                                                                              FILED
                            NOT FOR PUBLICATION                                   DEC 09 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


AQUIOR ALFONSO FIGUEROA,                         No. 12-16819

              Petitioner - Appellant,            D.C. No. 4:11-cv-01072-PJH

  v.
                                                 MEMORANDUM*
TIM VIRGA, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                           Submitted December 5, 2013**
                             San Francisco, California

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Petitioner Aquior Figueroa appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition challenging his California convictions arising

out of a gang shooting in Oakland. Petitioner, who admitted that he drove gang


        *
             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).
members to and from the shooting, claims that the trial court violated due process

when it admitted an eyewitness identification of petitioner’s friend, Hector

Sanchez, as one of the shooters. We have jurisdiction pursuant to 28 U.S.C. §

2253 and affirm.

      Contrary to petitioner’s assertion, the state court properly applied clearly

established Supreme Court authority, Manson v. Brathwaite, 432 U.S. 98 (1977),

when it ruled in 2009. Even if an identification procedure is unnecessarily

suggestive, an identification is excluded only if, under a totality of the

circumstances, there was a “very substantial likelihood of irreparable

misidentification.” Id. at 116. As required by the Supreme Court, the state court

addressed the suggestiveness of the photo line-up and the reliability of the

identification. It then balanced under the totality of the circumstances the

reliability of the identification against any corrupting effects, exactly as required

by the Supreme Court. Id. at 114.

      Nor did the state court unreasonably determine the facts it used to decide

reliability of the photo identification. The state court’s factual findings are

supported by testimony in the record and presumed to be correct. Petitioner has

not come forward with the clear and convincing evidence necessary to rebut the




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presumption of correctness. Sumner v. Mata, 455 U.S. 591, 597 (1982); Taylor v.

Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).

      Finally, the state court’s decision was reasonable. Although the photo

procedure was not ideal, it was not “suggestive and unnecessary,” Brathwaite, 432

U.S. at 106, nor likely to produce an unreliable identification. Even though the

photo show-up occurred months after the crime, the witness gave convincing

testimony that she had a good opportunity to clearly view the shooter in broad

daylight, paid close attention to his face because of the cold look in his eyes as he

slowly moved forward while shooting the victim, accurately described the shooter

and his clothing, and immediately expressed certainty about his identity after

viewing other similar individuals in the photo line-up. The state court reasonably

held that the totality of the circumstances did not create a “very substantial

likelihood” that the witness misidentified Sanchez as the shooter.

      AFFIRMED.




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