McLamb v. Hargett ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60057
Summary Calendar
_____________________
JAMES ODELLE MCLAMB,
Petitioner-Appellant,
versus
EDWARD HARGETT, Superintendent,
Mississippi State Penitentiary,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(2:91 CV 81 D 0)
_________________________________________________________________
September 8, 1995
Before KING, SMITH, and BENEVIDES, Circuit Judges.
PER CURIAM:*
Petitioner James Odelle McLamb ("McLamb") appeals from the
district court's dismissal of his 28 U.S.C. § 2254 application
for a writ of habeas corpus. Finding no constitutional error in
McLamb's conviction or sentence, we affirm.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
I. FACTUAL AND PROCEDURAL BACKGROUND
McLamb was convicted of armed robbery by a Mississippi jury
and sentenced as a habitual violent offender under MISS. CODE
ANN. § 99-19-83 (1994) to life imprisonment without possibility
of parole on February 19, 1981. On March 10, 1982 the
Mississippi Supreme Court affirmed his conviction and sentence.1
McLamb v. State, 410 So. 2d 1318 (Miss. 1982) (McLamb I).
On September 5, 1984, the Mississippi Supreme Court granted
McLamb's motion for leave to file a motion to vacate his sentence
in the trial court, holding that his sentence under § 99-19-83
was improper because neither of his two prior convictions was for
a violent crime. McLamb v. State, 456 So. 2d 743 (Miss. 1984)
(McLamb II). The trial court accordingly vacated his sentence
and resentenced McLamb under MISS. CODE ANN. § 99-19-81 (1994) to
38 years without the possibility of parole on March 21, 1985.2
On May 7, 1985, the trial court adjusted McLamb's sentence to 33
years after determining that it had mistakenly calculated
1
McLamb asserted the following claims on his direct appeal:
(1) the court erred in allowing his in-court
identification; and
(2) the court erred in allowing the state to amend the
indictment at the sentencing hearing to correct the
dates of McLamb's prior convictions without notice to
McLamb.
2
Section 99-19-81 provides for a mandatory maximum sentence
for defendants whose criminal records show that they have been
twice previously convicted and sentenced. MISS. CODE ANN. § 99-
19-81 (1994); McLamb v. State, 456 So. 2d 743, 744 (Miss. 1984).
It differs from section 99-19-83, which provides for life
imprisonment, in that it does not require that the previous
sentences have been served, nor does it require that at least one
previous conviction be for a crime of violence. Id.2
McLamb's birth-year as 1952 rather than 1946, a fact which was
necessary for determining the sentence. The Mississippi Supreme
Court affirmed the new sentence without opinion on June 4, 1986.3
Over the next several years, McLamb filed many motions for
post-conviction relief with the Mississippi state courts and four
federal habeas petitions with the United States District Court.4
McLamb filed his first motion for post-conviction relief with the
Mississippi Supreme Court on December 5, 1986, claiming that: (1)
he had received ineffective assistance of counsel; (2) a former
employee of the victim improperly sat on the jury; and (3) his
motion to suppress was erroneously overruled. The court denied
this motion on January 21, 1987, without prejudice to refile in
the trial court.
On January 16, 1987, McLamb filed a second motion in the
Mississippi Supreme Court alleging that: (1) he had received
3
McLamb asserted the following errors in his direct appeal
from the amended sentencing order:
(1) the documents supporting his prior convictions were
insufficient because they failed to establish that the
two convictions arose from separate incidents;
(2) the indictment was insufficient under Rule 6.04;
(3) it was error to amend the indictment and sentence
him under § 99-19-81 when he was tried under § 99-19-
83;
(4) his waiver of appearance at the resentencing
hearing was invalid; and
(5) resentencing under § 99-19-81 violated the Double
Jeopardy clause.
4
McLamb's first three federal habeas petitions were
dismissed without prejudice for failure to exhaust state
remedies, and he voluntarily dismissed his fourth petition. This
appeal is from McLamb's fifth application for a writ of habeas
corpus from the United States District Court.
3
ineffective assistance of counsel; (2) a copy rather than the
original record of McLamb's prior convictions was improperly
admitted; (3) McLamb's waiver of appearance at resentencing was
invalid; (4) the indictment was erroneously amended after the
sentence was vacated; and (5) resentencing was barred by double
jeopardy. This motion was also denied on February 11, 1987.
