                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            FEB 18 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
RICKY BENJAMIN,                                  No. 12-56664

              Petitioner - Appellant,            D.C. No. 2:11-cv-02899-JVS-SH

 v.
                                                 MEMORANDUM*
CONNIE GIPSON, Warden,

              Respondent - Appellee.


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

                      Argued and Submitted February 2, 2016
                               Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.

      This is an extremely troubling case. Ricky Benjamin appeals the district

court’s denial of his pro se habeas petition, which challenges his 2006 convictions

for first-degree murder and attempted second-degree robbery. We review under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and we

affirm.

      1. Benjamin first argues that insufficient evidence existed for the jury to

conclude that he committed the offenses. The state offered the following evidence

relevant to his identity as a perpetrator. First, the victim’s sister Angelica, who

was 11 years old at the time of the offenses, testified that she saw a man with a gun

jump on the hood of her brother’s car, that she turned to grab a phone, and then

heard, but did not see, a shot fired. Because the man was wearing a hood and

baseball cap, she said that she saw only the bottom half of his face. Angelica first

identified another man as the perpetrator after viewing a photo lineup. She initially

reiterated that identification at the preliminary hearing, but, after a lunch break,

recanted her testimony and identified Benjamin. At the trial, she explained that she

had switched her identification to Benjamin during lunchtime because his chin was

“a bit more full than the other guy’s” (she had stated at the preliminary hearing that

she saw only the shooter’s chin). A neighbor testified that she heard a single shot

and saw only a man’s back, but not his face, as he ran from the scene. Relying

solely on the man’s “height” and “build,” the neighbor picked Benjamin out of a

photo lineup and reiterated that identification at trial. The victim’s brother Moses

also testified, saying that Benjamin told him that someone else in the neighborhood


                                            2
had committed the crime and that Moses could borrow Benjamin’s guns to get

revenge. Moses further testified that Benjamin described one of his guns as a .380

caliber, which is the same caliber as the murder weapon. The state also introduced

the testimony of Denise White, a self-described “crackhead” who said that she

overheard Benjamin say that he shot “that ese,” which White defined as referring

to a “white boy” or “Hispanic person.” When asked how she could be sure which

shooting Benjamin was talking about, White stated that she was sure because she

had witnessed him fleeing after the shooting, although her description of the

incident was inconsistent with the rest of the state’s evidence.1 Finally, the state

introduced forensic evidence demonstrating that a number of individuals’ DNA

was present on the headband of a baseball cap found at the scene and that

Benjamin, who lived in the neighborhood, was one of those individuals.

      Our review of a sufficiency of the evidence challenge under AEDPA is

subject to the “twice-deferential standard” of Jackson v. Virginia, 443 U.S. 307

(1979), and AEDPA. Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). The

      1
        White maintained that the shooting happened at midnight, while all other
witnesses testified that it happened between 6 and 7PM, during daylight hours.
White also said that she heard “two, three, maybe four” shots, while the bulk of the
evidence, especially the forensic evidence, was that only one shot had been fired.
Finally, White testified that she saw two perpetrators fleeing in a green car, while
another eyewitness, who observed a perpetrator getting into a getaway car, testified
unequivocally that the car was white.

                                           3
evidence of Benjamin’s identity as a participant in the crimes is weak, as much of

the testimony offered by the state was either of low probative value or suffered

from clear credibility defects (or both). Under Jackson and AEDPA, however, we

are not permitted to weigh witness credibility. See Bruce v. Terhune, 376 F.3d

950, 957 (9th Cir. 2004). We therefore are compelled to hold that “the state court’s

determination that a rational jury could have found that there was sufficient

evidence of guilt . . . was [not] objectively unreasonable.” Boyer v. Belleque, 659

F.3d 957, 965 (9th Cir. 2013).

      2. Benjamin next argues that his counsel was ineffective for failing to move

to suppress Angelica’s eyewitness identification. See Strickland v. Washington,

466 U.S. 668 (1984). Benjamin’s counsel’s performance was not deficient,

however, because any such motion would likely have been unsuccessful. Although

Angelica’s identification was exceedingly unreliable, courts suppress eyewitness

identifications only when they are the product of improperly suggestive conduct by

the police. See Perry v. New Hampshire, 132 S. Ct. 716, 721 (2012).2 Because




      2
        Although Perry was decided after Benjamin’s trial, California courts
appear to have made the same requirement explicit prior to Perry. See, e.g., People
v. Peggese, 102 Cal. App. 3d 415, 422 (1980); People v. Boothe, 65 Cal. App. 3d
685, 691 (1977).

                                          4
there is no evidence of such conduct in this case, we affirm the district court’s

denial of Benjamin’s ineffective assistance of counsel claim.

      3. Benjamin’s next claim is a Confrontation Clause challenge to the

admission of the DNA evidence. At trial, the state introduced the inculpatory

DNA evidence through the testimony of an analyst who had not actually conducted

the DNA testing. Benjamin argues that this arrangement violated Melendez-Diaz

v. Massachusetts, 557 U.S. 305 (2009). The state argues that the state court was

not unreasonable in determining that Melendez-Diaz is distinguishable.3 In

Melendez-Diaz, no analyst testified as to the procedures underlying the forensic

reports. 557 U.S. at 308-09. Here, by contrast, a forensic analyst familiar with the

DNA laboratory’s procedures testified and was subject to cross-examination.

