Garvey v. Duncan, No. 05-5764 (2d Cir. 2007)
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05-5764 Garvey v. Duncan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2006 (Argued September 15, 2006 Decided May 9, 2007) Docket No. 05-5764-pr _______________ Thomas Garvey, Petitioner-Appellant, v. George Duncan, Eliot Spitzer, New York State Attorney General, Respondents-Appellees. _______________ Before: CARDAMONE, MINER, and STRAUB, Circuit Judges. _______________ Defendant Thomas Garvey appeals from the September 21, 2005 order of the United States District Court for the Southern District of New York (Wood, J.) dismissing his petition for a writ of habeas corpus. Affirmed. Judge Straub dissents in a separate opinion. _______________ JOHN W. BERRY, New York, New York (Ashley F. Waters, Akin Gump Strauss Hauer & Feld, L.L.P., New York, New York; David Crow, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, of counsel), for Petitioner-Appellant. HAE JIN LIU, Assistant District Attorney, Bronx, New York (Robert T. Johnson, District Attorney, Joseph N. Ferdenzi, Nancy D. Killian, Assistant District Attorneys, Bronx County, Bronx, New York, of counsel), for Respondents-Appellees. 1 2 CARDAMONE, Circuit Judge: On this appeal, after defendant had been convicted of 3 burglary in state court, he filed a petition in the United States 4 District Court for the Southern District of New York seeking 5 habeas corpus relief alleging a violation of his due process 6 rights based on identity evidence admitted against him at trial. 7 It is clear that the burglar's identity did not at the time of 8 the burglary press itself on the victim. 9 denial of habeas relief defendant faces a procedural hurdle Yet, on appeal from the 10 before the merits of his argument may be examined. 11 established and regularly followed state law provides an 12 independent (from the federal issue raised) and adequate basis 13 for sustaining the state court's judgment, a federal court is 14 precluded from reviewing the merits of a petitioner's claim for 15 habeas relief so long as application of the state rule was not 16 exorbitant on the facts of petitioner's case. 17 court denied defendant habeas relief on the merits. 18 reach the merits because such review is barred by independent and 19 adequate state law grounds. 20 If firmly Here, the district We do not Defendant Thomas Garvey (defendant or petitioner) appeals 21 from the September 21, 2005 order of the Southern District of New 22 York (Wood, J.) dismissing his petition for a writ of habeas 23 corpus. 24 state trial judge (Bernstein, J.) violated Garvey's due process 25 rights by allowing into evidence his identification allegedly Defendant's principal argument is that the New York 2 1 made under suggestive circumstances. 2 reasoned that since Garvey was not in police custody at the time 3 of the identification his claim of identification under 4 suggestive circumstances was groundless. 5 York State Supreme Court, Appellate Division, Garvey asserted 6 that even if the suggestive identification was entirely 7 orchestrated by civilians, it still should not have been admitted 8 into evidence against him, and instead should have been quashed. 9 The appellate division ruled that Garvey's due process claim was 10 unpreserved on appeal because that claim was not raised at trial 11 as required by the applicable New York rule of criminal 12 procedure. 13 rule was misapplied in his case and thus does not constitute an 14 adequate state ground for decision that would bar federal habeas 15 jurisdiction. 16 The state trial court judge On appeal to the New Garvey contends before us that the state procedural The district court found Garvey's claim was not procedurally 17 barred, but nonetheless dismissed the petition after reviewing 18 the merits. 19 Hence, while we affirm the result reached in the district court, 20 we do so on different grounds. 21 22 23 In our view Garvey's claim was procedurally barred. BACKGROUND A. The Burglary, and Identification of Defendant At 4:40 in the early morning of September 20, 1996 Violet 24 McKenzie was abruptly awakened in her Bronx County home when she 25 heard noises in her downstairs kitchen. 3 McKenzie got out of bed, 1 turned on the lights at the top of the stairs, and began to walk 2 downstairs. 3 fleeing from her house carrying what appeared to be her personal 4 property in their arms. 5 As she went down she saw two strange men hurriedly McKenzie had two opportunities at the scene of the crime to 6 view one of the perpetrators, whom she later identified as 7 Garvey. 8 12 to 15 feet in the hallway of her home. 9 second time from a second floor window as he quickly walked away. She first observed him for 30 seconds at a distance of She observed him a 10 McKenzie later testified that on both occasions she was able to 11 observe the person's clothing, skin color, and facial hair. 12 in the police report she made at 5:40 a.m. on the day of the 13 burglary, McKenzie was unable to provide a physical description 14 of the thief. 15 followed here, the reporting officer asked McKenzie to provide a 16 physical description of the intruder, including such details as 17 his age, height, weight, hair, facial hair, complexion, and 18 clothing. 19 description McKenzie was able to provide the officer at that time 20 was that the person she observed was wearing "dark clothing." 21 Because such is hardly a distinguishing characteristic of a 22 nighttime burglar, from this it is not surprising that the 23 officer concluded McKenzie was unable to identify the perpetrator 24 of the burglary. But According to routine police procedure, which was The complaint report reflects that the only 4 1 About five hours later that same morning, at 10:30 a.m., 2 McKenzie was summoned to her neighbor's yard. The neighbor's 3 husband, Theodore Gaines, had caught a man retrieving "some type 4 of video machine" from Gaines' trash cans. 5 McKenzie had been burglarized a few hours earlier, so Gaines and 6 other neighbors surrounded Garvey -- whom they believed might be 7 one of the burglars -- to give McKenzie an opportunity to come 8 over and see if she could identify him. 9 Gaines' yard, she saw Gaines holding Garvey. The neighbor knew When McKenzie arrived in At Garvey's feet 10 was McKenzie's video compressor, an object that had been taken 11 during the burglary. 12 person whom she had seen earlier that morning. 13 She immediately identified Garvey as the Two police officers, Dwayne Davis and John Raftery, arrived 14 a few minutes later, and found Garvey surrounded by a group of 15 people in Gaines' yard. 16 side for his own safety, while Officer Davis spoke to Gaines. 17 Officer Davis spoke with Gaines, McKenzie approached Officer 18 Davis and informed him that Garvey was one of the men that had 19 burglarized her home just hours before. 20 officers placed Garvey under arrest. 21 B. Officer Raftery escorted Garvey to one As Upon learning this, the Prior Proceedings 22 On October 1, 1996 Garvey was indicted for burglary in the 23 second degree, N.Y. Penal Law § 140.25[2], grand larceny in the 24 third degree, N.Y. Penal Law § 155.35, and criminal possession of 25 stolen property in the third degree, N.Y. Penal Law § 165.50. 5 1 Before trial Garvey moved to suppress McKenzie's 2 identification of him at the time of his arrest, arguing that it 3 was suggestive. 4 McKenzie under suggestive circumstances because he was handcuffed 5 and in police custody. 6 the two police officers testified regarding the events occurring 7 at Garvey's arrest. 8 McKenzie's identification of Garvey would not be excluded at 9 trial, stating: Defendant maintained he was identified by The trial court conducted a hearing where The state trial court ruled the evidence of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As a result, McKenzie's in-court and out-of-court identifications 29 of defendant were both admitted into evidence at his trial. 30 I make the following conclusions of law: No suggestive acts occurred by the police department. The holding of the defendant initially was by a private citizen and when the officer was investigating it, another private citizen, identifying herself, approached him and said that she was a witness to complaint of a burglary occurring shortly before in her premises. The officer had probable cause to arrest defendant. No suggestiveness occurred, and I find that the out-of-court identification may be testified to and if there is any in-court identification, that, of course, may be testified to, also. Garvey was convicted of burglary in the second degree by a 31 jury. Judgment was rendered by the New York Supreme Court, Bronx 32 County, on March 31, 1998, and since Garvey was a second felony 33 offender, he was sentenced to a ten-year term of imprisonment. 