Aquior Alfonso Figueroa v. TIM VIRGA, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AQUIOR ALFONSO FIGUEROA,
Petitioner - Appellant,
v.
TIM VIRGA, Warden,
Respondent - Appellee.
No. 12-16819
D.C. No. 4:11-cv-01072-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted December 5, 2013**
San Francisco, California
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Petitioner Aquior Figueroa appeals the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition challenging his California convictions arising
out of a gang shooting in Oakland. Petitioner, who admitted that he drove gang
FILED
DEC 09 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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members to and from the shooting, claims that the trial court violated due process
when it admitted an eyewitness identification of petitioner’s friend, Hector
Sanchez, as one of the shooters. We have jurisdiction pursuant to 28 U.S.C. §
2253 and affirm.
Contrary to petitioner’s assertion, the state court properly applied clearly
established Supreme Court authority, Manson v. Brathwaite, 432 U.S. 98 (1977),
when it ruled in 2009. Even if an identification procedure is unnecessarily
suggestive, an identification is excluded only if, under a totality of the
circumstances, there was a “very substantial likelihood of irreparable
misidentification.” Id. at 116. As required by the Supreme Court, the state court
addressed the suggestiveness of the photo line-up and the reliability of the
identification. It then balanced under the totality of the circumstances the
reliability of the identification against any corrupting effects, exactly as required
by the Supreme Court. Id. at 114.
Nor did the state court unreasonably determine the facts it used to decide
reliability of the photo identification. The state court’s factual findings are
supported by testimony in the record and presumed to be correct. Petitioner has
not come forward with the clear and convincing evidence necessary to rebut the
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presumption of correctness. Sumner v. Mata, 455 U.S. 591, 597 (1982); Taylor v.
Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
Finally, the state court’s decision was reasonable. Although the photo
procedure was not ideal, it was not “suggestive and unnecessary,” Brathwaite, 432
U.S. at 106, nor likely to produce an unreliable identification. Even though the
photo show-up occurred months after the crime, the witness gave convincing
testimony that she had a good opportunity to clearly view the shooter in broad
daylight, paid close attention to his face because of the cold look in his eyes as he
slowly moved forward while shooting the victim, accurately described the shooter
and his clothing, and immediately expressed certainty about his identity after
viewing other similar individuals in the photo line-up. The state court reasonably
held that the totality of the circumstances did not create a “very substantial
likelihood” that the witness misidentified Sanchez as the shooter.
AFFIRMED.
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