McLamb filed a third motion with the Mississippi Supreme
Court on February 27, 1987, arguing that: (1) his resentencing
was barred by double jeopardy; (2) amendment of the indictment
violated double jeopardy and Rule 6.04 of the Mississippi Circuit
Court Rules; (3) McLamb was not afforded an opportunity to defend
against the amended indictment; and (4) McLamb could not be
resentenced without a new indictment from the grand jury. This
motion was denied on March 18, 1987.
On June 13, 1988, McLamb filed a motion to vacate sentence
in the Circuit Court of Coahoma County, which was denied, raising
the following grounds: (1) the amended indictment was illegal;
(2) McLamb's waiver of presence at the resentencing hearing was
invalid; (3) resentencing violated double jeopardy; and (4)
sentencing as a habitual offender violated the Ex Post Facto
clause.
McLamb returned to the Mississippi Supreme Court on June 24,
1988, claiming that: (1) evidence admitted at trial was obtained
by an illegal search and seizure; (2) evidence admitted at trial
was obtained through an unlawful arrest; (3) the court violated
McLamb's right against self-incrimination when it required him to
4
stand up at trial; (4) favorable evidence was suppressed; and (5)
his arrest and detention were unconstitutional. This motion was
denied on July 27, 1988.
McLamb tried a sixth time on March 15, 1989 arguing to the
state supreme court that: (1) his indictment was illegally
amended; (2) the trial court failed to allow him to defend
against the amended indictment; and (3) resentencing was barred
by double jeopardy. The court denied this motion on May 3, 1989.
All of the motions described above were denied on the merits
by the Mississippi Supreme Court without a written opinion. On
September 1, 1989, McLamb filed his seventh motion for post-
conviction relief in the Mississippi Supreme Court, alleging
that: (1) his arrest violated due process and equal protection;
(2) the unsworn affidavit of the arresting officer did not
constitute probable cause; and (3) he had received ineffective
assistance of counsel. On December 27, 1990, the Mississippi
Supreme Court denied this motion as successive and barred by
MISS. CODE ANN. § 99-39-27(9).5
On September 26, 1991, McLamb again filed a motion for post-
conviction relief with the Mississippi Supreme Court, attacking
the legality of his North Carolina convictions on the ground that
he pled guilty without the advice of counsel. The Mississippi
5
This section provides that, barring certain exceptions,
"[t]he dismissal or denial of an application [for post-conviction
relief] under this section is a final judgment and shall be a bar
to a second or successive application under this chapter." MISS.
CODE ANN. § 99-39-27(9) (1994).
5
Supreme Court again dismissed the motion as barred by section 99-
39-27(9).
McLamb then filed the present application for a writ of
habeas corpus in the United States District Court for the
Northern District of Mississippi on May 6, 1991, seeking relief
on the following grounds:
1. The statutory maximum sentence for armed robbery is 30
years, so the trial court erred in sentencing McLamb to 33
years;
2. The trial judge erred in allowing the indictment to
be amended and sentencing McLamb without "allowing the
jury to view it;"
3. The use of McLamb's prior North Carolina convictions
to enhance his Mississippi sentence was error because
those prior convictions were illegal;
4. The trial court erred in allowing McLamb's
indictment to be amended in vacation and after his
trial;
5. The documents offered to prove McLamb's prior North
Carolina convictions were insufficient to establish
habitual offender status under the enhancement
statutes;
6. The original indictment was defective because it
failed to sufficiently particularize McLamb's prior
convictions as required by Rule 6.04 of the Mississippi
Uniform Criminal Rules of Circuit Court Practice;
7. The in-court identification of McLamb was reversible
error;
8. The trial court erred in allowing the indictment to
be amended at the sentencing hearing without notice to
petitioner;
9. The prior North Carolina convictions should not have
been used to enhance his Mississippi sentence because
McLamb pled guilty to those charges without the
assistance of counsel (added in McLamb's amended
petition).
6
The district court referred the petition to a magistrate judge
who issued a report on September 12, 1994, recommending the
dismissal of McLamb's claims, finding them without merit. The
district court adopted the magistrate's recommendations on
January 13, 1995 and dismissed McLamb's petition for habeas
relief. McLamb raises the same nine claims of error on appeal.
