Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1987)

MEMORANDUM^* 

Moore appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. He argues that an in-court identification of him was tainted by pretrial photo identification procedures; that he was denied effective assistance of both trial and appellate counsel; that the selection of the grand jury that indicted him was unconstitutional; and that his sentence violated the Eighth and Fourteenth Amendments. We affirm.

Denial of habeas corpus relief is reviewed de novo. Van Pilon v. Reed, 799 F.2d 1332, 1336 (9th Cir. 1986). Federal courts must presume the truth of state courts' findings of historical fact when reviewing a state conviction in a habeas corpus proceedings unless the applicant establishes that statutory defects described in 28 U.S.C. § 2554(d) exist. Sumner v. Mata, 455 U.S. 591, 591-93 (1982). No such statutory defects appear here.

" [C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside ... only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). Our analysis begins with an inquiry into the circumstances surrounding the challenged procedure for suggestiveness. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). If the procedure is not impermissibly suggestive, the identification is admissible. Id. If the procedure is impermissibly suggestive, then we must determine whether "under the totality of the circumstances, the identification is sufficiently reliable" to be admissible. Id. This determination is done by balancing the corrupting effect of the suggestive procedure against several indicia of reliability prescribed by the Supreme Court. Id. " [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

The pretrial procedure used here was not impermissibly suggestive. Shortly after the crime, the victim, Turner, selected Moore's photograph from several drawers of mugshots in a procedure not challenged by Moore. Five months later, Turner was shown six photos, including the one she had selected earlier, and was told by a police officer that a suspect was probably in one of the photos. He also told her that she need not pick any of the pictures and made no suggestion as to which one she should pick. After several minutes, Turner again identified the photo of Moore. We do not see anything in this procedure that would support the conclusion that Turner's identification of Moore's photograph resulted from an impermissible suggestion.

However, even if the pretrial procedure were impermissibly suggestive, we find that the in-court identification was sufficiently reliable to be admissible. Under Sumner v. Mata, supra, we must presume the truth of the state trial court's factual findings of the Neil v. Biggers indicia of reliability. Given the trial court's findings of Turner's substantial opportunity to view Moore at the time of her abduction; her high degree of attention; her detailed descriptions of the crime; and the trial court's observations of her at the suppression hearing, we cannot find Turner's in-court identification so unreliable as to be inadmissible.

Moore's ineffective assistance of trial counsel argument rests on his claim that counsel failed to explain adequately the consequences of his jury waiver and consent to trial on stipulated facts. Under the Strickland test for ineffective assistance of counsel, Moore must establish both error by counsel and prejudice caused by that error. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Sumner v. Mata, Moore must overcome the presumption of correctness accorded the state court's finding that he understood both the nature of a stipulated facts trial and the probable outcome of the trial, and that he knowingly gave up his right to a jury trial and to confront witnesses. This he has not done. Moreover, the court instructed Moore adequately as to the sentencing procedures that he faced. Under these circumstances, Moore failed to establish that trial counsel was ineffective or that he was prejudiced thereby.

Moore relied on the arguments and factual record of an unrelated case in respect to grand jury selection instead of presenting a record in his own case, McCline v. Keeney, No. 87-3644 (9th Cir. Sept. 16, 1987) (unreported memorandum). Such a procedure seems questionable, but the case relied upon offers no comfort to Moore in any event since it failed to present a prima facie case of unconstitutional discrimination.

Finally, Moore's claim that his sentence violates the Eighth and Fourteenth Amendments also fails. The sentence does not exceed the statutory limit and, therefore, cannot be overturned as cruel and unusual. United States v. Washington, 578 F.2d 256, 258 (9th Cir. 1978).

For these reasons, the judgment is AFFIRMED.