     Case: 15-30055      Document: 00513468251         Page: 1    Date Filed: 04/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30055
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 18, 2016
MICHAEL WIGGINS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-6751


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Michael Wiggins, Louisiana prisoner # 454568, was convicted after a
bench trial of second degree murder and sentenced to life in prison. The case
against him rested principally on the testimony of the victim’s wife, who
identified Wiggins as the shooter.               Wiggins sought to suppress the
identification as tainted by a suggestive photographic lineup, but his claim was
rejected by the state courts. He then filed a 28 U.S.C. § 2254 habeas corpus


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 15-30055

petition raising the same claim, as well as another claim not at issue here, but
the district court denied relief. The district court granted a certificate of
appealability solely as to Wiggins’s claim that the introduction of evidence
relating to the suggestive identification violated his constitutional rights.
       We review factual findings for clear error, and we review de novo
questions of law and mixed questions of law and fact. Gregory v. Thaler, 601
F.3d 347, 352 (5th Cir. 2010). We defer to the state court’s decision as required
by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254(d)-(e). See Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007).
Because a state court denied Wiggins’s claim on the merits, the AEDPA bars
habeas relief unless Wiggins shows that the state court “erred so transparently
that no fairminded jurist could agree with that court’s decision.” Bobby v.
Dixon, 132 S. Ct. 26, 27 (2011) (per curiam).
       The Supreme Court has held that the Constitution mandates exclusion
of testimony regarding a photographic lineup only if “law enforcement officers
use[d] an identification procedure that is both suggestive and unnecessary”
and    “improper       police   conduct   created   a   substantial   likelihood   of
misidentification.” Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012). The
state court considered the reliability of the identification of Wiggins as the
shooter in light of the factors listed by the Supreme Court in Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). “Where the indicators of [a witness’s]
ability to make an accurate identification are outweighed by the corrupting
effect of law enforcement suggestion, the identification should be suppressed.”
Perry, 132 S. Ct. at 724. The state court determined that the identification was
sufficiently reliable such that its use at trial was not unconstitutional. Given
the kinds of suggestive identifications that the Supreme Court has concluded
are constitutionally admissible, see, e.g., Brathwaite, 432 U.S. at 104-17,



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                                  No. 15-30055

Wiggins fails to show that the reliability of the identification in his case was so
clearly outweighed by the corrupting effect of the challenged identification
procedure that “no fairminded jurist could agree” with the state court’s
decision. Dixon, 132 S. Ct. at 27.
      AFFIRMED.




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