of the

21   United States,” or “was based upon an unreasonable determination

22   of the facts in light of the evidence presented.”    28 U.S.C. §

23   2254(d).

24          Although Stone v. Powell, 428 U.S. 465, 494 (1976), bars us


                                       9
1    from considering Fourth Amendment challenges raised in a

2    petitioner’s petition for habeas relief, this appeal does not

3    squarely present a Fourth Amendment challenge.   Instead,

4    Palacios’s habeas petition brings a “Sixth Amendment ineffective

5    assistance of counsel claim[] which [is] founded primarily on

6    incompetent representation with respect to a Fourth Amendment

7    issue.”   Kimmelman v. Morrison, 477 U.S. 365, 380 (1986).

8    Specifically, Palacios argues that the state court unreasonably

9    applied the Supreme Court’s decision in Strickland, 466 U.S. at

10   688, by rejecting his claim that his counsel rendered

11   constitutionally deficient performance by failing to raise a

12   Fourth Amendment challenge seeking to suppress the identification

13   evidence and the “fruits of [Palacios’s] illegal detention.”

14   Pet’r Br. at 31.   We may grant habeas claim for such a hybrid

15   Sixth and Fourth Amendment claim, Kimmelman, 477 U.S. at 380-83;

16   however, its “elements of proof”

17        differ[] significantly from [those] applicable to a
18        straightforward Fourth Amendment claim. Although a
19        meritorious Fourth Amendment issue is necessary to the
20        success of a Sixth Amendment claim like [Palacios]’s, a
21        good Fourth Amendment claim alone will not earn a
22        prisoner habeas relief. Only those habeas petitions
23        who can prove under Strickland that they have been
24        denied a fair trial by the gross incompetence of their
25        attorneys will be granted the writ and will be entitled
26        to retrial without the challenged evidence,
27
28   id. at 382.

29        “[I]n light of Strickland . . . , a Sixth Amendment

30   ineffective assistance of counsel claim necessarily invokes

                                     10
1    federal law that has been ‘clearly established’ by the Supreme

2    Court within the meaning of AEDPA.”     Mosby v. Senkowski, 470 F.3d

3    515, 518-19 (2d Cir. 2006) (internal quotation marks omitted);

4    see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000)

5    (recognizing the test set forth in Strickland as “clearly

6    established” law for AEDPA purposes).

7         Strickland requires that a “criminal defendant asserting

8    that counsel is constitutionally deficient” meet both a

9    “performance” test, showing that counsel’s representation “‘fell

10   below an objective standard of reasonableness,’” and a

11   “prejudice” test, demonstrating that “‘there is a reasonable

12   probability that, but for counsel’s unprofessional errors, the

13   result of the proceeding would have been different.’” Bell v.

14   Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quoting Strickland, 466

15   U.S. at 688, 694).   Under Strickland, there is a “strong

16   presumption that counsel’s conduct falls within the wide range of

17   reasonable professional assistance.”     466 U.S. at 689.

18   Furthermore, on habeas appeal it is not enough for Palacios to

19   show a constitutional violation.     He must also show that the

20   state court’s “application of Strickland was not merely

21   incorrect, but objectively unreasonable.”     Hemstreet v. Greiner,

22   491 F.3d 84, 89 (2d Cir. 2007) (internal quotation marks

23   omitted).   Specifically, Palacios must establish unreasonableness

24   in light of Supreme Court precedent regarding the state courts’


                                     11
1    Fourth Amendment determination, which underlies the ineffective

2    assistance claim.

3         For the reasons that follow, we find that Palacios failed to

4    satisfy the “performance” prong of the Strickland test, see 470

5    F. Supp. 2d at 221-23, and thus, that Palacios failed to meet

6    Strickland’s “rigorous” standard, Bell, 500 F.3d at 155 (internal

7    quotation marks omitted).   There is therefore no cause for us to

8    reach the “prejudice” prong.

9         Because Palacios has not shown that his trial counsel was

10   ineffective for failing to raise a Fourth Amendment challenge to

11   his show-up, he has similarly failed to show that his counsel was

12   ineffective for failing to challenge his subsequent jailhouse

13   confession as the fruit of the poisonous tree.   See, e.g., United

14   States v. Guarno, 819 F.2d 28, 32 (2d Cir. 1987) (finding that

15   “derivative evidence” need not be suppressed where the predicate

16   evidence was “properly obtained”).

17        I.   Strickland’s “Performance” Prong:   Palacios’s Fourth

18             Amendment Unreasonable Seizure Claim

19             A.   Exigent Circumstances in the Absence of

20                  Individualized Suspicion

21        The Fourth Amendment protects individuals “against

22   unreasonable searches and seizures.”   U.S. Const. amend. IV.   “A

23   search or seizure is ordinarily unreasonable in the absence of

24   individualized suspicion of wrongdoing,” such as in cases in


                                     12
1    which the “primary purpose of the [seizure] is ultimately

2    indistinguishable from the general interest in crime control.”

