                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NICHOLAS BEAUDREAUX,                             No.   15-15345

              Petitioner-Appellant,              D.C. No. 5:13-cv-00351-BLF

 v.
                                                 MEMORANDUM*
J. SOTO, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                     Argued and Submitted February 16, 2017
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and GARBIS,** District Judge.

      Nicholas Beaudreaux appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. He contends that (1) his trial

counsel provided him with ineffective assistance of counsel (“IAC”) at his trial on


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
a first-degree murder charge by failing to object to, or move to exclude, the

testimony of one eyewitness as the product of impermissibly suggestive

photographic identification procedures; and (2) trial counsel’s deficient

performance prejudiced Beaudreaux’s defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984).

        1.    The relevant inquiry with respect to the first Strickland prong is

whether a reasonably competent attorney would have made a motion to exclude or

raised an objection regarding witness Dayo Esho’s identification of Beaudreaux.

Id. at 687–88. Given the importance of Esho’s testimony, the significant chance of

succeeding on a suppression motion, and the absence of any plausible strategic

reason for not filing such a motion, a reasonably proficient attorney would have

filed it.

        A reviewing court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. at 689 (internal

quotation marks and citation omitted). Applying that presumption, we can find no

basis for concluding that trial counsel David Kelvin’s failure to object to, or to




                                           2
move to exclude, Esho’s identification testimony was, or could have been, the

product of sound strategic consideration.

      First, Kelvin submitted a declaration stating that he did not remember

considering filing a motion to exclude Esho’s identification testimony, and that his

failure to do so “denied Mr. Beaudreaux the effective assistance of counsel.” A

state court is not necessarily bound to accept trial counsel’s testimony regarding

whether a particular action at trial was “tactical” or simply a mistake. Edwards v.

Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Edwards, however, is

inapposite. In Edwards, the relevant IAC claim concerned trial counsel’s decision

to allow a defendant to testify regarding conversations with his wife (thereby

waiving the marital communications privilege and permitting the defendant’s wife

to give inculpatory testimony). Id. at 1123–24. In such a case, an objectively

reasonable attorney might well have concluded that the potential benefit of his

client’s testimony regarding any privileged conversations would outweigh any

detriment from his wife’s testimony about the same communications. No such

tactical benefit could inure here, where prevailing on a motion to suppress would

have eliminated an identification of central importance to the prosecution’s case,

without any countervailing procedural or substantive risk to Beaudreaux. Cf.

Premo v. Moore, 562 U.S. 115, 126–27 (2011); Strickland, 466 U.S. at 673. Trial


                                            3
counsel’s indication that there was no tactical reason for his failure to challenge

Esho’s identification is therefore quite plausible, and so merited some weight.

      Second, although “it is not professionally unreasonable to decide not to file a

motion . . . clearly lacking in merit,” Tomlin v. Myers, 30 F.3d 1235, 1238 (9th Cir.

1994) (quoting United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991)), a

motion to exclude Esho’s in-court identification as the product of impermissibly

suggestive pretrial identification procedures would have had a significant chance of

success on the merits.

      More than seventeen months expired between the shooting of Wayne

Drummond and the police’s interview of Esho. Police showed Esho two

successive “six-pack” photographic lineups containing six photographs of African-

American men. Both lineups included photographs of Beaudreaux; no other

individual appeared in both lineups. The officer who presented the photographic

arrays to Esho testified that it was not common practice to show the same

individual in successive arrays.

      Esho did not make a positive identification from either photographic array.

He first stated that Beaudreaux’s photo was “closest” to the gunman, but that the

photograph showed a man whose “face [was] a little wider and his head a little

higher.” Esho testified that at that point, he was “pretty sure” that the man in the


                                           4
photograph was not Drummond’s killer. After seeing a second photographic array

which also included Beaudreaux, Esho wrote that the photograph of Beaudreaux

was “very close.” Esho testified at trial that he may have unconsciously relied on

the first photographic lineup when viewing the second one. The suggestiveness of

identification procedures—and the danger of misidentification—increases when, as

here, “the police display to the witness . . . the pictures of several persons among

which the photograph of a single such individual recurs or is in some way

emphasized.” Simmons v. United States, 390 U.S. 377, 383 (1968); see also Foster

v. California, 394 U.S. 440, 442–43 (1969).

      After the two photographic lineups, Esho still did not positively identify

Beaudreaux. He did so only after seeing Beaudreaux at a preliminary hearing.

Courtroom procedures such as the defendant’s preliminary hearing are

“undoubtedly suggestive” as to the defendant’s identity as the perpetrator.

Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see also Foster, 394 U.S. at

443. The pretrial identifications were therefore based on unduly suggestive

procedures.

