                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 2 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SAMUEL W. SWOOPES,                              No.    16-15506

                Petitioner-Appellant,           D.C. No. 4:93-cv-00471-DCB

 v.
                                                MEMORANDUM*
CHARLES L. RYAN, Warden; et al.,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                     Argued and Submitted February 16, 2018
                            San Francisco, California

Before: KLEINFELD and TALLMAN, Circuit Judges, and MURPHY,** District
Judge.

      Samuel Swoopes (“Petitioner”) appeals the district court's denial, on remand

from our court, of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury

conviction for robbery, burglary, kidnapping, and sexual assault. We granted a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stephen J. Murphy, III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
certificate of appealability on two issues: (1) whether the trial court violated

Petitioner’s right to due process and a fair trial by giving a misleading response to

a jury question without consulting with Petitioner or his counsel; and (2) whether

the trial court violated Petitioner’s right to due process by admitting unduly

suggestive and unreliable victim identifications. We have jurisdiction under

28 U.S.C. § 2253(c) and we affirm.

      1. Petitioner argues that the trial court made an ex parte response to a mid-

deliberation jury question and thus violated his right to due process and a fair trial.

We defer to the factual finding of the Arizona Court of Appeals that the response

was not ex parte. See Rhoades v. Henry, 598 F.3d 495, 500 (9th Cir. 2010).

Therefore, Petitioner’s claim fails because he was not deprived of counsel. See

Musladin v. Lamarque, 555 F.3d 830, 842 (9th Cir. 2009).

      2. The trial court did not err by admitting the three eyewitness

identifications. The identifications by Randy Diana and Mark Hatoon “were not

arranged by law enforcement officers” and, accordingly, the pre-trial screening for

reliability does not apply. See Perry v. New Hampshire, 565 U.S. 228, 232 (2012).

In addition, under the factors outlined in Neil v. Biggers, 409 U.S. 188, 199–200

(1972), Linda Diana’s line-up identification of Petitioner was not unduly

suggestive or unreliable. Linda’s description of her attacker, the opportunity she

had to view Petitioner during the crimes, and her degree of certainty, outweigh the


                                           2
unreliability stemming from the year and a half between the crime and the

identification, and the inherent problems in cross-racial identifications. See United

States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir. 2007) (en banc). In balancing

these factors, we find that the trial court did not violate Petitioner’s due process

rights by admitting the identifications.

      AFFIRMED.




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