                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              DEC 06 2011

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

VERNON SHAW, III,                                No. 09-17386

              Petitioner - Appellant,            D.C. No. 2:06-cv-00466-LKK-
                                                 CHS
  v.

RICHARD J. KIRKLAND,                             MEMORANDUM*

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                     Argued and Submitted November 18, 2011
                             San Francisco, California

Before: FARRIS, NOONAN, and BEA, Circuit Judges.



       Vernon Shaw appeals the district court’s denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The case is reviewed under the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
deferential standards set forth in the Antiterrorism and Effective Death Penalty Act

of 1996.

      Shaw’s claim that the identifications of David and Darwin Brown were

unconstitutionally suggestive fails because he cannot show prejudice. See Brecht

v. Abrahamson, 507 U.S. 619, 637-38 (1993). Even if Darwin Brown had been led

by unconstitutional means to identify Shaw, there were three other identifications

in the case. That David Brown equivocated was a matter for the jury’s

consideration, as were Robert Horn’s bias and Clayton Brown’s inconsistent

descriptions of the suspect. See Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

In light of these three identifications, the California court did not act unreasonably

in denying relief. See 28 U.S.C. § 2254(d).

      Shaw’s ineffective assistance of counsel claim fails for largely the same

reasons. Shaw cannot show that the suppression of Darwin Brown’s identification

would have produced a different outcome in his case. See Kimmelman v.

Morrison, 477 U.S. 365, 373-74 (1986); Wilson v. Henry, 185 F.3d 986, 990 (9th

Cir. 1999). The state court’s denial of relief was reasonable. See 28 U.S.C. §

2254(d).

      Shaw’s challenge to the jury instruction also fails. Neither federal law nor

California law required the jury instruction he requested. At most, the instruction


                                           2
would have discredited Robert Horn’s testimony. Shaw is unable to show that the

failure to give the instruction so infected the entire trial that the resulting

conviction violated due process. See Cupp v. Naughten, 414 U.S. 141, 147 (1973).

The state court was not unreasonable in so holding. See 28 U.S.C. § 2254(d).

      Finally, Shaw’s argument that the imposition of consecutive sentences

violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466

(2000), and its progeny was foreclosed by the Supreme Court in Oregon v. Ice.

555 U.S. 160 (2009). In Ice, the Court upheld a state’s statutory scheme allocating

to judges the finding of facts necessary to impose consecutive sentences. Id. at

164, 168. Therefore, the California court did not act unreasonably in denying

relief. See 28 U.S.C. § 2254(d).

      We therefore hold that Shaw is not entitled to federal habeas relief. The

district court’s denial of the petition is AFFIRMED.




                                            3
