Patterson

dissenting.

I would hold that the allegations in Patterson’s petition — which, in the absence of any factfinding in either state or federal court, we are required to accept as true — ■ raise a colorable claim that trial counsel rendered ineffective assistance by failing to move to suppress the victim’s identification testimony, and that Patterson was prejudiced by that failure. I would only add that I can conceive of no possible tactical or strategic reason for counsel’s failure, and that his deficient performance constituted a disservice both to his client and to our system of justice. Having carefully reviewed the record, I am far less sanguine than my colleagues as to whether Patterson was prejudiced by his counsel’s ineffectiveness. Accordingly, I would remand for an evidentiary hearing on Patterson’s ineffectiveness claim.

MEMORANDUM *

Arizona state prisoner Donald Ray Patterson appeals the district court’s denial of his 28 U.S.C. § 2254 petition challenging his 1990 jury conviction for two counts of sexual assault and one count each of kidnapping, aggravated assault and burglary in the second degree. 1 We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review the denial of a § 2254 petition de novo, Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000), and we affirm.

Patterson contends that his trial counsel was ineffective for failing to file a motion to suppress his identification by the victim. He asserts that the victim’s in-court identification was unreliable because it was tainted by her exposure to Patterson’s postarrest photograph for another crime, her contact with various individuals who believed Patterson to be guilty of numerous other rapes and suggestive circumstances at a preliminary hearing identification. 2 He also contends his appellate counsel was ineffective for failing to raise the identification issue on appeal, and requests an evidentiary hearing before the district court in order to establish the facts he alleges would entitle him to relief.

In order to show…