*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60057

Summary Calendar

_____________________

JAMES ODELLE MCLAMB,

Petitioner-Appellant,

versus

EDWARD HARGETT, Superintendent,

Mississippi State Penitentiary,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(2:91 CV 81 D 0)

_________________________________________________________________

September 8, 1995

Before KING, SMITH, and BENEVIDES, Circuit Judges.

PER CURIAM:*

Petitioner James Odelle McLamb ("McLamb") appeals from the

district court's dismissal of his 28 U.S.C. § 2254 application

for a writ of habeas corpus. Finding no constitutional error in 

McLamb's conviction or sentence, we affirm. 
 

1 McLamb asserted the following claims on his direct appeal:

(1) the court erred in allowing his in-court 

identification; and

(2) the court erred in allowing the state to amend the

indictment at the sentencing hearing to correct the

dates of McLamb's prior convictions without notice to

McLamb.

 

2 Section 99-19-81 provides for a mandatory maximum sentence

for defendants whose criminal records show that they have been

twice previously convicted and sentenced. MISS. CODE ANN. § 99-

19-81 (1994); McLamb v. State, 456 So. 2d 743, 744 (Miss. 1984). 

It differs from section 99-19-83, which provides for life

imprisonment, in that it does not require that the previous

sentences have been served, nor does it require that at least one

previous conviction be for a crime of violence. Id.

2

I. FACTUAL AND PROCEDURAL BACKGROUND

McLamb was convicted of armed robbery by a Mississippi jury

and sentenced as a habitual violent offender under MISS. CODE

ANN. § 99-19-83 (1994) to life imprisonment without possibility

of parole on February 19, 1981. On March 10, 1982 the

Mississippi Supreme Court affirmed his conviction and sentence.1

McLamb v. State, 410 So. 2d 1318 (Miss. 1982) (McLamb I). 

On September 5, 1984, the Mississippi Supreme Court granted

McLamb's motion for leave to file a motion to vacate his sentence

in the trial court, holding that his sentence under § 99-19-83

was improper because neither of his two prior convictions was for

a violent crime. McLamb v. State, 456 So. 2d 743 (Miss. 1984)

(McLamb II). The trial court accordingly vacated his sentence

and resentenced McLamb under MISS. CODE ANN. § 99-19-81 (1994) to

38 years without the possibility of parole on March 21, 1985.2

On May 7, 1985, the trial court adjusted McLamb's sentence to 33

years after determining that it had mistakenly calculated
 

3 McLamb asserted the following errors in his direct appeal

from the amended sentencing order:

(1) the documents supporting his prior convictions were

insufficient because they failed to establish that the

two convictions arose from separate incidents;

(2) the indictment was insufficient under Rule 6.04;

(3) it was error to amend the indictment and sentence

him under § 99-19-81 when he was tried under § 99-19-

83; 

(4) his waiver of appearance at the resentencing

hearing was invalid; and

(5) resentencing under § 99-19-81 violated the Double

Jeopardy clause.

 

4 McLamb's first three federal habeas petitions were

dismissed without prejudice for failure to exhaust state

remedies, and he voluntarily dismissed his fourth petition. This

appeal is from McLamb's fifth application for a writ of habeas

corpus from the United States District Court.

3

McLamb's birth-year as 1952 rather than 1946, a fact which was

necessary for determining the sentence. The Mississippi Supreme

Court affirmed the new sentence without opinion on June 4, 1986.3

Over the next several years, McLamb filed many motions for

post-conviction relief with the Mississippi state courts and four

federal habeas petitions with the United States District Court.4

McLamb filed his first motion for post-conviction relief with the

Mississippi Supreme Court on December 5, 1986, claiming that: (1)

he had received ineffective assistance of counsel; (2) a former

employee of the victim improperly sat on the jury; and (3) his

motion to suppress was erroneously overruled. The court denied

this motion on January 21, 1987, without prejudice to refile in

the trial court.

On January 16, 1987, McLamb filed a second motion in the

Mississippi Supreme Court alleging that: (1) he had received
4

ineffective assistance of counsel; (2) a copy rather than the

original record of McLamb's prior convictions was improperly

admitted; (3) McLamb's waiver of appearance at resentencing was

invalid; (4) the indictment was erroneously amended after the

sentence was vacated; and (5) resentencing was barred by double

jeopardy. This motion was also denied on February 11, 1987.

