Craig Keyon White v. ROBERT W. FOX, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG KEYON WHITE,
Petitioner-Appellant,
v.
ROBERT W. FOX, Warden,
Respondent-Appellee.
No. 17-56307
D.C. No.
5:14-cv-02480-R-GJS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted December 9, 2019**
Pasadena, California
Before: O'SCANNLAIN, PAEZ, and OWENS, Circuit Judges.
Craig White appeals the district court’s denial of his petition for a writ of
habeas corpus following his conviction for first degree robbery, attempted robbery,
and first degree burglary in California state court. As the facts are known to the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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parties, we repeat them only as necessary to explain our decision.1
I
The district court did not err in determining that the pretrial identification
procedures were not unduly suggestive and thus did not violate due process.
Although Deputy Bodnar did not read the admonishment aloud to Estevez and
asked him to take his time when viewing the six-pack photo lineup, such actions
did not direct Estevez’s attention to one photo in particular and did not render the
procedure impermissibly suggestive. Simmons v. United States, 390 U.S. 377,
383–84 (1968). Bodnar’s additional comments to Estevez did not suggest to
Estevez that White was “the man.” See Foster v. California, 394 U.S. 440, 443
(1969). The record does not support the claim that Bodnar suggested to Estevez
that White was the correct choice or even that there was any evidence that any of
the men pictured had committed the crime. See Simmons, 390 U.S. at 383–84; see
also United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985). Bodnar’s
assertion that the report mentioned a man with braids did not prompt Estevez to
choose White because all of the photos depicted men with braids. Finally, the poor
quality of the photos did not make the procedure impermissibly suggestive. See
United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999).
1 Appellant’s Request for Judicial Notice, filed with this court December 10, 2018,
is GRANTED.

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Even if there were any suggestiveness in the procedure, the witness
identifications were independently reliable based on the Biggers factors. Manson
v. Braithwaite, 432 U.S. 98, 114 (1977). First, all four victims had adequate
opportunity to view White during the crime, which occurred in a lighted house and
lasted about 45 minutes. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Second,
the witnesses paid a fair degree of attention to White and were able to recall these
details at trial. Id. Third, despite the slight variations in descriptions of White’s
hair and clothing, the witnesses gave an accurate physical description of White. Id.
Fourth, the witnesses were fairly certain to very certain in their pretrial
identifications of White. Id. Fifth, the time between the crime and identifications
was relatively short. Id.; see also United States v. Barron, 575 F.2d 752, 755 (9th
Cir. 1978).
Because the procedure was not impermissibly suggestive and was
independently reliable, the district court did not err in concluding that the state
court’s decision was not contrary to clearly established federal law and was not
based on an unreasonable determination of the facts. Harrington v. Richter, 562
U.S. 86, 98 (2011).
II
The district court did not err in determining White’s counsel was not
ineffective for failing to challenge the identification procedure or failing to

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introduce audio recordings of the witness identifications. White has not
demonstrated deficient performance and so his claim fails. Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, White failed to demonstrate that the
pretrial identification procedures were impermissibly suggestive or unreliable.
Therefore, counsel’s motion to suppress would have been futile. Counsel was not
deficient under Strickland for failing to file a meritless motion. Ceja v. Stewart, 97
F.3d 1246, 1253 (9th Cir. 1996). Second, counsel’s decision to impeach the
witnesses with the written transcripts rather than the audio recordings was a
tactical decision that falls under the “wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
Because there was, in fact, a reasonable argument that counsel did satisfy
Strickland, the district court did not err in concluding that the state court’s decision
was not contrary to clearly established law. Richter, 562 U.S. at 105.
AFFIRMED.

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