TRAN v LINDSEY, 9856251
U.S. 9th Circuit Court of Appeals
TRAN v LINDSEY
9856251
TUAN VAN TRAN,
Petitioner-Appellant,
No. 98-56251
v.
D.C. No.
GARY LINDSEY, Warden; SALINAS
CV-96-02161-BTM
VALLEY STATE PRISONS; STATE OF
OPINION
CALIFORNIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California,
Barry Ted Moskowitz, District Judge, Presiding
Argued and Submitted
September 14, 1999--Pasadena, California
Submission Withdrawn October 14, 1999
Resubmitted May 3, 2000
Filed May 16, 2000
Before: Stephen Reinhardt and Michael Daly Hawkins,
Circuit Judges, and Ronald M. Whyte,1 District Judge.
Opinion by Judge Reinhardt
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Criminal Law and Procedure/Habeas Corpus
The court of appeals affirmed a judgment of the district
court. The court held that under the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA), a federal court must apply
the "clearly erroneous" standard when reviewing a habeas
petitioner's challenge to a state-court decision as involving an
unreasonable application of clearly established federal law.
While investigating a series of robberies and a murder, San
Diego police arrested appellant Tuan Van Tran. Tran had
driven Tho Tran (unrelated) to the apartment of Tho's brother,
where police were executing a search warrant. Detective Lar-
mour had seen Tran sitting in the car, and took him into cus-
tody when he gave his name as "Tuan Tran."
At the preliminary hearing, Larmour testified that he
arrested Tran because his name was the same as one a victim
heard used by one of the robbers; Tran was dressed entirely
in black, as were the robbery suspects; Tran fit the general
description of the suspects; and Tran and Tho gave inconsis-
tent stories about how they arrived at the scene.
At trial, additional prosecution evidence showed that Tran
had worn a ring that was stolen during one of the robberies;
his fingerprints matched some taken at the scene of another
robbery; and five witnesses had identified him in a lineup.
Larmour made an in-court identification of Tho.
Tran denied participating in the robberies, asserting mis-
taken identity and alibi defenses. A jury convicted him of
first-degree murder and robbery.
The California Court of Appeal affirmed. The court held
that Tran's claim of ineffective assistance of counsel failed
because he showed no prejudice arising from his attorney's
failure to pursue motions to suppress Tran's fingerprints and
the lineup identification on the ground that Tran had been
arrested without probable cause. The court also rejected
Tran's due-process claim based on Larmour's in-court identi-
fication, holding that the error was harmless. The California
Supreme Court denied review.
After exhausting his remaining state-court remedies, Tran
sought federal habeas corpus relief. The district court denied
Tran's petition, and he appealed.
[1] Under the AEDPA, a federal court may reverse a state
court's decision denying relief only if it is contrary to, or
involves an unreasonable application of, clearly established
federal law as determined by the Supreme Court.
[2] A state court's decision can be "contrary to" federal law
if it fails to apply the correct controlling authority, or applies
controlling authority to a case involving facts materially indis-
tinguishable from those in the controlling case, but reaches a
different result. A decision can involve an "unreasonable
application" of federal law if it correctly identifies the govern-
ing rule but applies it to a new set of facts in a way that is
objectively unreasonable, or extends or fails to extend a
clearly established legal principle to a new context in a way
that is objectively unreasonable. [3] Some erroneous applica-
tions may be reasonable: an unreasonable application of fed-
eral law is different from an incorrect application.
[4] Under the AEDPA, a federal court must reverse a state
court's decision as involving an unreasonable application of
clearly established federal law when its independent review of
the legal question leaves the court with a "firm conviction"
that the legal argument rejected by the state court was correct,
and the one adopted was erroneous--in other words, that clear
error occurred.
[5] The only definitive source of clearly established federal
law under the AEDPA is the holdings of the Supreme Court.
Only those holdings need be "reasonably" applied. The
Supreme Court need not have addressed the identical factual
circumstance at issue in a case for it to have created "clearly
established" law governing that case. [6] When analyzing a
claim that there has been an unreasonable application of fed-
eral law, a federal court must first consider whether the state
court erred; only after the court has made that determination
may it consider whether any error involved an unreasonable
application of controlling law.
[7] Tran contended that his due-process rights were vio-
lated when Tho Tran was brought into the courtroom and
identified by Larmour. [8] The state court did not err in hold-
ing that the error was harmless. Tran's counsel had already
referred to police surveillance of Tho and his arrest and iden-
tification, and Larmour had testified that the police were mon-
itoring Tho's house because he was a suspect. Tran wanted
the jury to believe that he was not involved in the robberies
even though he gave Tho a ride. That the jury knew that Tho
was in custody therefore could not have prejudiced the
defense case. The state court's decision was not reversible
under the AEDPA.
[9] When analyzing lineup claims, a reviewing court must
determine if the procedures in question were unnecessarily
suggestive. Even if the procedures were suggestive, the result-
ing evidence is excludable only if it is not reliable. The state
court did not err in concluding that the lineup was not unlaw-
ful. Tran did not so obviously stand out as to create a substan-
tial likelihood of misidentification. [10] As there was no
prejudice from the failure to pursue a motion to suppress the
lineup identification, the court of appeals did not need to con-
sider whether counsel's failure constituted deficient perfor-
mance.
[11] Probable cause to arrest exists when the facts and cir-
cumstances within the officers' knowledge, and of which they
had reasonably trustworthy information, are sufficient to war-
rant a man of reasonable caution in the belief that the individ-
ual to be arrested has committed the crime in question. The
state court cited this standard and intended to apply it. As
none of the Supreme court's cases involve facts materially
distinguishable from those at issue in this case, the state
court's decision was not contrary to clearly established law.
The question was therefore whether the state appellate court
unreasonably applied controlling federal law.
[12] Clearly established federal law ordinarily is found at
the level of generality of a general rule. While the probable
cause test constitutes clearly established federal law, past
applications of the test come into play only when the federal
court decides whether the application before it is "contrary to"
or an unreasonable application of the rule in question. If an
application in a case before the court conflicts with either the
rule or a past application of the rule by the Supreme Court,
the case will involve a "contrary to" question. Otherwise, it
will involve a reasonable application issue.
