Gaines

MEMORANDUM *

Shawn Charise Gaines appeals the district court’s denial of his 28 U.S.C. § 2254 petition, asserting that he suffered ineffective assistance of counsel when his trial lawyer failed to file a motion to suppress a suggestive show-up identification. Gaines concedes that he cannot succeed on the merits of his claim on the current record, but asks for an evidentiary hearing to develop the facts further. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2258, and we affirm.

As a preliminary matter, we initially granted a certificate of appealability (“COA”) on the issue of “whether trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to move to suppress the pretrial identification of appellant as impermissibly suggestive.” We now expand the COA to encompass Gaines’s request for an evidentiary hearing. See 9th CIR. R. 22-1.

Contrary to the State’s contention, Gaines’s request for a hearing is not barred by 28 U.S.C. § 2254 (e)(2). 2 That provision applies only to petitioners that have “failed to develop the factual basis of [their] claim,” id., and the Supreme Court has made clear that “a failure to develop the factual basis…