34 On appeal to the Appellate Division, Garvey urged for the first 6 1 time that his identification should have been excluded because of 2 civilian-orchestrated suggestive circumstances. 3 division ruled that since this claim had not been raised at 4 trial, it was not preserved. 5 182 (1st Dep't 2000). 6 it to review the merits of Garvey's claim, it would find that the 7 identification was sufficiently reliable under all the 8 circumstances. 9 The appellate People v. Garvey, 717 N.Y.S.2d 181, The First Department also noted that were Id. Garvey sought leave to appeal that ruling to the New York 10 State Court of Appeals. 11 denied. 12 June 4, 2002 Garvey sought a writ of habeas corpus in federal 13 court pursuant to 28 U.S.C. § 2254 based on his claim that it was 14 error for the state trial court to admit into evidence the 15 allegedly suggestive identification. 16 the petition after considering the merits. 17 was filed with this Court on October 24, 2005. See People v. Garvey, 96 NY2d 783 (2000) (table). 18 19 On March 5, 2001, the request was On The district court denied A notice of appeal DISCUSSION I Standard of Review 20 When this Court reviews a district court ruling on a habeas 21 corpus petition, we examine the factual findings of the district 22 court for clear error, but we consider questions of law, like the 23 one at issue here, de novo. 24 238, 242 (2d Cir. 2006); Campusano v. United States, 442 F.3d 25 770, 773 (2d Cir. 2006). See Hawkins v. Costello, 460 F.3d 7 1 2 II Independent and Adequate State Law Grounds Federal courts generally will not consider a federal issue 3 in a case "if the decision of the state court rests on a state 4 law ground that is independent of the federal question and 5 adequate to support the judgment." 6 375 (2002) (alteration and emphases omitted). 7 regardless of whether the independent state law ground is 8 substantive or procedural and whether the case is in federal 9 court on direct review or from state court via a habeas corpus This rule applies 10 petition. 11 support the judgment and foreclose review of a federal claim if 12 it is "firmly established and regularly followed" in the state. 13 Id. at 376. 14 firmly established and regularly followed state rules will not 15 foreclose review of a federal claim if the application of the 16 rule in a particular case is "exorbitant." 17 Supreme Court factored in three considerations to determine that 18 application of the firmly established and regularly followed 19 state procedural rule would be exorbitant. 20 we have observed that these three factors are not a test for 21 determining adequacy, they are nonetheless used as guides in 22 evaluating "the state interest in a procedural rule against the 23 circumstances of a particular case." 24 Herbert, 331 F.3d 217, 240 (2d Cir. 2003). 25 26 Id. Lee v. Kemna, 534 U.S. 362, However, the state law ground is only adequate to Further, in certain limited circumstances, even Id. In Lee, the Id. at 381. Id. at 381-85; see Cotto v. The three factors are (1) whether the alleged procedural violation was actually relied on in the trial court, 8 Although 1 2 3 4 5 6 7 8 9 10 11 12 and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest. Cotto, 331 F.3d at 240. 13 Since the adequacy of a state procedural bar to the 14 assertion of a federal question is itself a federal question, 15 Lee, 534 U.S. at 375, we must ascertain whether the state rule at 16 issue here is firmly established and regularly followed, and 17 further whether application of that rule in this case would be 18 exorbitant. 19 construing it. To do so, we look at the statute and case law 20 21 Cotto, 331 F.3d at 243. III State Procedural Bar Under New York statutory law, there are two distinct ways a 22 question of law can be preserved for appeal. 23 through an objection at trial by a party later claiming error. 24 N.Y. Crim. Proc. Law § 470.05(2). 25 court makes an express ruling with regard to a particular 26 question. 27 raised on appeal in state court was preserved in either of these 28 two ways. 29 30 31 A. Id. The first is The second is when the trial We consider in turn whether the issue Garvey What Kind of "Protest" is Sufficient Under § 470.05(2) and the Case Law Interpreting It? 9 1 2 3 4 5 6 7 8 9 10 11 Under the New York statute, a question of law is preserved for appeal [W]hen a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court. 10 1 Id. New York courts have explained that to preserve a claim of 2 error in the admission of evidence at trial under § 470.05(2) a 3 defendant must make his or her position known to the court. 4 People v. Gray, 86 NY2d 10, 19 (1995). 5 is to apprise the trial judge and the prosecutor of the nature 6 and scope of the matter defendant contests, so that it may be 7 dealt with at that time. 8 Dep't 1981). 9 an issue since such would not alert the court to defendant's The purpose of this rule People v. Jones, 81 AD2d 22, 41-42 (2d A general objection is not sufficient to preserve 10 position. See Gray, 86 NY2d at 20. Instead New York's highest 11 courts uniformly instruct that to preserve a particular issue for 12 appeal, defendant must specifically focus on the alleged error. 13 Id. at 19. 14 (4th Dep't 2006) ("Defendant failed to preserve for our review 15 his further contention that the evidence is legally insufficient 16 . . . inasmuch as his motion to dismiss was not specifically 17 directed at that alleged insufficiency."); People v. Rodriguez, 18 693 N.Y.S.2d 54, 55 (2d Dep't 1999) (defendant's claim "is 19 unpreserved for appellate review since it was not advanced with 20 specificity before the trial court"); People v. McLane, 682 21 N.Y.S.2d 24, 25 (1st Dep't 1998) ("By failing to elaborate on the 22 basis for his objection to the court's charge on justification, 23 defendant failed to provide the court with a fair opportunity to 24 rectify any error and failed to preserve the issue for appellate 25 review."); People v. Cooper, 537 N.Y.S.2d 700, 701 (4th Dep't See also People v. Parsons, 816 N.Y.S.2d 271, 271 11 1 1989) ("Although defendant objected on two occasions to receipt 2 of such evidence, neither objection specifically questioned 3 admissibility upon the ground now raised" and consequently 4 claimed error "was not preserved for appellate review."). 5 This rule applies with respect to motions to suppress as it 6 does in every other context. See, e.g., People v. Brooks, 808 7 N.Y.S.2d 517, 518 (4th Dep't 2006) ("In support of his further 8 contention that the [trial] court erred in denying his 9 suppression motion, defendant raises a ground not raised before 10 the suppression court. 11 preserved for our review."); People v. Fabricio, 763 N.Y.S.2d 12 619, 620 (1st Dep't 2003) ("Since defendant's suppression motion 13 [at trial] was made on completely different grounds from those 14 raised on appeal, his present challenges . . . are 15 unpreserved."). 16 17 18 19 B. Thus, defendant's contention is not Was Garvey's Protest at Trial Sufficient to Preserve the Issue He Raises on Appeal? In this case the defendant timely moved to suppress the 20 identification testimony. He argued in an omnibus motion before 21 the trial court that the fact that the victim identified him 22 after he was seized and handcuffed by the police made that 23 identification unnecessarily suggestive. 24 that the proper course of action would have been for the 25 arresting officers to have taken him back to the precinct to be 26 put in a lineup. 27 defendant's suppression motion was based on his contention that The defendant asserted It is clear from the record that the 12 1 the police orchestrated an unduly suggestive identification. 2 Defendant's motion to suppress the identification was denied 3 because the trial court found that defendant was not in police 4 custody at the time the identification was made. 5 question defendant preserved his right to appeal on this ground 6 and attempted to persuade the Appellate Division that he was in 7 fact in police custody at the time the identification occurred. 8 9 There can be no However, this is not the ground on which defendant based his appeal. Rather, on appeal defendant averred for the first time 10 that his identification should have been suppressed due to the 11 suggestive circumstances created by civilians. 12 Division deemed this claim unpreserved. 13 182. 