[13] The state court's decision was in error, but the error
was not objectively unreasonable. [14] The facts were not
enough to cause a person of reasonable caution to believe that
Tran participated in the robberies. The temporal connection
between the robberies and Tran's association with Tho was
insufficiently close to constitute relevant association. The
other factors were insufficiently substantial to warrant a prob-
able cause finding. Cases upholding arrests for probable cause
typically involve considerably more evidence. Nevertheless,
the court of appeals could not say that the decision was
clearly erroneous. The issue was too close. Accordingly, the
decision did not involve an unreasonable application of
clearly established federal law.
_________________________________________________________________
COUNSEL
Allen Bloom, San Diego, California, for the petitioner-
appellant.
Garrett Beaumont, Deputy Attorney General, San Diego, Cal-
ifornia, for the respondents-appellees.
_________________________________________________________________
OPINION
REINHARDT, Circuit Judge:
We must once again examine the question whether a state
court decision denying a petitioner's ineffective assistance of
counsel claim was contrary to or involved an unreasonable
application of clearly established federal law as determined by
the Supreme Court -- this time in light of the Supreme
Court's recent decision in Williams v. Taylor , 120 S.Ct. 1495
(2000). Petitioner, Tuan Tran, appeals the district court's
denial of his petition for a writ of habeas corpus, claiming that
he received ineffective assistance of counsel because his law-
yer did not pursue motions to suppress evidence based on a
lack of probable cause to arrest him and the use of an imper-
missibly suggestive lineup. Tran also contends that the in-
court identification of his co-defendant during his trial vio-
lated his due process rights.
FACTS
Petitioner Tuan Van Tran (hereinafter "Petitioner " or
"Tran") was arrested on February 11, 1989, by San Diego
police officers who were investigating a series of residential
robberies, including a robbery-murder. That day, Petitioner
had driven co-defendant Tho Tran (not a relative) in his car
to Tho's brother's apartment. At the time, the police were
executing a search warrant at the apartment, as Tho was a sus-
pect in the robberies.2 Shortly thereafter, investigating officer
Detective Larmour noticed that Petitioner was sitting in a car
parked behind the apartment and approached him. Petitioner
identified himself as "Tuan Tran" and produced his driver's
license. Larmour then took him to the apartment and arrested
him.
Larmour testified, both at a preliminary hearing and at trial,
that he based his arrest of Petitioner on several facts known
to him at the time of the arrest. First, Petitioner's name, Tuan,
was the same as the name that a robbery victim had heard
used by one of the robbers during an attack. Second, accord-
ing to Larmour, Petitioner was dressed entirely in black, as
were the suspects in the robberies.3 Third, he fit the descrip-
tion of the suspects, as he was 20 to 25 years old and between
5'5" and 5'9", and he spoke in Vietnamese.4 Fourth, Larmour
testified that Tho Tran and the Petitioner told him inconsistent
stories about how they had arrived at the scene.
After his arrest, Petitioner consented to a search of his auto-
mobile where a knife was found.5 He was then taken to a hos-
pital for a physical examination and collection of evidence.
While at the hospital, police seized Tran's clothing and his
gold ring, which was later identified as one stolen from a vic-
tim's mother. Tran was also fingerprinted at the station that
evening. Police tested his fingerprints and found that they
matched some of those found at the scene of the robbery-
murder that took place on February 2. While in custody, Peti-
tioner was placed in a live lineup. Five witnesses identified
him through that procedure as one of the robbers.
Roughly three weeks after Petitioner was arraigned,
defense counsel filed a motion to suppress evidence arising
from the arrest, including Petitioner's fingerprints and the
lineup identification evidence, on the ground that he had been
arrested without probable cause. This motion was later with-
drawn by defense counsel for unexplained "tactical reasons."
In addition, defense counsel prepared, but never filed, a
motion to suppress the out-of-court and in-court identifica-
tions of Tran on the ground that they were too suggestive to
comport with Fifth Amendment standards.
At trial, the evidence against Petitioner consisted of the fol-
lowing: He was named Tuan, and a victim during one of the
robberies had heard a robber referred to as Tuan. He fit the
description of one of the robbery suspects. He wore a gold
ring that was later identified as one stolen at the first robbery,
on January 18, 1989. His fingerprints matched prints found at
the scene of the second robbery (on February 2), and five wit-
nesses identified him at the lineup. Some identified him at
trial as well.
Petitioner denied participating in any of the robberies or the
murder. At trial, he presented a defense of mistaken identity
and alibis. During the trial, the prosecution brought in co-
defendant Tho Tran for Detective Larmour to identify. Tho
appeared in civilian clothes, without handcuffs. He did not
testify. This identification is the subject of Petitioner's due
process claim.
A San Diego Superior Court jury found Petitioner guilty of
one count of first degree murder and three counts of residen-
tial robbery. On appeal, Petitioner argued that he received
ineffective assistance of counsel because counsel failed to
pursue the motions to suppress, and that the identification of
co-defendant Tho in court violated due process. The Califor-
nia Court of Appeal, Fourth Appellate District, affirmed the
conviction, holding that Tran suffered no prejudice from
counsel's failure to pursue the motions to suppress, and that
the due process violation was harmless error. People v. Tran,
Case No. D011037, slip op. at 17-19 (Cal. Ct. App. 4th Dist.
Div. 1 Jan. 23, 1991). The California Supreme Court denied
Tran's appeal without opinion. Petitioner subsequently filed
habeas petitions in state court which were denied. After two
earlier federal habeas petitions were dismissed for failure to
exhaust state remedies, the petition before us was filed, on
December 18, 1996. A magistrate recommended denying the
petition, and the district court adopted the reasoning set forth
in his recommendation, along with some further comments of
its own.
ANALYSIS
Because Tran's petition was filed on December 18, 1996,
we review it under the provisions of the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). Lindh v. Murphy, 521
U.S. 320 (1997). Tran argues that AEDPA should not govern
his petition because he first sought habeas review in 1993,
prior to the date of AEDPA's enactment. Both that first peti-
tion and another petition that he filed in January 1995 were
dismissed for failure to exhaust state remedies. He asserts that
his current petition "relates back" to his first petition for
habeas review. However, we have held that a second petition
does not relate back to a first petition where the first petition
was dismissed for failure to exhaust state remedies. Henry v.
Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999).
