                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              June 19, 2007
                             No. 06-16021                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D. C. Docket No. 02-00810-CV-ORL-19-DAB

JAMES CHADWICK IRWIN,



                                                          Petitioner-Appellant,

                                  versus

JAMES R. MCDONOUGH,
BILL MCCOLLUM,


                                                      Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (June 19, 2007)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:
      James Chadwick Irwin, a Florida prisoner, appeals the district court’s order

denying his 28 U.S.C. § 2254 habeas petition. After review, we affirm.

                                I. BACKGROUND

A.    State Offense

      Petitioner Irwin was arrested and charged in Florida state court with burglary

of a conveyance and petit theft after the victim, Roderick DeLacerna, identified

Irwin at the crime scene as the perpetrator.

      At about 2:30 a.m. on December 31, 1998, the victim DeLacerna was

awakened by a loud noise outside his apartment. DeLacerna looked out his

bedroom window and saw an unknown man at the driver’s side window of

DeLacerna’s car about twenty feet away. The man reached inside DeLacerna’s car

and then walked out of DeLacerna’s range of vision approximately two or three

times. DeLacerna observed the man for approximately five minutes, during which

time he called 911 and waited for the police to arrive. According to DeLacerna,

the man wore a green shirt and long pants, was five feet ten or eleven inches tall

and had a light beard.

      Upon arrival, the police confronted and detained several individuals in and

near a red truck and a white truck. Petitioner Irwin, who matched DeLacerna’s

description of the perpetrator, was standing outside the white truck and was



                                           2
wearing a green shirt and jeans. When police brought Irwin to DeLacerna about an

hour later, DeLacerna identified Irwin as the man he had seen breaking into his car.

B.    Motion to Suppress In-court Identification

      While waiting for his state trial to begin, Irwin and four other prisoners were

placed in the jury box. Irwin and two of the other prisoners observed the

prosecutor speaking to DeLacerna and nodding toward the jury box. Irwin and the

prisoners believed the prosecutor pointed Irwin out to DeLacerna.

      Irwin told his attorney of these events, who promptly moved to suppress

DeLacerna’s in-court identification. The state court held a suppression hearing,

during which DeLacerna admitted that he was unable to identify Irwin until the

prosecutor had pointed Irwin out and showed DeLacerna a mug shot of Irwin.

However, DeLacerna stood by his identification of Irwin on the night of December

31, 1998.

      Irwin argued that DeLacerna’s in-court identification was tainted based on

the prosecutor’s actions and should be suppressed. The state court denied Irwin’s

motion to suppress.

C.    State Trial

      At trial, DeLacerna’s testimony about the burglary and the arrival of the

police was consistent with his testimony at the suppression hearing. Specifically,



                                          3
DeLacerna described the man he saw break into his car as five feet ten inches tall,

weighing about 185 or 190 pounds, with short hair and facial hair, and wearing

long pants and a green shirt. Although it was dark when the burglary occurred,

DeLacerna could see his car because the parking lot was lit by street lamps.

DeLacerna also stated that, before the police arrived, Irwin started to drive off in

the red truck, but stopped when a white truck approached, at which point the two

drivers spoke. The two trucks then pulled out of DeLacerna’s range of vision, and

the police arrived approximately one minute later.

      DeLacerna further testified that, when he identified Irwin as the burglar on

the night of the crime, he was positive that his identification was correct.

DeLacerna acknowledged that he had expressed some doubt about his ability to

still identify the robber on the day of the trial, but explained that this was because

the crime had occurred over three months earlier.

      The prosecutor then asked DeLacerna if the person who had broken into his

car was in the courtroom, and Irwin renewed his objection to the identification.

The state court overruled the objection, and DeLacerna identified Irwin.

DeLacerna stated that he had difficulty recognizing Irwin in court because he had

less facial hair. DeLacerna admitted that he did not have his glasses on when he

observed the crime, but that he can see without his glasses, does not need them to



                                           4
drive and had no problem seeing the individual break into his car. Finally,

DeLacerna stated that the perpetrator walked normally back and forth from his car.

