James White, Jr., Petitioner-appellant, v. Randy E. Lee, Superintendent; Attorney General of Northcarolina, Respondents-appellees, 883 F.2d 70 (4th Cir. 1989)

James White, a North Carolina prisoner, appeals the dismissal of his 28 U.S.C. § 2254 petition. The only issue raised in White's petition was a challenge to the identification of White by the alleged victim.¹  The district court adopted the magistrate's recommendation to dismiss White's petition based on the totality of the circumstances. We deny a certificate of probable cause and dismiss the appeal.

The essence of White's claim is that his identification by the victim was tainted because the police impermissibly suggested that he was the culprit by showing only his picture to the victim shortly after the crime. White is correct that showups like this one are "widely condemned." See Stovall v. Denno, 388 U.S. 293, 302 (1967). However, to get relief White must show more than impermissibly suggestive procedures--he must also show that the (improper) identification procedure gave rise to a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). In this respect, White's claim fails because he candidly admitted in pleadings in the district court that he "is in fact guilty of the capital crime against [the victim]" and that he "does not deny the identification as not being correct." Thus, assuming, without holding, that the showup was improper, White cannot prevail because he has admitted that the identification was accurate.²  Simmons, supra.

Accordingly, we deny a certificate of probable cause and dismiss this appeal. We dispense with oral argument because the fact and legal contentions have been adequately presented on this record and oral argument would not aid the decisional process.

DISMISSED.