Tran argues that Calderon v. United States District Court
(Gordon), 107 F.3d 756 (9th Cir. 1997) requires that we look
to his first petition to determine what law applies. In that case,
we decided that funds to investigate unexhausted claims could
be awarded to a habeas petitioner even after a petition was
dismissed for failure to exhaust. However, our holding in Cal-
deron was based on the power of a district court to authorize
funds prior to the initiation of habeas litigation. See Calderon,
107 F.3d at 761-62 (citing McFarland v. Scott , 512 U.S. 849
(1994)). As the power to authorize funds and attorneys' fees
constitutes a special circumstance for jurisdictional purposes,6
we decline to extend Calderon's holding, especially where
doing so would likely create a conflict with Henry.7
STANDARD OF REVIEW UNDER AEDPA
[1] The question whether the defendant has received inef-
fective assistance of counsel is a mixed question of law and
fact. Strickland v. Washington, 466 U.S. 668, 698 (1984);
Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir. 1994). Prior
to AEDPA mixed questions in habeas petitions were reviewed
de novo. Moran v. Godinez, 57 F.3d 690, 699 (9th Cir. 1995);
Crotts v. Smith, 73 F.3d 861, 864 (9ldth Cir. 1996). Under
AEDPA, the standard of review we apply is governed by 28
U.S.C. S 2254(d) and the Supreme Court's recent decision in
Williams v. Taylor, 120 S.Ct. 1495 (2000). Under AEDPA,
we may reverse a state court's decision denying relief only if
that decision is "contrary to, or involves an unreasonable
application of, clearly established federal law as determined
by the Supreme Court of the United States." 28 U.S.C.
S 2254(d)(1).
In Williams, the Supreme Court reversed the Fourth Cir-
cuit's denial of habeas relief to a capital defendant on ineffec-
tive assistance of counsel grounds.8 In so doing, the Court
largely resolved much of the disagreement concerning how to
interpret AEDPA's provision governing federal court review
of state court determinations of law. First, the Court made
clear that the statute embodies no distinction between pure
questions of law and mixed questions of law and fact that cor-
responds to its division between decisions "contrary to" fed-
eral law and decisions involving an "unreasonable application
of" federal law.9 The holding of the Court, endorsed by six
justices, was that the Virginia Supreme Court's application of
ineffectiveness law, a classic mixed question, was both con-
trary to clearly established federal law and an unreasonable
application of such law. Williams, 120 S.Ct. at 1515. More-
over, Justice O'Connor's opinion for the Court interpreting
AEDPA gave an example of a state court decision that could
be "contrary to" Strickland in the course of explaining what
that term meant. Id. at 1519-20. Thus, both prongs of
S 2254(d) apply to both questions of law and mixed questions.
[2] However, Justice O'Connor's opinion for the Court on
the meaning of S 2254(d) also made clear that "contrary to"
and "involve an unreasonable application of" have distinct
meanings. A state court's decision can be "contrary to" fed-
eral law either 1) if it fails to apply the correct controlling
authority, or 2) if it applies the controlling authority to a case
involving facts "materially indistinguishable " from those in a
controlling case, but nonetheless reaches a different result. Id.
at 1519-20. A state court's decision can involve an "unreason-
able application" of federal law if it either 1) correctly identi-
fies the governing rule but then applies it to a new set of facts
in a way that is objectively unreasonable, or 2) extends or
fails to extend a clearly established legal principle to a new
context in a way that is objectively unreasonable. Id. at 1520.
However, the Court recognized that these categories could
overlap, and that, even for purposes of precise definition, it
could sometimes be difficult to determine whether a decision,
for example, unreasonably extended a rule to a new context
or simply contradicted controlling authority. Id. at 1521. Sim-
ilarly, it seems apparent that in some cases it may be difficult
to distinguish between, on the one hand, a state court decision
that is contrary to clearly established federal law by virtue of
its reaching a different result upon materially indistinguish-
able facts, and, on the other, a particularly unreasonable appli-
cation of clearly established federal law.10 Thus, as we have
said previously, the two concepts overlap and it will be neces-
sary in some cases to test a petitioner's allegations against
both standards. Davis v. Kramer, 167 F.3d 494, 500 (9th Cir.)
vacated on other grounds 120 S.Ct. 1001 (2000).
[3] The Supreme Court did not specifically define "unrea-
sonable" in the context of decisions involving "unreasonable
applications" of federal law, but it provided some explana-
tions to help guide us in applying the concept. First, it made
clear that some erroneous applications may nonetheless be
reasonable: "an unreasonable application of federal law is dif-
ferent from an incorrect application of federal law. " Williams,
120 S.Ct. at 1522 (citing Wright v. West, 505 U.S. 277, 287
(per Thomas, J.)).11 At the same time, the Court rejected the
interpretation, adopted in various forms by the Fourth, Fifth,
Seventh, and Eleventh Circuits, that defines reasonableness
on the basis of whether "reasonable jurists" could disagree
about the result reached by the state court.12 Instead, the Court
adopted an "objectively unreasonable" standard, employing
the language used in decisions by the Third and Eighth Cir-
cuits. Matteo v. Sci Albion, 171 F.3d 877, 889-90 (3d Cir.
1999); Long v. Humphrey, 184 F.3d 758, 760-61 (8th Cir.
1999). We think it significant that the Third and Eighth cir-
cuits adopted that test, rather than the tests developed by other
circuits, because they determined that the other circuits' tests
were too deferential. The Supreme Court thus chose to adopt
the interpretation of AEDPA that espoused the more robust
habeas review. As the Eighth Circuit explained,
The Third Circuit has rejected [the other
approaches], stating that the reasonable jurist test
discourages the granting of relief by requiring fed-
eral habeas courts to hold the state court acted in a
way no reasonable jurist would under the circum-
stances and that the outside-the-universe-of-
plausible-outcomes test [of the First Circuit]
excludes all but those decisions so off the mark that
they approach judicial incompetence.
Long, 184 F.3d at 760 (citing Matteo, 171 F.3d at 889). Thus,
we must construe the Court's opinion with its endorsement of
those decisions in mind.
Although the Court stated that "unreasonable" is a "com-
mon term in the legal world and, accordingly, federal judges
are familiar with its meaning," Williams, 120 S.Ct. at 1522,
it pointed to no particular body of law as a suitable model.