Additionally, he asserts that his resentencing violated the
Double Jeopardy clause.6
II. ANALYSIS
In habeas proceedings, we review the district court's
findings of fact under the clearly erroneous standard and review
its conclusions of law de novo. Barnard v. Collins, 958 F.2d
634, 636 (5th Cir. 1992), cert. denied, 113 S. Ct. 990 (1993);
United States v. Woods, 870 F.2d 285, 287 (5th Cir. 1989). In
considering a petition presented by a state prisoner, we must
presume the correctness of state court factual findings. See 28
U.S.C. § 2254(d); Barnard, 958 F.2d at 636. We will address
McLamb's claims in five groups--(1) those claims that are
procedurally barred, (2) those claims relating to his indictment,
(3) his sufficiency of the evidence claim, (4) his double
6
McLamb presented this claim to the Mississippi Supreme
Court both on direct appeal and in his post-conviction motions.
Although McLamb does not set out his double jeopardy claim as a
separate ground of error, he has argued it before the district
court and in his appellate brief, and the district court
addressed the claim, so we will also address this contention.
7
jeopardy claim, and (5) his claim regarding his in-court
identification.
A. Procedural Default
The district court properly dismissed McLamb's claims 3 and
9, attacking his North Carolina convictions, as procedurally
barred under the rule of Coleman v. Thompson, 501 U.S. 722(1991). When a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule, federal habeas review is usually barred.
Coleman, 501 U.S. at 750; Cowart v. Hargett, 16 F.3d 642, 644
(5th Cir.), cert. denied, 115 S. Ct. 227 (1994). To overcome
this procedural bar, the state prisoner must "demonstrate cause
for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750; Renz v. Scott, 28 F.3d 431, 432 (5th
Cir. 1994); Cowart, 16 F.3d at 642.
McLamb argued before the Mississippi Supreme Court that his
prior convictions were illegal in a motion dated September 26,
1991. Because this was McLamb's seventh motion for post-
conviction relief filed since his resentencing, the court did not
address these claims on the merits; instead, it dismissed the
motion as a successive writ barred by MISS. CODE ANN. § 99-39-
27(9) (1994); see Grubb v. State, 584 So. 2d 786, 789 (Miss.
1991). Section 99-39-27(9) provides that, barring certain
exceptions, "the dismissal or denial of an application [for post-
8
conviction relief] under this section is a final judgment and
shall be a bar to a second or successive application under this
chapter." Because McLamb did not present these claims in an
earlier motion for relief, the Mississippi Supreme Court refused
to address them; therefore, McLamb procedurally defaulted these
claims in the state court. McLamb does not argue that § 99-39-
27(9) is not a procedural bar. This court may not review claims
which were procedurally defaulted in state court unless the
petitioner demonstrates cause and prejudice or a fundamental
miscarriage of justice.
To demonstrate cause, the habeas petitioner must show "that
some objective factor external to the defense impeded [the
petitioner's] efforts to comply with the state's procedural
rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). McLamb
fails to advance any argument that he had cause for his
procedural default. Because he has not made the required showing
of cause, the court need not consider whether his inability to
bring the barred claim actually prejudiced him. Glover v.
Hargett, 56 F.3d 682, 684 (5th Cir. 1995).
If a habeas petitioner fails to show cause and prejudice for
a state procedural default, the federal court will address the
merits only if review is necessary to correct a "fundamental
miscarriage of justice"--that is, if the claimed constitutional
violation resulted in the conviction of one who is actually
innocent. Coleman, 50l U.S. at 748; Glover, 56 F.3d at 684.
McLamb does not contend that he is actually innocent of the
9
crime, so the "manifest miscarriage of justice" exception cannot
apply.
McLamb's first claim, that his sentence is excessive, is
also procedurally barred. McLamb argues that the trial court
erred in sentencing him to 33 years because the statutory maximum
sentence for armed robbery is 30 years. McLamb has never
presented this claim to the Mississippi courts. However, because
McLamb's last motion for post-conviction relief was dismissed by
the Mississippi Supreme Court as a successive writ under § 99-39-
27(9), any future motions would be procedurally barred. "A
habeas petitioner who has defaulted his federal claims in state
court meets the technical requirement for exhaustion; there are
no state remedies any longer `available' to him." Coleman, 501
U.S. at 732. The procedural default is an independent and
adequate state ground that bars federal review. Id. Otherwise,
habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court.
