Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)

MEMORANDUM^** 

In this habeas corpus action Hagen contends there was constitutional error in his conviction by the State of Nevada for robbery with the use of a deadly weapon.

He asserts that the denial of the pretrial motion to suppress pretrial identifications deprived him of due process. We review this contention under the guidance of Neil v. Biggers, 409 U.S. 188 (1972).

The identification by witness Grumblatt was not unnecessarily suggestive because it was she who first identified Hagen before the police were called to the scene. Thus Hagen's being in police custody with his hands on the car's hood when she identified him suggested no more than that the police had located the person she had just recognized and reported.

The show-up identification by Lambert may have been unduly suggestive. However, even assuming that it was, Neil v. Biggers requires a second inquiry of whether the identification was nonetheless reliable. Ponce v. Cupp, 735 F.2d 333, 336 (9th Cir. 1984). As long as the identification is reliable, the suggestiveness of the show-up does not impede the admissibility of the pretrial identification. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977). In applying the five factors for evaluating reliability set forth in Neil v. Biggers, we conclude that Lambert had adequate opportunity to view the robber; his degree of attention was high as he was a victim of the robbery; his prior description of Hagen was reasonably accurate; his level of certainty was high in that he immediately recognized Hagen and stated he was absolutely positive of the identification; and the length of time between the crime and the identification was short--only two days. Thus we conclude that there was no constitutional error in admitting evidence of Lambert's pretrial identification of Hagen.

Hagen contends it was constitutional error for the court to refuse his offered instructions. A state court's refusal to give a proposed jury instruction is usually not a cognizable ground to support a habeas corpus petition. See Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). A habeas petitioner must show that the error by the trial court "by itself so infected the entire trial that the resulting conviction violate [d] due process...." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

Hagen has not met this burden. The trial court gave proper instructions on reasonable doubt, on the State's burden of proof, alibi, and on the credibility of witnesses. The instructions adequately covered the instructions offered by Hagen. Hagen's proposed instructions were more appropriately matters for argument by the defense. The court's refusal to give Hagen's proposed instructions did not violate his right to a fair trial.

Hagen also contends that the evidence was insufficient to support the verdict. There was clearly sufficient evidence to support the verdict under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The district court's order is AFFIRMED.