14 The Appellate Garvey, 717 N.Y.S.2d at New York courts consistently interpret § 470.05(2) to 15 require that a defendant specify the grounds of alleged error in 16 sufficient detail so that the trial court may have a fair 17 opportunity to rectify any error. 18 25. 19 opportunity to consider the legal issue of whether the civilian- 20 facilitated identification was suggestive and needed to be 21 suppressed. 22 identification was suggestive because he was in police custody at 23 the time of the identification did not put the trial court on 24 notice that there might be a legal issue as to whether a 25 civilian-facilitated identification could be problematic as well. See McLane, 682 N.Y.S.2d at Here, defendant did not provide the trial court with a fair The fact that the defendant had declared that the 13 1 Under the firmly established and regularly followed New York 2 interpretation of § 470.05(2), this issue cannot be raised for 3 the first time on appeal. 4 The dissent's contention that Garvey's counsel was prevented 5 from presenting the issue of civilian suggestiveness at the 6 suppression hearing because the trial court interrupted him is 7 undermined by both the limited nature of the suppression motion 8 and counsel's statements at the hearing. 9 nor could it, dispute the fact that Garvey's motion did not 10 expressly challenge his identification based upon civilian 11 conduct. 12 anything beyond a police suggestiveness claim: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 The dissent does not, In fact, the motion cannot be read to encompass The People have given notice of their intention to offer testimony identifying the defendant herein as the person who committed the crimes charged, which testimony will be given by a witness who has previously identified the defendant at a "corporeal showup" conducted on September 20, 1996. Defendant seeks herein to suppress said identification on the ground that the "showup" was unconstitutionally suggestive, and was the product of an illegal arrest. Upon information and belief (source: police reports and investigations) on September 20, 1996, the defendant was walking along a public street in the vicinity of Grace Avenue and Ely Avenues, Bronx, New York, when he was seized by several officers. . . . Despite the fact that the defendant was not engaged in criminal conduct, he was seized by police and handcuffed. Almost six and one half hours after the alleged burglary took place the witness identified the 14 1 2 3 4 5 6 7 8 9 10 Affirmation in Supp. of Def.'s Mot. to Suppress at 8-9, New York 11 v. Garvey, No. 7174/96 (Sup. Ct. Bronx County Dec. 9, 1996) 12 (emphases added). 13 defendant in a corporeal show-up as he stood handcuffed in the street. The defendant contends that the identification violated his constitutional rights because it was so unnecessarily suggestive as to be a denial of due process of law. As even the dissent recognizes, Garvey's allegation that the 14 identification was flawed rested upon his counsel's belief that 15 Garvey had already been handcuffed by the police when he was 16 identified. 17 reasonable for the trial court to anticipate hearing only the 18 police conduct issue at the hearing and instruct counsel to "rest 19 on the record" accordingly. 20 the record contained anything other than a police suggestiveness 21 claim. Based upon the foregoing, it would have been Indeed, counsel never indicated that 22 In addition, the dissent's conclusion that our opinion in 23 Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998), could not 24 have apprised the trial court to consider the issue of civilian 25 suggestiveness necessarily reveals the likelihood that Garvey 26 would not have known to raise it. 27 questions to Officer Davis related to the fact that he observed a 28 crowd of people when he came upon the scene. 29 not equivalent to a discrete objection based upon civilian 30 suggestiveness. Counsel's foundational The questions are Given the prevailing law in New York at the 15 1 time, the questions sought only to show that the civilians were 2 holding Garvey before the police arrived. 3 relate to the issue of whether the identification procedures were 4 orchestrated by the police. 5 record to show that Garvey adequately challenged his 6 identification based upon civilian, as opposed to police, 7 conduct, and any inference to the contrary is purely speculative. 8 9 10 11 C. Such a showing would In short, there is nothing in the When Has a Court Expressly Decided an Issue Under § 470.05(2)? Under New York law, even in the absence of a proper 12 objection on a particular issue, a question of law is preserved 13 for appeal if "in reponse [sic] to a protest by a party, the 14 court expressly decided the question raised on appeal." 15 § 470.05(2). 16 standard should be applied in a case involving a defendant whose 17 U-Haul rental van was pulled over by police. 18 Turriago, 90 NY2d 77 (1997). 19 consented to a police search of his vehicle, the police found a 20 dead body inside. 21 consent had been involuntary, and the evidence should therefore 22 be suppressed. 23 consent to the search was voluntary and denied suppression of the 24 physical evidence. 25 the consent invalid because "the police lacked a founded 26 suspicion that criminal activity was afoot so as to give rise to New York's highest court explained how this See People v. In Turriago, after the defendant At trial, the defendant argued that his Id. at 82. Id. The trial court found the defendant's On appeal, the Appellate Division ruled 16 1 the common-law right to inquire" when they pulled the vehicle 2 over. 3 Id. at 83. The Court of Appeals reversed, emphasizing that under 4 § 470.05(2), the trial court must expressly decide an issue 5 before it is preserved on appeal. 6 that while the trial court had "allu[ded] to the subjective 7 suspicions of the troopers in seeking to search the rental van," 8 those comments "were made in response to defendant's claim of 9 involuntariness of his consent." Id. at 83-84. Id. at 83. Turriago noted Because the trial 10 court had never "expressly decided that the request for consent 11 to search was justified by a founded suspicion of criminal 12 activity," that issue had not been preserved on appeal. 13 84 (emphases omitted). 14 determining whether particular statements of a trial court 15 constitute a ruling on an issue not raised by the parties, it is 16 essential to look to the context in which those statements are 17 made. 18 Id. at The Court of Appeals emphasized that, in Id. at 83. Turriago indicates three things that are useful in 19 determining how to apply § 470.05(2) in the present case. 20 New York courts take seriously § 470.05(2)'s requirement that an 21 issue must be expressly decided by the trial court (if not raised 22 by a party) for it to be preserved for appeal. 23 Baughan, 812 N.Y.S.2d 528, 529 (1st Dep't 2006) (finding 24 defendant's argument on appeal unpreserved because the court did 25 not expressly decide the issue); People v. Alston, 778 N.Y.S.2d 17 First, See People v. 1 881, 881 (1st Dep't 2004). Second, Turriago instructs that when 2 a court rules against suppressing evidence on one ground that 3 ruling does not preserve for appeal all other potential grounds 4 for suppressing that evidence. 5 N.Y.S.2d 909, 912 (2d Dep't 1985) ("[D]efendant's present 6 challenge to the court's ruling which denied suppression of his 7 statements to the police was also not preserved for appellate 8 review since this particular ground for suppression was not 9 raised at the hearing."). See People v. Cusumano, 484 Third, Turriago tells us that 10 statements made by the trial court that might imply that it was 11 considering an issue not raised by the parties should be read in 12 context rather than in a vacuum. 13 14 15 16 D. Did the Trial Court Expressly Decide the Issue Garvey Raised on Appeal? In this case, the trial court ruled that 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 No suggestive acts occurred by the police department. The holding of the defendant initially was by a private citizen and when the officer was investigating it, another private citizen, identifying herself, approached him and said that she was a witness to complaint of a burglary occurring shortly before in her premises. The state trial court at no point expressly decided whether the 32 civilian-arranged identification was suggestive. 33 court stated that "no suggestiveness occurred," this conclusory 34 statement was clearly limited to suggestive acts by the police -- The officer had probable cause to arrest defendant. No suggestiveness occurred, and I find that the out-of-court identification may be testified to . . . . 