NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0277n.06

                                               No. 12-3242

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                            FILED
                                                                                        Mar 20, 2013
CECIL HOWARD,                                                )                   DEBORAH S. HUNT, Clerk
                                                             )
          Petitioner-Appellant,                              )
                                                             )
v.                                                           )   On Appeal from the United States
                                                             )   District Court for the Southern
WARDEN, Lebanon Correctional Institution,                    )   District of Ohio
                                                             )
          Defendant-Appellee.                                )




Before:          BOGGS, ROGERS, and STRANCH, Circuit Judges.

                  BOGGS, Circuit Judge. Before us is Cecil Howard’s appeal of the district court’s

denial of his petition for writ of habeas corpus. Howard was indicted under Ohio law for attempted

murder and aggravated robbery, both with a firearm specification, as well as for having a weapon

while under disability. All three indictments arose from the two-man robbery of a convenience store

in Springfield, Ohio, during the summer of 2002.

          At Howard’s trial, Donald Little, a store employee, testified about a pretrial identification of

Howard that he made from a police photo array. Little also made an in-court identification of

Howard. During both the pretrial and in-court identifications, Little identified Howard as the same

man that he saw a few blocks away from the scene of the crime shortly after the robbery was

committed. Howard objected to the introduction of this identification, arguing that it was unreliable.

The trial court overruled Howard’s objection, and he was subsequently convicted of all three
No. 12-3242
Howard v. Warden

charges. On direct appeal, Howard argued that, due to the motives, biases, and personal knowledge

of Little and his wife, the photo lineup resulting in Little’s identification was unduly suggestive and

also unreliable. Accordingly, Howard asserted that introduction of the identification at trial violated

his Fifth and Fourteenth Amendment rights to due process, a claim the Ohio Court of Appeals

rejected. The Ohio Supreme Court refused to review Howard’s undue-suggestiveness claim.

       Howard then filed a petition for writ of habeas corpus in the United States District Court for

the Southern District of Ohio, pressing, inter alia, his undue-suggestiveness claim. A magistrate

judge issued a report and recommendation (R&R) stating that Howard’s petition should be granted,

but only as to his undue-suggestiveness claim. The district court, however, relying on Perry v. New

Hampshire, 

 (2012), a Supreme Court opinion released after the issuance of the R&R,

declined to adopt the R&R and denied Howard’s petition in full. Noting its divergence from the

outcome recommended in the magistrate judge’s R&R, however, the district court issued a certificate

of appealability as to Howard’s undue-suggestiveness claim, and Howard now appeals. For the

reasons that follow, we affirm the ruling of the district court.

                                                   I

                                                  A

       Howard’s convictions arose out of the June 22, 2002 robbery of a Beverage Oasis

convenience store located in Springfield, Ohio. When two men wearing ski masks entered the store,

most of the employees, including Donald Little, fled and flagged down a passing SUV. Clifford

Conley, the owner of the store, remained and exchanged shots with the two robbers, injuring one and

eventually scaring away both. Meanwhile, the driver of the SUV, fearing pursuit by one of the

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robbers, transported the fleeing employees several blocks away from the store and then stopped to

dial 911 using his cell phone. While the SUV was stopped, a maroon car pulled up next to the SUV,

and a passenger in the back seat rolled down his window, grinned at Little, who was standing on the

side of the street, and then told the driver to “go.”

        In late 2003, Howard was arrested for the robbery. He was indicted on December 3, 2003,

for attempted murder, in violation of Ohio Rev. Code §§ 2923.02 and 2903.02, and aggravated

robbery, in violation of Ohio Rev. Code § 2911.01, both with a firearm specification, as well as for

having a weapon while under disability, in violation of Ohio Rev. Code § 2923.13. In November

2003 and again in May 2004, Little’s wife, Debra, contacted Officer Darwin Hicks, who had been

assigned to investigate the robbery, and told him that Little could identify one of the “shooters.”

Debra had been in frequent contact with the police, as they were also investigating the murder of her

brother and had recently informed her that Howard was likely involved. Soon after Debra’s second

call to the police, Little confirmed that he could make an identification, but only of a man in a car

near the scene of the crime, not of a “shooter.” Based on this information, Hicks asked Little to

participate in a photo lineup. At the lineup, Little immediately identified Howard as the individual

that he saw in the maroon car shortly after the robbery.

        Before trial, Howard moved to suppress Little’s identification, arguing that it was unreliable.

