                   Not for Publication in West's Federal Reporter

             United States Court of Appeals
                          For the First Circuit


No. 08-1795

                            RICHARD W. JOHNSON,

                          Petitioner, Appellant,

                                        v.

                              THOMAS DICKHAUT,

                           Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. William G. Young, U.S. District Judge]


                                     Before

             Torruella, Siler,* and Howard, Circuit Judges.


     Greg T. Schubert for appellant.
     Anne M. Thomas, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for the
appellee.


                              February 5, 2009




     *
         Of the Sixth Circuit, sitting by designation.
           SILER, Circuit Judge.            Petitioner Richard W. Johnson

appeals the district court’s decision denying his petition for a

writ of habeas corpus.     He argues that the district court erred in

concluding that the state court did not unreasonably apply federal

law or unreasonably determine facts because the identification

procedure used to convict him was unnecessarily suggestive and

inherently unreliable.     For the following reasons, we will affirm

the district court's judgment denying Johnson’s petition for a writ

of habeas corpus.

                               I.    BACKGROUND

           In    2003,   Johnson     was    convicted   on     one   count   of

intimidation to steal from a depository in violation of Mass. Gen.

Laws ch. 265, § 21, and one count of armed robbery in violation of

Mass. Gen. Laws ch. 265, § 17.        The charges arose from a robbery of

a Shrewsbury CVS Pharmacy.          The Worcester Superior Court (“trial

court”)   denied   Johnson’s    motion      to   suppress   evidence   of    the

identification     of    him    by    Joanne      Harrington    because      the

identification was not influenced by “any suggestion whatsoever by

the police” or by anything “that the police did or didn’t do.”

Johnson eventually was sentenced to 11 to 13 years imprisonment.

On appeal, the Massachusetts Appeals Court affirmed, finding no

error in the trial court’s denial of Johnson’s motion to suppress.

Commonwealth v. Johnson, 856 N.E.2d 206 (Mass. App. Ct. 2006)

(unpublished table decision).         The Massachusetts Supreme Judicial


                                      -2-
Court denied further review.      Commonwealth v. Johnson, 862 N.E.2d

379 (Mass. 2007) (unpublished table decision).

            In 2007, Johnson filed his petition for a writ of habeas

corpus in the federal district court pursuant to 28 U.S.C. § 2254.

After a hearing, the district court denied the petition and granted

a certificate of appealability on the identification issue.

            Johnson   advanced   the   same    arguments       as   to   why   the

identification    procedure      was   unnecessarily           suggestive      and

inherently unreliable before the state courts, the federal district

court, and now this court.       Only Harrington was able to identify

Johnson as one of the robbers.         Harrington was working the 6:00

p.m. to midnight shift when two men entered the otherwise empty

store.     She described the men as wearing matching shirts and

shorts, very neat, with neat haircuts, and wearing hats with the

brim folded “so you really couldn’t see their eyes.”                After a few

minutes   of   browsing,   the   shorter      of   the   two    men,     Johnson,

approached her while she was sitting behind the prescription

counter in the back of the store.        She explained that the shorter

man stood “right in front of her face” and looked her “right in the

eye.”    She said she got a good look at this face “for five or six

seconds” in “very good” lighting conditions.             The shorter man then

lifted his shirt, showing her a gun that was tucked in the top of

his pants, and told her to “get up, go to the safe, and get him all

the oxycontin.”    She gave him seven bottles of oxycontin, and the


                                   -3-
robbers left.      The whole incident lasted about five minutes.

Harrington was terrified by the incident, “kind of collapsed” and

“started crying” when the robbers left, and had emergency medical

technicians monitor her for rapid heart palpitations.