18 Although the 1 the sole source of suggestiveness raised by the defendant in his 2 motion and at the hearing. 3 this single sentence, the trial court intended to raise and 4 resolve sua sponte the question of whether the civilian- 5 orchestrated identification was unconstitutionally suggestive. 6 Rather, it is clear that the court was simply summarizing its 7 earlier statement that "[n]o suggestive acts occurred by the 8 police department." 9 trial court's determination that "[n]o suggestive acts occurred It would be strange indeed if, in Contrary to the dissent's observation, the 10 by the police department" was not a "conclusion[] of law 11 bear[ing] directly on the issue of suggestive civilian conduct" 12 (emphasis added). 13 factual findings relating to the scene of Garvey's arrest that, 14 by themselves, did not decide the identification issue as a 15 matter of law. 16 trial court ruled the evidence should not be suppressed on one 17 ground does not preserve for appeal any other ground the 18 defendant might have raised -- but did not -- for suppressing the 19 evidence. 20 the references to the defendant having been held by civilians do 21 not indicate the trial court was ruling upon whether the 22 civilian-arranged identification was suggestive. 23 trial court was simply pointing out that it was parties other 24 than the police who took part in any suggestive acts that 25 occurred. Rather, the court's discussion encompassed Further, under New York law, the fact that the Finally, when the court's decision is read in context, Instead, the This was relevant because it negated Garvey's 19 1 contention that he was in police custody at the time the 2 identification was made. 3 court did not expressly decide the issue that the defendant 4 attempted to raise on appeal. 5 IV 6 Consequently, we conclude the trial Would it Be Exorbitant to Apply § 470.05(2) in This Case? Although § 470.05(2) is a firmly established and regularly 7 followed New York procedural rule, it will not bar us from 8 reviewing the federal claim on the merits if the application of 9 the state rule to this case is exorbitant. See Lee, 534 U.S. at 10 376. 11 § 470.05(2) in this case, we look at Lee's three considerations. 12 See Cotto, 331 F.3d at 240. 13 closely tied to the facts in Lee, a brief summary of those facts 14 is helpful. 15 To determine whether it would be exorbitant to apply Since the three considerations are In Lee, the trial court refused to grant the defendant an 16 overnight continuance of his trial to locate subpoenaed, 17 previously present, but suddenly missing witnesses that were key 18 to his defense. 19 was refusing to grant Lee the continuance because it was busy the 20 next day and had another trial scheduled to begin the weekday 21 after that. 22 alibi witnesses, Lee was subsequently found guilty. 23 state appellate court disposed of the case on procedural grounds, 24 explaining that Lee's continuance motion was defective under the 25 state rules. 534 U.S. at 365. Id. at 366. Id. at 365. The trial court explained it Having had no opportunity to present Id. The The Supreme Court ruled that such 20 1 application of a state rule was exorbitant, based on the 2 following three considerations. 3 each in turn. 4 5 6 7 8 9 (1) 10 Id. at 376, 381-83. We consider Whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision. See Cotto, 331 F.3d at 240 (summarizing Lee's first consideration). 11 In this case the alleged procedural violation was the 12 defendant's failure to raise a specific issue before the trial 13 court. 14 procedural violation was actually relied on in the trial court -- 15 the violation only first occurred when defendant raised an 16 argument on appeal that he had not raised earlier. 17 however, whether perfect compliance with the state rule would 18 have changed the trial court's decision. 19 the trial court would have reached exactly the same decision for 20 exactly the same reasons had Lee perfectly complied with the 21 state rules governing continuance motions, here perfect 22 compliance with the state rule would have had an impact on the 23 trial court's decision. 24 the trial court would have had the opportunity to consider 25 whether the civilian-orchestrated identification should be 26 suppressed. 27 this application of § 470.05(2) was exorbitant. It is therefore meaningless to ask whether the alleged We may ask, Unlike in Lee, where Had Garvey complied with § 470.05(2), Thus, the first consideration does not indicate that 21 1 2 3 4 5 See Cotto, 331 F.3d at 240 (summarizing Lee's second 6 consideration). 7 (2) Whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented. In Lee, the Court demonstrated that in the "unique 8 circumstances" presented, that is, "the sudden, unanticipated, 9 and at the time unexplained disappearance of critical, subpoenaed 10 witnesses on what became the trial's last day," the state courts 11 had never before applied the state rule in question. 12 U.S. at 382. 13 circumstances similar to the circumstances in Lee. 14 sudden or unanticipated event that led Garvey not to comply with 15 § 470.05(2). 16 indicate that application of § 470.05(2) was exorbitant. In contrast, this case presents no unique set of There was no Therefore, the second consideration also does not 17 18 19 20 21 22 23 See Cotto, 331 F.3d at 240 (summarizing Lee's third 24 consideration). 25 (3) Lee, 534 Whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate. governmental interest. The Lee Court deemed the third consideration the "most 26 important." 534 U.S. at 382. It explained that although the 27 form of Lee's continuance motion was defective, he had presented 28 to the trial court all of the information that would have been 29 included in a properly served motion. 30 Supreme Court ruled it would be "so bizarre as to inject an 22 Id. at 383-85. Thus, the 1 Alice-in-Wonderland quality into the proceedings" to apply the 2 state procedural rule in such a case. 3 explained that demanding perfect compliance under the 4 circumstances would not serve any legitimate governmental 5 interest because the essential requirements of the rule had 6 already been substantially met. 7 Id. at 383. The Court Id. at 385. In the present case, in contrast, the defendant did not just 8 violate the formal requirements of § 470.05(2). 9 very substance of the rule. He violated the The basis of § 470.05(2) is that the 10 trial court must be given a fair opportunity to rule on an issue 11 of law before it can be raised on appeal. 12 put the trial court on notice regarding his argument that the 13 civilian-orchestrated identification was suggestive, perhaps it 14 would have been exorbitant to punish him for not complying with 15 some technical aspect of § 470.05(2). 16 defendant violated the very essence of § 470.05(2), and demanding 17 compliance with § 470.05(2) serves a legitimate governmental 18 interest in this case, that is to say, the interest in allowing 19 the trial court to have the first opportunity to rule on and 20 possibly rectify any alleged legal error. 21 consideration, as the first two, does not indicate that this 22 application of § 470.05(2) was exorbitant. Had the defendant here Such is not our case. The Hence, the third 23 Therefore, because § 470.05(2) is a state law ground on 24 which the New York appellate court's decision is based, and that 25 ground is both independent of any federal question and adequate 23 1 under firmly established and regularly followed state law, we 2 will not disturb the state appellate court's ruling that the 3 defendant's protest at trial was insufficient to preserve the 4 arguments he wishes to raise on appeal. 5 Defendant's claim that the civilian-orchestrated 6 identification should be suppressed was not raised either by 7 specific objection or by the trial court's decision. 8 consequence, the procedural bar of § 470.05(2) constitutes an 9 independent and adequate state ground for the Appellate 10 As a Division's holding. 11 We need not reach or decide the defendant's federal claims, 12 since there was an independent and adequate state law ground for 13 the state appellate court's decision to affirm the defendant's 14 conviction. 15 16 CONCLUSION For the foregoing reasons, the order of the district court 17 dismissing Garvey's petition for a writ of habeas corpus is 18 affirmed. 24 1 STRAUB , Circuit Judge, dissenting. 2 Because I cannot agree with the majority s narrow view of 3 the record in this case, I respectfully dissent. The majority 4 requires that Garvey articulate his objections with near-surgical 5 precision, yet casts aside the inconvenient fact that the trial 6 court prevented Garvey s counsel from explaining the full scope 7 of his suppression motion after the close of evidence arguably 8 the most important time. 9 raising the issue of suggestive civilian conduct through the Even so, Garvey still succeeded in 10 testimony elicited during the suppression hearing. 