     Case: 11-30435     Document: 00511992063         Page: 1     Date Filed: 09/19/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 19, 2012
                                     No. 11-30435
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BEN H. SCOTT,

                                                  Petitioner - Appellant

v.

VENETIA T. MICHAEL, Warden,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CV-1262


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Proceeding in forma pauperis, Ben H. Scott, Louisiana prisoner # 94592,
contests the denial of his 28 U.S.C. § 2254 habeas petition, in which he
challenges his first-degree-robbery conviction. Our court granted a certificate
of appealability for one of four requested issues: whether the state trial court
erred in failing to suppress his out-of-court identification as the product of an
overly suggestive “show up” procedure. Along that line, Scott challenges such
identification by Sandi Roe.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30435

      At approximately 10:30 p.m. on 30 January 2004, Roe was working at a
service station when a man entered the store and announced he was robbing it.
Roe saw the man’s hand resting on what she believed to be the butt of a firearm
in his waistband. The man handed Roe a clear plastic bag and told her he
wanted cigarettes; lighters; and money from the register, which Roe dumped into
the bag. After instructing Roe to give him the bag, he exited the store.
      After the man left, Roe called 911 from the store telephone. When there
was no answer, she called 911 from her cellular telephone and went outside,
where she observed the perpetrator entering a small, dark blue, Toyota-like
truck. Roe told the 911 dispatcher that the perpetrator was wearing a dark hat,
sunglasses, a blue bandanna, dark jeans, and a blue-checkered shirt, with a shirt
underneath. Police located and pursued the truck, and Scott was apprehended
after fleeing the vehicle.
      Roe was brought to the scene of the apprehension within 30 minutes of the
robbery, where she positively identified Scott as the perpetrator. At the time of
his apprehension, Scott was wearing a black, instead of a blue-checkered, shirt.
      On direct appeal, Scott challenged, inter alia, the denial by the trial court
of his motion to suppress the identifications by Roe and another. State v. Scott,
939 So. 2d 462, 467-68 (La. Ct. App. 2006). For the certified issue on appeal,
Scott contends the state trial court erred in failing to suppress his out-of-court
identification as the product of an overly suggestive “show up” procedure. In so
doing, Scott claims, inter alia, that the identification is not reliable, based on his
assertion that Roe never saw the perpetrator’s face and misidentified his
clothing.
      Regarding an appeal from the denial of habeas relief, the district court’s
conclusions of law are reviewed de novo; its findings of fact, only for clear error.
E.g., Austin v. Cain, 660 F.3d 880, 884 (5th Cir. 2011), cert. denied, 132 S. Ct.
1914 (2012). As this claim was adjudicated in a state-court proceeding, it is
evaluated under the “difficult to meet” and highly deferential standard contained

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in 28 U.S.C. § 2254(d), Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011),
which states: a federal court may not grant habeas relief on a claim that was
adjudicated on the merits by a state court unless the state-court decision (1)
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court”, or (2) “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). Regarding state-court factual
findings, such findings are presumed correct and may be rebutted only by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1). Scott claims the state-court
decision fails both prongs of 28 U.S.C. § 2254(d).
      The Due Process Clause protects accused individuals from unreliable
identifications resulting from impermissibly suggestive procedures. E.g., United
States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir. 1993). The admissibility of
identification evidence involves a two-step analysis:         (1) “whether the
identification procedure was impermissibly suggestive”, United States v. Shaw,
894 F.2d 689, 692 (5th Cir. 1990); and (2) whether, under the totality of the
circumstances, the procedure posed a “substantial likelihood of irreparable
misidentification”.   Id. (internal quotation marks omitted).     Factors to be
considered in determining the likelihood of misidentification include:       the
opportunity of the witness to view the perpetrator; the witness’ degree of
attention; the accuracy of the witness’ prior description; the level of certainty
demonstrated at the confrontation; the length of time between the crime and the
confrontation; and the corrupting effect of the suggestive identification itself.
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
      Regarding step one of the above-described two-step analysis, a one-person
show-up, as employed in this matter, may be an impermissibly suggestive
procedure. E.g., Shaw, 894 F.2d at 692. Even if impermissibly suggestive,
pursuant to step two, a defendant identified in that manner is not entitled to
relief unless, based on the totality of the circumstances, the procedure led to a

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“substantial likelihood of irreparable misidentification” at trial. Id. (internal
quotation marks omitted).
      Even    assuming     the    out-of-court   identification   procedure    was
impermissibly suggestive, under the requisite totality of the circumstances, this
presented no substantial likelihood of misidentification.         The state court
concluded Roe had ample opportunity to view the perpetrator and was paying
a high degree of attention given her testimony that she was face-to-face with him
when he demanded money, and never took her eyes off him because she was
afraid of what he would do.
      It is true there were slight variations in Roe’s description of certain items
of clothing worn by the perpetrator. Nevertheless, these discrepancies were fully
presented in the trial court and discussed in the state-court opinion for the direct
appeal.   Scott, 939 So. 2d at 467-68, 467 n.4.        The state appellate court
concluded: Roe told the 911 dispatcher the perpetrator was wearing “a shirt
with a shirt under it”; and “[a] rational trier of fact could conclude the
perpetrator shed his outer shirt prior to being apprehended”. Id. at 467 n.4.
Scott fails to show that the state appellate court’s ruling “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement”. Richter, 131
S. Ct. at 786-87.
      Roe was unequivocal in her testimony that Scott was the perpetrator, and
the time between the crime and the confrontation was very short. Although the
suggestive identification itself may weigh in Scott’s favor, based on the totality
of the circumstances, the likelihood of misidentification at trial was low. E.g.,
Manson, 432 U.S. at 114. Accordingly, Scott has not rebutted, with the requisite
clear-and-convincing evidence, the state court’s determination of the facts in the
light of the evidence presented at trial. 28 U.S.C. § 2254(e)(1). Nor has Scott
shown the state-court decision (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme

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Court”, or (2) “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).
      AFFIRMED.




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