                           UNITED STATES COURT OF APPEALS
                                   For the Fifth Circuit



                                           No. 97-40110
                                         Summary Calendar



                                JOHNNY RAYMOND POWELL,

                                                                                Petitioner-Appellant,


                                             VERSUS


           GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
                        JUSTICE, INSTITUTIONAL DIVISION,

                                                                              Respondent-Appellee.




                           Appeal from the United States District Court
                               For the Southern District of Texas
                                          (G-94-CV-801)

                                           April 27, 1998


Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

       Johnny Raymond Powell appeals from the district court’s denial of his 28 U.S.C. § 2254

petition for habeas corpus relief. Powell argues that his state court conviction and life sentence



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
should be overturned because (1) the trial court failed to suppress in-court identification testimony

that was t he product of an overly-suggestive out-of-court identification procedure, and (2) the

prosecution used its peremptory challenges t o veniremen in a racially discriminatory manner in

violation of Batson v. Kentucky.2 We affirm the district court’s denial of Powell’s petition.

       To determine whether in-court identification testimony should be admitted, the district court

employs a two step process. First, the court examines whether the out-of court identification

procedure is overly suggestive.3 Then, the court looks to the totality of the circumstances to

determine whether there is a substantial likelihood of irreparable misidentification.4 In this case, we

agree with the district court and the state courts that the out-of-court identification of Powell was

overly suggestive. Nevertheless, we find that the out-of-court identification of Powell was reliable.5

The witness / victim observed Powell during the crime from a close distance while Powell had a gun

pressed to the victim’s stomach. The identification occurred within a few minutes of the crime. And,

the victim’s description of his robber matched Powell. The district court did not err in refusing to

suppress the in-court identification testimony.

       Our examination of a Batson claim attacking the use of peremptory challenges during jury

selection is a three step process. First, the defendant must make a prima facie showing that the

prosecutor used his peremptory challenges on the basis of race.6 The burden then shifts to the


       2
               476 U.S. 79 (1986).
       3
               United States v. Shaw, 894 F.2d 689, 692 (5th Cir. 1990).
       4
               Id.
       5
               See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
       6
               United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997).

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prosecutor to articulate a race-neut ral reason for excusing the juror in question.7 Finally, the trial

court must determine whether the defendant has carried his burden of showing purposeful

discrimination.8

        In this case, the record shows that the jury venire contained only four minorities, three of

whom were challenged by the prosecutor. The prosecutor articulated justifications not based on race

for each of his challenges. The prosecutor challenged one juror because he was overweight and said

nothing during voir dire, challenged another for being overweight and having a family friend who was

charged with a crime, and challenged a third because he was a longshoreman. Because these

justifications on their face are not based on race, we accept them as racially neutral and turn to the

third stage of the inquiry.9

        The district court’s decision on discriminatory intent is a finding of fact based upon credibility

determinations to which we accord great deference.10 We overturn that decision only if it is not fairly

supported by the record.11 We have carefully reviewed the record, Powell’s arguments, and the

justifications offered by the prosecutor. We find that the district court’s credibility choices are fairly

supported by the record.

        The judgment of the district court is AFFIRMED.




        7
                Id.
        8
                Id.
        9
                Id.; Purkett v. Elem, 514 U.S. 765, 768-9 (1995).
        10
                Perkins, 105 F.3d at 978.
        11
                Purkett, 514 U.S. at 769.

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