McLamb filed a third motion with the Mississippi Supreme

Court on February 27, 1987, arguing that: (1) his resentencing

was barred by double jeopardy; (2) amendment of the indictment

violated double jeopardy and Rule 6.04 of the Mississippi Circuit

Court Rules; (3) McLamb was not afforded an opportunity to defend

against the amended indictment; and (4) McLamb could not be

resentenced without a new indictment from the grand jury. This

motion was denied on March 18, 1987.

On June 13, 1988, McLamb filed a motion to vacate sentence

in the Circuit Court of Coahoma County, which was denied, raising

the following grounds: (1) the amended indictment was illegal;

(2) McLamb's waiver of presence at the resentencing hearing was

invalid; (3) resentencing violated double jeopardy; and (4)

sentencing as a habitual offender violated the Ex Post Facto

clause.

McLamb returned to the Mississippi Supreme Court on June 24,

1988, claiming that: (1) evidence admitted at trial was obtained

by an illegal search and seizure; (2) evidence admitted at trial

was obtained through an unlawful arrest; (3) the court violated

McLamb's right against self-incrimination when it required him to
 

5 This section provides that, barring certain exceptions,

"[t]he dismissal or denial of an application [for post-conviction

relief] under this section is a final judgment and shall be a bar

to a second or successive application under this chapter." MISS.

CODE ANN. § 99-39-27(9) (1994). 

5

stand up at trial; (4) favorable evidence was suppressed; and (5)

his arrest and detention were unconstitutional. This motion was

denied on July 27, 1988.

McLamb tried a sixth time on March 15, 1989 arguing to the

state supreme court that: (1) his indictment was illegally

amended; (2) the trial court failed to allow him to defend

against the amended indictment; and (3) resentencing was barred

by double jeopardy. The court denied this motion on May 3, 1989. 

All of the motions described above were denied on the merits

by the Mississippi Supreme Court without a written opinion. On

September 1, 1989, McLamb filed his seventh motion for postconviction relief in the Mississippi Supreme Court, alleging

that: (1) his arrest violated due process and equal protection;

(2) the unsworn affidavit of the arresting officer did not

constitute probable cause; and (3) he had received ineffective

assistance of counsel. On December 27, 1990, the Mississippi

Supreme Court denied this motion as successive and barred by

MISS. CODE ANN. § 99-39-27(9).5

On September 26, 1991, McLamb again filed a motion for postconviction relief with the Mississippi Supreme Court, attacking

the legality of his North Carolina convictions on the ground that

he pled guilty without the advice of counsel. The Mississippi
6

Supreme Court again dismissed the motion as barred by section 99-

39-27(9).

McLamb then filed the present application for a writ of

habeas corpus in the United States District Court for the

Northern District of Mississippi on May 6, 1991, seeking relief

on the following grounds:

1. The statutory maximum sentence for armed robbery is 30

years, so the trial court erred in sentencing McLamb to 33

years;

2. The trial judge erred in allowing the indictment to

be amended and sentencing McLamb without "allowing the

jury to view it;"

3. The use of McLamb's prior North Carolina convictions

to enhance his Mississippi sentence was error because

those prior convictions were illegal; 

4. The trial court erred in allowing McLamb's

indictment to be amended in vacation and after his

trial;

5. The documents offered to prove McLamb's prior North

Carolina convictions were insufficient to establish

habitual offender status under the enhancement

statutes;

6. The original indictment was defective because it

failed to sufficiently particularize McLamb's prior

convictions as required by Rule 6.04 of the Mississippi

Uniform Criminal Rules of Circuit Court Practice;

7. The in-court identification of McLamb was reversible

error;

8. The trial court erred in allowing the indictment to

be amended at the sentencing hearing without notice to

petitioner;

9. The prior North Carolina convictions should not have

been used to enhance his Mississippi sentence because

McLamb pled guilty to those charges without the

assistance of counsel (added in McLamb's amended

petition).
 

6 McLamb presented this claim to the Mississippi Supreme

Court both on direct appeal and in his post-conviction motions. 

Although McLamb does not set out his double jeopardy claim as a

separate ground of error, he has argued it before the district

court and in his appellate brief, and the district court

addressed the claim, so we will also address this contention. 

