IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-31019 Summary Calendar

THINH TRAN,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

--------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CV-2924-T --------------------- December 19, 2000 Before DAVIS, JONES, and DeMOSS, CIRCUIT JUDGES.

PER CURIAM:*

Trinh Tran, a Louisiana prisoner (# 295395), appeals from

the denial of his

habeas corpus petition. On

February 15, 2000, this court granted him a certificate of

appealability (“COA”) with respect to the issues (a) whether the

trial court erred in denying his motion to quash in-court

identifications by two victims, which were allegedly based on

tainted out-of-court identifications, and (b) whether the evidence

was insufficient to support his conviction of the armed robbery of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-31019 -2-

a third victim, Duc Lee, who was not able to identify him at trial

as the robber.

Tran has not shown that the admission of the in-court

identifications by victims Kieu Nguyen and Tu Dao violated his due-

process rights, even though their pretrial photographic

identifications of him had been suppressed because the taking of

Tran’s photograph had violated his Fourth Amendment rights. There

has been neither a state-court finding that the pretrial

identification was “impermissibly suggestive,” nor even an explicit

argument by Tran regarding the suggestiveness of that

identification. See Simmons v. United States,

(1968); Manson v. Brathwaite,

(1977).

Accordingly, the admission of the in-court identifications does not

implicate the Due Process Clause. See United States v. Smith,

(5th Cir. 1977) (“[o]nly if the photographic spread

is found to be impermissibly suggestive is the district court in a

position to consider whether it created a substantial risk of

misidentification”). Tran has not demonstrated that the state

courts’ resolution of the identification issue “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” See

(d)(1).

Tran also has not made such a showing as to his

contention that the evidence was insufficient to establish that he

committed the armed robbery of Duc Lee. Although Lee could not

identify Tran as the robber, the identifications by Nguyen and Dao, No. 99-31019 -3-

who were also present, were more than sufficient to establish

Tran’s identity.

The judgment of the district court is AFFIRMED.