11 Garvey s counsel so readily raised the issue that the trial 12 court s findings of fact and conclusions of law specifically 13 address it in language that the majority glosses over. 14 the trial court rendered a ruling on the issue of suggestive 15 civilian conduct by erroneously dismissing it as immaterial to 16 the constitutional suppression analysis. 17 unfortunately, the majority endeavors to transform the trial 18 court s dismissal of the question into Garvey s failure to raise 19 it. 20 Indeed, Moreover, Ironically, and Principally as a result of my view of the facts, I also 21 conclude that the majority s application of N.Y. C.P.L. § 22 470.05(2) is exorbitant and thus inadequate to bar our review of 23 Garvey s constitutional claim. 24 to our review of the merits, I conclude that the state appellate 25 court unreasonably applied clearly established Supreme Court law. Finally, perceiving no obstacle 25 1 I therefore would vacate the judgment of the District Court and 2 remand for a determination, in the first instance, of whether the 3 trial court s error had a substantial and injurious effect or 4 influence in determining the jury s verdict. 5 202 F.3d 515, 525 (2d Cir. 2000) (internal quotation marks 6 omitted). 7 I. 8 9 Wray v. Johnson, There Is No Independent and Adequate State Procedural Bar For simplicity s sake, I shall assume that the majority s strict view of § 470.05(2) is correct. See supra, at 9-17. I 10 note that reasonable minds can differ on this point. See N.Y. 11 C.P.L. § 470.05(2) ( [A] party who without success has either 12 expressly or impliedly sought or requested a particular ruling or 13 instruction, is deemed to have thereby protested the court's 14 ultimate disposition of the matter . . . sufficiently to raise a 15 question of law with respect to such disposition or failure 16 regardless of whether any actual protest thereto was registered. 17 (emphases added)); Cotto v. Herbert, 331 F.3d 217, 247 (2d Cir. 18 2003). 19 disagreement. 20 § 470.05(2) i.e., that in seeking suppression, Garvey had to 21 challenge suggestive civilian conduct as opposed to suggestive 22 conduct generally Garvey satisfied that standard for two 23 reasons: because he raised the issue of suggestive civilian 24 conduct at the suppression hearing, and because the trial court Nevertheless, this issue is not the crux of my Taking for granted the majority s exacting view of 26 1 rendered a ruling on the issue, albeit an erroneous and 2 dismissive ruling. 3 A. Garvey Raised the Issue of Suggestive Civilian Conduct 4 I wish to make clear something that the majority has 5 downplayed: the trial court abruptly cut short Garvey s counsel s 6 explanation of all the grounds of the suppression motion. 7 the close of testimony at the suppression hearing, Garvey s 8 counsel began to explain her motion, as follows: 9 10 11 12 13 14 15 16 17 18 19 20 21 After Counsel: Your Honor, I would move to suppress the identification of Mr. Garvey at the time of his arrest. Based on the fact that it was, that the information that Officer Davis had at the time was unreliable, Mr. Garvey should have been taken to the precinct and put in a lineup and afforded the opportunity of having, you know, suggestive The Court: Rest on the record. Counsel: Yes. We rest on the record. The trial court s directive to rest on the record most 22 certainly hampered counsel s ability to fully articulate the 23 grounds of the suppression motion once all the evidence was in. 24 This handicap alone raises serious questions as to the adequacy 25 of the purported procedural bar that the majority embraces. 26 me, it seems unwise to require Garvey to lodge pinpoint 27 objections when the trial court directs his counsel to quit 28 explaining his objections and rest on the record, especially 29 given that the independent and adequate state bar doctrine is 30 prudential rather than jurisdictional. 27 To Cotto, 331 F.3d at 238. 1 Even setting aside this pragmatic concern, prior to the 2 trial court s instruction to rest on the record, Garvey s 3 counsel s questions and Officer Davis s responses more than 4 adequately raised the issue of suggestive civilian conduct. 5 Specifically, Garvey s counsel questioned Davis as follows: 6 7 8 9 10 11 12 13 14 15 16 17 18 Counsel: Davis: Counsel: Davis: Counsel: Davis: Now, you said that you arrived at the scene and you saw a crowd of people; is that correct? Yes, ma am. And where was Mr. Garvey in relation to that crowd? He was he was surrounded by the crowd. Okay. And was anybody [i.e., any civilian] holding him at the time? Not that I recall, no. Shortly after that exchange, Garvey s counsel again queried 19 the location where [Davis] came upon Mr. Garvey surrounded by 20 the neighbors? 21 Garvey s counsel further probed the civilian-created, and 22 suggestive, conditions under which Davis first encountered 23 Garvey, as follows: 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Counsel: Davis: Counsel: Davis: Now, when you came upon this crowd surrounding Mr. Garvey, did you notice any merchandise . . . [i]n the area? There was a machine which I later learned to be a video compressor. Where exactly was this located? It was on the ground in the same area where they were all standing. Garvey s counsel then questioned the manner in which McKenzie identified Garvey under the conditions described above. 28 1 In particular, Garvey s counsel elicited testimony that after 2 Garvey had been held by Gaines and surrounded by a crowd of 3 neighbors with the purloined compressor at his feet, one member 4 of that crowd, McKenzie, approached Davis and identified Garvey 5 as the man who had burglarized her home earlier that day. 6 McKenzie made that identification, Davis arrested Garvey. Once 7 It was that identification, made under the circumstances 8 described above, that Garvey challenged in his suppression motion 9 as unconstitutionally suggestive. The fact that Garvey s 10 counsel also asserted in the motion papers that Garvey was 11 handcuffed at the time of McKenzie s identification which was 12 not true, as the testimony showed does not mean that Garvey 13 challenged only police conduct. 14 any limitation as to police conduct only; rather, the motion 15 papers challenge the identification on the broad ground that the 16 showup was unconstitutionally suggestive, among others. 17 fairly and in context, the motion challenged and the testimony 18 specifically addressed all the circumstances surrounding the 19 identification, including those related to civilian and police 20 conduct. Nowhere does the motion contain Read 21 Given the broad wording of the motion papers and the scope 22 of the testimony, it is no wonder, then, that the trial court s 23 factual findings bear directly, and in some instances only, on 24 the issue of suggestive civilian conduct. 25 trial court found that when the arresting officer arrived, he 29 In particular, the 1 2 3 4 5 6 7 8 9 observ[ed] a small group of people, in the midst of which was the defendant. The officer did not observe the defendant being held by anyone. The officer was already in the driveway, and Mr. Theodore Ga[i]nes, approached him and told the officer that defendant had been trying to move property from his backyard; that he grabbed him and was holding him until the police came. 10 11 Indeed, the trial court concluded that the crowd surrounding 12 Garvey was aggressive enough that Garvey was moved [by the 13 officer] to a doorway some distance away from the crowd for his 14 own protection, and that shortly thereafter, Violet McKenzie 15 approached the officer and said that she had observed the 16 defendant remove property from her home earlier and that also the 17 property that was in Ga[i]nes backyard was property that 18 belonged to her. 19 Similarly, the trial court s conclusions of law bear 20 directly on the issue of suggestive civilian conduct, 21 specifically the conclusion that, 22 23 24 25 26 27 28 29 No suggestive acts occurred by the police department. The holding of the defendant initially was by a private citizen and when the officer was investigating it, another private citizen, identifying herself, approached him and said that she was a witness to [the] complaint of a burglary occurring shortly before in her premises. 30 31 I cannot help but wonder why, if Garvey had failed to raise the 32 issue of suggestive civilian conduct, the trial court rendered 33 factual findings and legal conclusions on that very subject. 