7

The district court referred the petition to a magistrate judge

who issued a report on September 12, 1994, recommending the

dismissal of McLamb's claims, finding them without merit. The

district court adopted the magistrate's recommendations on

January 13, 1995 and dismissed McLamb's petition for habeas

relief. McLamb raises the same nine claims of error on appeal. 

Additionally, he asserts that his resentencing violated the

Double Jeopardy clause.6

II. ANALYSIS

In habeas proceedings, we review the district court's

findings of fact under the clearly erroneous standard and review

its conclusions of law de novo. Barnard v. Collins, 958 F.2d

634, 636 (5th Cir. 1992), cert. denied, 113 S. Ct. 990 (1993);

United States v. Woods, 870 F.2d 285, 287 (5th Cir. 1989). In

considering a petition presented by a state prisoner, we must

presume the correctness of state court factual findings. See 28

U.S.C. § 2254(d); Barnard, 958 F.2d at 636. We will address

McLamb's claims in five groups--(1) those claims that are

procedurally barred, (2) those claims relating to his indictment,

(3) his sufficiency of the evidence claim, (4) his double
8

jeopardy claim, and (5) his claim regarding his in-court

identification.

A. Procedural Default

The district court properly dismissed McLamb's claims 3 and

9, attacking his North Carolina convictions, as procedurally

barred under the rule of Coleman v. Thompson, 501 U.S. 722

(1991). When a state prisoner has defaulted his federal claims

in state court pursuant to an independent and adequate state

procedural rule, federal habeas review is usually barred. 

Coleman, 501 U.S. at 750; Cowart v. Hargett, 16 F.3d 642, 644

(5th Cir.), cert. denied, 115 S. Ct. 227 (1994). To overcome

this procedural bar, the state prisoner must "demonstrate cause

for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice." 

Coleman, 501 U.S. at 750; Renz v. Scott, 28 F.3d 431, 432 (5th

Cir. 1994); Cowart, 16 F.3d at 642. 

McLamb argued before the Mississippi Supreme Court that his

prior convictions were illegal in a motion dated September 26,

1991. Because this was McLamb's seventh motion for postconviction relief filed since his resentencing, the court did not

address these claims on the merits; instead, it dismissed the

motion as a successive writ barred by MISS. CODE ANN. § 99-39-

27(9) (1994); see Grubb v. State, 584 So. 2d 786, 789 (Miss.

1991). Section 99-39-27(9) provides that, barring certain

exceptions, "the dismissal or denial of an application [for post-
9

conviction relief] under this section is a final judgment and

shall be a bar to a second or successive application under this

chapter." Because McLamb did not present these claims in an

earlier motion for relief, the Mississippi Supreme Court refused

to address them; therefore, McLamb procedurally defaulted these

claims in the state court. McLamb does not argue that § 99-39-

27(9) is not a procedural bar. This court may not review claims

which were procedurally defaulted in state court unless the

petitioner demonstrates cause and prejudice or a fundamental

miscarriage of justice. 

To demonstrate cause, the habeas petitioner must show "that

some objective factor external to the defense impeded [the

petitioner's] efforts to comply with the state's procedural

rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). McLamb

fails to advance any argument that he had cause for his

procedural default. Because he has not made the required showing

of cause, the court need not consider whether his inability to

bring the barred claim actually prejudiced him. Glover v.

Hargett, 56 F.3d 682, 684 (5th Cir. 1995). 

If a habeas petitioner fails to show cause and prejudice for

a state procedural default, the federal court will address the

merits only if review is necessary to correct a "fundamental

miscarriage of justice"--that is, if the claimed constitutional

violation resulted in the conviction of one who is actually

innocent. Coleman, 50l U.S. at 748; Glover, 56 F.3d at 684. 

McLamb does not contend that he is actually innocent of the
10

crime, so the "manifest miscarriage of justice" exception cannot

apply. 

McLamb's first claim, that his sentence is excessive, is

also procedurally barred. McLamb argues that the trial court

erred in sentencing him to 33 years because the statutory maximum

sentence for armed robbery is 30 years. McLamb has never

presented this claim to the Mississippi courts. However, because

McLamb's last motion for post-conviction relief was dismissed by

the Mississippi Supreme Court as a successive writ under § 99-39-

27(9), any future motions would be procedurally barred. "A

habeas petitioner who has defaulted his federal claims in state

court meets the technical requirement for exhaustion; there are

no state remedies any longer `available' to him." Coleman, 501

U.S. at 732. The procedural default is an independent and

adequate state ground that bars federal review. Id. Otherwise,

habeas petitioners would be able to avoid the exhaustion

requirement by defaulting their federal claims in state court.

