Unpublished Disposition, 924 F.2d 1064 (9th Cir. 1991)

MEMORANDUM^* 

Walter Wallace Williams appeals the district court's denial of his habeas corpus petition seeking relief from his California state court convictions for, inter alia, assault, rape, and robbery. We affirm.

DISCUSSION

Williams contends and the district court agreed that police identification procedures used with two of the victims, Nancy S. and Aldy G., were impermissibly suggestive. "Even if the identification procedure is impermissibly suggestive," however, "the identification itself is admissible if it is nonetheless reliable." United States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989). We agree with the district court that, under the analysis used by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the identifications here were sufficiently reliable for admission.

Upon review, we adopt the district court's sound application of the Biggers analysis to the facts of this case. That Nancy S. remained hesitant in her identification of Williams even after the suggestive procedure (and the jury of course was aware of her hesitating) persuades us that her testimony was sufficiently untainted for admission and jury evaluation. That Aldy G.'s description was consistent and fairly accurate, except for the approximation of her assailant's age, before and after the suggestive procedure is particularly persuasive that her testimony was sufficiently reliable for admission and jury evaluation as well. We note too that the indicia of reliability in Williams' case measure up to those in other cases where we have held identifications sufficiently reliable for admission. Cf. Gregory, 891 F.2d at 735.

Williams contends that Nancy S. and Aldy G. based their identifications in part on line-up participants' voices. Williams argues that police should have recorded the line up because "a record of the statements made by the participants of the line-up would have been dispositive of the admissibility of [Aldy G.'s and Nancy S.'s] testimony."

To prevail, Williams must show that police failed to record or preserve material, exculpatory evidence. See Miller v. Vasquez, 868 F.2d 1116, 1119-20 (9th Cir. 1989). A record of the line up would have borne only on the issue of whether police procedures, particularly use of a tape of Williams' interview with police, were impermissibly suggestive. We have already assumed for the purposes of this appeal that police procedures were impermissibly suggestive. See Van Pilon v. Reed, 799 F.2d 1332, 1339 (9th Cir. 1986) (court may assume suggestiveness arguendo and review reliability). A record of the line up would therefore have been at best superfluous support for Williams' contention that the line up was impermissibly suggestive.

CONCLUSION

The judgment of the district court is

AFFIRMED.