Specifically, Howard argued that Little only had a few seconds to observe the man in the maroon car,

that it was dark, that nearly two years had elapsed between the robbery and the identification, that

there had been widespread media coverage of Howard’s arrest for the robbery, and that the



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identification was tainted by Little’s knowledge that Howard may have been involved with the

murder of Little’s brother-in-law.

        After a suppression hearing, the state trial court denied the motion and allowed Little to

testify at trial about his pretrial identification of Howard. The trial court found that the photo array

contained six persons of similar appearance, that Little had demonstrated excellent recall skills, that

Little did not appear to have knowledge of any news coverage of the investigation, and that claims

of improper motive were not supported by the suppression-hearing testimony. Finally, although

Howard did not appear to press the argument that the procedures used during the identification were

unduly suggestive, the trial court found that the circumstances of the lineup were not suggestive as

to whom Little should identify and that Little’s identification was made independently without any

influence from Officer Hicks.

        On June 4, 2004, Little was convicted of all three counts relating to the convenience-store

robbery and sentenced to 25 years of imprisonment. Howard appealed to the Ohio Court of Appeals,

alleging, inter alia, that he was denied his Fourteenth Amendment right to due process when the trial

court failed to suppress the results of an unduly suggestive and unreliable photo lineup.

        The Ohio Court of Appeals affirmed the judgment of the trial court. It began by summarizing

the United States Supreme Court’s two-part test for undue suggestiveness, stating that “[t]o warrant

suppression of identification testimony, the accused bears the burden of showing [(1)] that the

identification procedure was ‘so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification’ and [(2)] that the identification itself was unreliable under

the totality of the circumstances.” State v. Howard, No. 2004CA29, 

, at *2 (Ohio

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Howard v. Warden

Ct. App. May 6, 2005) (quoting Simmons v. United States, 

, 384 (1968)); see generally

Neil v. Biggers, 

, 198–200 (1972) (summarizing earlier case law and providing a clear

outline of the two-part test for undue suggestiveness).

        Operating under this framework, the Ohio Court of Appeals found that the identification was

not unduly suggestive and thus did not meet part one of the undue-suggestiveness test. The court

dismissed Howard’s claim that the photo array was suggestive because he was the only person with

cropped hair, a mole, a wide mustache, sunken eyes, and a strip of hair running from his lower lip

to his chin, noting that the suspects used in a photo array need not be exactly alike. Finding that the

suspects were all similar in appearance, build, and complexion and that each had substantially

similar facial hair, the Ohio Court of Appeals found nothing unduly suggestive about the photo array.

Howard, 

, at *3–4.

        The court also analyzed part two of the undue-suggestiveness test, additionally holding that

the identification itself was reliable. The court based this finding on the fact that Little was only four

or five feet from the maroon car, that he could see the car well, that he had enough time to observe

the passenger inside the car, and that his subsequent identification at the photo lineup was

immediate. The court was concerned that nearly two years had passed between the robbery and

Little’s identification but was reassured by Little’s certainty during his identification and the lack

of evidence that intervening events had affected Little’s memory. Id. at*4–5.

        Howard next appealed to the Ohio Supreme Court, which remanded his case for re-

sentencing but declined to address his undue-suggestiveness claim. After re-sentencing, Howard

appealed his new sentence, and the Ohio Court of Appeals affirmed. The Ohio Supreme Court then

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denied Howard’s application for leave to appeal. Finally, Howard sought collateral review of his

conviction on grounds unrelated to his undue-suggestiveness claim, which was denied.

                                                  B

       Howard next filed a petition for writ of habeas corpus in the United States District Court for

the Southern District of Ohio. Howard’s final amended petition put forward five grounds for relief,

reasserting as ground one Howard’s undue-suggestiveness claim. Specifically, Howard alleged that

“[t]he lower court violated [his] right to due process when it overruled the motion to suppress

unreliable identification testimony, in violation of the Fifth and Fourteenth Amendments to the

United States Constitution and Section 16, Article I, of the Ohio Constitution.”

       A magistrate judge issued his R&R on November 9, 2011, which recommended conditionally

granting Howard’s petition with respect to ground one and denying all other grounds for relief. The

R&R deferred to the Ohio Court of Appeals’s finding “that the differences in physical appearance

among the suspects—by themselves—are not so significant to be deemed unduly suggestive.”

