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outlining elements of a prima facie case under § 362(h)
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The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. No. CV-96-01276-AJB
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Southern District of California, Judith N. Keep, District Judge, Presiding.
Before CHOY, SNEED, and FERGUSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Mark Anthony Eleby, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Villafuerte v. Stewart, 111 F.3d 616, 622 (9 th Cir.1994), and affirm the district court's denial of Eleby's habeas corpus petition.
Eleby's contention that he received ineffective assistance of counsel because his attorney failed to request a voice or corporal lineup is without merit for two reasons. First, given that the victim identified the petitioner as a participant in the crime based on her knowledge of him as a regular customer, the decision not to request a voice or corporal lineup appears to have been a reasonable strategic choice. Strickland v. Washington, 466 U.S. 668, 690 (1984). This negates a holding of constitutionally deficient performance. Second, Eleby has failed to demonstrate any prejudice from his counsel's failure to request a voice or corporal lineup.
Eleby next argues that his counsel was ineffective for failing to object to the pretrial photographic lineup identification and subsequent in-court identification. Eleby has failed to allege or present any evidence that the photographic lineup was impermissibly suggestive or unreliable, as he is required to do. See Neil v. Biggers, 409 U.S. 188, 196-99 (1972). Indeed, the victim's identification of Eleby during trial as a participant is reliable in light of the fact that the victim observed him standing directly in front of her during the crime and recognized him as a regular customer. See Denham v. Deeds, 954 F.2d 1501, 1504-05 (9 th Cir.1992). In this context, his counsel was not ineffective for failing to object to the pretrial photographic lineup and in-court identification of Eleby.
We similarly reject Eleby's assertion that he received ineffective assistance of counsel because his attorney failed to request a pinpoint jury instruction on the identification issue. Contrary to his claim, the trial judge's instruction here pinpointed the defense of mistaken identification. He accordingly suffered no prejudice from his counsel's failure to request the instruction.
Eleby's contention that his counsel was ineffective for failing to impeach a key witness with her inconsistent statement on the voice identification also lacks merit because he failed to state facts to support this claim. James v. Borg, 24 F.3d 20, 26 (9 th Cir.1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").
Finally, his counsel's failure to file points and authorities on the issue of a flight instruction lacks merit for the same reason. James, 24 F.3d at 26.
AFFIRMED.