Roderick Duane LEWIS, Petitioner-Appellant, v. Jeri Ann SHERRY, Respondent-Appellee, 369 F. App'x 662

PER CURIAM. Roderick Lewis appeals five issues for which the district court denied his motion for habeas relief: (1) admission of identification; (2) suppression of evidence; (3) jury instructions and communications; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel. Having reviewed the briefs and record and heard oral argument, we find no reversible error warranting the grant of a writ of habeas corpus. But this is not to say that there was no legal error committed. Though we agree with the majority of the district court’s conclusions, Lewis v.

Sherry, No. 05-74202, 2007 WL 4591299 (E.D.Mich. Dec.28, 2007), Lewis v. Bell, No. 05-74202, 2007 WL 1585641 (E.D.Mich. June 1, 2007), we must disagree with its conclusion that the identification was not unduly suggestive. Lewis, 2007 WL 1585641.

The full circumstances associated with the identification — a line-up with few similarities among the participants; a pre-lineup sighting of the accused which showed a new, distinctive characteristic; that only the accused had the distinctive characteristic; and the knowledge that the accused was definitely in the line-up — demonstrate that this line-up was unduly suggestive. However, while the state courts and the district court erred in finding that the lineup was not unduly suggestive, the witness’ identification of Lewis was nonetheless reliable under the factors outlined in Neil v.

Biggers, 409 U.S. 188, 196-97, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Therefore, the state court’s admission of the identification was not an unreasonable application of federal law. We therefore DENY Lewis’ petition.