      Even if a pretrial identification procedure is unduly suggestive, an in-court

identification may still be admissible. Neil v. Biggers, 409 U.S. 188, 199–200

(1972). “[T]he factors to be considered in evaluating the likelihood of


                                           5
misidentification include the opportunity of the witness to view the criminal at the

time of the crime, the witness’ degree of attention, the accuracy of the witness’

prior description of the criminal, the level of certainty demonstrated by the witness

at the confrontation, and the length of time between the crime and the

confrontation.” Id. These factors would have supported a finding that Esho’s in-

court identification was not reliable.

      Esho had a good opportunity to view the gunman at the time of the crime

and paid close attention to the gunman. But the other three factors weigh against

the state. Seventeen months elapsed between the shooting and the photographic

lineups. Esho’s initial description of the gunman portrayed a man several inches

taller than Beaudreaux with a significantly darker complexion. And Esho’s initial

identifications evinced considerable uncertainty; only after repeated exposure to

Beaudreaux’s photograph did Esho positively identify him at the preliminary

hearing, itself a suggestive situation.

      2.     Given the weakness of the state’s case, there is a “reasonable

probability” that a jury would have reached a different result had the motion been

filed. See Strickland, 466 U.S. at 694 (“A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”).




                                          6
      Esho’s identification testimony was essential to the state’s case. Without

Esho’s identification, the strongest evidence against Beaudreaux was the

eyewitness testimony of Brandon Crowder, which included identification of

Beaudreaux. But Crowder was likely not regarded as a credible witness. He

initially lied to police over the course of several interrogations regarding the crime

at issue, and cooperated only after he had been arrested and charged with a separate

crime. And Crowder was himself charged with Drummond’s murder; he testified

against Beaudreaux pursuant to a plea agreement in which he pled no contest to the

lesser offense of voluntary manslaughter and received a sentence of probation, with

no prison term. In contrast to Crowder, a known liar and criminal offender with a

strong incentive to identify Beaudreaux as the killer, Esho had no criminal record,

and his testimony was not induced by any deal with the government.

      The third piece of evidence on which the state relied at trial—the recording

of a conversation between Beaudreaux and Crowder in a police van transporting

the two suspects to prison—was not enough to dissipate the prejudice related to

Esho’s identification. The recording is certainly persuasive evidence that

Beaudreaux was extremely angry at Crowder for fingering him as a murderer. But

there was no statement in the recording revealing whether Beaudreaux was livid

because he had committed the murder or because he had not and was being falsely


                                           7
identified. If the jury was not convinced by Crowder’s testimony identifying

Beaudreaux, there is a reasonable probability that it would not have regarded the

recorded conversation as sufficient to conclude beyond a reasonable doubt that

Beaudreaux was the murderer.

      3.     The state has the benefit of “doubly deferential” review on Strickland

claims subject to AEDPA. Cullen v. Pinholster, 563 U.S. 170, 190 (2011); see 28

U.S.C. § 2254(d)(1). But Beaudreaux meets his high burden here.

      In light of the merits of the motion to suppress, the importance of the

evidence subject to suppression, the lack of any apparent tactical advantage in

declining to raise the issue, and Kelvin’s declaration that he recalled no strategic

motives, a conclusion by the state court that Kelvin’s representation was not

deficient was not reasonable. Cf. Kimmelman v. Morrison, 477 U.S. 365, 385–86

(1986).

      On the second prong of Strickland, Beaudreaux’s conversation with

Crowder offered the jury some basis for convicting Beaudreaux in the absence of

Esho’s identification. But the question on the second prong of Strickland is not

whether a jury could have convicted Beaudreaux absent the ineffectiveness of his

counsel, but whether there is a reasonable probability that it would have. See Vega

v. Ryan, 757 F.3d 960, 969–70, 974 (9th Cir. 2014). The only reasonable


                                           8
conclusion, given the weakness of the state’s case and the critical importance of

Esho’s identification, is that a more favorable verdict was “reasonably likely”

absent the ineffective representation. Strickland, 466 U.S. at 696; see 28 U.S.C.

§ 2254(d)(1).

      We conclude that the stringent requirements of AEDPA are met here. We

therefore REVERSE and REMAND to the district court with instructions to grant

the writ of habeas corpus.




                                          9
                                                                                FILED
Beaudreaux v. J. Soto, 15-15345
                                                                                 SEP 18 2017
GOULD, J. Dissenting:                                                        MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


      I respectfully dissent. Relying on corroborated accomplice testimony and

recorded comments made by Beaudreaux, it would also be reasonable for a state

court to conclude that, under Strickland v. Washington, 466 U.S. 668 (1984), any

ineffective assistance of trial counsel in how eyewitness identification evidence

was handled did not prejudice Beaudreaux. Assuming there was an error in the

identification procedure, I am not persuaded that it had a substantial and injurious

effect on the verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). In

short, it cannot be said that the state appellate court decision to not give relief to

Beaudreaux was an objectively unreasonable application of Supreme Court

precedent. Harrington v. Richter, 562 U.S. 86, 102–03 (2011). So relief under

AEDPA is not warranted.
