Tony Saffold v. Anthony Newland , 491 F. App'x 834 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TONY EUGENE SAFFOLD, No. 09-15329
Petitioner - Appellant, D.C. No. 2:98-cv-01040-JAM-
JFM
v.
ANTHONY C. NEWLAND, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 5, 2012
San Francisco, California
Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.
Saffold appeals from the district court’s decision denying his federal petition
for writ of habeas corpus. We review a district court’s denial of a habeas corpus
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition de novo. Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009). We
have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
There has been extensive litigation about whether Saffold’s state and federal
habeas petitions were timely filed. See Saffold v. Carey, 312 F.3d 1031 (9th Cir.
2002). The district court denied Saffold’s petition on the merits. The timeliness
issue is complex, and we need not decide it because assuming without deciding
that Saffold did not procedurally default and that his claims were timely in all
respects, he still cannot prevail.
Saffold claims that trial counsel rendered ineffective assistance in two ways.
First, he contends that trial counsel was ineffective because he failed to obtain
timely adjudication of his motion to exclude identification evidence, which motion
Saffold argues was meritorious. Saffold also contends that trial counsel was
ineffective because he failed to impeach sufficiently the government’s key
identification witness. The Superior Court of California rejected Saffold’s first
ineffective assistance of counsel claim on the merits. Saffold raised his failure to
impeach claim in a subsequent petition to the California Supreme Court, which
denied the claim “on the merits and for lack of diligence.”
2
“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington
v. Richter, 131 S.Ct. 770, 788 (2011) (citations omitted).
The government’s key witness was the widow of the victim. She was
present when her husband was shot and killed. The deferential review required
under the Antiterrorism and Effective Death Penalty Act and Richter does not
permit the conclusion that the California Supreme Court was objectively
unreasonable in rejecting Saffold’s ineffective assistance claim. The California
Supreme Court could have reasonably concluded that trial counsel made a
reasonable tactical decision to be no more aggressive than he was in attacking the
widow’s credibility.
As for defense counsel’s motion to suppress identification evidence, the
Superior Court of California concluded that “the delay in the motion was due to the
failure of the prosecution to produce the original photo line-up,” and that “there is
no evidence that [Saffold’s] counsel failed in any other manner to adequately
litigate identification issues.” This judgement was well within the range of
deference we are required to apply.
3
AFFIRMED.
4