Id.Even if McLamb's excessive sentence claim were not barred by
procedural default, it fails on the merits. Under MISS. CODE
ANN. § 99-19-81, McLamb was subject to "the maximum term of
imprisonment prescribed for" armed robbery. Mississippi Code
section 97-3-79 defines armed robbery and provides the punishment
range. MISS. CODE ANN. § 97-3-79 (1994). This section states:
Every person who [commits armed robbery] shall be
imprisoned for life in the state penitentiary if the
penalty is so fixed by the jury; and in cases where the
jury fails to fix the penalty at imprisonment for life
10
... the court shall fix the penalty of imprisonment ...
for any term not less than three (3) years.
Id. In Stewart v. State, the Mississippi Supreme Court
interpreted this provision to mean that, in cases in which the
jury does not assess a life sentence, the court must sentence the
defendant to a "definite term reasonably expected to be less than
life." 372 So. 2d 257, 259 (Miss. 1979); see Glover, 56 F.3d at
685. In the present case, the trial court determined a sentence
reasonably expected to be less than life by reference to McLamb's
age and life expectancy tables. See Henderson v. State, 402 So.
2d 325, 328 (Miss. 1981)(applying Stewart and approving a
determination of an armed robbery sentence using age and life
expectancy tables). These factors explain the need to reduce
McLamb's sentence when the court discovered that it had erred in
determining his birthdate. McLamb's assertion that any sentence
over thirty years is equivalent to a life sentence under
Mississippi law is meritless.
B. Sufficiency of the Indictment
McLamb raises four claims regarding the defectiveness of his
indictment--claims 2, 4, 6 and 8. Specifically, he contends that
(1) the state should not have been permitted to amend the
indictment by correcting the dates of his prior convictions
without "allowing the jury to view the amended indictment;" (2)
the indictment should not have been amended in vacation and after
the trial and conviction; (3) the indictment should not have been
amended at the sentencing hearing because McLamb was not given
adequate notice; and (4) the original indictment did not
11
sufficiently particularize the prior convictions as required by
Mississippi Uniform Criminal Rules of Circuit Court Practice Rule
6.04. The Mississippi Supreme Court has addressed these
contentions on the merits; therefore, they are ripe for federal
review.7
Federal habeas relief is not available for deficiencies in a
state indictment unless it can be shown that the indictment is so
defective that it deprived the state court of jurisdiction.
McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert. denied, 115 S.
Ct. 157 (1994); Alexander v. McCotter, 775 F.2d 595, 598 (5th
Cir. 1985). "State law dictates whether a state indictment is
sufficient to confer" jurisdiction on a court. Williams v.
Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 115 S. Ct. 42(1994); McKay, 12 F.3d at 69. A federal court will not consider
defective indictment claims on habeas review of state convictions
if the sufficiency of the indictment was presented to the highest
state court on appeal, and that court found, expressly or
7
Although the appeal following resentencing was affirmed
without opinion and McLamb's post-conviction motions were denied
without opinion, the United State Supreme Court has held that:
[W]hen . . . a state court decision fairly appears to
rest primarily on federal law, or to be interwoven with
the federal law, and when the adequacy and independence
of any possible state law ground is not clear from the
face of the opinion, we will accept as the most
reasonable explanation that the state court decided the
case the way it did because it believed that federal
law required it to do so.
Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). Thus the court
can assume that the Mississippi Supreme Court's decisions were on
the merits.
12
implicitly, that the trial court had jurisdiction because the
indictment was sufficient under state law. McKay, 12 F.3d at 68;
Alexander, 775 F.2d at 598.
McLamb first raised the issue of the sufficiency of the
indictment and the change in the dates of his prior convictions
on direct appeal. McLamb, 410 So. 2d at 1318. The Mississippi
Supreme Court rejected his challenge, reasoning that the changes
were not material to the merits of the case. Id. at 1320.
