744 F.2d 403 (5th Cir. 1984), 84-3008, Gibson v. Blackburn

Docket Nº:84-3008
Citation:744 F.2d 403
Party Name:Freddie D. GIBSON, Jr., Petitioner-Appellant, v. Frank BLACKBURN, Warden, et al., Respondents-Appellees.
Case Date:September 25, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 403

744 F.2d 403 (5th Cir. 1984)

Freddie D. GIBSON, Jr., Petitioner-Appellant,


Frank BLACKBURN, Warden, et al., Respondents-Appellees.

No. 84-3008

United States Court of Appeals, Fifth Circuit

September 25, 1984

Freddie D. Gibson, Jr., pro se.

William C. Credo, III, Asst. Dist. Atty., Elizabeth M. Gaudin, Gretna, La., for respondents-appellees.

Page 404

Appeal From the United States District Court For the Eastern District of Louisiana.

Before GEE, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge.

Petitioner Freddie D. Gibson, Jr., seeks habeas corpus relief from his conviction for armed robbery. The district court found all grounds alleged for relief to be without merit and denied Gibson's petition for habeas corpus relief. After consideration of Gibson's eleven points of error, we agree that Gibson's claims for relief are without merit and affirm.

I. Background

Only one of Gibson's claims merits discussion beyond the district court's analysis. That claim concerns the pre-trial identification process. The discussion of the facts is limited to those material to this claim. A fuller exposition of the facts surrounding this case may be found in the opinion of the Louisiana Supreme Court, which affirmed Gibson's conviction on direct appeal. See State v. Gibson, 391 So.2d 421 (La.S.Ct.1980).

Petitioner Gibson is serving a 50-year sentence for his armed robbery conviction. He was charged with the robbery of Keith Milano, a drugstore cashier, on the evening of December 27, 1977. The robber drove from the scene in a 1965 blue Chevelle, but promptly abandoned it. Shortly after the crime, a man entered the apartment of Nancy Schmitt. The apartment was located within one or two blocks of the drugstore where the robbery occurred. The man held Ms. Schmitt at gunpoint for approximately one hour in her apartment without harming her. Before leaving, the man locked Ms. Schmitt in her apartment closet and then proceeded to steal her blue Volkswagen.

Gibson was arrested two months later at a motel in East New Orleans. Gibson was sharing the room with Melvin Bounds. An employee of the motel had told police that an occupant of the room had been seen driving the stolen Volkswagen. Police first questioned and arrested Melvin Bounds for the stealing of the Volkswagen. There was some confusion as to Bounds' identity since he was using Gibson's name. Police determined that someone other than Bounds had been driving the Volkswagen and that the Volkswagen was connected to the armed robbery. Police waited in the motel room until Gibson returned. Gibson was then arrested. His conviction and unsuccessful attempts to overturn that conviction followed.

II. Pre-trial Identification

While in the motel room, police seized a black leather jacket. Both Milano and Schmitt identified this jacket as the one worn by the robber. Milano identified Gibson as the man who had robbed the store while Schmitt identified Gibson as the man who held her in her apartment.

Both Milano and Schmitt had previously identified Gibson in a police photograph display. The thrust of Gibson's argument is that this display was impermissibly suggestive, thereby tainting the witnesses' in-court identification, because Gibson was forced to wear a black coat when photographed. 1 Gibson contends that this

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coat was the black leather coat identified by Milano and Schmitt.

Under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), Gibson must show both an impermissibly suggestive identification procedure and whether there is a "substantial likelihood" that the suggestiveness led to irreparable misidentification. Gibson's charge that the photograph display was impermissibly suggestive must be rejected. First, from the record, it appears that Gibson was not wearing the black leather coat identified by Milano and Schmitt but instead a black cloth coat worn by Gibson when he was arrested. Officer DiStefano testified that Gibson was wearing a black cloth coat when arrested and therefore was photographed in it. State Trial Record at 137-38. Further,...

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