                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0154n.06                                                     FILED
                                                                                                     Mar 15, 2010
                                                                                                  LEONARD GREEN, Clerk




                                           No. 08-1524                                  FILED
                                                                                    Mar 15, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

RODERICK DUANE LEWIS,

       Petitioner-Appellant,                              ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT COURT
v.                                                        FOR THE EASTERN DISTRICT OF
                                                          MICHIGAN
JERI ANN SHERRY,

       Respondent-Appellee.


                                                      /

Before: MARTIN, SILER, and MOORE, Circuit Judges.

       PER CURIAM. Roderick Lewis appeals five issues for which the district court denied his

motion for habeas relief: (1) admission of identification; (2) suppression of evidence; (3) jury

instructions and communications; (4) ineffective assistance of trial counsel; and (5) ineffective

assistance of appellate counsel. Having reviewed the briefs and record and heard oral argument, we

find no reversible error warranting the grant of a writ of habeas corpus.

       But this is not to say that there was no legal error committed. Though we agree with the

majority of the district court’s conclusions, Lewis v. Sherry, No. 05-74202, 2007 WL 4591299 (E.D.

Mich. Dec. 28, 2007), Lewis v. Sherry, No. 05-74202, 2007 WL 1585641 (E.D. Mich. June 1, 2007),

we must disagree with its conclusion that the identification was not unduly suggestive. Lewis, 2007

WL 1585641. The full circumstances associated with the identification—a line-up with few

similarities among the participants; a pre-lineup sighting of the accused which showed a new,
distinctive characteristic; that only the accused had the distinctive characteristic; and the knowledge

that the accused was definitely in the line-up—demonstrate that this line-up was unduly suggestive.

However, while the state courts and the district court erred in finding that the line-up was not unduly

suggestive, the witness’ identification of Lewis was nonetheless reliable under the factors outlined

in Neil v. Biggers, 409 U.S. 188, 196-97 (1972). Therefore, the state court’s admission of the

identification was not an unreasonable application of federal law.

       We therefore DENY Lewis’ petition.