Nonetheless, it found that the Court of Appeals’s decision “was based on an unreasonable

determination of the facts because [it] ignored important evidence [concerning] the highly suggestive

manner in which the police learned that Little could identify one of the robbers.” More specifically,

the R&R listed the following facts that it felt the Ohio Court of Appeals failed to consider:

       (1) Debra Little, not Donald Little, was the one who informed the police that her
       husband could identify one of the robbers, almost one and a half years after the
       robbery; (2) Debra Little specifically told the police that Howard was involved in the
       Oasis robbery and her husband could identify one of the shooters; (3) Debra Little
       potentially had an improper motive in assisting with Howard’s conviction because
       Howard had been a suspect in her brother’s murder; (4) although Officer Hicks
       testified that he did not learn that Little could identify one of the robbers until a few

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       days before he presented the photo array, the police department, in fact, received that
       information months earlier, in November 2003; (5) Little testified that when the
       photo array was presented to him, he already knew that Howard had been charged
       with robbery; and (6) Little testified that he never provided Officer Hicks with a
       description of Howard.

(citations omitted). The R&R asserted that, based on the aforementioned facts, “the pretrial

photographic identification was unduly suggestive.”

       The R&R went on to hold that the photo identification was also unreliable under a totality

of the circumstances, as required by part two of the undue-suggestiveness framework, and also held

that its admission was not harmless error. Thus, the R&R recommended granting Howard’s habeas

petition as to ground one, but denying the petition as to all other grounds for relief. The State

objected to the magistrate judge’s recommendation on ground one, arguing that a determination of

undue suggestiveness should turn only on whether law-enforcement authorities acted to influence

the eyewitness, not on the motives, biases, and personal knowledge of third parties.

       After the magistrate judge issued the R&R, the Supreme Court decided Perry, which clarified

that the due-process concerns on which the undue-suggestiveness framework is based arise only

when an identification is “infected by improper police influence.” 132 S. Ct. at 720 (emphasis

added). By contrast, the Supreme Court stated that it would “not extend[] pretrial screening for

reliability to cases in which the suggestive circumstances were not arranged by law enforcement

officers.” Id. at 720–21.

       Based on this ruling, the district court, after restating the two-part test for undue

suggestiveness, sustained the State’s objection to the R&R. The district judge found that, in Perry,

“the Supreme Court [had] clarified that ‘what triggers due process concerns is police use of an

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unnecessarily suggestive identification procedure,’” Howard v. Warden, No. 3:08-cv-424, 

, at *5 (S.D. Ohio Feb. 7, 2012) (quoting Perry, 132 S. Ct. at 721 n.1 (emphasis added)), and

thus that “law enforcement must be responsible for the suggestiveness of the lineup in order to

trigger the due process check,” ibid. (emphasis omitted). Accordingly, the district court held that

“[t]he possibility that Little’s identification was fueled by his or his wife’s potential improper

motive” was irrelevant to the undue-suggestiveness inquiry, as was his knowledge that Howard may

have been involved in the Beverage Oasis robbery or his brother-in-law’s murder. Id. at *7.

        The court also emphasized that while these factors might be considered when determining

whether an identification was reliable, an inquiry into reliability constituted part two of the undue-

suggestiveness test, which should only be undertaken if undue suggestiveness is demonstrated in part

one. Thus, the court explained that while Little’s motive, his personal knowledge, and other

potential defects in his story might impact the weight one ultimately afforded his identification, these

factors would not affect a determination of whether the setting in which that identification was made

was unduly suggestive.1

        The district court therefore declined to adopt the R&R as to ground one and denied that

ground for relief, adopted the R&R as to grounds two through five and denied those grounds for

relief, and dismissed Howard’s petition for writ of habeas corpus in its entirety. In addition, since


        1
           The district court ended its inquiry there, stating that “[b]ecause the state courts’
determination that the lineup was not unduly suggestive was reasonable, this Court need not consider
the second step of the two-part [undue-suggestiveness] test.” Howard, 

, at *8.
Nonetheless, the district court also noted that it found the identification reliable, in and of itself, and
also that, in the event the identification was both unduly suggestive and unreliable, its admission was
harmless error. Id. at *8 n.6.

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the district court and magistrate judge disagreed as to ground one, the district court granted a

certificate of appealability only with regard to that ground for relief. Howard now appeals the

district court’s denial of ground one of his petition, i.e., his undue-suggestiveness claim.

                                                   II

                                                    A

        When assessing a district court’s decision to grant or deny a habeas petition, we review its

“legal conclusions de novo and its factual determinations for clear error,” McKinney v. Ludwick, 

, 487 (6th Cir. 2011), mindful that the more deferential standard of the Antiterrorism and

Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), applies to the reasoning of the

underlying state-court opinion.