Id.

Even if McLamb's excessive sentence claim were not barred by

procedural default, it fails on the merits. Under MISS. CODE

ANN. § 99-19-81, McLamb was subject to "the maximum term of

imprisonment prescribed for" armed robbery. Mississippi Code

section 97-3-79 defines armed robbery and provides the punishment

range. MISS. CODE ANN. § 97-3-79 (1994). This section states:

Every person who [commits armed robbery] shall be

imprisoned for life in the state penitentiary if the

penalty is so fixed by the jury; and in cases where the

jury fails to fix the penalty at imprisonment for life
11

... the court shall fix the penalty of imprisonment ...

for any term not less than three (3) years.

Id. In Stewart v. State, the Mississippi Supreme Court

interpreted this provision to mean that, in cases in which the

jury does not assess a life sentence, the court must sentence the

defendant to a "definite term reasonably expected to be less than

life." 372 So. 2d 257, 259 (Miss. 1979); see Glover, 56 F.3d at

685. In the present case, the trial court determined a sentence

reasonably expected to be less than life by reference to McLamb's

age and life expectancy tables. See Henderson v. State, 402 So.

2d 325, 328 (Miss. 1981)(applying Stewart and approving a

determination of an armed robbery sentence using age and life

expectancy tables). These factors explain the need to reduce

McLamb's sentence when the court discovered that it had erred in

determining his birthdate. McLamb's assertion that any sentence

over thirty years is equivalent to a life sentence under

Mississippi law is meritless.

B. Sufficiency of the Indictment

McLamb raises four claims regarding the defectiveness of his

indictment--claims 2, 4, 6 and 8. Specifically, he contends that

(1) the state should not have been permitted to amend the

indictment by correcting the dates of his prior convictions

without "allowing the jury to view the amended indictment;" (2)

the indictment should not have been amended in vacation and after

the trial and conviction; (3) the indictment should not have been

amended at the sentencing hearing because McLamb was not given

adequate notice; and (4) the original indictment did not
 

7 Although the appeal following resentencing was affirmed

without opinion and McLamb's post-conviction motions were denied

without opinion, the United State Supreme Court has held that:

[W]hen . . . a state court decision fairly appears to

rest primarily on federal law, or to be interwoven with

the federal law, and when the adequacy and independence

of any possible state law ground is not clear from the

face of the opinion, we will accept as the most

reasonable explanation that the state court decided the

case the way it did because it believed that federal

law required it to do so.

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). Thus the court

can assume that the Mississippi Supreme Court's decisions were on

the merits.

12

sufficiently particularize the prior convictions as required by

Mississippi Uniform Criminal Rules of Circuit Court Practice Rule

6.04. The Mississippi Supreme Court has addressed these

contentions on the merits; therefore, they are ripe for federal

review.7 

Federal habeas relief is not available for deficiencies in a

state indictment unless it can be shown that the indictment is so

defective that it deprived the state court of jurisdiction. 

McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert. denied, 115 S.

Ct. 157 (1994); Alexander v. McCotter, 775 F.2d 595, 598 (5th

Cir. 1985). "State law dictates whether a state indictment is

sufficient to confer" jurisdiction on a court. Williams v.

Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 115 S. Ct. 42

(1994); McKay, 12 F.3d at 69. A federal court will not consider

defective indictment claims on habeas review of state convictions

if the sufficiency of the indictment was presented to the highest

state court on appeal, and that court found, expressly or
13

implicitly, that the trial court had jurisdiction because the

indictment was sufficient under state law. McKay, 12 F.3d at 68;

Alexander, 775 F.2d at 598.

McLamb first raised the issue of the sufficiency of the

indictment and the change in the dates of his prior convictions

on direct appeal. McLamb, 410 So. 2d at 1318. The Mississippi

Supreme Court rejected his challenge, reasoning that the changes

were not material to the merits of the case. Id. at 1320. 