            Harrington described the robbers to two police officers

– Officer Mentzer and Detective Cappucci – shortly after the

robbery.    She described the shorter man as a white male, 5’3” tall,

average build, clean shaven, baby-faced, early twenties, short

strawberry    blond   hair   cut   above   his   ears,   neatly   dressed   in

matching beige clothes, Boston accent, and carrying a shiny handgun

with black grips which was tucked into his left waistband.             About

one week later, Detective Cappucci showed Harrington four arrays of

eight black-and-white pictures, and she did not identify any of

them as the robber.     Approximately two-and-a-half weeks later, he

showed her four more photo arrays with eight photographs, and she

did not identify any as the robber.              Then, five months later,

Cappucci told her that a “lead had opened up” in the case, showed

her one more array of eight black-and-white photos, and asked her

“to identify one of the pictures as the suspect.”             She testified

that she “did not know if there was a suspect in [this array] or

not,” was looking for a man with short strawberry blond hair, and

identified Johnson as the robber based on his “face, the eyes, the

look.”     The final photo array consisted of five pictures of men

with dark hair, and Johnson alleges that his picture was the only


                                     -4-
one of a man with light hair, not wearing a shirt, squinting, and

with a surly looking, intoxicated expression.                 Harrington stated

that she was absolutely, one hundred percent positive that this was

the    person   who   robbed     her,   and    Cappucci   told      her   that   she

identified the “correct person.”              She learned that the suspect’s

name was Richard Johnson and later identified him in court.

                           II.   STANDARD OF REVIEW

              We review the district court’s legal conclusions de novo,

and the factual conclusions de novo when, as here, the district

court does not undertake independent factfinding.                Teti v. Bender,

507 F.3d 50, 56 (1st Cir. 2007).                Under the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), we review state

court legal and factual determinations under a limited and highly

deferential standard: an application for a writ of habeas corpus

shall not be granted unless the state court decision upon which it

is    based   (1)   “was   contrary     to,   or   involved    an    unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States” or (2) involved “an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”                 State court factual

findings “shall be presumed to be correct,” and “[t]he applicant

shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence.”             28 U.S.C. § 2254(d)-(e); see

also Teti, 507 F.3d at 56-57.


                                        -5-
           The claim was properly exhausted, so Johnson must show

that the state court’s determinations, legal or factual, were

“objectively unreasonable” to prevail.       See Miller-El v. Cockrell,

537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 409

(2000).   It is not sufficient for the state court’s decision to be

erroneous, incorrect, or clear error.       See Lockyer v. Andrade, 538

U.S. 63, 75-76 (2003); Williams, 529 U.S. at 410-11.                 For the

“unreasonable application” prong, the range of reasonable judgment

depends on the nature of the rule: “[t]he more general the rule,

the more leeway courts have in reaching outcomes in case-by-case

determinations.”     Yarborough v. Alvarado, 541 U.S. 652, 663-64

(2004).   For the “unreasonable determination of facts” prong, a

petitioner must show that state court factual determinations were

objectively unreasonable by clear and convincing evidence.               See

Miller-El, 537 U.S. at 341-42.

                            III.    ANALYSIS

           The district court did not err in denying Johnson’s

petition for a writ of habeas corpus.       In response to the argument

that Detective Cappucci improperly told Harrington that he had a

lead and to identify one of the photographs as the suspect, the

district court stated that “she also said that she did not know at

the time she was shown that there was the suspect in that array and

did not remember being told that there was a suspect in that

array.”    It   reasoned   that   even   though   the   case   was   “thin,”


                                   -6-
Harrington “had a vivid memory of the events . . . [and] was being

cautious as to the identification.” The state trial court was best

suited     to    make       the      credibility        determination,       and     that

determination deserved deference.

            In addition, the state court decision did not result in

an unreasonable application of Supreme Court precedent.                        Pretrial

identifications violate due process requirements when they are “so

impermissibly suggestive as to give rise to a very substantial

likelihood      of   irreparable       misidentification.”            See    Manson    v.

Brathwaite, 432 U.S. 98, 105 n.8 (1977) (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)).                    The Supreme Court explained

that “reliability is the linchpin in determining the admissibility

of   identification          testimony”         and     when     making     reliability

determinations, the court should consider the totality of the

circumstances, including the following factors: “the opportunity of

the witness to view the criminal at the time of the crime, the

witness’ degree of attention, the accuracy of his prior description

of   the   criminal,     the      level   of    certainty       demonstrated    at    the

confrontation,        and      the     time     between        the   crime    and     the

confrontation.”        Id. at 114 (citing Neil v. Biggers, 409 U.S. 188,

199-200 (1972)).

