                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 02 2015

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



                            FOR THE NINTH CIRCUIT


RUBEN F. MENDOZA,                                No. 12-56792

              Petitioner - Appellant,            D.C. No. 5:11-cv-01644-JST-JPR

  v.
                                                 MEMORANDUM*
DOMINGO URIBE, Jr., Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                          Submitted December 12, 2014**
                              Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

       In 2007, petitioner Ruben F. Mendoza was convicted and sentenced to life

with the possibility of parole after seven years for attempted murder and one year

for shooting at an occupied motor vehicle. On timely appeal from the district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          -2-
court’s denial of his 28 U.S.C. § 2254 habeas petition, Mendoza argues that the

state court unreasonably held that his trial counsel was not ineffective for failing to

bring a motion to suppress the victim’s out-of-court identification of him in a one-

on-one show-up several hours after the shooting. We have jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253(a). Mendoza has neither demonstrated that the state

court’s denial of his constitutional claim was contrary to or an unreasonable

application of clearly established Supreme Court precedent – Strickland v.

Washington, 466 U.S. 668 (1984) – nor that it was based on an unreasonable

determination of the facts. We affirm.

      Mendoza’s ineffective assistance claim fails because it was not unreasonable

for the state court to have decided that any suppression motion would not have

been granted. The record amply supports the conclusion that Mendoza was not

prejudiced by the show-up or by Officer Griego’s statements immediately prior to

the show-up: (1) the victim had two opportunities to view Mendoza in a well-lit

apartment the night of the shooting; (2) the victim made his identification less than

five hours after the shooting; and (3) Mendoza’s identification was corroborated by

other evidence, including his DNA extracted from a straw left at the victim’s

girlfriend’s apartment, the fact that the police found the vehicle involved in the

shooting parked at his mother’s house several hours after the shooting, and
                                           -3-
Mendoza’s efforts from jail to persuade the victim’s girlfriend to recant her

previous identification of him. It is not ineffective assistance for counsel to fail to

bring a futile motion. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005);

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

      The state court’s determination that there was “more than sufficient evidence

to sustain the identification of [Mendoza] as one of the shooters” was not an

unreasonable determination of the facts. It is clear that the court was referring –

correctly – to Mendoza’s role as the driver of the car. Mendoza aggressively

chased the victim and positioned the car alongside the victim so that the sole

passenger could fire directly at him.

      The court construes Mendoza’s briefing with respect to the victim’s

girlfriend’s identification as a motion to expand the certificate of appealability, and

we deny the same.

      AFFIRMED.