While it is true that determinations of reasonableness are
common in the law, (e.g., proof beyond reasonable doubt, In
re Winship, 397 U.S. 358, 364 (1970); reasonable suspicion,
Terry v. Ohio, 392 U.S. 1, 21 (1968); harmless beyond a rea-
sonable doubt, Chapman v. California, 386 U.S. 18, 23-24
(1967); reasonable speech restrictions on access to nonpublic
fora, Cornelius v. NAACP Legal Defense and Education
Fund, 473 U.S. 788, 808 (1985); reasonable time period for
post-removal order detention, Ma v. Reno, 2000 WL 258445
(9th Cir. Apr. 10, 2000)), such determinations rarely involve
a judgment as to the reasonableness of a particular piece of
legal reasoning. On the contrary, federal courts have not ordi-
narily judged the reasonableness, rather than the correctness,
of a court's applications of federal law. Still, we consider sev-
eral possible precedential sources in our effort to determine
how to classify erroneous applications of federal law as rea-
sonable or unreasonable.13
One possible source of helpful cases might be the law gov-
erning federal court review of agency action. The federal
courts have applied a "reasonableness" test when reviewing
certain legal questions under Chevron v. Natural Resources
Defense Council, 467 U.S. 837 (1984). In Chevron, the Court
established the rule that when Congress has left a gap in a
statute and authorized a federal agency to fill that gap, the
agency's interpretation is to be accorded deference as long as
it is a "reasonable" interpretation of the statute. Id. at 843-44.
Despite its surface similarity to the question before us,
however, the deference test in Chevron is crucially different
from the test we must apply, in several ways. First, the Chev-
ron test was developed to apply in situations in which a fed-
eral agency has unique competency to fill gaps in its own
governing statute that Congress has left for it to fill. Id. at
844. When an agency does not have special competence to fill
such gaps, it is not accorded Chevron deference. See, e.g.,
Martin v. OSHRC 499 U.S. 144, 155 (1991). Obviously, the
state courts do not have special competence with respect to
questions of federal law. Thus, while the state courts are co-
equal interpreters of the Constitution, they do not play a role
analogous to that of administrative agencies that are entitled
to Chevron deference. Second, where an agency's interpreta-
tion is contrary to the provisions of the statute, the federal
courts are required to strike it down. Chevron , 467 U.S. at
842-43; Earth Island Institute v. Mosbacher, 929 F.2d 1449,
1452 (9th Cir. 1991) (striking down regulation as inconsistent
with statute). In contrast, the Court's opinion in Williams
makes clear that, in some circumstances, erroneous interpreta-
tions can be upheld on habeas because they are "reasonable."
Williams, 120 S.Ct. at 1522. These are, of course, only exam-
ples of some of the distinctions inherent in our review of
agency decisions and those of state courts interpreting federal
law. Thus, for a number of reasons, Chevron deference sheds
little light on the problem before us.
Another possible source of analogous case law might be the
law relating to qualified immunity. Under that doctrine, we
sometimes determine whether a reasonable law enforcement
official could have believed that his conduct was lawful. See
Act Up! v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). While,
again, the word "reasonable" is used in both circumstances,
the rationale underlying the qualified immunity test renders
that standard unsuitable for application to our review of state
court decisions. Qualified immunity doctrine provides immu-
nity from suit to certain government officials in spite of their
having engaged in unlawful conduct because, in some con-
texts, it would be wrong to hold officials liable for damages
where the law they are accused of violating was not clearly
established. The Supreme Court has made it clear that offi-
cials whose jobs require them to perform discretionary func-
tions must be able to fulfill their duties vigorously, and that
this requires that they not be held liable for unlawful conduct
where the law they violated was uncertain. Butz v. Economou,
438 U.S. 478, 507 -07 (1978). In contrast, our review of state
court decisions under AEDPA is not constrained because the
state courts' functions are somehow more discretionary than
ours, or because they must be more vigorous in the discharge
of their duties. Rather, the Court has stated that deferential
review in habeas cases is premised on the fact that the state
courts, as part of a co-equal judiciary, are competent interpret-
ers of federal law deserving of our full respect. Williams, 120
S.Ct. at 1518 (citing Miller v. Fenton, 474 U.S. 104, 112
(1985)). The Congressional policy limiting our authority to
reverse state court judgments is motivated, therefore, by dic-
tates of comity, rather than by a sense that the state courts,
like law enforcement officials, should not be held responsible
for failing to follow carefully the requirements of federal law.
Instead of relying on these faux analogues for guidance in
determining what econstitutes an "unreasonable application"
of federal law, we look to the doctrine of "clear error" as the
source for the most helpful body of precedent. The clear error
doctrine guides our review for two reasons. First, unlike the
other doctrines described above, we have used "clear error"
to examine and sometimes to uphold erroneous decisions of
other courts on questions of law.14 Second, we have developed
the "clear error" standard, as applied to questions of law (e.g.
in mandamus cases), as part of a more general test designed
to preserve "the mutual respect that is an indispensable ele-
ment of the relationship between federal trial and appellate
courts." In re Cement Antitrust Litigation , 688 F.2d 1297,
1301 (9th Cir. 1982) (applying clear error of law standard to
mandamus petition). The "mutual respect" that informs the
use of the clear error standard is highly analogous to the com-
ity concerns at issue in habeas cases. We stress that this does
not mean that reversals in habeas cases should be as rare as
the granting of mandamus petitions. The Supreme Court
rejected extremely deferential approaches to habeas review in
favor of an approach that did not aim to "discourage the
granting of relief." Long, 184 F.3d at 760. Moreover, clear
error is only one of five factors involved in making manda-
mus decisions, and we have long held that mandamus is a
"drastic" and "extraordinary" remedy. Washington Public
Utilities, 843 F.2d at 323. Nevertheless, we believe the clear
error doctrine -- as developed not only in the mandamus con-
text, but in other legal contexts as well, such as law of the
case -- in which federal courts have determined whether legal
conclusions were clearly erroneous, most nearly reflects the
kind of respect for other courts' judgments that Congress and
the Court felt was required here.
Although the definition of clear error we have employed in
differing contexts varies to some extent, it generally allows
for reversal only where the court of appeals is left with a "def-
inite and firm conviction" that an error has been committed.
See, e.g., Washington Public Utilities Group v. United States
District Court (Puchall), 843 F.2d 319, 325 (9th Cir. 1988)
(applying "firm conviction" test to determine if legal judg-
ment was clearly erroneous for purpose of mandamus action);
In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th
Cir. 1982) (same); Topanga Press v. City of Los Angeles, 989
F.2d 1524, 1527 (9th Cir. 1993) (reviewing grant of prelimi-
nary injunction under firm conviction test) United States v.
