                                                                               FILED
                           NOT FOR PUBLICATION                                 NOV 27 2013

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ROBERT GUY BAKER,                                No. 11-15004

              Petitioner - Appellant,            D.C. No. 2:07-cv-01170-JAM-
                                                 JFM
  v.

MATTHEW C. KRAMER,                               MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                     Argued and Submitted November 4, 2013
                            San Francisco, California

Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.

       Petitioner Robert Baker seeks habeas relief on the ground that the admission

of Lopez’s in-court identification violated his due process rights. Baker

procedurally defaulted this claim in state court, and he must therefore show cause

and prejudice to excuse the default. He attempts to do so by asserting a claim of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ineffective assistance of counsel, which requires him to show both deficient

performance by counsel and resulting prejudice. Strickland v. Washington, 466

U.S. 668, 687 (1984). On direct appeal, the California Court of Appeal held that,

even if Baker’s counsel rendered deficient performance, Baker has not shown

prejudice.

      We cannot say that the state court’s no-prejudice determination represents an

unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1); Walker v.

Martel, 709 F.3d 925, 944 (9th Cir. 2013). The prosecutor expressly told the jury

during closing arguments not to rely on Lopez’s in-court identification because it

was unreliable. Moreover, the jury heard testimony from three other witnesses

who directly or by implication identified Baker as the shooter, which was sufficient

standing alone to support Baker’s conviction. To be sure, the credibility of each of

these witnesses was challenged at trial. But the California Court of Appeal could

reasonably conclude that Lopez’s in-court identification was not the difference-

maker in this case.

      AFFIRMED.




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