McLamb again claimed defects in his indictment and in the process

of amending the indictment in his direct appeal from the amended

sentencing order and in several of his motions for postconviction relief. In each instance, the Mississippi Supreme

Court denied relief without opinion. Because the Mississippi

Supreme Court has upheld the sufficiency of the indictment and

the propriety of its amendment in this case, federal review is

precluded. See Alexander, 775 F.2d at 599.

C. Sufficiency of the Evidence

McLamb's fifth claim alleges that the documents offered to

prove McLamb's prior North Carolina convictions were insufficient

to establish habitual offender status under the enhancement

statutes. McLamb raised this claim in his direct appeal from his

amended sentencing order, which the Mississippi Supreme Court

denied on the merits; therefore, this claim is ripe for federal

review. See supra, note 7. In reviewing a habeas petitioner's

claim of insufficient evidence, the reviewing court must ask

whether, viewing the evidence in the light most favorable to the
14

verdict, any rational trier of fact could have found the

essential elements of the crime to have been proved beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Callins v. Collins, 998 F.2d 269, 276 (5th Cir. 1993), cert.

denied, 114 S. Ct. 1127 (1994).

McLamb does not contend that the evidence was insufficient

for the jury to convict him of armed robbery. Rather, his claim

is limited to the contention that the evidence of his prior

convictions was insufficient to sentence him as a habitual

offender under MISS. CODE ANN. § 99-19-83 or § 99-19-81 (1994). 

Because McLamb is presently sentenced under § 99-19-81, we will

review the evidence for compliance with that statute. Section

99-19-81 provides:

Every person convicted in this state of a felony who

shall have been convicted twice previously of any

felony or federal crime upon charges separately brought

and arising out of separate incidents at different

times and who shall have been sentenced to separate

terms of one (1) year or more in any state and/or

federal penal institution, whether in this state or

elsewhere, shall be sentenced to the maximum term of

imprisonment prescribed for such felony, and such

sentence shall not be reduced or suspended nor shall

such person be eligible for parole or probation.

MISS. CODE ANN. § 99-19-81 (1994). To sentence a defendant under

this statute, the state must present evidence that (1) the

defendant was convicted of two prior felonies or federal crimes;

(2) these two crimes arose out of separate incidents; and (3) the

defendant was sentenced to at least one year imprisonment on each

conviction. In the present case, the district court found:

[A]lthough the evidence produced at the first

sentencing hearing was insufficient to support
15

enhancement under § 99-19-83 because neither prior

conviction was for a violent crime, it was clearly

sufficient under § 99-19-81 in that the certified

records from North Carolina included the judgment and

commitment orders for the crime of larceny in 1971 and

breaking and entering in 1965 for which petitioner was

sentenced to 10 years and 3 to 5 years respectively. 

Numerous other documents from North Carolina were

submitted as proof of petitioner's prior convictions

including history cards from petitioner's period of

confinement and an inmate identification card. 

We agree with the district court and, upon comparison of the

evidence submitted to the elements of § 99-19-81, we conclude

that the evidence was sufficient to support the sentence imposed. 

See Sones v. Hargett, No. 93-7646, slip op. at 5155, n.2, 5158

(5th Cir. Aug. 21, 1995) (holding that proof of defendant's prior

convictions in the form of commitment orders and testimony of

state prison personnel identifying defendant, was adequate for

enhancement purposes, even without actual judgments of

conviction). 

D. Double Jeopardy

McLamb also contends that he was subjected to double

jeopardy by his second sentencing hearing. Again, this claim was

addressed on the merits numerous times by the state court;

therefore, it is ripe for federal review. See supra note 7. The

double jeopardy clause applies to enhancement proceedings. 

Millard v. Lynaugh, 810 F.2d 1403, 1409 (5th Cir.), cert. denied,

484 U.S. 838 (1987). McLamb argues that the evidence at his

first sentencing hearing was insufficient to prove the existence

of his two prior convictions; therefore, it would offend double

jeopardy to resentence him using these two convictions. However,
16

we affirmed the district court's conclusion that the evidence was

sufficient to prove the existence of McLamb's prior convictions. 