      Deputy Brent Bagshaw, one of the officers responding to DeLacerna’s 911

call, also testified at trial. When Bagshaw and another officer arrived at the

apartment complex, they obtained a description of the perpetrator from the

dispatcher over the radio. The officers quickly pulled into the parking lot in front

of DeLacerna’s building and found five individuals in and near the red and white

trucks – three white males around the white truck parked one or two spots down

from DeLacerna’s car and a white male and a white female inside the red truck

parked approximately five or six spots down from DeLacerna’s car. Irwin was one

of the men standing around the white truck.

      Bagshaw went to DeLacerna’s apartment and confirmed the description of

the perpetrator and his clothing so that he could determine which detained

individuals were involved. According to Bagshaw, Irwin was the only detained

individual who matched the description given by DeLacerna. At trial, Bagshaw

estimated that Irwin was six feet, two inches tall and weighed about 200 pounds.

      Approximately twenty to thirty minutes after arriving, Bagshaw had

DeLacerna look through the window of his apartment to identify the perpetrator.

Bagshaw stated that DeLacerna did not hesitate in identifying Irwin. Bagshaw



                                          5
recovered DeLacerna’s stolen property from the red truck and took a formal

statement from him.

      After the state rested, Irwin renewed his motion to suppress DeLacerna’s in-

court identification. The state court denied the motion.

      Irwin called Deputy Richard Santos, another officer who responded to

DeLacerna’s 911 call. When Santos and Bagshaw approached, Santos found Irwin

in the vicinity of the passenger side of the white truck. Santos admitted, however,

that it was possible that Irwin had at some time been in the red truck. Irwin was

wearing jeans and a green shirt. Irwin also had a half cast on one of his legs and

walked with a slight limp as a result.

      In closing, Irwin’s counsel argued to the jury that DeLacerna’s crime-scene

identification was not reliable because the perpetrator had walked normally, while

Irwin had a limp due to the cast, and because Irwin was not in the red truck that

DeLacerna said the perpetrator was driving. The jury convicted Irwin on both

counts. The state court sentenced Irwin as a habitual felony offender to ten years’

imprisonment.

D.    Direct State Appeal

      Irwin appealed his conviction to the Florida Fifth District Court of Appeal.

In his appeal brief, Irwin argued that the trial court erred in denying his motion to



                                           6
suppress DeLacerna’s in-court identification because it was tainted by the

prosecutor’s suggestive actions on the day of trial. Irwin also argued that

DeLacerna’s earlier crime-scene identification was unreliable. In his brief, Irwin

cited both Florida state and United States Supreme Court precedent, such as Neil v.

Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972), and Stovall v. Denno, 388 U.S. 293,

87 S. Ct. 1967 (1967), overruled on other grounds by Griffith v. Kentucky, 479

U.S. 314, 107 S. Ct. 708 (1987), all for the proposition that to protect a defendant’s

due process rights, identifications that are the product of unduly suggestive

procedures and are unreliable are inadmissable. The Fifth District Court of Appeal

summarily affirmed Irwin’s conviction and sentence.

E.     Section 2254 Petition

       Irwin filed a pro se § 2254 habeas petition raising many claims, one of

which was that the state prosecutor committed prosecutorial misconduct by using

an improper in-court identification procedure at Irwin’s trial.1 Irwin described the

prosecutor’s conduct in pointing Irwin out to DeLacerna before the trial began, as

well as the facts surrounding DeLacerna’s crime-scene identification, and argued



       1
         Although Irwin’s § 2254 petition raised many claims, only Irwin’s claim about the in-
court identification is at issue in this appeal. While Irwin argues on appeal that the crime-scene
identification was not reliable, Irwin does not make a separate claim that the admission of the
crime-scene identification requires a new trial, but only that the in-court identification should not
be buttressed by the crime-scene identification.

