noting that ‘‘courts suppress eyewitness identifications only when they are the product of improperly suggestive conduct by the police’’
How later courts described this case
- noting that ‘‘courts suppress eyewitness identifications only when they are the product of improperly suggestive conduct by the police’’
- rejecting ineffective assistance of counsel claim for failure to move to suppress first-time in-court identification because, given Perry , motion likely to have been unsuccessful
Written by the judges who cited it.
The opinion
M. SMITH, Circuit Judge,
concurring in part and dissenting in part:
I concur in all but the final paragraph of the memorandum disposition, with which I disagree for the following reasons: (a) Every legal issue before us has been disposed of in the previous paragraphs of the memorandum disposition, so the last paragraph is wholly unnecessary to the disposition of this case; (b) Under AEDPA, we are generally required to defer to the state courts in the first instance, but the final paragraph of this memorandum disposition seems clearly designed to signal to any state court hereafter considering the matter, as well as the attorneys involved, the results favored by the panel majority concerning the Brady claim and whether any new claims satisfy the provisions governing “second or successive” petitions; and (c) to make certain the state courts “get the message,” the panel majority has indicated that the panel will retain jurisdiction over the case, even though there would normally be no reason for the panel to do so.
Accordingly, I dissent from the last paragraph of this memorandum disposition.