Appeal from the United States District Court for the Northern District of California. D.C. No. CV-87-01845-MHP. Marilyn H. Patel, District Judge, Presiding
Before: Canby, Fernandez, and T.g. Nelson, Circuit Judges.
Bruce L. Johnson, a California state prisoner, appeals pro se the district court's denial of his petition for a writ of habeas corpus. Johnson claims his trial attorney rendered ineffective assistance of counsel because he did not move to suppress evidence seized during an unlawful arrest or to suppress an identification obtained after a suggestive line-up procedure. We affirm.
A jury convicted Johnson of 13 felony counts including rape, lewd conduct with a child, robbery, burglary and assault with a deadly weapon. He was sentenced to 45 years and 8 months. He appealed.
The California Court of Appeal reversed three counts of conviction, holding that his attorney's failure to challenge a victim's identification of Johnson constituted ineffective assistance of counsel. The victim identified Johnson at a preliminary hearing. She also testified that earlier that day she had picked him out of a corporeal line-up after looking at a photographic array containing his picture. The appeals court remanded for an evidentiary hearing to determine if the identification was tainted by the possibly suggestive procedure. It instructed that if the trial court found the identification tainted, Johnson was entitled to a new trial on those counts. If the identification was not tainted, the convictions were to be reinstated.*fn1 The California Supreme Court denied Johnson's petition for hearing.
After the evidentiary hearing, the trial court concluded that, based on the totality of the circumstances, the victim's identification was independent of the potentially suggestive lineup. The court reinstated the judgment on the three counts. On appeal, Johnson raised only sentencing issues. The court of appeal affirmed, and the California Supreme Court denied review.
He then filed a petition for writ of habeas corpus in the district court asserting three claims of ineffective assistance of counsel. The court dismissed the petition with leave to amend. Johnson refiled his petition raising only two ineffective assistance claims. The court denied the amended petition. Johnson appealed.
We review de novo the district court's decision to deny Johnson's petition. See Adams v. Peterson, 968 F.2d 835, 843 (9th Cir. 1992) (en banc). Under 28 U.S.C. § 2254(d), we must give state court factual Conclusions a presumption of correctness. Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir. 1989). A state court's Conclusion that counsel's assistance was effective is a mixed question of fact and law reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698 (1984); United States v. Olson, 925 F.2d 1170, 1173 (9th Cir. 1991).
A. Motion to Suppress Evidence Obtained in Unlawful Search
To establish that his attorney's failure to move to suppress the unlawfully gained evidence constituted ineffective assistance, Johnson must show both incompetence and prejudice. See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Johnson has satisfied the incompetence prong. The officers arrested him in his home without an arrest warrant. The record contains no evidence of exigent circumstances. Counsel's failure to challenge admission of the evidence was unreasonable. See id.
We agree with the district court that Johnson has not established prejudice. He has not shown "'that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.'" Lockhart v. Fretwell, 113 S. Ct. 838, 842 (1993) (quoting Kimmelman, 477 U.S. at 374). The victim quickly and ...