Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

MEMORANDUM^* 

Martin David Aguero appeals the denial of his motion to vacate sentence pursuant to 28 U.S.C. § 2255 (1982). He contends that identification evidence presented at trial was tainted by an impermissibly suggestive pretrial lineup. He also contends that he was ineffectively represented by trial counsel. We affirm.

BACKGROUND

In June 1980 Aguero was sentenced to two concurrent terms of fifteen years following his conviction on federal bank robbery charges. This court affirmed his conviction on direct appeal. In 1981 and 1984 Aguero petitioned the federal district court for relief under section 2255. Both petitions were denied. In February 1987 Aguero filed this motion for section 2255 relief, alleging that: (1) the government failed to establish federal jurisdiction by proving that the banks were federally insured; (2) a pretrial lineup and photographic display were unduly suggestive; and (3) his trial counsel provided ineffective representation. The district court denied the motion and Aguero timely appeals. We have jurisdiction under 28 U.S.C. § 1291 (1982).

DISCUSSION

The denial of a petition for a writ of habeas corpus is reviewed de novo. See Weygandt v. Durcharme, 774 F.2d 1491, 1492 (9th Cir. 1985). The determination that trial counsel rendered effective assistance is also reviewed de novo. Id. at 1492-93.

The district court found that Aguero stipulated at trial that both of the banks robbed were federally insured and thus rejected his claim that the government failed to establish federal jurisdiction. Aguero has not renewed this claim on appeal.

Prior to trial, Aguero moved to suppress eyewitness identifications that were allegedly based on an impermissibly suggestive lineup procedure. Aguero claimed that because he was the only person with a receding hairline in both a lineup conducted at the county jail and a photographic display, the procedures were so suggestive as to create a substantial likelihood of irreparable misidentification. See Neil v. Biggers, 409 U.S. 188, 198 (1972).

We do not believe that either the lineup or the photographic array was sufficiently suggestive to create a substantial likelihood of irreparable misidentification. Men of similar age, height, weight, and complexion were included in the lineup and photographic display. Moreover, Aguero wore a hat during the commission of one of the robberies and thus witnesses to that robbery never saw his hairline. Under these circumstances, Aguero has failed to show a due process violation.

Aguero contends that his trial counsel provided ineffective representation. He cites numerous examples of counsel's conduct to support his allegation: (1) failing to call a witness who allegedly confessed to committing one of the robberies; (2) failing to call a public defender who observed the lineup to testify about the lineup procedure; (3) failing to offer evidence of tattoos on Aguero's hands; (4) failing adequately to impeach the testimony of two eyewitnesses; (5) stipulating that the banks robbed were federally insured; (6) failing to have identification evidence based on pretrial lineups suppressed; and (7) failing to present evidence that Aguero's car had been damaged before the robberies occurred.

The district court found that the first and second examples above had been considered and rejected on their merits in Aguero's two prior habeas petitions. The court has discretion to refuse to entertain successive habeas motions if: "(1) the second motion presents the same ground determined adversely to the petitioner in the first; (2) the prior determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the second motion." United States v. Donn, 661 F.2d 820, 823 (9th Cir. 1981). The district court properly rejected these claims as repetitive.

To establish ineffective assistance, the defendant must show that (1) defense counsel committed serious errors, and (2) counsel's errors prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). The required showing of prejudice is met if the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Aguero contends that evidence of tattoos on his hands should have been introduced to impeach testimony by one of the bank tellers that she noticed nothing unusual about the robber's hands. He argues that counsel's failure to offer this evidence was ineffective representation. Aguero, however, voluntarily absented himself on the last day of trial, thereby denying counsel an opportunity to offer this evidence. Furthermore, even if this omission was error, Aguero fails to make the required showing of prejudice. The teller's identification of Aguero was based on her recognition of his face, not his hands. In light of the considerable evidence against Aguero, there is no reasonable probability that, but for this error, the verdict would have been different.

Aguero's contention that counsel's failure adequately to impeach the testimony of two eyewitnesses was ineffective assistance is without merit. He contends that counsel failed to impeach the trial testimony of bank teller Denise Loredo with her prior inconsistent testimony at a state court proceeding. Aguero fails to identify the allegedly inconsistent testimony and our review of the transcript does not reveal any such glaring inconsistency. Thus summary dismissal of this claim was appropriate. See Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Aguero also contends that counsel failed to impeach the testimony of Ruth Barnes regarding a description of the robber she gave to a FBI agent in a pretrial interview. Barnes testified that she told the agent that the robber was balding. RT at 147. Aguero's counsel questioned the agent about Barnes's interview and the agent admitted that his report of the interview did not contain any indication of Barnes having stated that the robber was balding. RT at 228-29. The agent further testified that if Barnes had made that statement he would have included it in his report. RT at 229. Thus Aguero's contention that counsel failed to impeach Barnes's testimony is without merit.

"Counsel's stipulation to evidentiary facts does not necessarily demonstrate incompetency of counsel." United States v. Ferreira-Alameda, 804 F.2d 543, 545 (9th Cir. 1986), amended, 815 F.2d 1251 (1987). Aguero fails to suggest any reason why it was serious error for his counsel to stipulate that the banks were federally insured. Summary dismissal of this claim was clearly warranted. The claim alleging ineffectiveness for failing to have identification evidence suppressed also is without merit. Counsel moved to have the evidence suppressed. The motion was denied. Although counsel's effort was unsuccessful, it was not ineffective. Finally, even if counsel's failure to present evidence of damage to Aguero's car was error, we find no resulting prejudice to the petitioner. The evidence against Aguero was overwhelming. He fails to demonstrate a reasonable probability that, but for this error, the verdict would have been different.

CONCLUSION

The judgment of the district court is AFFIRMED.