        As this circuit has made clear, if a state court issues a ruling on the merits of a habeas claim,

a federal district court “may only grant habeas relief [if it finds] that the [state] court’s decision was

‘contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States’ or ‘was based on an unreasonable

determination of the facts in light of the evidence that was presented in the State court proceeding.’”

Peak v. Webb, 

, 472 (6th Cir. 2012) (quoting 28 U.S.C. § 2254(d)). In addition, “[t]he

law in question must have been clearly established at the time the state-court decision became final,

not after.” Ibid. (citing Williams v. Taylor, 

, 380 (2000)).

        The Supreme Court has recently emphasized, and this court has reiterated, that the level of

review permitted by AEDPA is narrower than even the plain language of that statute might suggest.

Harrington v. Richter, 

, 786 (2011); Peak, 673 F.3d at 472. “A state court’s

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determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” Harrington, 131 S. Ct. at 786

(internal quotation marks omitted). Thus, “if it is possible for a fairminded jurist to believe that the

state court’s rationale comports with [clearly established federal law, as determined by the Supreme

Court,] we must deny relief.” Peak, 673 F.3d at 472.

                                                    B

        Over the past fifty years, the Supreme Court has developed a two-part test for determining

whether the evidence gathered from an eyewitness identification must be excluded from trial due to

the unduly suggestive nature of the identification procedure. To start, the Supreme Court has always

embraced the baseline rule that “[t]he Constitution . . . protects a defendant against a conviction

based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by

affording the defendant means to persuade the jury that the evidence should be discounted as

unworthy of credit.” Perry, 132 S. Ct. at 723. Discrediting unreliable evidence at trial, rather than

excluding it completely, has thus been the traditional method through which a defendant can ensure

that the jury can accurately determine the facts.

        Nevertheless, “the Supreme Court has carved out a narrow exception from this general rule

for eyewitness identifications.” United States v. Washam, 468 F. App’x 568, 570 (6th Cir. 2012).

“Synthesizing previous decisions, [the Supreme Court] set forth in Neil v. Biggers and reiterated in

Manson v. Brathwaite the [two-part] approach appropriately used to determine whether the Due

Process Clause requires suppression of an eyewitness identification tainted by police arrangement.”

Perry, 132 S. Ct. at 724 (citations omitted). First, “due process concerns arise only when law

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enforcement officers use an identification procedure that is both suggestive and unnecessary.” Ibid.

(emphasis added) (citing Manson v. Brathwaite, 

, 107, 109 (1977); Biggers, 409 U.S.

at 198). But “[e]ven when the police use such a procedure . . . , suppression of the resulting

identification is not the inevitable consequence.” Ibid. Rather, the second step of the undue-

suggestiveness framework requires an inquiry into “whether under the ‘totality of the circumstances’

the identification was reliable even though the confrontation procedure was suggestive.” Biggers,

409 U.S. at 199. If an identification resulting from an unduly suggestive procedure is nevertheless

deemed reliable, it is admissible, “[n]otwithstanding the improper procedure” used by the police.

Perry, 132 S. Ct. at 725; see also Washam, 468 F. App’x at 570–71 (explaining that “[t]o exclude

[eyewitness] identifications, a defendant must show that the identification procedure was unduly

suggestive and the identifications were not otherwise reliable”).

        The two-part test outlined above proceeds in a linear fashion. When determining whether

to suppress an eyewitness identification, a court should not consider the reliability of eyewitness

evidence, i.e., engage in part two of the test, unless the defendant satisfies the requirements of part

one by proving that the police employed an unduly suggestive identification procedure. See Perry,

132 S. Ct. at 725–26; see also United States v. Stamper, 91 F. App’x 445, 462 (6th Cir. 2004). Put

differently, if there is no showing that police employed an unduly suggestive procedure to obtain an

identification, the unreliability of the identification alone will not preclude its use as evidence at trial.

Instead, such unreliability should be exposed through the rigors of cross-examination.

        Finally, the Supreme Court ruling in Perry clarified that “[t]he due process check for

reliability . . . comes into play only after the defendant establishes improper police conduct.” Perry,

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132 S. Ct. at 726 (emphasis added). In so holding, the Supreme Court explicitly stated that it had

“not extended pretrial screening for reliability [of evidence] to cases in which the suggestive

circumstances were not arranged by law enforcement officers.” Id. at 720–21. It reached this

outcome by noting that the undue-suggestiveness framework is not premised on unreliability of

evidence alone, but “turn[s] on the presence of state action and aim[s] to deter police from rigging

identification procedures.” Id. at 721. Thus, the Supreme Court limited the scope of part one of the

undue-suggestiveness test—whether the identification procedure was “so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons, 390 U.S.

at 384—to situations in which the police were the cause of the undue suggestiveness. “When no

improper law enforcement activity is involved,” reliability is better tested with tools such as “the

presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of

evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement

that guilt be proved beyond a reasonable doubt.” Perry, 132 S. Ct. at 721.