                                                  7
that the procedures used were suggestive and influenced the outcome of his trial.2

Although Irwin labeled his in-court identification claim as “prosecutorial

misconduct,” Irwin’s § 2254 petition does state that his Fifth, Sixth and Fourteenth

Amendment rights were violated, in particular his right to a fair trial.

       The district court treated Irwin’s § 2254 petition as raising only a

prosecutorial misconduct claim and denied that claim because Irwin had never

raised it in state court.

F.     First Appeal

       This Court granted a certificate of appealability (“COA”) on the issue of

whether the district court erred in concluding that Irwin’s prosecutorial misconduct

claim was procedurally barred even though Irwin had raised this claim on direct

appeal. This Court appointed Irwin counsel, who, in preparing Irwin’s appeal,

discovered that the federal district court judge who had denied Irwin’s § 2254

petition had been one of the state judges on the panel of Florida’s Fifth District

Court of Appeal that affirmed Irwin’s conviction and sentence on direct appeal.

       Irwin’s newly appointed counsel filed a Federal Rule of Civil Procedure



       2
         In state court, both Irwin and DeLacerna testified in state court that DeLacerna was
shown only Irwin during the crime-scene identification. However, Deputy Bagshaw testified
that he showed DeLacerna three men at the scene. Because we affirm even assuming only Irwin
was shown to DeLacerna at the scene, this disputed fact need not be resolved to address Irwin’s
claim.

                                               8
60(b) motion for relief from the judgment in the district court, in which he argued

that the district court should vacate the order denying Irwin’s § 2254 petition and

reassign the case to another district court judge. The district court denied the Rule

60(b) motion, stating that it lacked jurisdiction to rule on the motion because

Irwin’s appeal was now pending before this Court. However, the district court

noted that the prior dismissal order should be vacated and the case reassigned to

another judge. In light of the district court’s statement, this Court remanded

Irwin’s case to the district court.

G.     District Court’s Second Order on § 2254 Petition

       The district court vacated the prior order denying Irwin’s § 2254 petition,

and the case was reassigned to another district court judge. The new district court

judge directed Irwin’s counsel to file a supplemental memorandum of law in

support of Irwin’s § 2254 claims.

       In the supplemental memorandum, Irwin argued that he had exhausted his

prosecutorial misconduct claim by arguing on direct appeal that the state trial court

erred in denying his motion to suppress DeLacerna’s in-court identification. Irwin

contended that his underlying claim on direct appeal was that the prosecutor

engaged in an unconstitutional and unfair identification procedure, again citing

cases such as Stovall and Neil that analyze identification procedures in due process



                                          9
terms. Irwin also explained that, although his pro se § 2254 petition labeled his in-

court identification claim as one for prosecutorial misconduct, the substance of the

claim and the facts in support were the same as the due process claim raised in

Irwin’s direct appeal. The supplemental memorandum argued that Irwin’s pro se §

2254 petition should be liberally construed to raise a due process claim.

       The district court denied Irwin’s § 2254 petition, finding, inter alia, that

Irwin’s prosecutorial misconduct claim had not been exhausted because he failed

to raise it in state court. In a footnote, the district court’s order alternatively

reached the merits and found that DeLacerna’s crime-scene identification of Irwin

“was permissible given the totality of the circumstances,” citing Neil, and that the

prosecutor’s conduct at Irwin’s trial had not violated Irwin’s right to a fair trial.3

       This Court granted Irwin’s motion for a COA on the issue of “[w]hether the

trial court violated due process by allowing the victim’s in-court identification of

Irwin.”

                                       II. DISCUSSION

A.     Exhaustion of State Remedies

       Before bringing a § 2254 petition in federal court, the petitioner must


       3
         Although the district court appears to have ruled on the merits of the crime-scene
identification, we note that Irwin in the district court, as well as on appeal, does not raise the
crime-scene identification as a separate error, but only that the crime-scene identification does
not dissipate the taint of the in-court identification. See supra note 1.