McLamb again claimed defects in his indictment and in the process
of amending the indictment in his direct appeal from the amended
sentencing order and in several of his motions for post-
conviction relief. In each instance, the Mississippi Supreme
Court denied relief without opinion. Because the Mississippi
Supreme Court has upheld the sufficiency of the indictment and
the propriety of its amendment in this case, federal review is
precluded. See Alexander, 775 F.2d at 599.
C. Sufficiency of the Evidence
McLamb's fifth claim alleges that the documents offered to
prove McLamb's prior North Carolina convictions were insufficient
to establish habitual offender status under the enhancement
statutes. McLamb raised this claim in his direct appeal from his
amended sentencing order, which the Mississippi Supreme Court
denied on the merits; therefore, this claim is ripe for federal
review. See supra, note 7. In reviewing a habeas petitioner's
claim of insufficient evidence, the reviewing court must ask
whether, viewing the evidence in the light most favorable to the
13
verdict, any rational trier of fact could have found the
essential elements of the crime to have been proved beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Callins v. Collins, 998 F.2d 269, 276 (5th Cir. 1993), cert.
denied, 114 S. Ct. 1127 (1994).
McLamb does not contend that the evidence was insufficient
for the jury to convict him of armed robbery. Rather, his claim
is limited to the contention that the evidence of his prior
convictions was insufficient to sentence him as a habitual
offender under MISS. CODE ANN. § 99-19-83 or § 99-19-81 (1994).
Because McLamb is presently sentenced under § 99-19-81, we will
review the evidence for compliance with that statute. Section
99-19-81 provides:
Every person convicted in this state of a felony who
shall have been convicted twice previously of any
felony or federal crime upon charges separately brought
and arising out of separate incidents at different
times and who shall have been sentenced to separate
terms of one (1) year or more in any state and/or
federal penal institution, whether in this state or
elsewhere, shall be sentenced to the maximum term of
imprisonment prescribed for such felony, and such
sentence shall not be reduced or suspended nor shall
such person be eligible for parole or probation.
MISS. CODE ANN. § 99-19-81 (1994). To sentence a defendant under
this statute, the state must present evidence that (1) the
defendant was convicted of two prior felonies or federal crimes;
(2) these two crimes arose out of separate incidents; and (3) the
defendant was sentenced to at least one year imprisonment on each
conviction. In the present case, the district court found:
[A]lthough the evidence produced at the first
sentencing hearing was insufficient to support
14
enhancement under § 99-19-83 because neither prior
conviction was for a violent crime, it was clearly
sufficient under § 99-19-81 in that the certified
records from North Carolina included the judgment and
commitment orders for the crime of larceny in 1971 and
breaking and entering in 1965 for which petitioner was
sentenced to 10 years and 3 to 5 years respectively.
Numerous other documents from North Carolina were
submitted as proof of petitioner's prior convictions
including history cards from petitioner's period of
confinement and an inmate identification card.
We agree with the district court and, upon comparison of the
evidence submitted to the elements of § 99-19-81, we conclude
that the evidence was sufficient to support the sentence imposed.
See Sones v. Hargett, No. 93-7646, slip op. at 5155, n.2, 5158
(5th Cir. Aug. 21, 1995) (holding that proof of defendant's prior
convictions in the form of commitment orders and testimony of
state prison personnel identifying defendant, was adequate for
enhancement purposes, even without actual judgments of
conviction).
D. Double Jeopardy
McLamb also contends that he was subjected to double
jeopardy by his second sentencing hearing. Again, this claim was
addressed on the merits numerous times by the state court;
therefore, it is ripe for federal review. See supra note 7. The
double jeopardy clause applies to enhancement proceedings.
Millard v. Lynaugh, 810 F.2d 1403, 1409 (5th Cir.), cert. denied,
484 U.S. 838 (1987). McLamb argues that the evidence at his
first sentencing hearing was insufficient to prove the existence
of his two prior convictions; therefore, it would offend double
jeopardy to resentence him using these two convictions. However,
15
we affirmed the district court's conclusion that the evidence was
sufficient to prove the existence of McLamb's prior convictions.