34 35 The record passages cited above establish two points. First, Garvey raised the issue of suggestive civilian conduct 30 1 because his counsel elicited specific testimony as to (1) 2 whether, prior to McKenzie s identification, her neighbors 3 surrounded Garvey in the driveway, (2) whether any of the 4 neighbors, such as Gaines, were holding Garvey, (3) whether, at 5 the time the crowd surrounded Garvey, McKenzie s stolen property 6 was lying at Garvey s feet, and (4) whether McKenzie came forth 7 from the crowd to identify Garvey under the circumstances already 8 described. 9 identification on the ground of suggestiveness, and the Simply put, the motion sought to suppress the 10 testimony, not to mention the trial court s findings of fact and 11 legal conclusions, specifically addressed suggestive civilian 12 conduct. 13 concludes that Garvey failed to raise the issue in a manner 14 sufficient to provide the trial court with a fair opportunity to 15 consider it. 16 17 18 B. Accordingly, I cannot understand how the majority Supra, at 12. The Trial Court Issued a Ruling on the Issue of Civilian Suggestiveness Further, the trial court actually ruled on whether 19 suggestive civilian conduct required suppression of McKenzie s 20 identification testimony. 21 court s ruling is perfectly neat; brief oral bench rulings, such 22 as the one issued here, rarely are. 23 court said enough to show that it considered the issue of 24 suggestive civilian conduct and found it irrelevant. 25 Specifically, the trial court s rulings that [n]o suggestive I do not pretend that the trial 31 Nevertheless, the trial 1 acts occurred by the police department and that [t]he holding 2 of the defendant initially was by a private citizen, establish 3 that the trial court (1) was quite aware of the issue of 4 suggestive conduct by private citizens, such as Gaines s holding 5 of Garvey, but (2) believed that suggestive civilian conduct as 6 opposed to police conduct raised no constitutional concerns. 7 That is, counsel s questions brought the issue of civilian 8 conduct to the trial court s attention, but the trial court 9 considered civilian conduct to be legally immaterial, and 10 therefore dismissed it in passing. 11 as one of law, that the [t]he holding of the defendant initially 12 was by a private citizen, and thus not a proper ground for 13 suppression. 14 after noting that some suggestive civilian conduct had occurred 15 again, Gaines holding Garvey the trial court did not rule, or 16 even imply, that Garvey had failed to challenge such conduct. 17 Instead, the trial court erroneously treated the question, 18 properly raised for decision, as if it were irrelevant to the 19 constitutional suppression analysis. 20 Hence its conclusion, styled Also telling is what the trial court did not say: Lest one think that I am adopting a strained reading of the 21 trial court s decision, I note that it is unsurprising that the 22 trial court took this view; the state of the law in our circuit 23 at the time of the trial court s ruling left open the possibility 24 that suggestive civilian conduct was legally immaterial. 25 not until one month after the trial court s ruling that we 32 It was 1 expressly held that suggestive civilian conduct, just as much as 2 police conduct, may raise constitutional concerns. 3 v. Keane, 137 F.3d 117, 128 (2d Cir. 1998) ( The linchpin of 4 admissibility, therefore, is not whether the identification 5 testimony was procured by law enforcement officers, as contrasted 6 with civilians, but whether the identification is reliable. ).1 7 What is surprising, however, is the majority s effort to morph 8 the trial court s erroneous ruling on an issue into Garvey s 9 failure to raise it. 10 See Dunnigan In sum, as I see the facts of this case, Garvey s counsel 11 raised the issue of suggestive civilian conduct, the trial court 12 considered it in its factual and legal findings, and the trial 13 court actually, although improperly, ruled on it by dismissing 14 the question as legally irrelevant. 15 § 470.05(2) s preservation requirement, even as the majority 16 strictly interprets it. 17 the District Court Judge who reviewed Garvey s petition similarly 18 concluded. Each of those acts satisfies Indeed, both the Magistrate Judge and 1 The fact that we did not expressly clarify this point until shortly after the trail court s decision does not impact the merits of Garvey s petition. Were we to reach the merits, we would look to the law in effect at the time of the Appellate Division s judgment, not that in effect at the time of the trial court s decision. Harris v. Kuhlmann, 346 F.3d 330, 345 (2d Cir. 2003). By the time the Appellate Division rejected Garvey s appeal, we had decided Dunnigan, in which we interpreted Supreme Court precedent to require suppression of identification testimony when the identification initially was made under unduly suggestive, civilian-created circumstances. See Dunnigan, 137 F.3d at 128-30. 33 1 C. Inadequate Bar to Review 2 3 Section 470.05(2), as Applied by the Majority, Is An In addition to my factual disagreement with the majority, 4 its application of § 470.05(2) is exorbitant and thus inadequate 5 to bar our review of Garvey s constitutional claim. 6 majority recognizes, there are exceptional cases in which 7 exorbitant application of a generally sound rule renders the 8 state ground inadequate to stop consideration of a federal 9 question. As the Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 10 U.S. 362, 376 (2002)). 11 whether a case fits within that limited category. 12 (internal quotation marks omitted). 13 Three factors guide the inquiry into Id. First, whether the alleged procedural violation was 14 actually relied on in the trial court, and whether perfect 15 compliance with the state rule would have changed the trial 16 court s decision. 17 indicate[s] that compliance with the rule was demanded in the 18 specific circumstances presented. 19 petitioner had substantially complied with the rule given the 20 realities of trial, and, therefore, whether demanding perfect 21 compliance with the rule would serve a legitimate government 22 interest. 23 Id. Second, whether state caselaw Id. Third, whether Id. (quoting Lee, 534 U.S. at 381-85). My view of the facts drives my analysis of these three 24 factors. In respect of the first factor, the trial court did 25 not rely, and could not have relied, on Garvey s purported 34 1 default because there was no default. Further, Garvey s 2 compliance with § 470.05(2) had no effect on the trial court s 3 decision because Garvey raised the issue of suggestive civilian 4 conduct and the trial court erroneously brushed it aside. 5 factor, therefore, favors Garvey. This 6 As to the second factor, I have accepted, for the sake of 7 argument, the majority s strict interpretation of § 470.05(2), 8 and found it satisfied here, which, in my view, quite decisively 9 favors Garvey. Finally, regarding the third factor, Garvey 10 substantially complied with the rule given the reality of the 11 suppression hearing. 12 the civilian-created circumstances surrounding McKenzie s 13 identification and, before counsel could fully explain the bases 14 of the motion, the trial court instructed her to rest on the 15 record. 16 speaking, Garvey s counsel substantially complied with the 17 state s preservation requirement by raising the issue through the 18 prior testimony. 19 Accordingly, the majority s application of § 470.05(2) to the 20 facts of this case is exorbitant and consequently inadequate to 21 bar our review of Garvey s constitutional claim. His counsel elicited testimony regarding In light of the trial court s instruction to stop The third factor thus favors Garvey as well. 22 For all those reasons, I conclude that there is no 23 independent and adequate state bar to our review of Garvey s 24 constitutional claim. 35 1 2 3 II. The Appellate Division Unreasonably Applied Clearly Established Supreme Court Law Having concluded that there exists no bar to our review of 4 the merits of Garvey s petition, I also conclude that the 5 judgment of the Appellate Division, First Department constitutes 6 an unreasonable application of clearly established Supreme Court 7 law, as explained below. 8 A. Standards Applicable to Garvey s Habeas Petition 9 In order to prevail on a habeas petition, Garvey must show 10 that the state court s adjudication of the claim . . . resulted 11 in a decision that . . . involved an unreasonable application of, 12 clearly established Federal law, as determined by the Supreme 13 Court of the United States. 