                                                 10
exhaust all state court remedies that are available for challenging his conviction,

either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b),

(c).4 To exhaust state remedies, the petitioner must “fairly present” his federal

claims to the state court. Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888

(1995). To “fairly present” a claim, the petitioner is not required to cite “book and

verse on the federal constitution.” Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct.

509, 513 (1971). Rather, the petitioner need only make the state court “aware that

the claims asserted present federal constitutional issues.” Snowden v. Singletary,

135 F.3d 732, 735 (11th Cir. 1998) The petitioner nevertheless cannot just present

facts to the state court that would support a federal claim or present a somewhat

similar state law claim. See id. Generally, a petitioner does not “fairly present” a

claim to the state court “if that court must read beyond a petition or a brief (or a

similar document) that does not alert it to the presence of a federal claim in order to

find material, such as a lower court opinion in the case, that does so.” Baldwin v.

Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 1351 (2004).5

       After reviewing Irwin’s brief filed in support of his direct criminal appeal,



       4
         Because the exhaustion issue must be resolved before we may consider the merits of
Irwin’s underlying claim, we read the COA to encompass this issue. See McCoy v. United
States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).
       5
        Exhaustion presents a mixed question of law and fact subject to de novo review. Fox v.
Kelso, 911 F.2d 563, 568 (11th Cir. 1990).

                                              11
we conclude that Irwin “fairly presented” to the state court a claim that his due

process rights were violated by the in-court identification procedures used by the

prosecutor during his trial. Irwin argued to the Fifth District Court of Appeal that

DeLacerna’s in-court identification was tainted by the prosecutor’s overly

suggestive procedures and that the taint was not overcome by DeLacerna’s crime-

scene identification because that crime-scene identification was unreliable. In

support, Irwin cited numerous Supreme Court opinions, as well as state court

opinions relying upon those Supreme Court opinions, for the proposition that

identifications that are made as a result of procedures that are “so unnecessarily

suggestive and conducive to irreparable mistaken identification as to be unreliable”

are inadmissible to protect the “defendant’s constitutional due process rights.”

See, e.g., Gardner v. State, 530 So. 2d 404, 405 (Fla. Dist. Ct. App. 1988)

(quotation marks omitted) (citing Stovall, 388 U.S. at 302, 87 S. Ct. at 1972).

Thus, Irwin’s direct criminal appeal brief alerted the state court to the presence of a

federal due process claim. See Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351.

      Furthermore, Irwin’s pro se § 2254 petition, construed liberally, sufficiently

raises this same due process claim. Although Irwin labeled his claim as

“prosecutorial misconduct,” the substance of his argument in the § 2254 petition is

that his due process rights were violated by the admission of DeLacerna’s in-court



                                          12
identification, which Irwin claims was tainted by the prosecutor’s suggestive

procedures.6 Therefore, we conclude that Irwin fully exhausted his claim that his

due process rights were violated by the admission of DeLacerna’s in-court

identification and turn to whether he is entitled to relief on that claim.

B.     Due Process Claim

       We may not grant § 2254 habeas relief on claims that were previously

adjudicated on the merits in state court unless the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d).

       A state court’s decision is “contrary to” federal law if: (1) the state court

arrives at a conclusion opposite to that reached by the United States Supreme Court

on a question of law; or (2) the state court confronts facts that are “materially

indistinguishable” from relevant Supreme Court precedent but arrives at an

opposite result from that arrived at by the Supreme Court. See Putnam v. Head,

268 F.3d 1223, 1241 (11th Cir. 2001). A state court’s decision is an “unreasonable

application” of clearly established federal law if the state court either: (1) correctly

identifies the legal rule from Supreme Court precedent, but unreasonably applies


       6
        Irwin’s counseled supplemental memorandum also makes clear that Irwin is asserting in
his § 2254 petition the same due process claim raised in state court.