                                                   C

        Moving to the instant case, we find, and no party contests, that the Ohio Court of Appeals

ruled on the merits of Howard’s undue-suggestiveness claim. Thus, we apply the deferential

standard of review prescribed by AEDPA § 2254(d) when reviewing that court’s decision, asking

only whether the Ohio Court of Appeals’s ruling was contrary to, or involved an unreasonable

application of, clearly established federal law or was based on an unreasonable determination of the

facts in light of the evidence presented in the state court.



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                                                  1

       Howard first alleges that the design of the photo array itself was unduly suggestive, arguing

that differences in the photos presented influenced Little to select the photo of Howard. The Ohio

Court of Appeals, when engaging in part one of the undue-suggestiveness analysis, focused only on

these arguments, finding that “all the suspects [in the photo array] were similar in appearance and

build” and had a complexion similar to Howard’s. Howard, 

, at *4. It also found

that “[e]ach of the suspects had facial hair which, although not identical, was substantially similar”

and that “Howard’s hair was not significantly longer than the other suspects.” Ibid. Based on these

factual findings, the court ruled that the police did not structure the photo array itself in an unduly

suggestive manner. Ibid. Subsequently, the federal magistrate judge found that the Ohio court’s

determination of these facts was not “unreasonable” under the AEDPA standard, and the federal

district court adopted that finding.

       On appeal, Howard simply reiterates the claims he made before the Ohio court that “his

picture sticks out” because he “is the only person who has prominent facial hair and his picture

appears larger than the others.” Appellant Br. at 27. He provides no new argument as to why the

Ohio Court of Appeals’s factual findings were unreasonable in light of the evidence that was

presented in the State court proceeding, nor does he explain why it was an unreasonable application

of clearly established federal law to rely on those facts and hold that the photo array itself was not

unduly suggestive. He also makes no effort to explain why the decision of the magistrate judge and

district court to credit those same facts was clear error. Thus, Howard’s conclusory statements



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clearly do not meet his burden of showing that the Ohio Court of Appeals made an unreasonable

determination of the facts.

                                                 2

       The bulk of Howard’s argument on appeal is not focused on the photo array itself, but rather

on the Ohio Court of Appeals’s failure to consider certain extrinsic factors in determining whether

the procedure used to obtain Little’s identification was unduly suggestive. Howard’s brief discusses

at length the facts that Little and his wife, Debra, believed Howard to be responsible for the death

of Debra’s brother and that Debra was the one to inform the police that Little could identify a

“shooter.” Appellant Br. at 27. Howard’s brief also focuses on local newspaper and television

coverage of the Beverage Oasis robbery, which allegedly displayed Howard’s picture and stated that

he had been arrested in connection with the robbery. Id. at 28. These facts, in Howard’s view,

indicate, at the least, that Little was in some way predisposed to identify Howard due to information

that he had read about the Beverage Oasis crime and, at the worst, that he intentionally planned to

identify Howard in order to avenge his brother-in-law’s death. Id. at 27–28.

       Based on this theory, Howard argues that the police engaged in misconduct sufficient to

render the photo array unduly suggestive when, “aware of this animus and motive of revenge, [they]

develop[ed] a lineup that include[d] the Appellant.” Id. at 27. Essentially, Howard asserts that when

police know that an eyewitness is personally biased or otherwise unreliable, any identification

procedure that the police later arrange with that eyewitness must be excluded as unduly suggestive.

According to Howard, “knowing these motives and relationships imposes upon the police [a duty]

to corroborate this information before basing their entire case upon a single identification.” Ibid.