14 established Supreme Court law consists of the Supreme Court s 15 holdings, as opposed to dicta. 16 36, 42 (2d Cir.), cert. denied, 537 U.S. 909 (2002). 17 28 U.S.C. § 2254(d). Clearly See Kennaugh v. Miller, 289 F.3d An unreasonable application occurs when a state court 18 identifies the correct governing legal principle . . . but 19 unreasonably applies that principle to the facts of the 20 prisoner s case. 21 marks omitted). 22 objectively unreasonable, which requires the petitioner to 23 demonstrate some increment of incorrectness beyond error. 24 at 248 (internal quotation marks omitted). 25 increment need not be great; otherwise, habeas relief would be Cotto, 331 F.3d at 247 (internal quotation The application of federal law must be 36 Id. Nevertheless, [t]his 1 limited to state court decisions so far off the mark as to 2 suggest judicial incompetence. 3 292 (2d Cir. 2002) (internal quotation marks omitted). 4 Jenkins v. Artuz, 294 F.3d 284, Although there exists no test to determine whether a state 5 court ruling is objectively unreasonable, three factors guide the 6 inquiry: (1) whether there exists a lack of any precedent 7 supporting [the state court s] result in the Supreme Court or any 8 federal court of appeals ; (2) whether the state court has given 9 specific reasons for its conclusion; and (3) whether the state 10 court s conclusion is consistent with the purpose behind the 11 relevant rule. 12 13 14 15 16 B. Cotto, 331 F.3d at 251-52. Substantive Standards Governing the Admission of Identification Testimony Following a Suggestive Confrontation The Due Process Clause forbids the admission of 17 identification testimony where there exists a very substantial 18 likelihood of irreparable misidentification. 19 409 U.S. 188, 198 (1972) (internal quotation marks omitted). 20 Once a suggestive confrontation occurs between the identifying 21 witness and the suspect, the central question is whether, 22 under the totality of the circumstances, the identification was 23 reliable even though the confrontation procedure was suggestive. 24 Id. at 199 (internal quotation marks omitted). 25 Supreme Court set forth the factors to be considered in 26 determining whether an identification is sufficiently reliable 27 notwithstanding some degree of suggestiveness. 37 Neils v. Biggers, In Biggers, the Those factors 1 include the opportunity of the witness to view the criminal at 2 the time of the crime, the witness degree of attention, the 3 accuracy of the witness prior description of the criminal, the 4 level of certainty demonstrated by the witness at the 5 confrontation, and the length of time between the crime and the 6 confrontation. 7 U.S. 98, 114 (1977), the Court added another step to the 8 analysis: Against these [Biggers] factors is to be weighed the 9 corrupting effect of the suggestive identification itself. 10 11 In Manson v. Brathwaite, 432 See also id. at 116. C. The Decisions of the Appellate Division and the District Court 12 13 Id. at 199-200. On the merits, the Appellate Division concluded, without 14 elaboration, that the identification was sufficiently reliable 15 under all the circumstances. 16 to appeal in the Court of Appeals, Garvey filed this habeas 17 petition. 18 analysis, McKenzie s near-total failure to initially describe the 19 burglar to the police required the District Court to severely 20 if not entirely discount other factors that might weigh in 21 favor of admissibility, such as McKenzie s opportunity to view 22 the burglar and the certainty of her later identification. 23 After unsuccessfully seeking leave He principally urges that pursuant to the Biggers The District Court agreed that [c]learly, the 24 identification of Mr. Garvey was suggestive. 25 agree[d] that McKenzie s inability to describe the burglars 38 The Court also 1 weighs against finding her later identification sufficiently 2 reliable. 3 McKenzie s initial failure to describe the burglar undercuts 4 other Biggers factors, mainly because [i]f the Court were to 5 weigh the Biggers factors as Garvey urges, the ability of a 6 witness to describe a suspect to the police prior to the 7 identification would be dispositive by itself, whereas the 8 Biggers analysis is based upon the totality of the 9 circumstances. 10 Nevertheless, the Court rejected Garvey s claim that Accordingly, the District Court analyzed each Biggers factor 11 independently and concluded that the identification was 12 sufficiently reliable. 13 upon the strength of three Biggers factors: McKenzie s 14 opportunity to observe Garvey, her attentiveness during the 15 crime, and the certainty of her later identification. 16 District Court reasoned that, 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 In particular, the District Court relied The (a) McKenzie had a clear opportunity to observe Garvey at the time of the crime; (b) she was not a casual or inattentive observer, as she descended the stairs for the specific purpose of investigating the loud noise she had heard; (c) after turning on the downstairs lights, McKenzie had a clear, unobstructed view of [Garvey] as he was trying to escape through McKenzie s front door; (d) McKenzie also observed [his] face again, a few moments later, from a bedroom window, as he looked back repeatedly towards McKenzie s house while fleeing; (e) McKenzie expressed certainty that Garvey was the burglar she saw flee[]ing her home; (f) it was just a few hours after the burglary that McKenzie told [the police] that Garvey was one of the burglars and was wearing the same clothes that one of the burglars had worn. 39 1 Despite its conclusion, the District Court granted a 2 certificate of appealability on the ground that the resolution 3 of the constitutional issue underlying Garvey s petition can be 4 debated. 5 D. The District Court Misapplied the Biggers Factors 6 As explained below, the District Court committed two legal 7 errors in applying Biggers and Brathwaite to Garvey s claim. 8 turn, those errors caused the District Court to ratify a 9 conclusion that amounts to an unreasonable application of 10 11 In established Supreme Court precedent. First, the District Court erred by considering the Biggers 12 factors in isolation. As we have pointed out before, one Biggers 13 factor affects another especially in cases where the victim 14 initially fails to describe the perpetrator and this interplay 15 is not to be ignored. 16 122, 139-40 (2d Cir. 2001), cert. denied, 534 U.S. 118 (2002), we 17 reasoned that a witness s inability to describe the perpetrator 18 shortly after the crime devalued the certainty of his later 19 identification. 20 bar in which two witness, Shiloh and Cooke, were drinking. 21 at 125. 22 bar, Shiloh and Cooke attempted to describe him to police, but 23 could give only vague descriptions. 24 later picked Raheem out of a suggestive lineup in which he was 25 the only person wearing a black leather coat, and the state court For example, in Raheem v. Kelly, 257 F.3d There, a man in a black leather coat entered a Id. Shortly after the man shot and killed the owner of the 40 Id. at 125-26, 139. They 1 admitted their identification testimony. 2 After his conviction, Raheem brought a habeas petition 3 challenging the admission of that testimony, and the District 4 Court dismissed the petition. 5 Id. at 126-27, 130. Id. at 125. In reversing, we reasoned that, To the extent that either 6 Cooke or Shiloh exhibited certainty [in their later 7 identification of petitioner], we find it difficult to view that 8 certainty as an indicator of reliability independent of the 9 suggestive lineup, given their lack of recollection as to any 10 physical features of the shooter s face (except, as to Cooke, its 11 roundness). 12 suggestive element itself, the black leather coat. 13 Whatever their certainty, it was engendered by the Id. at 139. Likewise, in Dickerson v. Fogg, 692 F.2d 238, 245-47 (2d 14 Cir. 1982), we reasoned that a witness s initial failure to 15 describe the perpetrator to police undercut the Biggers factors 16 that might otherwise weigh in favor of reliability. 17 named Colon was carjacked and robbed at gunpoint. 18 As the perpetrators ordered him out of the car, he briefly 19 glanced the face of a man sitting in the rear passenger seat. 20 Id. at 241. 21 describe his assailants to the police only as four black males. 22 23 There, a man Id. at 240-41. After the crime, Colon, much like McKenzie, could Id. at 242. Colon later saw Dickerson at the arraignment of another man 24 who had been arrested while driving Colon s stolen car. 25 arraignment, Colon identified Dickerson as the man in the rear 41 At that 1 passenger seat of his car at the time of the carjacking. 