Demond Willie Potts v. Stuart J. Ryan

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).
SMS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMOND WILLIE POTTS,
Petitioner - Appellant,
v.
STUART J. RYAN,
Respondent - Appellee.
No. 08-55115
D.C. No. CV-05-00690-GHW
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted December 15, 2009**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Demond Willie Potts appeals from the district court’s judgment denying his
28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §
2253, and we affirm.
FILED
JAN 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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SMS/Research 08-55115 2
Potts contends his due process rights were violated because a witness’ in-
court identification of Potts as an assailant resulted from viewing an unduly
suggestive photograph of Potts prior to trial. Even assuming, as the district court
did, that the pretrial identification procedure was unduly suggestive, the witness’
in-court identification of Potts during the trial was reliable under the factors
announced in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Accordingly, the
state court’s rejection of this claim did not constitute an unreasonable application
of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
To the extent Potts argues the witness’ identification of him at the
preliminary hearing occurred under unduly suggestive circumstances, we construe
the argument as a motion to expand the certificate of appealability, and we deny
the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098,
1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.

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