                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS          January 16, 2007
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                            No. 05-60054
                          Summary Calendar


EDWARD D. WARD,

                                     Petitioner-Appellant,

versus

MICHAEL A. WILSON,

                                     Respondent-Appellee.


                        ---------------------
            Appeal from the United States District Court
              for the Northern District of Mississippi
                            (2:03-CV-334)
                        ---------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Edward D. Ward, Mississippi prisoner #

W0132, appeals from the district court’s denial of his 28 U.S.C. §

2254 habeas corpus petition, in which Ward challenged his 2000

jury-trial convictions of rape, sexual battery, and burglary of a

building.   Ward was sentenced to consecutive prison terms of life,

30 years, and 25 years.

     We granted Ward a certificate of appealability as to two

ineffective-assistance-of-counsel    claims:      whether        counsel

performed ineffectively by (a) failing to object to an allegedly

impermissibly     suggestive   photographic    line-up      used       for

     *
       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this opinion should not be published and is not precedent except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.
identification purposes before and during the trial and (b) failing

to   object   to    an   allegedly   inaccurate    statement    in   the   trial

transcript regarding the victim’s in-court identification of Ward

as her assailant.

      Federal habeas relief may not be granted on any claim that was

“adjudicated on the merits in State court” unless the adjudication

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”               28 U.S.C.

§ 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 409 (2000).

      The Mississippi Court of Appeals’s published opinion on direct

appeal reported that the trial evidence showed that Ward broke into

the home of a 104-year-old woman, sexually assaulted her, and took

her “house money” as well as dishes from a china cabinet.                   The

victim identified Ward from a photo line-up that contained six

photographs.       She also testified that she recognized Ward because

he had recently been at her house on two occasions prior to the

assault and burglary; he had identified himself as “Big June” or

“Big June’s son.”        The victim’s niece and nephew also identified

Ward as having been at the house within two weeks of the offenses;

Ward was purportedly looking for work.            Other witnesses testified

that, within hours after the offenses, Ward was attempting to sell

dishes that matched dishes from the victim’s home.             A box of dishes

that were recovered bore Ward’s fingerprints.           Two hairs that were

found on the victim’s bed had the same microscopic characteristics

as Ward’s hair.


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      Ward contends that his attorney should have objected to the

photographic line-up as impermissibly suggestive because the photo

of Ward that was included in it did not match the description the

victim had provided immediately after the offense.               He emphasizes

that she told officers that her assailant was “very shaved,” had

“no hair” on his head, and was “chubby.”               Ward argues that his

photo in the line-up, taken one day after the offenses, shows that

he had hair on his head and a goatee.           He also contends that other

subjects in the photo line-up were “obviously thinner” than he.

Our review of the copies of the six photographs from the line-up

reflects that all six men had similarly short hair and facial hair

and   similarly    dark   complexions     and   that   none    was   noticeably

“thinner” than Ward.       Moreover, the trial testimony indicated that

the investigator conducting the photo line-up provided all six

photographs to the victim, did not suggest that Ward was the

assailant,   did    not   place   Ward’s   photograph     in    a    conspicuous

position within the group, and provided the victim “time to sit

down and look at them and sort them up and take [her] time.”

      Ward has not established that either the photographic line-up

or the identification procedure was so “impermissibly suggestive as

to    give   rise     to     a    very     substantial         likelihood    of

misidentification.”       See Simmons v. United States, 390 U.S. 377,

384 (1968); Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.

1997); Peters v. Whitley, 942 F.2d 937, 940 (5th Cir. 1990)

(holding that similar line-up was not impermissibly suggestive).

Ward has fallen short of establishing that counsel performed


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ineffectively by failing to object to the line-up and procedure,

see Strickland v. Washington, 466 U.S. 668, 687-94 (1984), and that

the state appellate court’s resolution of the claim was based on an

unreasonable application clearly established federal law.               See 28

U.S.C. § 2254(d)(1).

     Ward also contends that counsel should have objected to the

accuracy of the trial transcript with respect to the victim’s in-

court identification of Ward as her attacker.                  Because of the

victim’s advanced age, the trial court had allowed her to be pushed

in her wheelchair to various positions within the courtroom to aid

her identification of her assailant. The transcript reflects that,

when the victim stopped in front of Ward, she said, “That’s him.”

Ward asserts that at that time the victim actually asked, “You Big

June’s son?     Is you the one who did this to me?”             For the first

time in this appeal, both Ward and his attorney at the trial have

filed affidavits attesting to this version of events.

     Even if we were to consider these affidavits, which the

respondent has moved to strike as not being part of the record on

appeal, they would not establish that Ward’s counsel performed

ineffectively    by     failing   to   object    to    the   accuracy   of   the

transcript.    See Strickland, 466 U.S. at 687. Within moments after

the disputed testimony discussed above, the victim clearly and

definitely made a courtroom identification of Ward as her attacker.

As noted, other evidence strongly indicated that Ward was the

person involved.        As Ward cannot show that he was prejudiced by

counsel’s     failure     to   challenge   the        transcript’s   accuracy,


                                       4
see id. at 694, he cannot establish that the state appellate

court’s disposition of this claim was an unreasonable application

of clearly established federal law.   See 28 U.S.C. § 2254(d)(1).

     The judgment of the district court is

AFFIRMED.




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