Nelson, 137 F.3d 1094, 1106 (9th Cir. 1998) (analyzing
motion for mistrial under firm conviction test where result
turned on question of law (sufficiency of the evidence));
Peterson v. Highland Music, 140 F.3d 1313, 1323 (9th Cir.
1998) (applying firm conviction test to review of contempt
finding, where finding requires determination that contempt
was proven by clear and convincing evidence); United States
v. Barbosa, 906 F.2d 1366, 1370 (9th Cir. 1990) (holding that
firm conviction test applies to review of district court's appli-
cation of Sentencing Guidelines to the facts); see also Sawyer
v. Whitley, 505 U.S. 333, 372 (1992) (Stevens, J., concurring
in part and dissenting in part) (advocating use of firm convic-
tion standard for considering whether death sentence should
have been imposed when reviewing defaulted claims on
habeas).
[4] We believe that the clear error standard occupies the
middle ground that the Williams Court marked out when it
rejected the arguments of those who contended that an inde-
pendent determination of prejudicial error by a federal court
was sufficient and of those who argued for the overly deferen-
tial "reasonable jurists" standard. Therefore, we hold that
under AEDPA we must reverse a state court's decision as
involving an "unreasonable application" of clearly established
federal law when our independent review of the legal question
does not merely allow us ultimately to conclude that the peti-
tioner has the better of two reasonable legal arguments, but
rather leaves us with a "firm conviction" that one answer, the
one rejected by the court, was correct and the other, the appli-
cation of the federal law that the court adopted, was erroneous
-- in other words that clear error occurred.
[5] With respect to the appropriate source of law, Justice
O'Connor's opinion for the Court establishes that the only
definitive source of clearly established federal law under
AEDPA is the holdings (as opposed to the dicta) of the
Supreme Court. Williams, 120 S.Ct. at 1523. This is consis-
tent with our interpretation of the "clearly established federal
law" requirement as set forth in our pre-Williams jurispru-
dence. As we explained in Duhaime v. Ducharme , 200 F.3d
597, 600-01 (9th Cir. 1999), there is still a role for circuit law
in habeas cases: we still look to our own law for its persuasive
authority in applying Supreme Court law; however, only the
Supreme Court's holdings are binding on the state courts and
only those holdings need be "reasonably" applied.
[The new provision] does not mean that Ninth Cir-
cuit caselaw is never relevant to a habeas case after
AEDPA. Our cases may be persuasive authority for
purposes of determining whether a particular state
court decision is an "unreasonable application " of
Supreme Court law, and also may help us determine
what law is "clearly established." See MacFarlane v.
Walter, 179 F.3d 1131, 1139 (9th Cir.1999) (looking
to Ninth Circuit caselaw to confirm that Supreme
Court case clearly establishes a legal rule); citing
[sic] O'Brien v. Dubois, 145 F.3d 16, 25 (1st
Cir.1998) (holding that "to the extent that inferior
federal courts have decided factually similar cases,
reference to those decisions is appropriate in assess-
ing the reasonableness vel non of the state court's
treatment of the contested issue").
Duhaime, 200 F.3d at 600-01.15 See also Dows v. Wood, 2000
WL 489599, *4 (9th Cir. Apr. 27, 2000) (adopting reasoning
from on-point Ninth Circuit case to help decide habeas peti-
tion under AEDPA). In addition, we have held that the
Supreme Court need not have addressed the identical factual
circumstance at issue in a case in order for it to have created
"clearly established" law governing that case. See MacFar-
lane v. Walter, 179 F.3d 1131, 1139 (9th Cir. 1999).16 How-
ever, we may not, of course, reverse a state court's decision
simply because it is inconsistent with a rule established by a
Ninth Circuit case.
[6] Finally, we must address a methodological concern with
respect to our review of habeas petitions under AEDPA.
Respondent's brief argues that we should proceed directly to
the question whether the state court's decision was reversible
under AEDPA, and implicitly suggests that we need not first
consider whether the state court's decision was erroneous, as
long as we find that it was not contrary to and did not involve
an unreasonable application of clearly established federal law
as determined by the Supreme Court. We disagree. Although
the Court did not speak to this issue in Williams, in another
recent case the Court employed the approach we adopt here.
In Weeks v. Angelone, 120 S.Ct. 727, 729, 734 (2000), the
Court first addressed the question whether the state court
decision was erroneous and then, on the basis of its answer,
concluded that AEDPA barred relief, rather than asking ini-
tially whether the state court decision was unreasonable under
that statute. The Court also endorsed this approach in another
context, stating that federal courts should first say what the
law is, even when that inquiry alone does not determine
whether relief should be granted in a particular case. See Wil-
son v. Layne, 526 U.S. 603, 609 (1999) (holding that, in quali-
fied immunity cases, courts should address whether law was
violated prior to determining whether it was clearly estab-
lished); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5
(1998) (same); see also Wilkinson v. Russell, 182 F.3d 89,
112-13 (2d Cir. 1999) (Calabresi, J., concurring) (discussing
benefits of resolving status of law in qualified immunity cases).17
Requiring federal courts to first determine whether the state
court's decision was erroneous, prior to considering whether
it was contrary to or involved an unreasonable application of
controlling law under AEDPA, promotes clarity in our own
constitutional jurisprudence and also provides guidance for
state courts, which can look to our decisions for their persua-
sive value. Duhaime, 200 F.3d at 600-01. Such a rule also
respects our duty, as Article III judges, to say "what the law
is." Williams, 120 S.Ct. at 1505 (Stevens, J., concurring) (cit-
ing Marbury v. Madison, 1 Cranch 137, 177 (1803)). Accord-
ingly, we hold that, when analyzing a claim that there has
been an unreasonable application of federal law, we must first
consider whether the state court erred; only after we have
made that determination may we then consider whether any
error involved an unreasonable application of controlling law
within the meaning of S 2254(d).
LEGAL ISSUES
Tran raises three alleged reversible errors by the state court.
With respect to two of his claims, the in-court identification
of his co-defendant and the lineup evidence, we hold that no
error occurred. With respect to the third, probable cause for
his arrest, we hold that the state court erred, but that the error
was not "contrary to" and did not "involve an unreasonable
application of" clearly established federal law as determined
by the Supreme Court.
1. Due Process
[7] Tran contends that his due process rights were violated
when, during the trial, co-defendant Tho Tran was brought
into the courtroom and identified by Detective Larmour. Tran
argues that the identification evidence was irrelevant, as he
did not contest that Tho was the person arrested with him. The
state court agreed, but found the error harmless.
