Andre Sherman v. Dwight Neven, No. 08-15999 (9th Cir. 2011)

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FILED FEB 17 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ANDRE SHERMAN, No. 08-15999 Petitioner - Appellant, D.C. No. 2:05-CV-00362-JCM v. MEMORANDUM * DWIGHT NEVEN, Respondent - Appellee. Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Nevada state prisoner Andre Sherman appeals from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Sherman contends that the state court s denial of his motion to exclude unduly suggestive field and pre-trial in-court identifications violated his constitutional rights. The state court s determination that the challenged identifications were sufficiently reliable was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); see also Neil v. Biggers, 409 U.S. 188, 199 (1972). We construe Sherman s additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam). AFFIRMED. 2 08-15999

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