                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                              Submitted January 18, 2006*
                               Decided January 30, 2006

                                        Before

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. DIANE P. WOOD, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 05-2201

IVY J. CARTER,                            Appeal from the United States District
      Petitioner-Appellant,               Court for the Eastern District of
                                          Wisconsin
      v.
                                          No. 00-C-1229
GREGORY GRAMS,
    Respondent-Appellee.                  Patricia J. Gorence,
                                          Magistrate Judge.

                                      ORDER

       A Wisconsin jury found Ivy Carter guilty of first-degree murder, as a party to
a crime, Wis. Stat. §§ 939.05, 940.01(1), and the trial court sentenced him to life
imprisonment. After exhausting his state-court remedies, Carter petitioned for
habeas corpus under 28 U.S.C. § 2254, claiming, as relevant here, that Milwaukee
police employed an unduly suggestive, pretrial identification procedure that
resulted in an unreliable eyewitness identification at his trial. Carter had
presented this claim on direct appeal to the Wisconsin Court of Appeals, which held


      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2201                                                                    Page 2

that the identification procedure was not impermissibly suggestive. State v. Carter,
No. 93-1639-CR (Wis. Ct. App. May 3, 1994), petition for review denied, No. 93-1639-
CR (Wis. Aug. 26, 1994). A magistrate judge, acting by consent of the parties, held
that the state court’s decision was not an unreasonable application of federal law
and denied Carter’s petition.

       Donald Dall was shot and killed outside the Ritz Bar in Milwaukee,
Wisconsin, in October 1991. Caroline Rogge, who was seated in a nearby car,
witnessed the murder. She testified at Carter’s trial that she saw a group of men in
their late teens, one of whom used a gun to shoot Dall approximately five times.
The next day, police showed Rogge a photograph array that did not include Carter’s
picture because he was not yet a suspect. Rogge stated that the gunman was not
depicted, but she remarked that one of the photographs resembled him. A day
later, after receiving information implicating Carter and two other men, police
showed Rogge a second array, incorporating photographs of Carter and one of the
other suspects. Rogge picked out none of the six men in the array, but she asked if
she could see a lineup. Rogge, though, dropped out of sight until February 1992,
when Craig Pradarelli—a private investigator that Carter hired after he was
charged—found her and allegedly showed her individual pictures of Carter and the
other suspect included in the second array.

       Rogge contacted police after Pradarelli’s visit. She stated that she had not
identified either man in the photographs but thought one looked familiar, though
she was not positive. The police then arranged a lineup (viewed by several
witnesses) that included Carter but not his suspected accomplice. Rogge again said
she was unable to identify anyone. That same day police showed Rogge and the
other assembled witnesses the second photograph array that Rogge had seen four
months earlier. The officers wanted to test whether the witnesses could recognize
the picture of Carter’s suspected accomplice, who had not been in the lineup. This
time Rogge identified both Carter and his suspected accomplice as men present at
the murder scene. Although she conceded that she told officers just moments before
that she could not pick out anyone in the lineup, she explained that she recognized
Carter from the crime scene but had been scared to identify him. Rogge added that
she was not positive about the identification, but believed that Carter had shot Dall.

       At trial, Rogge unequivocally identified Carter as the gunman. She explained
that she did not identify him during the lineup because she was afraid of “what
might happen” to her. She also said she had not been absolutely certain about her
identification when she saw Carter during the lineup because of his clothing and
the fact that he appeared taller than she remembered.

      Carter challenged his conviction in state court based on the identification
procedure. Specifically, he argued that the repeated opportunities to see him (in
No. 05-2201                                                                      Page 3

the photographic array shown to Rogge in October and February and the lineup she
viewed in February) led Rogge to believe she had seen Carter at the murder scene
when in fact she had not. Carter also suggested that the police increased the
likelihood that Rooge would remember his image by placing his picture on the left
side of the photographic array (in the second row of photographs) and having him
stand in the far-left position during the lineup (though Carter’s trial counsel
testified during a state-court hearing on Carter’s postconviction motion that he, and
not the police, requested that Carter stand in the far-left position). Finally, Carter
argued that the use of both the lineup and the photographic array in February
guaranteed that Rogge would identify him.

       The Wisconsin Court of Appeals concluded that the identification procedure
employed by police over the four month period was not unduly suggestive. Relying
on Powell v. State, 271 N.W.2d 610, 617 (Wis. 1978), a Wisconsin Supreme Court
decision that in turn applied Neil v. Biggers, 409 U.S. 188 (1972) (discussing
circumstances in which eyewitness identification may violate defendant’s right to
due process), the court held that “the repeated use of Carter’s photograph over the
four month time period did not render the procedures impermissibly suggestive.”
The court did not go on to analyze the reliability of Rogge’s identification.

       We review the district court’s denial of a § 2254 petition de novo. Balsewicz
v. Kingston, 425 F.3d 1029, 1031 (7th Cir. 2005). The district court could have
granted relief only if the Wisconsin court’s analysis of Carter’s claim “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”
or “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d); see Woods v. McBride, 430 F.3d 813, 816 (7th Cir. 2005).

       Carter principally argues here that, contrary to the Wisconsin court’s
holding, the identification procedure was unduly suggestive because only he
appeared in both the lineup and the photograph array that was shown to Rogge
immediately after the lineup. He also argues that the short duration of time
between the lineup and the use of the array increased the suggestiveness of the
identification procedure. Carter relies on Foster v. California, 394 U.S. 440 (1969),
in which the Court found an identification procedure to be unduly suggestive. In
that case an eyewitness failed to positively identify Foster at an initial lineup, even
though he “stood out from the other two men” in the lineup because he was taller
and dressed in clothing most similar to the eyewitness’s description of the suspect.
Id. at 443. Police then arranged a “one-on-one confrontation,” but the witness still
could not positively identify Foster. Id. Ten days later police conducted a second
lineup that resulted in a positive identification; only Foster appeared in both
lineups. Id. at 441-42. The Court found the procedure “made it all but inevitable”
No. 05-2201                                                                    Page 4

that the witness would positively identify Foster because he stood out in the initial
lineup, was presented singularly to the witness, and was the only person to appear
in both lineups. Id. at 443.

       To resolve Carter's appeal, we need not decide whether the Wisconsin court’s
decision was an unreasonable application of federal law because the purported error
could not have had a “substantial and injurious effect or influence in determining
the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks and citation omitted) (describing harmless error analysis
applicable to habeas corpus petitions asserting trial error); Mason v. Brathwaite,
432 U.S. 98, 118 & note (1977) (Stevens, J., concurring) (fact that “tends to confirm
guilt” but does not support reliability under Neil should be relevant only to whether
error was harmless); United States v. Rogers, 387 F.3d 925, 939 (7th Cir. 2004)
(observing that unduly suggestive identification procedure is trial error; applying
harmless error analysis to identification claim). Though the Wisconsin Court of
Appeals, examining another of Carter’s claims, observed that Rogge’s identification
testimony was an important part of the state’s evidence, the court also stated that
Carter confessed his crime to three people and an eyewitness (in addition to Rogge)
placed him at the scene of the murder. Without any argument from Carter to the
contrary, we conclude that Rogge’s identification—the reliability of which was
weighed by the jury after cross-examination, see Watkins v. Sowders, 449 U.S. 341,
349 (1981) (discussing jury’s role in determining reliability of eyewitness
identification); see also United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1156
(7th Cir. 1987)—could not have resulted in actual prejudice. See Brecht, 507 U.S. at
637.

                                                                         AFFIRMED.