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        The Supreme Court, however, expressly rejected this argument in Perry when it made clear

that the general reliability of an identification is not a reason to exclude it unless the procedure used

to procure the identification is first proven to be unduly suggestive due to police misconduct. In fact,

the defendant in Perry put forward an argument almost identical to the one Howard now presses,

asserting that all identifications made under suggestive circumstances, regardless of who arranged

those circumstances, should be subjected to pretrial assessment for reliability. Perry, 132 S. Ct. at

727. The Supreme Court rejected this approach with the following reasoning:

        Perry’s limitation would . . . involve trial courts, routinely, in preliminary
        examinations. Most eyewitness identifications involve some element of suggestion.
        Indeed, all in-court identifications do. Out-of-court identifications volunteered by
        witnesses are also likely to involve suggestive circumstances. For example, suppose
        a witness identifies the defendant to police officers after seeing a photograph of the
        defendant in the press captioned “theft suspect,” or hearing a radio report implicating
        the defendant in the crime. Or suppose the witness knew that the defendant ran with
        the wrong crowd and saw him on the day and in the vicinity of the crime. Any of
        these circumstances might have “suggested” to the witness that the defendant was the
        person the witness observed committing the crime.

Id. at 727–28 (emphasis added). The Supreme Court rejected this vision of the courts’ role and

instead clearly held that “[t]he due process check for reliability . . . comes into play only after the

defendant establishes improper police conduct.” Id. at 726 (emphasis added). Especially noteworthy

is the Supreme Court’s express statement that the two alleged defects on which Howard now

relies—an eyewitness’s reading about a defendant in the press or having preconceived notions about

a defendant’s criminal background—do not make an identification procedure unduly suggestive.

        Because Perry makes clear that courts should not consider the extrinsic factors of which

Howard complains during step one of the undue-suggestiveness analysis, the Ohio Court of Appeals


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did not engage in an unreasonable application of clearly established federal law when it refused to

account for these factors in determining whether the procedure used during Little’s identification was

unduly suggestive. And since the Ohio Court of Appeals, when properly considering only the

actions of the police and the design of photo array itself, reasonably determined that there was no

undue suggestiveness, as discussed supra at pp. 12–14, Howard’s failure to satisfy step one ends the

inquiry.2

       In closing, we recognize the Supreme Court’s holding in Williams, 529 U.S. at 380, that the

only federal law that we may examine when reviewing a state court’s decision under AEDPA is law

that was clearly established at the time the state-court decision became final. We further recognize

that Perry was handed down over six years after the Ohio Court of Appeals made its ruling and thus

that considering it could be claimed to run afoul of the Williams rule.

       Perry, however, is arguably not a new rule of law under Williams, but rather a reaffirmation

of what was already implicit in earlier decisions. See Perry, 132 S. Ct. at 720–21 (noting that the

Supreme Court had “not extended pretrial screening for reliability to cases in which the suggestive

circumstances were not arranged by law enforcement”); Manson, 432 U.S. at 100–01, 112

(mentioning exclusion of an identification only in the context of police procedures that are

suggestive and stressing that a major purpose of exclusion is “deterrence . . . [such that] police will

guard against unnecessarily suggestive procedures”); Biggers, 409 U.S. at 196–98 (framing the



       2
        While the Ohio Court of Appeals went on to hold that the identification was also reliable
in and of itself and that even if not, its admission was harmless error, those holdings were not
necessary for it to dispense with Howard’s claim, and we need not review them here.

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Howard v. Warden

inquiry as only whether “identification procedures” are unduly suggestive and not referring to any

extrinsic factors).

        To the extent Perry is new law, it simply demonstrates that, prior to its filing, there was at

least some dispute as to whether step one of the undue-suggestiveness analysis should account only

for actions of the police or also for those of third parties. Thus, before Perry, fairminded jurists

could and did disagree on whether suggestive circumstances not caused by the police could be

considered during step one of the undue-suggestiveness analysis, confirming that the Ohio Court of

Appeals’s decision satisfied the deferential AEDPA standard. And finally, it seems clear that the

purpose of the Williams rule, rooted in the twin goals of “comity and finality,” Williams, 529 U.S.

at 381, is to prevent a federal court from second-guessing a state court in hindsight through the use

of rules the benefit of which the state court did not have. In this case, Perry is being used not to

question, but rather to affirm, the Ohio Court of Appeals’s interpretation of the undue-suggestiveness

framework.

        In sum, the Ohio Court of Appeals’s decision not to include the Littles’ potentially improper

motives and biased personal knowledge in its assessment of whether Little had participated in an

unduly suggestive identification was not only a reasonable application of clearly established federal

law—it was the application on which the Supreme Court itself later settled. Thus, Howard’s undue-

suggestiveness claim fails under the deferential AEDPA standard and, indeed, would fail even under

de novo review.

                                                 III

        For the aforementioned reasons, we AFFIRM the judgment of the district court.

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