            Johnson      argues       that    the     Massachusetts    Appeals      Court

decision unreasonably applied Brathwaite, 432 U.S. 98, and Stovall

v. Denno, 388        U.S. 293 (1967).          He argues that the identification


                                             -7-
was unnecessarily suggestive because (1) Cappucci’s statement that

a “lead had opened up” was improper, (2) the direction “to identify

one of the pictures as the suspect” was impermissibly suggestive,

(3) anyone would have selected Johnson because he was the only one

that appeared shirtless and squinting with a distinctive surly

intoxicated expression, (4) subsequent identifications were tainted

when Cappucci told her that she selected the “correct person” and

(5) Harrington’s testimony was less credible because she denied

that Cappucci told her about the lead and that she had selected the

correct person.      He then argues that the identification was not

reliable because (1) she was distracted and focused on the gun, not

the robber’s face; (2) she was too distraught and terrified to

accurately identify Johnson; (3) she admitted that his cap was bent

so that she couldn’t see his eyes but identified Johnson from his

eyes; (4) she only looked at him for a few seconds; (5) her prior

identification was minimal and inconsistent; and (6) although her

level of certainty was high, over five months had passed.

           However, this does not explain how the state appeals

court determination was an unreasonable application of Supreme

Court   precedent.     The   state   court   factual   findings   were   not

objectively unreasonable under Brathwaite or Stovall.

           The Supreme Court upheld the identification procedures in

Brathwaite and Stovall.       In Brathwaite, the identification was

permissible when the witness, an undercover police officer, was


                                     -8-
only shown one picture; the procedure was sufficient because of his

ability to make an accurate identification (observation in close

range by a trained officer in natural lighting conditions and

identification two days later).              Brathwaite, 432 U.S. at 99-101,

114-16.      In Stovall, an in-person identification was permissible

when the suspect was the only African-American suspect in the room

because of exigent circumstances (suspect had stabbed witness

eleven times and was brought to the hospital the day after surgery

for identification). Stovall, 388 U.S. at 295, 302. Here, Johnson

was   part    of    a   lineup,    not    alone   in   person     or   by   a    single

photograph.        Although five of the men allegedly had dark hair, and

Harrington was looking for a man with strawberry blond hair, there

is    no   requirement     to     include   a     certain   number     of   “filler”

photographs in an array.           Brathwaite, 432 U.S. at 117.             The trial

court’s credibility determinations – that Harrington was “clear and

direct” with a “vivid memory” and her memory, not the actions of

the police, led to the identification – are accorded a presumption

of correctness.         Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003).

These      determinations       were     supported     by   the    record       because

Harrington gave detailed descriptions of the robbers and stated

that she did not know whether the suspect was in the array and did

not choose Johnson because he was shirtless or because he was

squinting.




                                          -9-
           Consideration of the Brathwaite factors does not require

a contrary conclusion.     Harrington had the opportunity to see the

robber’s face, even his eyes, when he approached her at the counter

and looked her in the eyes for several seconds under good lighting

conditions.       Brief   encounters      are   sufficient   for    proper

identifications.     See Brathwaite, 432 U.S. at 114 (two to three

minutes was sufficient).     She provided an accurate description of

Johnson’s height, clothing, hair color, and hair style.         Her level

of certainty was high; she was “one hundred percent positive,” and

there is no question that the photograph was that of Johnson.

There is no evidence that any of the prior arrays included a

picture of Johnson, and her prior action supports the conclusion

that she resisted whatever suggestiveness inheres in a photo array.

Although   over    five   months   had    lapsed,   courts   have   upheld

identifications made after longer periods of time.            See, e.g.,

Biggers, 409 U.S. at 201 (involving a lapse of seven months).

                            IV.    CONCLUSION

           For the foregoing reasons, the district court’s decision

denying Johnson’s petition for a writ of habeas corpus is affirmed.




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