Reese v. Cain ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 7, 2008
No. 07-30027
Summary Calendar Charles R. Fulbruge III
Clerk
GREGORY REESE
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-6440
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Gregory Reese, Louisiana prisoner # 107011, appeals the district court’s
denial of his 28 U.S.C. § 2254 application challenging his conviction for armed
robbery. The district court granted Reese a certificate of appealability on his
claims that the pretrial identification procedures by which two witnesses
identified him were unduly suggestive in violation of his due process rights and
that the trial judge’s failure to recuse herself violated his due process rights.
*
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should not be published and is not precedent except under the limited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.
No. 07-30027
Federal habeas relief may not be granted upon any claim that was
“adjudicated on the merits in State court” unless the adjudication “resulted 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” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(1) & (2); see Williams v. Taylor, 529 U.S. 362, 409 (2000).
We review the district court’s findings of fact for clear error and rulings on issues
of law de novo. Moody v. Johnson, 139 F.3d 477, 480 (5th Cir. 1998).
Reese argues that the pretrial identification procedures by which two
witnesses identified him were unduly suggestive because the witnesses were told
that there was a suspect in custody before they identified him from a photo
spread. He suggests that the other people in the photo spread were not similar
to him in appearance, but does not explain how the other people were different.
He asserts that the state court decision was contrary to federal law because it
addressed only one of the two factors that must be shown to demonstrate that
an identification procedure violated due process. He further contends that the
identification of him by the witnesses was likely mistaken because the witnesses
were paying more attention to each other than him, because no attorney was
present at the time the identifications were made, because the description of
offender given at the scene of the crime was vague, because the witnesses only
saw events occurring immediately after the offense occurred, not the offense
itself, and because of the time between the offense and when the witnesses
identified him in the photo spread.
“Pretrial identification procedures are constitutional unless the pretrial
identification was so unnecessarily suggestive and conducive to irreparable
mistaken identification that the defendant was denied due process of law.”
Peters v. Whitley, 942 F.2d 937, 939 (5th Cir. 1991) (internal quotation marks
and citation omitted). Thus, this court first considers “whether the identification
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No. 07-30027
procedure was impermissibly suggestive, and if so, whether there was a
substantial likelihood of misidentification.” Id.
The state court of appeal rejected this claim on the ground that Reese had
not shown that the identification procedure was unduly suggestive. Assuming
arguendo that the witnesses were told that a suspect was in custody before
viewing the photo spread, this does not show that the state court’s determination
was improper. See United States v. Henderson, 489 F.2d 802, 805 (5th Cir.
1973). As Reese has not substantiated his conclusional suggestion that the other
people in the photo spread did not have a similar appearance to him, this claim
also fails. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Reese’s
assertion that the state court of appeal’s denial of this claim was contrary to
federal law because it addressed only one factor of the appropriate test is
without merit as the state court of appeal ruled that the identification
procedures were not unduly suggestive and the second part of the test is not
reached unless a habeas applicant shows that the identification procedures were
unduly suggestive. See Peters, 942 F.2d at 939. Similarly, we do not reach the
remainder of Reese’s substantive challenges to the identification procedures
because they concern whether there was a substantial likelihood of
misidentification, and we need not reach that portion of the test because Reese
has not shown that the identification procedures were impermissibly suggestive.
See id.
Reese argues that the trial judge’s failure to recuse herself violated his due
process rights because of the judge’s former position as First Assistant District
Attorney. He alleges that the trial judge was in her former position when the
present charge and an unrelated theft charge were filed against him. He
maintains that the trial judge had a personal involvement with one of the
prosecutions, but does not explain how she had a personal involvement except
to allege that she was the supervisor of the prosecuting attorneys. He contends
that the trial judge’s failure to recuse herself violated Louisiana’s Code of
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No. 07-30027
Judicial Conduct and that the trial judge’s rulings in his case show that she was
biased against him.
While Reese alleges that the trial judge was personally involved in the
prosecutions against him, the extent of the personal involvement that he alleges
was that she supervised the prosecuting attorneys, not that she participated in
the prosecutions. This detached involvement is insufficient to show that the
trial judge was biased against him or violated his due process rights by not
recusing herself. See Donald v. Jones, 445 F.2d 601, 606-07 (5th Cir. 1971); cf.
Mangum v. Hargett, 67 F.3d 80, 82-83 (5th Cir. 1995) (holding district court
judge not required to disqualify himself from habeas case pursuant to 28 U.S.C.
§ 455 when he was an assistant district attorney at time of petitioner’s guilty
plea because he was not involved with prosecution of case). To the extent that
Reese argues that the trial judge violated state law by not recusing herself, his
claim is not cognizable in a § 2254 application. See Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). While Reese contends that rulings of the trial judge show that
she was biased against him, Reese has not shown that the rulings were
erroneous, and, even if the rulings were erroneous, this would be insufficient to
show bias. See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir. 2005). Reese has not
shown that the state court’s denial of this claim was contrary to, or an
unreasonable application of, federal law. See § 2254(d).
Reese moves for appointment of counsel on appeal. Appointment of
counsel is not warranted in this case because the interests of justice do not
require such an appointment. See Santana v. Chandler, 961 F.2d 514, 516-17
(5th Cir. 1992).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
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