(caption unavailable)

*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should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-3060
(Summary Calendar)
REGINALD MELANCON,
Petitioner-Appellant,
versus
ED C. DAY, Warden, and
RICHARD P. IEYOUB, Attorney
General, State of Louisiana,
Respondents-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
(CA-91-2614-G)
November 19, 1992
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Proceeding pro se from the Louisiana State Penitentiary,
Petitioner-Appellant Reginald K. Melancon appeals the district
court's denial of his petition for habeas corpus relief pursuant to
28 U.S.C. § 2254. Melancon's petition challenges his conviction in

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state court, complaining that he was identified through an
impermissibly suggestive procedure. Finding no reversible error by
the district court in denying Melancon's petition, we affirm.
I
FACTS AND PROCEEDINGS
Melancon was convicted of armed robbery and sentenced to serve
33 years of imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence. State v. Melancon, 536 So.2d
430, 430-31 (La. Ct. App. 1988).
Melancon filed a petition requesting habeas relief under
28 U.S.C. § 2254 claiming that his due process rights had been
violated by an improperly suggestive lineup from which he was
identified by the victim. There is no dispute that Melancon has
exhausted his state remedies with respect to this claim. Melancon,
536 So.2d at 430-34; State ex rel. Melancon v. State, 582 So.2d 860
(La. 1991). The district court dismissed the petition with
prejudice finding that the identification made by the victim was
sufficiently reliable. Melancon filed a notice of appeal and the
district court granted a certificate of probable cause.
II
ANALYSIS
Melancon claims that the physical lineup in which he was
identified by the victim was improperly suggestive and should have
been suppressed by the state trial court. The basis for the claim
is that the victim had previously described his assailant as being
clean shaven, and that the other five men in the lineup had facial

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1 That picture is included in the state record of the case
and shows the faces of the other five individuals, but Melancon's
3
hair but Melancon did not.
A defendant's due process rights are violated if an
identification which is unreliable due to impermissibly suggestive
procedures is admitted in evidence. Neil v. Biggers, 409 U.S. 188,
196-99, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972). We use a two-step
process to determine the admissibility of identifications. See
United States v. Shaw, 894 F.2d 689, 692-93 (5th Cir.), cert.
denied, 111 S. Ct. 85 (1990) (direct criminal case). The threshold
determination is whether the identification process was
impermissibly suggestive. If the process was not suggestive, the
inquiry ends; if it is, we proceeded to determine "`whether under
the totality of the circumstances the suggestiveness leads to a
substantial likelihood of irreparable misidentification.'" Id. at
692 (quoting Passman v. Blackburn, 652 F.2d 559, 569 (5th Cir.
Unit A 1981), cert. denied, 455 U.S. 1022 (1982)). The following
factors are examined to determine the reliability of the
identification:
"(1) the opportunity of the witness to view the
criminal, (2) the witness's degree of attention, (3) the
accuracy of the description, (4) the witness's level of
certainty, (5) the elapsed time between the crime and the
identification, and (6) the corrupting influence of the
suggestive identification itself."
Id. at 692-93 (quoting United States v. Atkins, 698 F.2d 711, 713
(5th Cir. 1983).
Here, both the state trial court and the district court viewed
a picture of the individuals composing the lineup.1 Neither court

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was somehow obliterated by the flash of lights when the picture was
taken.
4
was impressed with the argument that only Melancon was clean shaven
because the facial hair on the other men was minimal. Even so, the
district court assumed for the sake of argument that the lineup was
suggestive and proceeded to the next level of inquiry. Considering
that police officers testified at trial that individuals with
mustaches were requested for the lineup and that Melancon was
specifically ordered to shave off his mustache, the district
court's assumption is reasonable.
Applying the facts of this case to the factors enunciated in
Shaw confirms that the identification here was reliable. Wells,
the victim, testified that Melancon approached to within three to
four feet of him on a sunlit balcony overlooking a courtyard.
Wells testified further that Melancon pushed him (Wells) against
the railing of the balcony and robbed him at gunpoint. Wells
estimated that the robbery took three to four minutes, but was not
firm in this estimate and on cross-examination reduced it to
approximately 32 seconds. Wells also stated that he got a good
look at his assailant. Wells originally described the perpetrator
as being five feet seven inches to five feet eight inches tall and
weighing 150 pounds. The police officer who took this description
testified that it was "5 foot 8 inches, thin build, brown
complexion, a knit cap, white T-shirt, dark pants and black boots."
Melancon's arrest sheet describes him as being five feet nine
inches tall and weighing 142 pounds. The lineup picture appears to

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verify these general characteristics. The lineup in question took
place nine weeks following the robbery. Finally, Wells testified
unequivocally that Melancon was the man who robbed him. The police
officer conducting the lineup also testified that Wells was
positive in his identification of Melancon.
Wells had ample opportunity to see his assailant under well
lit circumstances. There is nothing to indicate that his attention
was focused on anything but the fact that he was being robbed.
Wells subsequently gave a description of the perpetrator that
closely approximated Melancon's physical size. Wells was very
certain about his identification of Melancon, and only nine weeks
elapsed between the robbery and the lineup. Finally, Wells
testified at trial that he was not sure whether his assailant had
a mustache, but he knew that he did not have a heavy beard. The
lineup presented to Wells comprised individuals who did not have
full beards, but merely facial hair that can be best described as
minimal. Given all of these circumstances, it cannot be said that
the identification of Melancon as the perpetrator was rendered
unreliable simply because he was clean shaven and the other
individuals had minimal facial hair. We conclude that Melancon's
claim has no merit, and that the district court's dismissal of his
habeas petition should be and therefore is
AFFIRMED.

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