                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 27 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARVIN BRYANT, III,                               No. 11-15313

               Petitioner - Appellant,            D.C. No. 4:06-cv-00005-CW

  v.
                                                  MEMORANDUM *
T. FELKER, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       California state prisoner Marvin Bryant, III, appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253 and affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Bryant contends that the pre-trial photo identification procedure was unduly

suggestive and tainted the witness’ in-court identification. The pre-trial photo

identification procedure was not unduly suggestive. Moreover, the in-court

identification was sufficiently reliable. See Manson v. Brathwaite, 432 U.S. 98,

114 (1977). Accordingly, the state court’s denial of this claim was not contrary to,

or an unreasonable application of, clearly established federal law as determined by

the Supreme Court. See 28 U.S.C. §2254(d)(1); Plascencia v. Alameida, 467 F.3d

1190, 1197-98 (9th Cir. 2006).

      Bryant also contends that his counsel rendered ineffective assistance by

failing to move to exclude the witness’ pre-trial or in-court identification of him as

being a result of an impermissibly suggestive identification procedure. As stated

above, the identification procedure was not unduly suggestive. Accordingly,

Bryant did not demonstrate a reasonable probability that the result of the

proceeding would have been different had his counsel challenged the pre-trial

identification procedure. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).

Accordingly, the state court’s denial of this claim was not contrary to, or an

unreasonable application of, clearly established federal law as determined by the

Supreme Court. See Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).


                                           2                                     11-15313
      Bryant’s motion to expand the certificate of appealability is denied. See

Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

      AFFIRMED.




                                         3                                   1 1 -1 5 3 1 3