3    City of Indianapolis v. Edmond, 531 U.S. 32, 37, 48 (2000).      The

4    Supreme Court, however, has made clear that

 5        [t]he   touchstone    of   the   Fourth   Amendment    is
 6        reasonableness, not individual suspicion. Thus, while
 7        th[e] Court’s jurisprudence has often recognized that “to
 8        accommodate public and private interests, some quantum of
 9        individualized suspicion is usually a prerequisite to a
10        constitutional search or seizure,” . . . the “Fourth
11        Amendment imposes no irreducible requirement of such
12        suspicion.”
13
14   Samson v. California, 547 U.S. 843, 855 n.4 (2006) (quoting

15   United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976))

16   (emphasis added); accord Nat’l Treasury Employees Union v. Von

17   Raab, 489 U.S. 656, 665 (1989) (reaffirming the “longstanding

18   principle” that no “measure of individualized suspicion . . . is

19   an indispensable component of reasonableness in every

20   circumstance”); Skinner v. Ry Labor Executives’ Ass’n, 489 U.S.

21   602, 624 (1989) (“[A] showing of individualized suspicion is not

22   a constitutional floor, below which a search must be presumed

23   unreasonable.”).

24        Accordingly, the Supreme Court has recognized “limited

25   circumstances in which the usual rule [requiring individualized

26   suspicion] does not apply.”    Edmond, 531 U.S. at 37.

27   Individualized suspicion is not needed, for example, in cases

28   involving “an exigency that justifies immediate action on the

29   police’s part.”    Georgia v. Randolph, 547 U.S. 103, 117 n.6

                                      13
1    (2006); see also id. (collecting and summarizing exigent

2    circumstances that may justify warrantless searches); Edmond, 531

3    U.S. at 44 (recognizing circumstances involving “exigencies” that

4    permit seizures without individualized suspicion); United States

5    v. Harper, 617 F.2d 35 (4th Cir. 1980).   Specifically, the

6    Supreme Court has indicated that such an exigency exists when the

7    police utilize an “appropriately tailored” seizure “set up . . .

8    to catch a dangerous criminal who is likely to flee by way of a

9    particular route.”   Edmond, 531 U.S. at 44.   The show-up in this

10   case involves that exact exigency:   The police knew that the

11   perpetrators were within the finite group of men, whom the

12   officers understood to be Hispanic, inside or lined up outside of

13   the 30-30 Club near the stabbing, and the show-up was

14   contemporaneous to the stabbings and aimed to identify and arrest

15   dangerous criminals who were likely to flee the club and

16   surrounding area were it not for the police seizure. Moreover,

17   there was a high risk that the two witnesses who could identify

18   the perpetrators would not be available at a later time:   the

19   first, one of the stabbed victims, had severe wounds, and the

20   second was a suspect who had tried to leave the scene.   Thus, the

21   challenged seizure does not violate the Fourth Amendment simply

22   because it was made without individualized suspicion.

23        A different result is not mandated by Ybarra v. Illinois,

24   444 U.S. 85, 91-92 (1979), which found unreasonable body frisks


                                     14
1    of a tavern’s patrons based on an informant’s tip that one of the

2    tavern’s bartenders possessed heroin.    The Ybarra Court found

3    that the “rash and unreasonable interferences with privacy” at

4    issue were based solely on “a person’s mere propinquity to others

5    independently suspected of criminal activity.”    Id. at 91, 95-96

6    (internal quotation marks omitted).    And, most importantly, the

7    seizure in Ybarra was not justified by any exigent or emergency

8    circumstances.   Here, the police knew to a virtual certainty that

9    the perpetrators whom they hoped to identify were among the

10   patrons and likely to escape, and briefly detaining these patrons

11   and instructing them to walk outside, unlike the body frisks in

12   Ybarra, was minimally intrusive.     See Martinez-Fuerte, 428 U.S.

13   at 561 (explaining that body searches are “ordinarily afforded

14   the most stringent Fourth Amendment protection”).    Therefore,

15   there was a strong showing in this case that the show-up was

16   justified by emergency and exigent circumstances that did not

17   require a showing of individualized suspicion, and “no

18   particularized reason need exist to justify it,” id. at 563.      Our

19   decision in this case in no way affects the need for

20   individualized suspicion in cases primarily “relat[ing] to

21   ordinary crime control,” Edmond, 531 U.S. at 44, and not

22   involving exigencies similar to those presented here.    Finding

23   exigent circumstances, however, does not alone answer the

24   question of whether the show-up comports with the Fourth


                                     15
1    Amendment.   We must still examine whether it was reasonable,

2    which remains the “touchstone of the Fourth Amendment,” Samson,

3    547 U.S. at 855 n.4.   We now turn to that question.