[8] The state court did not err in holding that the error was
harmless. Tran's counsel had already referred to police sur-
veillance of Tho and his subsequent arrest and identification,
and Detective Larmour had testified that the police were mon-
itoring Tho's house because he was a suspect. Petitioner
wanted the jury to believe that he was not involved in the rob-
beries even though he gave Tho a ride. Therefore, that the jury
knew that Tho was in police custody could not have preju-
diced the defense's case. As the state court did not err in con-
cluding that any error was harmless, it follows that its
decision is not reversible under AEDPA.
2. Ineffective Assistance of Counsel
Both of Tran's remaining claims involve ineffective assis-
tance of counsel. To receive relief under Strickland v. Wash-
ington, 466 U.S. 668, 698 (1984), Tran must show that his
counsel's performance fell outside "the wide range of profes-
sionally competent assistance" 466 U.S. at 690, and that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694.
Tran asserts that his counsel was ineffective because he
failed to make motions to suppress (1) identification evidence
on the basis of a suggestive lineup and (2) evidence obtained
as a result of his arrest because the arrest occurred without
"probable cause." The Supreme Court has held that counsel's
failure to file a motion to suppress evidence can provide the
basis for a claim of ineffectiveness. Kimmelman v. Morrison,
477 U.S. 365 (1986). Kimmelman held that in order to show
prejudice when a suppression issue provides the basis for an
ineffectiveness claim, the petitioner must show that he would
have prevailed on the suppression motion, and that there is a
reasonable probability that the successful motion would have
affected the outcome. Id. at 375.
The state court ruled for the state on prejudice grounds, and
therefore did not consider the question whether Tran's coun-
sel's performance was deficient. This practice is specifically
authorized in Strickland. 477 U.S. at 375. We, too, will begin
our analysis by examining the question whether Tran would
have prevailed on the motions had counsel pursued them.
A. Lineup Identifications
[9] When analyzing lineup claims, a reviewing court must
determine if the procedures in question were "unnecessarily
suggestive." Neil v. Biggers, 409 U.S. 188, 198 (1972). Even
if the procedures were suggestive, the resulting evidence is
only excludable if it is not reliable. Id. at 199-200. Here, the
state court did not err in concluding that the lineup was not
unlawful. The court held that, although some of the fillers in
the lineup were "arguably somewhat heavier, thinner, taller or
shorter, unkempt, or older than Tran" there was no absolute
requirement that the other persons in the lineup be "nearly
identical" to Tran. It concluded that "reviewing the exhibits
and exercising our independent judgment, Tran does not so
obviously stand out as to create a substantial likelihood of misi-
dentification."18
[10] We have reviewed the photograph of the lineup and
agree with the state court's conclusion. Moreover, this circuit
has rejected similar claims involving lineups where the defen-
dant looked fairly similar to others in the lineup. United States
v. Barrett, 703 F.2d 1076, 1084-85 (9th Cir. 1983); United
States v. Collins, 559 F.2d 561, 563 (9th Cir. 1977). As there
was no prejudice from the failure to pursue a motion to sup-
press the lineup identifications, we need not consider whether
counsel's failure constituted deficient performance.
B. Probable Cause
The state appellate court's probable cause ruling presents a
much closer question. Although we believe that the ruling was
erroneous, it was not "contrary to" clearly established federal
law; more important, the error did not involve an unreason-
able application of federal law. Put differently, there was
error, but not clear error.
[11] The controlling law with respect to probable cause has
been clearly established by the Supreme Court. "Probable
cause exists where `the facts and circumstances within [the
officers'] knowledge and of which they had reasonably trust-
worthy information (are) sufficient in themselves to warrant
a man of reasonable caution in the belief that' an offense has
been or is being committed." Brinegar v. United States, 338
U.S. 160, 175-76 (1949) (internal quotation omitted); Wong
Sun v. United States, 371 U.S. 471, 479 (1963); Dunaway v.
New York, 442 U.S. 200, 208 n.9 (1979). The Supreme Court
has applied this test to arrests, holding that probable cause
requires that the officers have similarly sufficient information
to believe that the individual to be arrested has committed the
crime in question. Dunaway, 442 U.S. at 208 n.9. The state
court cited this standard, and clearly intended to apply it. As
none of the Supreme Court's cases involve facts materially
indistinguishable from those at issue here, the state court's
decision was not contrary to clearly established law. The ulti-
mate question before us, therefore, is whether the state appel-
late court unreasonably applied the controlling federal law.
[12] As our above analysis illustrates, the clearly estab-
lished federal law, the application of which must be deter-
mined to be reasonable or unreasonable, is ordinarily to be
found at the level of generality of a general rule. Where there
is an overall multi-factor test, for example, the clearly estab-
lished federal law consists of the multi-factor test itself, not
of any particular applications of the test.19 Thus, while the
probable cause test itself constitutes clearly established fed-
eral law, the past applications of the test come into play only
at a later stage in our analysis -- when we decide whether the
application before us is "contrary to" or an unreasonable
application of the rule in question. If an application of a rule
in a case before us conflicts with either the rule itself or a past
application of the rule by the Supreme Court, then the case
will involve a "contrary to" question. Otherwise, it will
involve a reasonable application issue.
Of course, we cannot set forth here a precise mechanism
for determining the appropriate level of generality with
respect to every type of legal question. Suffice it to say that
we must refrain from applying too narrow or too specific a
standard when determining the substance of the law the appli-
cation of which we must assess. The adoption of too limited
a scope for the definition of "clearly established law" would
collapse the various parts of the analysis we must perform and
prevent a proper application of the Williams mandate.
In determining that the arresting officer had probable cause,
the state appellate court reported the following facts in its
opinion: (1) Tran and his co-defendant gave inconsistent sto-
ries about how they arrived at the apartment that the police
were searching, (2) Tran was in a car with an identified rob-
bery suspect on the same day a robbery occurred, and admit-
ted that he and the suspect traveled to the apartment together,
(3) Tran's first name matched the name of a robber heard by
a victim of one of the robberies, (4) Tran fit the general
description of one of the robbers. The state court concluded
that these facts established probable cause, given the totality
of the circumstances. There is one problem with the facts as
reported, however. There is no evidence in the record that the
arresting officer knew that the suspect, Tho, was involved in
a robbery that had occurred that day (or that any robbery at
all had occurred that day). Accordingly, we must disregard
that specific aspect of the state court's rationale. However, we
do take into account related facts that appear in both the opin-
ion and the record: namely, that the officer knew that there
had been a series of robberies that had occurred in the period
prior to the arrest, that Tho was a suspect in those robberies,
and that the last robbery of which the officer had knowledge
occurred nine days before petitioner's arrest.