                                             13
the rule to the facts of the case; or (2) “unreasonably extends, or unreasonably

declines to extend, a legal principle from Supreme Court case law to a new

context.” Id.

       Here, Irwin does not argue that the state court’s decision is “contrary to”

federal law. Rather, Irwin’s argument is essentially that the state court’s ruling on

his due process claim was an unreasonable application of the Supreme Court’s

precedent with regard to identifications made as a result of suggestive

identification procedures.

       “[A] federal habeas court making the ‘unreasonable application’ inquiry

should ask whether the state court’s application of clearly established federal law

was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct.

1495, 1521 (2000). Even if the federal habeas court concludes that the state court

applied federal law incorrectly, relief is appropriate only if that application is also

objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850

(2002); see also Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 (11th Cir.

2002) (noting that the test does not involve deciding whether this Court would

have reached the same result as the state court if it had been deciding the issue in

the first instance).

       We thus review Supreme Court precedent as to when the admission of an



                                           14
eyewitness identification constitutes a denial of due process of law. An eyewitness

identification may constitute a due process violation if the identification

procedures were “unnecessarily suggestive and conducive to irreparable mistaken

identification.” Stovall, 388 U.S. at 302, 87 S. Ct. at 1972; see also Manson v.

Brathwaite, 432 U.S. 98, 104, 97 S. Ct. 2243, 2248 (1977); Neil, 409 U.S. at 196,

93 S. Ct. at 380. The fact that the identification procedure used was suggestive,

alone, does not violate due process. See Neil, 409 U.S. at 198-99, 93 S. Ct. at 382.

Rather, the “central question” is “whether under the ‘totality of the circumstances’

the identification was reliable even though the confrontation procedure was

suggestive.” Id. at 199, 93 S. Ct. at 382. The Supreme Court has identified several

factors to consider in evaluating “the likelihood of misidentification,” including:

(1) the opportunity of the witness to view the criminal at the time of the crime; (2)

the witness’s degree of attention; (3) the accuracy of the witness’s prior description

of the criminal; (4) the level of certainty demonstrated by the witness at the

confrontation; and (5) the length of time between the crime and the confrontation.

Id. at 199-200, 93 S. Ct. at 382.

      We cannot say that the state court’s rejection of Irwin’s due process claim is

objectively unreasonable in light of the foregoing Supreme Court precedent.

Despite the suggestive procedures used by the prosecutor just prior to DeLacerna’s



                                          15
in-court identification, the identification testimony still would be admissible, under

Neil, if the identification was nonetheless reliable. The state appellate court’s

rejection of Irwin’s due process claim implicitly reflects a conclusion that, under

the totality of the circumstances, DeLacerna’s in-court identification was reliable.

See Wright, 278 F.3d at 1257 (finding state appellate court’s summary rejection of

due process claim “implicitly reflect[ed] a conclusion” that a bona fide doubt as to

mental competency was not raised and concluding that this implicit conclusion was

not objectively unreasonable). We cannot say that this conclusion is objectively

unreasonable.

       First, from the safety of his apartment, DeLacerna was able to watch the

perpetrator carry out the crime for five minutes and from a distance of only twenty

feet. Although it was dark outside, the parking lot in which the crime occurred was

lighted, which allowed DeLacerna to see. Furthermore, although DeLacerna wore

glasses, he did not need them to see the events transpiring in the parking lot. In

fact, DeLacerna was able to see clearly enough to describe to police the color of

the perpetrator’s shirt and his facial hair.

       Second, the evidence indicates that DeLacerna was paying close attention to

what he was observing on the night of the crime given the detail of his description

and his testimony that he watched the perpetrator from the time he first saw him



                                               16
until the police arrived, even as he spoke to the 911 dispatcher.

