                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 08 2010

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




                              FOR THE NINTH CIRCUIT



 DEMOND WILLIE POTTS,                             No. 08-55115

                Petitioner - Appellant,           D.C. No. CV-05-00690-GHW

   v.
                                                  MEMORANDUM *
 STUART J. RYAN,

                Respondent - Appellee.



                      Appeal from the United States District Court
                         for the Central District of California
                       George H. Wu, District Judge, Presiding

                            Submitted December 15, 2009 **

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

        Demond Willie Potts appeals from the district court’s judgment denying his

28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §

2253, and we 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).

SM S/Research
       Potts contends his due process rights were violated because a witness’ in-

court identification of Potts as an assailant resulted from viewing an unduly

suggestive photograph of Potts prior to trial. Even assuming, as the district court

did, that the pretrial identification procedure was unduly suggestive, the witness’

in-court identification of Potts during the trial was reliable under the factors

announced in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Accordingly, the

state court’s rejection of this claim did not constitute an unreasonable application

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

       To the extent Potts argues the witness’ identification of him at the

preliminary hearing occurred under unduly suggestive circumstances, we construe

the argument as a motion to expand the certificate of appealability, and we deny

the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098,

1104-05 (9th Cir. 1999) (per curiam).

       AFFIRMED.




SMS/Research                               2                                       08-55115