[13] After carefully considering the factors mentioned
above, we conclude that the state court's decision was in
error, but that the error was not objectively unreasonable.
Petitioner fit the physical description of one of the suspects --
he appeared to be between 18 and 20 years of age, was of
slight build, Vietnamese, clean shaven, and approximately
5® 5". While we have previously found a description of "a
young, thin man, not too tall" and "a young Mexican kid" in
United States v. Ricardo D., 912 F.2d 337, 338 (9th Cir.
1990), to be insufficient to warrant a probable cause finding,
in that case the description was both general and constituted
the primary basis for the arrest. Here, in contrast, the descrip-
tion was more specific. The police knew a specific age range,
a specific height range, a description of the suspect's build
and (lack of) facial hair, and a definitive racial identification.
Moreover, this was not the only information on which the
officers relied.
The officers also knew that one of the suspects was named
"Tuan." This factor would be entitled to substantial weight
were the petitioner's name unusual. However, evidence in the
record shows that the robberies in question were occurring
within the large Vietnamese community in San Diego, and
that Tuan is an extremely common name in that community.
For example, in this case, the Petitioner, one of the witnesses,
and another suspect were all named Tuan. Nonetheless, the
identity of the names is of some value, and the court was enti-
tled to give it some weight.
The state court's reasons, as we modify them, see n. 20
supra, also included the fact that Petitioner was in the com-
pany of a suspected robber who had been engaged in a contin-
uous series of robberies. Although the mere association of
someone with a criminal suspect does not give rise to proba-
ble cause, Ybarra v. Illinois, 444 U.S. 85, 91 (1979), here the
association was to some extent connected in time to suspi-
cious activity, both because Tran was driving Tho to a loca-
tion that was the subject of a search warrant in connection
with the robberies and because Tho was a suspect in an on-
going series of robberies.
Finally, Petitioner and co-defendant Tho Tran gave incon-
sistent stories regarding how they arrived at the apartment.
While Petitioner claimed that he had driven Tho there, Tho
claimed that he had walked. The fact that Petitioner was tell-
ing the truth does not negate this factor, because at the time
the arrest was made Tho's lie gave the police reason to
believe that one of the two was lying, and therefore suggested
that there was something to cover up.20
[14] The state court ruled that, considering the totality of
the relevant factors, there was probable cause for Tran's
arrest. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (adopt-
ing totality of circumstances test for probable cause determi-
nations). Were we reviewing this case de novo, we would
hold that the state court's decision was erroneous; the facts
adduced here were not enough to cause a person of reasonable
caution to believe that Tran had participated in the robberies.
The temporal connection between the robberies and Tran's
association with Tho was insufficiently close to constitute rel-
evant association under Ybarra. See United States v. Hillison,
733 F.2d 692, 697 (9th Cir. 1983), and United States v.
Hoyos, 892 F.2d 1387, 1393 (9th Cir. 1988). In the absence
of such an association, the other factors are simply insuffi-
ciently substantial to warrant a probable cause finding. Cases
upholding arrests for probable cause typically involve consid-
erably more evidence than this. See, e.g., United States v.
Meza-Corrales, 183 F.3d 1116, 1124 (9th Cir. 1999); United
States v. Valencia, 24 F.3d 1106 (9th Cir. 1994); United
States v. Hoyos, 892 F.2d 1387 (9th Cir. 1989). Nevertheless,
after reviewing the record and the relevant cases, we cannot
say, applying a firm conviction standard, that the court's deci-
sion was clearly erroneous. The issue is simply too close.
Accordingly, we conclude that the state court's decision did
not involve an unreasonable application of clearly established
federal law.
CONCLUSION
Having found that the state court's decision was not con-
trary to, and did not involve an unreasonable application of,
clearly established federal law, we affirm the district court's
denial of Tran's habeas petition.
AFFIRMED./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
_______________________________________________________________
FOOTNOTES
1 The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
2 Based on the identification of co-defendant Tho Tran made by a victim
after the second robbery, on February 2, the police put Tho Tran under
surveillance for several days, and also compiled a list of 15 to 20 individu-
als possibly known to Tho Tran. The list included Petitioner's name,
although he was not at that time considered a suspect in the crimes.
3 Because Petitioner contested this fact, the state court did not rely on it
when ruling that there was sufficient probable cause for the arrest.
4 Larmour initially testified that he understood that the suspects were
described as 20 to 25 years old and 5' 5" to 5' 9" in height. However,
cross examination, he stated that the actual description was of someone
between 18 to 20 years old and closer to 5' 5". Petitioner was 19 years old
and 5' 5".
5 At the time, Tuan stated that the knife belonged to his wife who used
the knife to peel fruit for which she had cravings (she was pregnant). The
knife was mentioned during trial but the trial court sustained an objection
to its admissibility. It was never connected to the crimes.
6 See, e.g., Masalosalo v. Stonewall Insurance Co., 718 F.2d 955, 956
(9th Cir. 1983) (holding that district court retains jurisdiction to resolve
attorneys' fees issues after appellate court has taken jurisdiction on mer-
its).
7 We express no opinion about the applicability of AEDPA to a second
petition where the district court retained a jurisdictional interest in a first,
pre-AEDPA petition, even though that first petition was dismissed for fail-
ure to exhaust. See, e.g., Williams v. Vaughan, 1998 WL 238466 (E.D. Pa.
1998); Kethley v. Berge, 14 F.Supp.2d 1077 (E.D. Wis. 1998). Here, Tran
does not argue that the district court which dismissed his first petition
retained an interest in it or that it intended to foreclose the application of
AEDPA to any future petition. Nor, in light of his arguments, need we be
concerned with what event constitutes the initiation of habeas proceedings.
See McFarland v. Scott; 512 U.S. 849 (1994); Calderon v. United States
District Court (Kelly), 163 F.3d 530, 539-40 (9th Cir. 1998) (en banc).
Finally, Tran also does not argue that the application of AEDPA to his
petition would be impermissibly retroactive. We express no opinion on
those questions.
