     Case: 13-30783      Document: 00513021946         Page: 1    Date Filed: 04/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-30783                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
KENDALL GORDON,                                                             April 28, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2708


Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge: *
       Defendant Kendall Gordon was convicted in Louisiana court of second
degree murder and sentenced to life in prison.               This judgment has been
affirmed by a Louisiana Court of Appeal and Supreme Court. This petition for
habeas corpus is now denied.
       The petition contends that the state court’s affirmance of the conviction
is an unreasonable application of the Supreme Court’s decision in Jackson v.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30783
Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), for the reason that the evidence
most favorable to the state could not convince a rational trier of fact that the
essential elements of the crime were proved beyond a reasonable doubt. The
evidence in this case consisted solely of the identification of the defendant by a
witness who subsequently recanted that testimony.
      The evidence of identification was introduced at trial by the testimony of
Darceleen Commadore and New Orleans police detective Barret Morton. It
was essentially as follows.    On August 8, 2009 two men with a gun and
bandanas on their faces broke into the house where Commadore and her sister
lived. Her sister was killed by them, and when they fell on Commadore and
the bandanas fell off she saw their faces and identified one of them as the
defendant Gordon. A few hours later at the detective’s office Commadore
detailed her identification. She explained that she and Gordon lived in the
same area, she had sold clothes to him, and knew he had tattoos on his face
and a gap in his teeth. She picked his picture out of six photos shown to her
and insisted that she was a hundred percent certain that he was the man she
had seen.
      Another man named Bibbins had been killed soon after the murder of
the sister. The bullets that killed Bibbins and the sister of Commadore were
fired by the same weapon. His picture was then shown among six others to
her, and she pointed to him as a man she was only ninety percent sure to have
been an intruder that night.
      Some four months later Commadore went to the office of the district
attorney to say that she had been mistaken about the identification of Gordon,
and she testified at trial that she thought earlier it was Gordon but later knew
it was not. She denied being threatened but said she had heard “on the street
like if this person is going to get out of jail this person going to do me this….”


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                                  No. 13-30783
      Trial was to the bench and the judge found Commadore’s testimony
about her changed opinion not to be credible and the detective to be credible.
      This is a case where the original identification met the tests of reliability:
her full view of the perpetrator at the time of the crime, prior observation and
personal contacts, knowledge of tattoos and teeth of the person, and immediate
and continuing certainty of the identification. See Neil v. Biggers, 409 U.S.
188, 199, 93 S. Ct. 375, 382 (1972).
      The finding of identification of the defendant was supported by the
evidence. His guilt of the crime beyond a reasonable doubt could be, and was,
found by a rational trier of the facts.
      PETITION DENIED.




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