Additionally, in vacating McLamb's sentence, the Mississippi
Supreme Court held only that his sentence was erroneous because
the prior convictions did not satisfy the requirements of § 99-
19-83 in that they were not crimes of violence; it did not hold
that the state failed to present sufficient evidence to prove the
existence of McLamb's prior convictions. See McLamb v. State,
456 So. 2d 743, 744.
This circuit has addressed the claim raised by McLamb, and
held that the use of a valid conviction to resentence a defendant
under a lesser enhancement statute after the invalidation of his
sentence under a more severe enhancement statute does not offend
double jeopardy. Smith v. Collins, 964 F.2d 483, 487 (5th Cir.
1992) (concluding that the resentencing of a defendant as a
repeat offender after invalidation of his conviction as a
habitual offender because one of his prior convictions was found
defective does not offend double jeopardy); Millard, 810 F.2d at
1409. We conclude that the evidence of McLamb's prior
convictions presented at his first sentencing hearing was
sufficient to sentence him under § 99-19-81; thus, his claim that
his resentencing under this statute violates the Double Jeopardy
clause is without merit.
E. In-Court Identification
McLamb finally argues that the trial court erred in
permitting his in-court identification. The Mississippi Supreme
16
Court rejected this argument on the merits in McLamb's first
direct appeal; therefore, it is ripe for federal review. See
McLamb v. State, 410 So. 2d 1318 (Miss. 1982). At trial, five
witnesses identified McLamb as one of two men who robbed a Kroger
store in Clarksdale, Mississippi, on November 1, 1980. McLamb
maintains that the in-court identification was improper because
he was the only black person in the courtroom not in uniform when
the identifications were made and because the state witnesses
were shown his photograph during the pre-trial investigation.
"A conviction based on an eyewitness identification at trial
following a pretrial identification by photograph will be set
aside only if the identification procedure was so impermissibly
suggestive as to give rise to a substantial likelihood of
misidentification." Herrera v. Collins, 904 F.2d 944, 946 (5th
Cir.), cert. denied, 498 U.S. 925 (1990) (citing Simmons v.
United States, 390 U.S. 377, 384 (1968)). A two-step analysis
governs the admissibility of identification evidence. First the
court must determine whether the identification procedure used in
the case was impermissibly suggestive. Herrera v. Collins, 904
F.2d 944, 946 (5th Cir.), cert. denied, 498 U.S. 925 (1990).
Next, the question is whether, under the totality of the
circumstances, the suggestiveness of the identification created a
substantial likelihood of irreparable misidentification. Herrera,
904 F.2d at 946.
Reliability is the "linchpin" of the identification
analysis. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). "Even
17
an impermissibly suggestive identification procedure does not
violate due process so long as the identification possesses
sufficient aspects of reliability." Herrera, 904 F.2d at 947.
Factors to be considered include the opportunity of the witness
to view the criminal, the witness's degree of attention, the
accuracy of the witness's 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, 432 U.S.
at 114.
Even assuming arguendo that the out-of-court identification
procedure (i.e., the witnesses alleged viewing of the photograph)
was impermissibly suggestive, under the totality of the
circumstances, this case presents no substantial likelihood of
misidentification. Four Kroger employees, all of whom were
within a very short distance of McLamb during the hold-up,
identified him positively at trial as one of the robbers. A
fifth witness, a police officer, testified that McLamb and
another man left the Kroger store and walked in front of his
patrol car. The lighting was "very good" and the officer was
able to see the men clearly. The two men began to run and the
officer gave chase. The officer was part of the search team that
found McLamb in an abandoned vehicle in a field near Kroger's
about an hour after the robbery. The officer positively
identified McLamb as one of the men. The officer testified that
he was never shown a photograph of McLamb.
18
All five identifying witnesses viewed McLamb within a few
feet, under bright lights, and without a mask or other object
covering his face. All five witnesses described a black male
with facial hair wearing a jacket and dark clothes. The
descriptions of the witnesses who viewed a photograph of McLamb
after the robbery were no different from the descriptions offered
by the witnesses who were not shown a photograph. Thus, the
totality of the circumstances indicates that the in-court
identifications of McLamb were reliable and did not offend due
process.
III. CONCLUSION
For the foregoing reasons, the district court's denial of
McLamb's habeas corpus petition is AFFIRMED. The respondent
Hargett's motion to dismiss the appeal for failure to timely file
a brief is denied as moot.
19