Accordingly, the state court’s decision was not an unreasonable application of

Melendez-Diaz. See Flournoy v. Small, 681 F.3d 1000, 1005 (9th Cir. 2012)

(noting that Melendez-Diaz did not address “the degree of proximity the testifying

witness must have to the scientific test”).

      4. Finally, Benjamin asks that we remand his case to the district court so

that he may seek leave to amend his habeas petition to add newly-discovered

      3
        The Supreme Court had yet to decide Bullcoming v. New Mexico, 131 S.
Ct. 2705 (2011), and Williams v. Illinois, 132 S. Ct. 2221 (2012), when Benjamin’s
convictions became final in 2009.

                                              5
claims. After Benjamin appealed the district court’s denial of his pro se habeas

petition, this court appointed counsel, who discovered two unraised potential

claims: an ineffective assistance of counsel claim based on defense counsel’s

failure to present alibi evidence, and a Brady4 claim based on the prosecution’s

failure to disclose exculpatory evidence, that “Denise White’s” actual name is

Rochelle Thomas, and that she served as a paid police informant in this and other

cases.

         Benjamin is currently pursuing these two new claims in state court. He

seeks to amend his habeas petition to include them in case the state court should

not grant relief so that the claims may be brought outside of AEDPA’s limitations

on “second or successive” petitions.5 See 28 U.S.C. § 2244(b)(2).

         A remand at this point, however, would be futile. Because the district court

addressed the claims in Benjamin’s pro se petition on the merits and issued final

judgment, Benjamin cannot now amend his habeas petition without filing a Federal



         4
             Brady v. Maryland, 373 U.S. 83 (1963).
         5
         We grant Benjamin’s motion for judicial notice, supplemental motion for
judicial notice, and motion to file under seal because the attachments to these
motions arise out of “proceedings in other courts . . . [that] have a direct relation to
matters at issue” in this proceeding. Trigueros v. Adams, 658 F.3d 983, 987 (9th
Cir. 2011). The motion to seal is granted subject to reconsideration should further
proceedings be initiated in this court.

                                            6
Rule of Civil Procedure 60(b) motion for relief from the judgment. See Bonin v.

Vasquez, 999 F.2d 425, 427 (9th Cir. 1993) (“Because final judgment already had

been entered . . . when Bonin first sought to raise six new issues, the district court

properly construed Bonin’s motion as a request for relief from the judgment

pursuant to Rule 60(b).”). The time in which Benjamin could file such a motion

has elapsed. See Fed. R. Civ. Pro. 60(c)(1). Even if Benjamin could file a Rule

60(b) motion, the Supreme Court has held that such motions that raise new

“claims” should ordinarily be considered under AEDPA’s provisions governing

“second or successive” petitions. Gonzalez v. Crosby, 545 U.S. 524, 530-31

(2005).

      The result in this case is troubling for many reasons, including the question

regarding the sufficiency of the evidence. It is especially troubling, however, with

respect to Benjamin’s Brady claim. Given the minimal evidence offered at trial

and the state’s alleged failure to disclose critical exculpatory evidence, we note that

there may well be a reasonable probability that the result of the jury trial would

have been different absent the Brady violation. Benjamin could not have included

any such claim in his first habeas petition, however, because the state allegedly

failed, in violation of Brady, to disclose material exculpatory information to the

defense, and Benjamin did not learn of this fact until after the time within which to


                                           7
file a habeas claim had expired. Should the case return to this court at any point,

we might be required to consider whether Benjamin’s new claims satisfy the

provisions governing “second or successive” petitions or, in the case of the Brady

claim, whether that claim is excused from satisfying those requirements. See

United States v. Lopez, 577 F.3d 1053, 1064-67 (9th Cir. 2009) (leaving open the

question whether material Brady claims are excused from satisfying the provisions

governing “second or successive” petitions). The panel retains jurisdiction over

any further claims that may be placed before this court as a result of the

convictions we consider today.

AFFIRMED.




                                          8
                                                                              FILED
BENJAMIN v GIPSON 12-56664
                                                                                FEB 18 2016
M. SMITH, Circuit Judge, concurring in part and dissenting in part:        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I concur in all but the final paragraph of the memorandum disposition, with

which I disagree for the following reasons: (a) Every legal issue before us has been

disposed of in the previous paragraphs of the memorandum disposition, so the last

paragraph is wholly unnecessary to the disposition of this case; (b) Under AEDPA,

we are generally required to defer to the state courts in the first instance, but the

final paragraph of this memorandum disposition seems clearly designed to signal

to any state court hereafter considering the matter, as well as the attorneys

involved, the results favored by the panel majority concerning the Brady claim and

whether any new claims satisfy the provisions governing “second or successive”

petitions; and (c) to make certain the state courts “get the message,” the panel

majority has indicated that the panel will retain jurisdiction over the case, even

though there would normally be no reason for the panel to do so.

      Accordingly, I dissent from the last paragraph of this memorandum

disposition.