      Third, both DeLacerna’s crime-scene and in-court descriptions of Irwin were

accurate and matched each other. DeLacerna’s estimate of the perpetrator’s height

and weight closely matched Irwin’s height and weight as Irwin reported it to

Bagshaw. DeLacerna also described the perpetrator as wearing a green shirt and

long pants. Santos testified that Irwin wore a green shirt and jeans on the night of

the crime. Bagshaw testified that Irwin was the only man detained by police that

night who matched the description given by DeLacerna. Even though Irwin was

wearing a cast on his leg and walked with a slight limp and DeLacerna observed

the perpetrator walking normally, in light of the accuracy of DeLacerna’s

description in all other respects, this does not render unreasonable the state court’s

rejection of Irwin’s in-court identification claim.

      Nor do the facts that DeLacerna saw the perpetrator driving the red truck and

Deputy Santos found Irwin in the vicinity of the passenger side of the white truck

render the state court’s decision objectively unreasonable. The two trucks pulled

out of DeLacerna’s view a minute before the police arrived. As a result,

DeLacerna could not see whether during that minute the perpetrator remained in

the truck or got out of the truck.

      Fourth, DeLacerna testified at trial that he was positive Irwin was the man he



                                           17
saw breaking into his car. DeLacerna acknowledged having difficulty identifying

Irwin just prior to trial because Irwin’s appearance had changed, but stated on the

stand that he was certain that Irwin was the man he saw commit the crime. Finally,

DeLacerna’s in-court identification occurred three months after the crime.

       We note that, in addition to the Neil factors already discussed, at the time of

DeLacerna’s crime-scene identification, occurring within an hour of the crime,

DeLacerna expressed no doubt that Irwin was the perpetrator. There is a dispute of

fact about whether DeLacerna’s crime-scene identification was a result of a show-

up of only Irwin or a line up of three men. Irwin has never directly challenged the

admission of the initial crime-scene identification. Instead, he has argued, and

continues to argue, that the crime-scene identification could not be used to evaluate

the reliability of the in-court identification because it was also the product of

suggestive procedures, namely the single-man show up. Even assuming that

DeLacerna was shown only one male during the crime-scene identification and that

this procedure was suggestive, the state court’s implicit conclusion that

DeLacerna’s in-court identification remained reliable is not objectively

unreasonable.7


       7
          This Court has upheld a show-up identification where only one individual was shown to
a witness, stating that “[a]lthough show-ups are widely condemned, immediate confrontations
allow identification before the suspect has altered his appearance and while the witness’ memory
is fresh, and permit the quick release of innocent persons. Therefore, show-ups are not

                                               18
       Finally, we note that the jury was aware that DeLacerna had doubts about his

ability to identify Irwin on the day of trial until the prosecutor pointed Irwin out

and showed DeLacerna a mug shot. Under Supreme Court precedent, the fact that

these points were brought out during trial can reduce the danger that Irwin’s

conviction was based on a misidentification. See Simmons v. United States, 390

U.S. 377, 384, 88 S. Ct. 967, 971 (1968) (“The danger that use of the [pretrial

identification] technique may result in convictions based on misidentification may

be substantially lessened by a course of cross-examination at trial which exposes to

the jury the method’s potential for error.”).

       Based on the totality of the circumstances and our consideration of the Neil

factors, we conclude that it was not objectively unreasonable for the state court to

find that DeLacerna’s in-court identification of Irwin was reliable. Therefore,

Irwin failed to demonstrate that the state court’s denial of his due process claim

was an “unreasonable application of” the Supreme Court’s precedent addressing

the scope of due process protection from the admission of identification testimony.

       Accordingly, we affirm the district court’s dismissal of Irwin’s § 2254

petition.

       AFFIRMED.


unnecessarily suggestive unless the police aggravate the suggestiveness of the confrontation.”
Blanco v. Singletary, 943 F.2d 1477, 1508-09 (11th Cir. 1991). Irwin does not claim that the
police aggravated the suggestiveness of the show up.

                                               19
