     Case: 12-60725      Document: 00512501861         Page: 1    Date Filed: 01/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 12-60725                         January 15, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
DONALD BURTON,

                                                 Petitioner-Appellant

v.

LAWRENCE KELLY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:09-CV-69


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Donald Burton, Mississippi prisoner # 29963, contests the denial of his
28 U.S.C. § 2254 habeas petition, in which he challenges his convictions for
kidnaping, rape, and armed robbery. A certificate of appealability was granted
on the issue “whether, under the deferential review standards applicable to a
28 U.S.C. § 2254 application, the district court erred in failing to hold that the
state court’s determination that the voice identification procedures did not


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 12-60725

cause an irreparable misidentification was an unreasonable application of Neil
v. Biggers, 409 U.S. 188 (1972). Included in this question is the review of any
state court factual findings under the applicable deferential AEDPA
standards.”
      On habeas review, the district court’s conclusions of law are reviewed de
novo; its findings of fact, only for clear error. Summers v. Dretke, 431 F.3d 861,
868 (5th Cir. 2005). As this claim was adjudicated in a state-court proceeding,
it is evaluated under the “difficult to meet” and highly deferential standard
contained in 28 U.S.C. § 2254(d), Harrington v. Richter, 131 S. Ct. 770, 786-
87 (2011), which states: a federal court may not grant habeas relief on a claim
that was adjudicated on the merits by a state court unless the state-court
decision (1) “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court”, or
(2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d). State-court
findings are presumed correct and may be rebutted only by clear and
convincing evidence. § 2254(e)(1).
      The Due Process Clause protects accused individuals from the use of
evidence against them derived from unreliable identifications resulting from
impermissibly suggestive procedures.        Biggers, 409 U.S. at 198-99.     The
admissibility of identification evidence is governed by a two-step analysis.
Herrera v. Collins, 904 F.2d 944, 946 (5th Cir. 1990). First, the court must
determine whether the identification procedure was impermissibly suggestive.
See id.   If the court determines that the procedure was impermissibly
suggestive, the court must next determine whether, under the totality of the
circumstances, the procedure posed a “substantial likelihood of irreparable
misidentification.” Id. The Supreme Court has set out factors to be considered



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                                  No. 12-60725

in determining the likelihood of misidentification. Biggers, 409 U.S. at 199-
200. These include the opportunity of the witness to view the criminal, the
witness’s degree of attention during the offense, the accuracy of the witness’s
prior description of the assailant, the level of certainty demonstrated at the
confrontation, and the length of time between the crime and the confrontation.
Id.
       The state court determined that, although the voice identification
procedure was impermissibly suggestive, Burton was not entitled to relief
because, under the totality of the circumstances, the pretrial identification
procedure was reliable and did not give rise to a substantial likelihood of
irreparable misidentification. Burton v. State, 970 So. 2d 229, 235-38 (Miss.
Ct. App. 2007). The district court, properly relying on facts supported by the
record, determined that the Mississippi court’s decision was neither contrary
to nor an unreasonable application of Biggers.
       The victim spent a considerable amount of time, approximately 45
minutes, with the assailant. See Biggers, 409 U.S. at 200. During this entire
time, the victim was able to hear the assailant’s voice. The victim paid close
attention to her assailant’s voice during the incident; the victim testified that
she was afraid her assailant was going to kill her and that the assailant gave
her verbal orders, such as to take her pants off, and, if she refused a command
or acted in a way the assailant did not like, such as attempt to look at him, the
assailant threatened her with a gun. The victim demonstrated a high level of
certainty regarding her identification. See id. She testified that, as soon as
she heard Burton speak, she knew Burton was her assailant. See id.
       In view of the Biggers factors, based on the totality of the circumstances,
the district court correctly applied § 2254(d) and (e) to the state court’s
determination that the voice identification procedure was reliable and, thus,



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                                  No. 12-60725

did not give rise to a substantial likelihood of irreparable misidentification.
Burton has failed to show that the state appellate court’s ruling on the voice
identification issue “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 131 S. Ct. at 786-87. Accordingly, the
district court properly concluded that the state court decision was not contrary
to, or an unreasonable application of, clearly established federal law.
      AFFIRMED.




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