Marvin Bryant, III v. T. Felker

FILED
NOT FOR PUBLICATION DEC 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARVIN BRYANT, III, No. 11-15313
Petitioner - Appellant, D.C. No. 4:06-cv-00005-CW
v.
MEMORANDUM *
T. FELKER, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
California state prisoner Marvin Bryant, III, appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253 and affirm.
*
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).
Bryant contends that the pre-trial photo identification procedure was unduly
suggestive and tainted the witness’ in-court identification. The pre-trial photo
identification procedure was not unduly suggestive. Moreover, the in-court
identification was sufficiently reliable. See Manson v. Brathwaite, 432 U.S. 98,
114 (1977). Accordingly, the state court’s denial of this claim was not contrary to,
or an unreasonable application of, clearly established federal law as determined by
the Supreme Court. See 28 U.S.C. §2254(d)(1); Plascencia v. Alameida, 467 F.3d
1190, 1197-98 (9th Cir. 2006).
Bryant also contends that his counsel rendered ineffective assistance by
failing to move to exclude the witness’ pre-trial or in-court identification of him as
being a result of an impermissibly suggestive identification procedure. As stated
above, the identification procedure was not unduly suggestive. Accordingly,
Bryant did not demonstrate a reasonable probability that the result of the
proceeding would have been different had his counsel challenged the pre-trial
identification procedure. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
Accordingly, the state court’s denial of this claim was not contrary to, or an
unreasonable application of, clearly established federal law as determined by the
Supreme Court. See Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Strickland v.
Washington, 466 U.S. 668, 687-88 (1984).
2 11-15313
Bryant’s motion to expand the certificate of appealability is denied. See
Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.
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