                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JAN 12 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JOSE GUADALUPE CARO,                             No. 12-55136

              Petitioner - Appellant,            D.C. No. 2:06-cv-02432-GHK-JC

  v.
                                                 MEMORANDUM*
DALINDA HARMAN,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                     Argued and Submitted September 1, 2015
                              Pasadena, California

Before: KOZINSKI, O’SCANNLAIN, and BYBEE, Circuit Judges.

       The facts and procedural posture of this case are known to the parties, and

we do not repeat them here. Jose Guadalupe Caro, a state prisoner, appeals the

federal district court’s denial of his habeas petition. We have jurisdiction under 28




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 2253, we review de novo, Sandgathe v. Maass, 314 F.3d 371, 376 (9th

Cir. 2002), and we affirm.

                                           I

      The state court’s conclusion that the in-field show-up procedure complied

with the Constitution was not contrary to or an unreasonable application of federal

law. See 28 U.S.C. § 2254(d)(1); Perry v. New Hampshire, 132 S. Ct. 716, 724

(2012) (noting that due process concerns arise “when law enforcement officers use

an identification procedure that is both suggestive and unnecessary”); Manson v.

Brathwaite, 432 U.S. 98, 113–16 (1977) (holding that, if police procedures are

unduly suggestive, identification will be excluded if its reliability does not

outweigh corrupting influence of suggestive procedure); Neil v. Biggers, 409 U.S.

188, 199–200 (1972); Stovall v. Denno, 388 U.S. 293, 302 (1967).

      First, contrary to Caro’s claim, the police did not attempt to sway the

witnesses prior to the show-up. It is true that one of the witnesses—Jose

Salamanca—testified at trial that the police didn’t give him a choice when he was

making his identification. But when asked whether he “pick[ed] out these guys

just because someone told [him] to,” he answered, “No.” Salamanca also testified

that he identified his attackers from memory and that he recognized the attackers’

faces when he arrived at the show-up. Moreover, all three witnesses were properly


                                           2
admonished prior to the show-up that the individuals gathered were not necessarily

involved in the crime. Israel Uriarte testified that he felt no pressure to identify

anyone. And Rigoberto Trinidad’s testimony does nothing to support Caro’s claim

that the witnesses were pressured. According to Trinidad, the officers simply

“ask[ed] us if those were the guys and ask[ed] me which guy did what.”

      Second, even though the witnesses made their identifications in each others’

presence, there is no evidence that this influenced their decision. Uriarte identified

only two of the three suspects (failing to identify Caro); Trinidad identified Caro

and only one other suspect; and Salamanca identified all three. Officer Couso,

who was in the car with the witnesses when they made their identifications,

reported that the witnesses did not coach each other or tell one another who to

point out. Uriarte confirmed this account when he testified that neither of his

friends pointed anyone out to him during the show-up.

      Finally, Caro complains of being called a “suspect,” being handcuffed, the

presence of police officers, there being only three men in the show-up, the

presence of a BMX bicycle used in the crime, and the fact that Caro was the only

man in the show-up wearing a blue sweater. None of these factors, individually or

collectively, is unduly suggestive under clearly established federal law. Thus, Caro




                                           3
is not entitled to habeas relief with respect to his due process claim. See Perry, 132

S. Ct. at 724–26.

                                           II

      Caro next argues that his trial counsel was constitutionally deficient because

he failed to challenge the admissibility of the identifications obtained at the show-

up. Claims under Strickland v. Washington, 466 U.S. 668 (1984), brought in the

AEDPA context are reviewed with “doubl[e]” deference. See Harrington v.

Richter, 562 U.S. 86, 104–05 (2011). And because we reject Caro’s due process

claim, we similarly reject his claim that his attorney was deficient for failing to

challenge the identifications. The state court’s holding on this point was not

contrary to or an unreasonable application of Strickland.

                                           III

      We GRANT Caro’s motion to expand the certificate of appealability. See

Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). But Caro is unable to show that

any error with regard to the exclusion of Saldana’s testimony had a “substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121–22 (2007). Even

if Trinidad had been impeached, Salamanca’s testimony would not have been


                                           4
affected. Salamanca identified Caro both at the show-up and at trial. Moreover,

Uriarte recognized Caro by his clothing even though he was not definitively able to

remember Caro’s face.

      AFFIRMED.




                                         5