4              B.    Totality of the Circumstances

5          “[T]o determine whether a search is reasonable within the

6    meaning of the Fourth Amendment,” courts “examine the totality of

7    the circumstances.”    Samson, 547 U.S. at 848 (internal quotation

8    marks and alteration omitted).   In considering the “totality of

9    the circumstances--the whole picture,” United States v. Cortez,

10   449 U.S. 411, 417 (1981), we take into account “the facts known

11   to the officers,” Alabama v. White, 496 U.S. 325, 330-31 (1990),

12   and “balance the privacy-related and law enforcement-related

13   concerns,” Illinois v. McArthur, 531 U.S. 326, 331 (2001).

14        Here, the police knew that two serious stabbings had

15   occurred (one soon-to-be fatal), and they were armed with

16   reliable information that the perpetrators were among the group

17   of individuals inside or lined up outside of the 30-30 Club.    The

18   police could have reasonably believed that the delay necessary to

19   procure a warrant would thwart the possibility of ever finding

20   the perpetrators, by increasing the likelihood that one or more

21   of them would be able to get away.    See United States v. Gordils,

22   982 F.2d 64, 69 (2d Cir. 1992) (holding that “a likelihood that

23   the suspect will escape” supports a finding of exigency).    The

24   police had two eyewitnesses who were able to identify the


                                      16
1    perpetrators, but who may have been unable or unwilling to do so

2    in the future:   One was grievously wounded, and the other was a

3    suspect who had already attempted to flee the scene.    The police

4    had reason to believe that the perpetrators posed an immediate

5    danger to others inasmuch as they were armed, in a crowded place,

6    and had just engaged in an act of extreme violence.    In light of

7    these circumstances, it was not unreasonable for the police to

8    settle on the show-up procedure that they adopted.

9         We find instructive the Supreme Court’s decision in Illinois

10   v. Lidster, 540 U.S. 419, 424 (2004), which held that the police

11   did not run afoul of the Fourth Amendment by stopping motorists

12   at a highway checkpoint to ask them about a fatal hit-and-run

13   accident that had taken place a week earlier on that highway,

14   notwithstanding the lack of individualized suspicion.   540 U.S.

15   at 423-27.   Lidster, like the case at hand, involved law

16   enforcement’s need to acquire information about a recent crime

17   that had occurred in the vicinity.   There is even more reason to

18   find the show-up procedure in the instant case to be

19   constitutionally permissible than the purely “information-

20   seeking” traffic stop in Lidster, id., because the police had

21   reason to believe that the club patrons included the perpetrators

22   of the stabbings.   Moreover, unlike Lidster, in which the traffic

23   stop took place a week after the accident being investigated, the

24   show-up in this case took place immediately after the stabbings


                                     17
1    and involved exigent circumstances, as detailed above.   While the

2    length of the detention in this case was greater than the

3    duration of the stop in Lidster, the urgency for immediate police

4    action was also substantially greater.   There was a strong

5    showing in this case that, as in Lidster, the challenged seizure

6    was “reasonable in context,” id. at 426, and “hence

7    constitutional,” id. at 421.

8         The balance of interests further supports this conclusion.

9    A search, or in this case, an identification procedure, may be

10   reasonable where privacy concerns are minimal, the government

11   interest is furthered by the intrusion, and the intrusion is

12   properly tailored in time and scope to this interest.    See, e.g.,

13   id. at 424-25 (upholding a brief information-seeking highway

14   stops without any individualized suspicion); McArthur, 531 U.S.

15   at 330-34 (affirming the temporary restraint of an individual in

16   a home believed to contain evidence of a crime and unlawful

17   drugs); Pennsylvania v. Labron, 518 U.S. 938, 940-41 (1996) (per

18   curiam) (upholding an automobile search); Skinner, 489 U.S. at

19   623 (affirming a warrantless drug-testing of railroad employees);

20   Michigan v. Summers, 452 U.S. 692, 702-05 (1981) (upholding a

21   temporary, warrantless detention of suspect without arrest to

22   prevent flight); Martinez-Fuerte, 428 U.S. at 560-62 (affirming

23   checkpoint border stops to guard against illegal immigration);

24   Terry v. Ohio, 392 U.S. 1, 27 (1968) (upholding a temporary stop


                                    18
1    and limited search for weapons).

2         Here, strong public interest and law enforcement concerns

3    supported the need for the intrusion, because “the government’s

4    interest in dispensing with the warrant requirement is at its

5    strongest when . . . ‘the burden of obtaining a warrant is likely

6    to frustrate the governmental purpose behind the search.’”

