### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 30783

KENDALL GORDON,
Petitioner

- Appellant

v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent

- Appellee

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:12

- CV

- 2708

Before REAVLEY, SMITH, and GRAVES, Circuit Judges

. REAVLEY, Circuit Judge : * Defendant Kendall Gordon was convicted in Louisiana court of second degree murder and sentenced to life in p rison. This judgment has been affirmed by a Louisiana Court of Appeal and Supreme Court. Th is petition for habeas corpus is now denied. The petition contends that th e state court’s affirmance of the conv iction i s an unreasonable application of the Supreme Court’s decision in Jackson v.

* Pursuant to 5 TH C IR . R. 47.5, the court has determin ed that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 28, 2015 Lyle W. Cayce Clerk Case: 13-30783 Document: 00513021946 Page: 1 Date Filed: 04/28/2015No. 13

- 30783 Virginia , 443 U.S. 307, 99 S. Ct. 2781 (1979), for the reason that the evidence most favorable to the state could not convince a rational trier of fact that the essential elements of the crime were proved beyond a reasonable doubt. The evidence in this case consisted solely of the identification of the defendant by a witness who subsequently recanted that testimony. The evidence of identification was introduced at trial by the testimony of Darcele e n Com m adore and New Orleans police detective Barret Morton. It

was e ssentially as follows

. On August 8, 2009 two men with a gun and bandanas on their faces broke into the house where Com m adore and her sister lived. Her sister w as killed by them , and when they fell on Com m adore and the bandanas fell off she saw their faces and identified one of them as the defendant Gordon. A few hours later at the detective’s office Com m adore detailed her identification. She explained that she and Gordon lived in the same area, she had sold clothes to him , and knew he had tattoos on his face and a gap in his teeth. She picked his picture out of six photos shown to her and insisted that she was a hundred percent certain that he was the man she had seen. Another man named Bibbins had been killed soon after the murder of the sister. The bullets that killed Bibbins and the sister of Commadore were fired by the same weapon. H is picture was th en shown among six others to her , and she pointed to him as a man she was only nin ety percent sure to have been an intruder that night. Some four months later Com m adore went to the office of the district attorney to say that she had been mistaken about the identification of Gordon, and she testified at trial that she thought earlier it was Gordon but later knew it was not. She denied being threatened but said she had heard “on the street like if this person is going to get out of jail this person going to do me this

... . ”

2 Case: 13-30783 Document: 00513021946 Page: 2 Date Filed: 04/28/2015No. 13

- 30783 Trial was to the bench and the judge fou nd Com m adore’s testimony about he r change d opinion not to be credible and the detective to be credible. This is a case where the original identification met the tests of reliability: her full view of the perpetrator at the time of the crime, prior observa tion and personal contacts, knowledge of tattoos and teeth of the person, and immediate and continuing certainty of the identification. See Neil v. Bigger s , 409 U.S. 188 , 199 , 93 S. Ct. 375 , 382 (1972). The finding of identification of the defendant was supported by the evidence. His guilt of the crime beyond a reasonable doubt could be, and was, f

ound by a rational trier of the facts

. PETITION DENIED.

3 Case: 13-30783 Document: 00513021946 Page: 3 Date Filed: 04/28/2015