Additionally, in vacating McLamb's sentence, the Mississippi

Supreme Court held only that his sentence was erroneous because

the prior convictions did not satisfy the requirements of § 99-

19-83 in that they were not crimes of violence; it did not hold

that the state failed to present sufficient evidence to prove the

existence of McLamb's prior convictions. See McLamb v. State,

456 So. 2d 743, 744. 

This circuit has addressed the claim raised by McLamb, and

held that the use of a valid conviction to resentence a defendant

under a lesser enhancement statute after the invalidation of his

sentence under a more severe enhancement statute does not offend

double jeopardy. Smith v. Collins, 964 F.2d 483, 487 (5th Cir.

1992) (concluding that the resentencing of a defendant as a

repeat offender after invalidation of his conviction as a

habitual offender because one of his prior convictions was found

defective does not offend double jeopardy); Millard, 810 F.2d at

1409. We conclude that the evidence of McLamb's prior

convictions presented at his first sentencing hearing was

sufficient to sentence him under § 99-19-81; thus, his claim that

his resentencing under this statute violates the Double Jeopardy

clause is without merit. 

E. In-Court Identification

McLamb finally argues that the trial court erred in

permitting his in-court identification. The Mississippi Supreme
17

Court rejected this argument on the merits in McLamb's first

direct appeal; therefore, it is ripe for federal review. See

McLamb v. State, 410 So. 2d 1318 (Miss. 1982). At trial, five

witnesses identified McLamb as one of two men who robbed a Kroger

store in Clarksdale, Mississippi, on November 1, 1980. McLamb

maintains that the in-court identification was improper because

he was the only black person in the courtroom not in uniform when

the identifications were made and because the state witnesses

were shown his photograph during the pre-trial investigation.

"A conviction based on an eyewitness identification at trial

following a pretrial identification by photograph will be set

aside only if the identification procedure was so impermissibly

suggestive as to give rise to a substantial likelihood of

misidentification." Herrera v. Collins, 904 F.2d 944, 946 (5th

Cir.), cert. denied, 498 U.S. 925 (1990) (citing Simmons v.

United States, 390 U.S. 377, 384 (1968)). A two-step analysis

governs the admissibility of identification evidence. First the

court must determine whether the identification procedure used in

the case was impermissibly suggestive. Herrera v. Collins, 904

F.2d 944, 946 (5th Cir.), cert. denied, 498 U.S. 925 (1990). 

Next, the question is whether, under the totality of the

circumstances, the suggestiveness of the identification created a

substantial likelihood of irreparable misidentification. Herrera,

904 F.2d at 946. 

Reliability is the "linchpin" of the identification

analysis. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). "Even
18

an impermissibly suggestive identification procedure does not

violate due process so long as the identification possesses

sufficient aspects of reliability." Herrera, 904 F.2d at 947. 

Factors to be considered include the opportunity of the witness

to view the criminal, the witness's degree of attention, the

accuracy of the witness's prior description, the level of

certainty demonstrated at the confrontation, the length of time

between the crime and the confrontation, and the corrupting

effect of the suggestive identification itself. Manson, 432 U.S.

at 114.

Even assuming arguendo that the out-of-court identification

procedure (i.e., the witnesses alleged viewing of the photograph)

was impermissibly suggestive, under the totality of the

circumstances, this case presents no substantial likelihood of

misidentification. Four Kroger employees, all of whom were

within a very short distance of McLamb during the hold-up,

identified him positively at trial as one of the robbers. A

fifth witness, a police officer, testified that McLamb and

another man left the Kroger store and walked in front of his

patrol car. The lighting was "very good" and the officer was

able to see the men clearly. The two men began to run and the

officer gave chase. The officer was part of the search team that

found McLamb in an abandoned vehicle in a field near Kroger's

about an hour after the robbery. The officer positively

identified McLamb as one of the men. The officer testified that

he was never shown a photograph of McLamb. 
19

All five identifying witnesses viewed McLamb within a few

feet, under bright lights, and without a mask or other object

covering his face. All five witnesses described a black male

with facial hair wearing a jacket and dark clothes. The

descriptions of the witnesses who viewed a photograph of McLamb

after the robbery were no different from the descriptions offered

by the witnesses who were not shown a photograph. Thus, the

totality of the circumstances indicates that the in-court

identifications of McLamb were reliable and did not offend due

process.

III. CONCLUSION

For the foregoing reasons, the district court's denial of

McLamb's habeas corpus petition is AFFIRMED. The respondent

Hargett's motion to dismiss the appeal for failure to timely file

a brief is denied as moot.