7    Skinner, 489 U.S. at 623 (quoting Camara v. Mun. Court, 387 U.S.

8    523, 533 (1967)); e.g., Gordils, 982 F.2d at 69.   As we have

9    explained, the crime was serious and time was of the essence if

10   identifications were to be made.

11        Moreover, privacy concerns were reduced in this case.    The

12   show-up procedure on the street outside the club neither

13   constituted a “search[] nor [affected] the sanctity of private

14   dwellings, ordinarily afforded the most stringent Fourth

15   Amendment protection.”   Martinez-Fuerte, 428 U.S. at 561.   And

16   the club itself, which was open to the public, did not yield the

17   same expectations of privacy as a private setting:   The show-up

18   procedure, whereby the officers simply directed Palacios to line

19   up inside the club and walk outside when so instructed, was far

20   less invasive than, for example, a body frisk, which constitutes

21   “a serious intrusion upon the sanctity of the person,” “may

22   inflict great indignity,” and “is not to be undertaken lightly.”

23   Terry, 392 U.S. at 17; see also Ybarra, 444 U.S. at 95-96; Terry,

24   392 U.S. at 16-17, 17 n.13.   Thus, this case did not involve


                                     19
1    heightened privacy interests that outweigh the law enforcement

2    needs that prompted the show-up.

3           In addition, because the police took “reasonable efforts to

4    reconcile their law enforcement needs with the demands of

5    personal privacy,” McArthur, 531 U.S. at 332, there was

6    appropriate tailoring.    The detention was limited in scope:    The

7    police separated out the women and briefly held only the possible

8    male suspects followed by the request that the men line up and

9    walk out of the club one-by-one.      The seizure was also limited in

10   duration and was “no longer than necessary for the police, acting

11   with diligence,” to identify the perpetrators.     Id. at 332; see

12   also id. (finding reasonable a two-hour time restraint of an

13   individual in his home).

14          Finally, the show-up is not realistically susceptible to an

15   argument that it could have been less restrictive.

16   “[R]easonableness under the Fourth Amendment does not require

17   employing the least intrusive means . . . .”     Earls, 536 U.S. at

18   837.    Indeed, finding to the contrary could “raise insuperable

19   barriers to the exercise of virtually all search-and-seizure

20   powers,”    Martinez-Fuerte, 428 U.S. at 556 n.12, and “unduly

21   hamper the police’s ability to make swift, on-the-spot

22   decisions,” United States v. Sokolow, 490 U.S. 1, 11 (1989).     In

23   the situation at hand, the police could not have reduced further

24   the number of potential suspects nor would it have been


                                      20
1    practicable to bring the witnesses into the crowded club:    One

2    was grievously wounded and the other was himself a suspect.    We

3    are not inclined to “indulge in [such] unrealistic second-

4    guessing” as to other methods that might have been employed.    Id.

5    (internal quotation marks omitted).

6         Rather than supporting a “good Fourth Amendment claim,”

7    Kimmelman, 477 U.S. at 382, the “totality of the circumstances,”

8    Cortez, 449 U.S. at 417, and the “balance [of] privacy-related

9    and law enforcement-related concerns,” McArthur, 531 U.S. at 331,

10   undermine Palacios’s claim that the police show-up, following the

11   Djukanovic and Kolenovic stabbings, violated Palacios’s Fourth

12   Amendment rights and tainted his subsequent arrest and

13   confession.   Accordingly, we conclude that Palacios has not shown

14   that counsel’s decision not to pursue a Fourth Amendment

15   challenge respecting the show-up rose to the level of

16   “incompetence” as “unreasonable under prevailing professional

17   norms” and “not sound strategy.”     Kimmelman, 477 U.S. at 381; see

18   also Strickland, 466 U.S. at 687-88.

19        II.   Strickland’s “Prejudice” Prong

20        Because Palacios’s claim fails to demonstrate

21   constitutionally deficient “performance,” the first prong of the

22   Strickland test, this court need not reach the second “prejudice”

23   prong.

24                             CONCLUSION


                                     21
1         For the reasons we have stated, Palacios has failed to meet

2    his burden regarding his ineffective assistance of counsel claim.

3    Palacios cites to, and we have found, no Supreme Court case that

4    establishes that show-ups of the sort employed here, immediately

5    following the commission of a violent crime in the vicinity, are

6    unlawful seizures under the Fourth Amendment.   It necessarily

7    follows that the state court’s denial of Palacios’s ineffective

8    assistance claim was not an unreasonable application of clearly

9    established federal law as determined by the Supreme Court.    Upon

10   reviewing the state court’s determination that Palacios did not

11   receive ineffective assistance of counsel, see id. at 90 n.2, we

12   conclude that Palacios is not entitled to a writ of habeas

13   corpus, and that the district court properly denied his petition.

14        For the foregoing reasons, the judgment of the district

15   court is AFFIRMED.
16




                                    22