2 241. 3 Dickerson s trial. 4 convicted, he petitioned for a writ of habeas corpus. 5 Id. at Colon s identification testimony was admitted at Id. at 239-40. After Dickerson was Id. In affirming the District Court s grant of the petition, we 6 noted that Colon s initial, vague description devalued other 7 relevant factors, such as the degree of Colon s attentiveness 8 during the crime: Lastly, any possibility that Colon s training 9 as a security supervisor contributed to his attentiveness is 10 belied by his inability to describe the back seat passenger to 11 the police with any degree of specificity. 12 Raheem, we also concluded that the poor initial description 13 undercut the certainty of the later identification: In sum, not 14 only does the technically accurate but unduly vague description 15 of the back seat passenger furnished to the police before the 16 confrontation diminish the reliability of [Colon s] later 17 identification, but, considering that Colon did not describe 18 [Dickerson] in greater detail until after he viewed [Dickerson] 19 in the courtroom, his second specific description was 20 unmistakably the product of the [suggestive] viewing, and 21 questionably reliable as well. 22 Id. at 245. As in Id. at 246. In this case, McKenzie almost completely failed to describe 23 the burglar to the police when they first arrived at her house 24 shortly after the crime occurred. 25 report, McKenzie described the perpetrator only as a black male. 42 According to the complaint 1 When the responding officer asked her to describe the burglar s 2 age, height, weight, hair color, eye color, whether he had facial 3 hair, and what clothes he was wearing, McKenzie could provide no 4 information whatsoever, except that his clothes were dark. 5 recollection of his appearance was so lacking that she would not 6 even view photographs of suspects in an attempt to identify him. 7 Pursuant to Raheem and Dickerson, McKenzie s inability to 8 describe the perpetrator shortly after the crime diminishes the 9 extent to which one could conclude that she had ample opportunity Her 10 to view the perpetrators or was attentive during the event. The 11 District Court erred by failing to account for the manner in 12 which McKenzie s initial descriptive failure affects those other 13 Biggers factors. 14 Second, the District Court erred by failing to weigh the 15 corrupting effect of the suggestive confrontation against the 16 Biggers factors, especially the factor addressing the certainty 17 with which McKenzie later identified Garvey. 18 and Second Circuit precedent expressly require this additional 19 analytical step, yet the District Court simply did not undertake 20 it. 21 factors is to be weighed the corrupting effect of the suggestive 22 identification itself. ); see also id. at 116; Solomon v. Smith, 23 645 F.2d 1179, 1185 (2d Cir. 1981) ( [A]s Brathwaite makes clear, 24 the constitutional assessment of reliability requires a balancing 25 of the factors outlined in Biggers, against the degree of Both Supreme Court See Brathwaite, 432 U.S. at 114 ( Against these [Biggers] 43 1 suggestiveness in the impermissible procedures. ) (internal 2 citation omitted). 3 Here, an extraordinary degree of suggestiveness, see 4 Solomon, 645 F.2d at 1185, permeated McKenzie s identification; 5 one might go so far as to call these circumstances accusatory 6 rather than merely suggestive. 7 McKenzie s door a few hours after the burglary, she told 8 McKenzie, they caught a guy. 9 to Gaines s house. When McKenzie s sister came to McKenzie and her sister then went When they arrived, Gaines was holding 10 Garvey. Further, an agitated crowd had surrounded Garvey. 11 Gaines testified that he apprehended Garvey after Garvey entered 12 Gaines s backyard in an attempt to remove property that Garvery 13 had placed there last night, specifically, the video 14 compressor. 15 stolen property quite literally lie at his feet. 16 expressly to weigh the degree of suggestiveness against the other 17 Biggers factors especially in light of these rather extreme 18 circumstances the District Court erred. At the moment McKenzie first encountered Garvey, her By failing 19 Correcting for the two errors identified above, it is 20 apparent that there is no independent basis of reliability for 21 McKenzie s identification. 22 but the most rudimentary and generic description of the 23 perpetrator, even shortly after the crime, virtually precludes 24 one from concluding that she had a reliable opportunity to view 25 him or was attentive to any reliable degree. As I have said, her inability to give 44 Likewise, the 1 certainty of her later identification owes to the remarkably 2 suggestive circumstances under which she encountered Garvey. 3 Accordingly, both the Appellate Division and the District Court 4 erroneously concluded that McKenzie s identification was 5 reasonably reliable. 6 I pause briefly to note that, as this analysis demonstrates, 7 the District Court was mistaken in believing that if it allowed 8 McKenzie s initial descriptive failure to affect the other 9 Biggers factors, then the ability of a witness to describe a 10 suspect to the police prior to the identification would be 11 dispositive by itself. 12 relatively rare facts that is dispositive here: (1) McKenzie s 13 almost total failure to describe the perpetrator to the police 14 (2) despite the fact that she was interviewed shortly after the 15 burglary, plus (3) the severely suggestive circumstances that 16 prevailed during her later identification. 17 were tempered, the outcome might be different. 18 Instead, it is the combination of three If any of those facts As things stand, however, the next question is whether the 19 Appellate Division s judgment is more than merely erroneous, such 20 that it constitutes an unreasonable application of Supreme Court 21 law within the meaning of § 2254. 22 we set forth in Cotto, I believe that it is. 23 whether there exists a lack of any precedent supporting [the 24 state court s] result in the Supreme Court or any federal court 25 of appeals is somewhat difficult to evaluate because cases 45 Pursuant to the three factors The first factor 1 such as this one are very fact-specific. 2 Nevertheless, as explained above, our precedent strongly 3 indicates that when a witness fails to describe a perpetrator 4 shortly after the crime, and then later identifies someone under 5 highly suggestive circumstances, the identification testimony 6 generally should be suppressed. 7 692 F.2d 238. 8 objective unreasonableness. 9 Cotto, 331 F.3d at 251. Raheem, 257 F.3d 122; Dickerson, This factor therefore somewhat favors a finding of The second factor whether the state court has given 10 specific reasons for its conclusion strongly favors a finding 11 of objective unreasonableness, as neither the state trial court 12 nor the Appellate Division gave a single reason why McKenzie s 13 identification was reliable. 14 the state court s conclusion is consistent with the purpose 15 behind the rule. 16 purpose of the Biggers analysis is to avoid the primary evil of 17 a very substantial likelihood of irreparable misidentification. 18 Biggers, 409 U.S. at 199 (internal quotation marks omitted). 19 state court s conclusion in this case that the identification 20 was sufficiently reliable under all the circumstances is 21 inconsistent with the goal of avoiding misidentification. 22 Allowing testimony about identifications, such as McKenzie s, 23 that occur after an almost total failure of recollection and 24 arise from highly suggestive circumstances, only increases the 25 chances that a misidentification will occur. Id. The third factor asks whether The Supreme Court has explained that the 46 This factor also The 1 weighs in favor of a finding of objective unreasonableness. 2 balance, therefore, I conclude that the Appellate Division s 3 judgment is an unreasonable application of clearly established 4 Supreme Court law. 5 On For the above reasons, I would vacate the judgment of the 6 District Court. I would remand for consideration of the only 7 remaining question in this case, and one that the District Court 8 did not reach given its conclusion that no constitutional error 9 occurred: whether the error I have identified had a substantial 10 and injurious effect or influence in determining the jury s 11 verdict. 12 omitted); see also Wray v. Johnson, 202 F.3d 515, 525 (2d Cir. 13 2000). Raheem, 257 F.3d at 142 (internal quotation marks 47
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