The following excerpt is from Trice v. Biter, Case No. 1:11-cv-00951-LJO-SKO-HC (E.D. Cal. 2014):
suggestive identifications were not meritorious, counsel was not required to object. Cf. James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (failure to raise the issue of sufficiency of the evidence is not prejudicial where there was overwhelming evidence of guilt; failure to make a motion which would not have been successful is not ineffective assistance of counsel). Further, because the state appellate court reached the merits of the identification claim/s without reliance on the absence of an objection, any failure of counsel to object to the identifications lacked any prejudicial effect.
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