                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 12 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOSE FRANCISCO ESPINOZA,                        No.    16-56870

                Petitioner-Appellant,           D.C. No.
                                                2:16-cv-03892-CAS-MRW
 v.

WILLIAM SULLIVAN, Warden,                       MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                           Submitted August 27, 2018**
                              Pasadena, California

Before: GOULD and BYBEE, Circuit Judges, and HERNANDEZ,*** District
Judge.

      California state prisoner Jose Francisco Espinoza appeals from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We review the


      *
             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 Marco A. Hernandez, United States District Judge for
the District of Oregon, sitting by designation.
district court’s denial of a section 2254 habeas petition de novo, McCormick v.

Adams, 621 F.3d 970, 975 (9th Cir. 2010), but within the parameters of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Atwood v. Ryan, 870

F.3d 1033, 1046 (9th Cir. 2017). Under AEDPA, we may grant relief if the state

court decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or “resulted in a decision that was based on an unreasonable determination of the

facts in the light of the evidence presented” in state court. 28 U.S.C. § 2254(d).

We affirm.

      1. The district court correctly concluded that the state court’s decision

regarding the photo identification was consistent with Federal law and did not

unreasonably determine or apply the facts. Although the California Court of

Appeal concluded that the photo array was unduly suggestive when five of the six

photos showed men wearing shirts and the photo of Espinoza showed him without

a shirt and revealing a portion of a chest tattoo with the word “death,” the state

court reasonably applied the relevant totality of the circumstances factors in

concluding that Hunt’s identification was reliable. Neil v. Biggers, 409 U.S. 188,

199-200 (1972) (factors include the witness’s opportunity to view the criminal at

the time of the crime; the witness’s degree of attention; the witness’s level of

certainty at the time of the confrontation; and the length of time between the crime


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and the confrontation). Hunt knew who Espinoza was before the crime occurred,

the crime occurred during daylight, no evidence suggests Hunt’s line of sight was

impaired, and he observed the shooter’s face during the crime. Hunt was able to

read the shooter’s lips to understand what the shooter was saying as he drove by,

he observed the driver sufficiently to identify the driver’s hand gesture as a gang

sign, and he was able to identify the type of gun. Hunt referred to specific features

of Espinoza’s nose to distinguish another person in the lineup and was confident

enough to reject his co-victim’s identification of that other person. And, the

photographic lineup occurred only one day after the shooting.

       The state court also reasonably rejected Espinoza’s contention that the

police told Hunt that Espinoza was the shooter before showing Hunt the photo

identification array. Espinoza relies on ambiguous testimony by Hunt, and just

moments later, Hunt made clear that the police “can’t do that.” Finally, the police

telling Hunt that the photo array included a photo of a suspect does not create a

substantial likelihood of irreparable misidentification.

      2. To demonstrate ineffective assistance of counsel, Espinoza must establish

that his counsel’s performance was “deficient” and that this performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

AEDPA, our review of ineffective assistance of counsel claims is “doubly

deferential,” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009), because the


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inquiry “is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

      Espinoza argues that trial counsel was deficient by not calling co-workers to

establish an alibi defense. Trial counsel contacted at least two of Espinoza’s co-

workers, and called Espinoza’s cousin who testified that he employed Espinoza

and that Espinoza was at work at the time of the crime. The district court did not

err in determining that the state court could have reasonably held that trial counsel

concluded that additional witnesses were cumulative or less reliable than

Espinoza’s cousin. Additionally, the jury obviously credited the evidence against

Espinoza over the alibi testimony of his cousin. Thus, as the district court

explained, the state court could have concluded that there was no prejudice

resulting from the decision not to call additional co-workers.

      Finally, the state court could have concluded that trial counsel made a

reasoned strategic decision to not call Espinoza’s ex-girlfriend. As the district court

noted, the state court could have determined that her testimony about the presence

of bullet casings would have undermined Espinoza’s defense because it suggested

that Espinoza owned weapons, was familiar with weapons, and fired weapons.

Additionally, she had no personal knowledge of shell casings present in Espinoza’s

home at the time of the crime because she had moved out of the house the month

before.


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AFFIRMED.




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