8 The Court's decision produced three opinions. While six justices joined
most of Justice Stevens' opinion, including the part applying AEDPA to
the Virginia Supreme Court's ruling, only four joined the part of the opin-
ion interpreting AEDPA's S 2254(d). The Court's opinion on that issue
was written by Justice O'Connor and joined by four other justices. Three
justices dissented from the result in an opinion by Chief Justice Rehnquist.
9 The approach creating such a division was endorsed by some decisions
of this court and adopted by some of our sister circuits. See Baker v. City
of Blaine, _______ F.3d _______ (9th Cir. 2000); Moore v. Calderon, 108 F.3d 261,
265 n.3 (9th Cir. 1997); Drinkard v. Johnson , 97 F.3d 751, 767-68 (5th
Cir. 1996); Neelley v. Nagle, 138 F.3d 917, 924 (11th Cir. 1998). Those
decisions are no longer good law.
10 This is so because the state court decision could be characterized
either as having mistakenly treated a fact as material when in fact it was
immaterial, or as having unreasonably applied prior precedent to the facts
at issue.
11 While we, like Justice O'Connor, sometimes refer to "federal law" or
"controlling law," rather than to clearly established federal law as deter-
mined by the Supreme Court, we do so only for ease of exposition. When
we refer to the source of law binding on the state courts for purposes of
our review under AEDPA, whatever the specific term we employ, we
always intend that term to signify the statutory language.
12 Green v. French, 143 F.3d 865, 870 (4th Cir. 1998); Drinkard v. John-
son, 97 F.3d 751, 767-68 (5th Cir. 1996); Lindh v. Murphy, 96 F.3d 865,
870 (7th Cir. 1996) (en banc) rev'd on other grounds, 521 U.S. 320; Neel-
ley v. Nagle, 138 F.3d 917, 924-25 (11th Cir. 1998). But see Hall v. Wash-
ington, 106 F.3d 742, 748 (7th Cir. 1997) (adopting a substantially
different interpretation from that used by the earlier Seventh Circuit deci-
sion).
13 While one might have thought that the jurisprudence surrounding
Teague v. Lane, 489 U.S. 288 (1989), could provide a useful analogy for
construing AEDPA's requirements, the Williams majority stated that
Teague provides little guidance for courts construing the "unreasonable
application" prong of AEDPA. O'Connor at 3 (noting that Teague did not
create a standard of review).
14 While the clear error doctrine has most often been applied to factual
determinations, it is applicable to legal determinations as well. See, e.g.,
Calderon v. United States District Court, 151 F.3d 1225, 1226 (9th Cir.
1998) (applying clear error test for questions of law as part of mandamus
determination); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.
1998) (allowing departure from law of the case if prior decision was
clearly erroneous); United States v. Navarro-Espinosa, 30 F.3d 1169,
1171 (9th Cir. 1994) (noting district court's power to correct clearly erro-
neous sentence within seven days).
15 The Supreme Court's adoption of the "objectively unreasonable" for-
mulation provides further support for our holding in Duhaime that circuitcourt authority remains relevant under AEDPA. The "objectively unrea-
sonable" standard had been adopted by the Third Circuit, which held that
circuit court precedent remained relevant to determine what constituted an
unreasonable application under its test. Matteo , 171 F.3d at 889 (citing
O'Brien). The Court's opinion endorsed this approach.
16 The Supreme Court implicitly affirmed this rule by acknowledging
that a state court decision can be "contrary to " a Supreme Court case even
when it involves different facts, as long as those facts are not materially
distinguishable. That AEDPA does not require an on-point Supreme Court
case for us to reverse also explains the Court's statement in Williams that
the extension of Supreme Court precedent to a new area, or the failure to
extend it to a new area, can constitute an unreasonable application of fed-
eral law. Williams, 120 S.Ct. at 1521. In addition, because the test for
determining whether a particular application of federal law is unreason-
able is an objective one, it should be clear that a state court's decision can
be unreasonable even if it addresses a question not previously addressed
by the Supreme Court or by the lower federal courts. This is also consis-
tent with our law in the clear error context. In re Cement Antitrust Litiga-
tion, 688 F.2d at 1305 (holding that district court's ruling on matter of first
impression can be clearly erroneous).
17 The method we adopt does not require that we render advisory opin-
ions. As the Court's reasoning in County of Sacramento makes clear, we
cannot make a determination that a decision is contrary to or involves an
unreasonable application of clearly established federal law without implic-
itly commenting upon what the state of the law is. County of Sacramento,
523 U.S. at 841 n.5; see also Siegert v. Gilley , 500 U.S. 226, 232 (1991).
Given that we must necessarily resolve questions of federal law whenever
we address a habeas petition under AEDPA, it behooves us to do so
clearly and explicitly.
18 Although the prominent Supreme Court cases discussing suggestive
processes have involved show-ups or single photographs, Biggers, 409
U.S. at 195; Brathwaite, 432 U.S. at 98, we have held that lineups can also
be impermissibly suggestive, if the people in the lineup or the procedures
employed at the lineup make it so. See, e.g., United States v. Field, 625
F.2d 862, 865 (9th Cir. 1980). The state court did not suggest that the stan-
dards governing suggestiveness should be different for lineups than for
show-ups.
19 As Justice Stevens noted in Williams, when discussing "clearly estab-
lished federal law" under AEDPA,
rules of law may be sufficiently clear for habeas purposes even
when they are expressed in terms of a generalized standard rather
than as a bright-line rule. As Justice Kennedy has explained: `If
the rule . . . require a case-by-case examination of the evidence,
then we can tolerate a number of specific applications without
saying that those applications themselves create a new rule.'
120 S.Ct. at 1507 (Stevens, J., concurring). Although the quotation here
refers to "new rules" in the context of Teague v. Lane, both the majorityand the concurrence in Williams agreed that, with one caveat, "clearly
established law" under AEDPA is conceptually equivalent to an "old rule"
under Teague. Id. at 1523 (O'Connor, J., for the Court); 1507 (Stevens, J.,
concurring). The caveat is that the source of clearly established federal law
is limited to Supreme Court cases.
20 At oral argument the government referred to the fact that the police
found a knife and a black jacket in Petitioner's car as further support for
the existence of probable cause. However, Petitioner was arrested prior to
the search of his car. Facts learned or evidence obtained as a result of an
arrest cannot be used to support probable cause if those facts were not
known to the officer at the moment the arrest was made. Wong Sun v.
United States, 371 U.S. 471, 482 (1963); Allen v. City of Portland, 73 F.3d
232, 236 (9th Cir. 1995).