Tran v. Cain ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31019
Summary Calendar
THINH TRAN,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-2924-T
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December 19, 2000
Before DAVIS, JONES, and DeMOSS, CIRCUIT JUDGES.
PER CURIAM:*
Trinh Tran, a Louisiana prisoner (# 295395), appeals from
the denial of his 28 U.S.C. § 2254 habeas corpus petition. On
February 15, 2000, this court granted him a certificate of
appealability (“COA”) with respect to the issues (a) whether the
trial court erred in denying his motion to quash in-court
identifications by two victims, which were allegedly based on
tainted out-of-court identifications, and (b) whether the evidence
was insufficient to support his conviction of the armed robbery of
*
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opinion should not be published and is not precedent except under the limited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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a third victim, Duc Lee, who was not able to identify him at trial
as the robber.
Tran has not shown that the admission of the in-court
identifications by victims Kieu Nguyen and Tu Dao violated his due-
process rights, even though their pretrial photographic
identifications of him had been suppressed because the taking of
Tran’s photograph had violated his Fourth Amendment rights. There
has been neither a state-court finding that the pretrial
identification was “impermissibly suggestive,” nor even an explicit
argument by Tran regarding the suggestiveness of that
identification. See Simmons v. United States, 390 U.S. 377, 384
(1968); Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
Accordingly, the admission of the in-court identifications does not
implicate the Due Process Clause. See United States v. Smith, 546
F.2d 1275, 1281 (5th Cir. 1977) (“[o]nly if the photographic spread
is found to be impermissibly suggestive is the district court in a
position to consider whether it created a substantial risk of
misidentification”). Tran has not demonstrated that the state
courts’ resolution of the identification issue “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.” See 28 U.S.C. §
2254(d)(1).
Tran also has not made such a showing as to his
contention that the evidence was insufficient to establish that he
committed the armed robbery of Duc Lee. Although Lee could not
identify Tran as the robber, the identifications by Nguyen and Dao,
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who were also present, were more than sufficient to establish
Tran’s identity.
The judgment of the district court is AFFIRMED.