                                                                             FILED
                            NOT FOR PUBLICATION                               APR 15 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TERRENCE ANTONIO DUNSON,                          No. 08-56799

              Petitioner - Appellant,             D.C. No. 2:07-cv-05209-AHS-
                                                  RNB
  v.

RAUL LOPEZ, Warden,                               MEMORANDUM *

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Central District of California
               Alicemarie H. Stotler, Senior District Judge, Presiding

                             Submitted April 13, 2011 **
                                Pasadena, California

Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.

       Petitioner Terrence Antonio Dunson was convicted of second degree murder

and assault with a firearm in California state court for shooting the driver of a




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
white Honda in the heart. He now appeals the district court’s denial of his petition

for a writ of habeas corpus.

      Dunson argues that his trial counsel provided ineffective assistance by

failing to challenge the pretrial photographic line-up from which one witness

identified him as the shooter and from which another witness tentatively identified

him as one of the two individuals fleeing from the scene of the crime immediately

after the shooting. He contends that the photo array was impermissibly suggestive

because his photo had a different background color than the other five photos and

because there were only two individuals in the line-up, including himself, who had

corn row hair. Because the state court’s rejection of this claim did not “result[] 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,”

we affirm the district court’s denial of habeas relief. 28 U.S.C. § 2254(d)(1).

      “[C]onvictions based on eyewitness identification at trial following a pretrial

identification by photograph will be set aside on that ground only if the

photographic identification procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable misidentification.” Simmons v.

United States, 390 U.S. 377, 384 (1968). We find that this high standard is not met

simply because Dunson’s photograph had a different background color than the


                                           2
rest, especially since the background color of the photos in the line-up varied

generally (aside from the greenish-gray background of Dunson’s photograph, four

had a blue background and one had a more purple background), both witnesses

testified that they did not notice the background colors of the photographs, and,

prior to examining the line-ups, the police admonished both witnesses not to pay

attention to any stylistic differences among photographs. See United States v.

Burdeau, 168 F.3d 352, 357 (9th Cir. 1999) (holding that a photographic array was

not impermissibly suggestive even though the defendant’s picture “was placed in

the center of the array, was darker than the rest, and was the only one in which the

eyes were closed”); Mitchell v. Goldsmith, 878 F.2d 319, 323 (9th Cir. 1989)

(holding that “[t]he various background colors among . . . photographs and the

1981 date on [defendant’s] photo [did] not make the line-up unduly suggestive”).

      Similarly, we hold that having only two individuals with corn row hair in the

line-up did not improperly focus the witnesses’ attention on Dunson. The first

witness, Leon Richards, was unaware that the perpetrator of the crime had corn

row braids in his hair; he described the perpetrator as wearing ladies’ pantyhose or

something like a black rag over his head. Accordingly, the line-up could not have

improperly suggested to Richards that Dunson was the perpetrator. The second

witness, Gregory Moore, was aware of the perpetrator’s hairstyle, but he was


                                          3
admonished by the police prior to viewing the photo array that hairstyles can be

easily changed. Additionally, Moore had previously examined a different

photographic line-up—a line-up that did not contain Dunson but that did contain

two or three other individuals with corn row hair—and did not identify anyone

from this line-up. Under these circumstances, we cannot conclude that having only

two individuals with corn row hair in the line-up was “so impermissibly suggestive

as to give rise to a very substantial likelihood” that Moore would misidentify

Dunson. Simmons, 390 U.S. at 384; see also United States v. Nash, 946 F.2d 679,

681 (9th Cir. 1991) (finding a photographic line-up “to be a balanced presentation

that was not suggestive” despite defendant’s argument that only he and one other

individual “had afro hairstyles”).

      Because the line-up was not impermissibly suggestive, Dunson cannot show

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland v. Washington,

466 U.S. 668, 694 (1984). Accordingly, Dunson is not entitled to relief on his

ineffective assistance of counsel claim.

      AFFIRMED.




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