Luckett

MEMORANDUM *

The facts and procedural history of the case are known to the parties and we do not repeat them here.

Assuming that Luckett’s claims are properly before us, we find that any errors at trial did not violate any clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254 (d).

Admission of eyewitness testimony against Luckett is not reversible error because no Supreme Court case has extended the protections of Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), and its progeny to cases where the eyewitness first identifies the defendant at a pretrial hearing. As we recognized in United States v. Domina, “[n]one of these cases has set any guidelines for in-court identification procedures nor indicated that in-court identification must be made in a way that is not suggestive.” 784 F.2d 1361, 1368 (9th Cir.1986).

Similarly, a readback of an eyewitness’ testimony, without counsel’s knowledge or permission, has not been condemned by the Supreme Court. We have observed that the Court “has never addressed whether readback of testimony to a jury is a critical stage[] of the trial triggering a criminal defendant’s fundamental…