Michael A. Clark v. Paul D. Caspari

HANSEN, Circuit Judge,

concurring.

I agree with the result reached by the court but write separately to emphasize the restricted nature of our habeas review and to point out the appropriate level of deference that must be afforded the Missouri Court of Appeals’ decision. Following the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, federal courts may grant a state prisoner’s petition for writ of habeas corpus in three limited situations: (1) when the state court decision was contrary to clearly established federal law, 28 U.S.C. § 2254(d)(1) (Supp. IV 1998); (2) when the state court decision involved an unreasonable application of clearly established federal law, id.; or (3) when the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). Under the first two scenarios, we may look only to the Supreme Court’s jurisprudence on a particular issue for purposes of defining what constitutes clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The Missouri Court of Appeals stated in deciding Clark’s appeal that Missouri courts employ a two-pronged test to determine the admissibility of identification tes*513timony: “(1) Was the pretrial identification procedure impermissibly suggestive; and (2) if so, what impact did the pretrial identification have upon the reliability of the witness’ identification.” Clark, 809 S.W.2d at 142 (citing Missouri v. Hornbuckle, 769 S.W.2d 89, 93 (Mo.1989) (en banc)). The state court went on to conclude that the officers’ “show-up” procedure was not im-permissibly suggestive and that the nature of the preidentification encounter did not render the subsequent identifications unreliable. Id. at 142-43.

The analysis undertaken by the state court is entirely consistent with the two-part test announced by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), although Manson’s, facts are distinguishable from those present here. In Manson, the Supreme Court stated that in evaluating identification testimony, a court must consider: (1) whether the identification procedures were impermissibly suggestive; and (2) if they were impermissibly suggestive, whether under the totality of the circumstances “the suggestive procedures created a ‘very substantial likelihood of irreparable misidentifieation.’ ” Manson, 432 U.S. at 116-17, 97 S.Ct. 2243; see also United States v. Fields, 167 F.3d 1189, 1190 (8th Cir.) (describing the analysis required under Manson), cert. denied, 526 U.S. 1140, 119 S.Ct. 1798, 143 L.Ed.2d 1025 (1999). The Supreme Court also reiterated in Manson the same five factors to guide courts in assessing the reliability of a pretrial identification that the Court previously identified in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See Manson, 432 U.S. at 114-16, 97 S.Ct. 2243. The Supreme Court of Missouri’s development of the proper analysis to be undertaken when identification procedures are challenged can be traced directly to the Supreme Court’s decisions in Manson and Biggers. See Missouri v. Higgins, 592 S.W.2d 151, 160 (Mo.1979) (quoted in Hornbuckle, 769 S.W.2d at 93), overruled on other grounds by Kuyper v. Stone County Comm’n, 838 S.W.2d 436 (Mo.1992).

While I too am concerned that the identification procedures employed by the police officers were suggestive, the resolution of Clark’s appeal turns not on whether they were or were not, but on whether the state court’s decision involved an unreasonable application of federal law in determining that the identifications themselves were reliable. This is so because, as our court notes in its opinion, reliability is the analytical “linchpin” to determining the admissibility of identification evidence. The Supreme Court explained in Williams v. Taylor, as relevant here, that a state court decision involves an “unreasonable application of’ federal law “if the state court identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular state prisoner’s case.” 529 U.S. at 407, 120 S.Ct. 1495. Our task then is not to examine the case as if it were on direct review, applying our independent judgment to determine whether the state court was correct in its decision, but rather we are to determine whether the state court’s application of the clearly established federal law (even if erroneous) was objectively reasonable. See Carter v. Bowersox, 265 F.3d 705, 713 (8th Cir.2001).

The Missouri Court of Appeals in Clark’s case applied the appropriate legal framework in making its decision, and it identified and discussed the relevant facts surrounding the identification procedures. Although the state court did not refer specifically to the Biggers factors, it looked to the facts that touch on the Biggers considerations, factors which our court discusses in independent detail in today’s decision. Specifically, the state court determined that both Conner and Walker had a *514clear view of the robbers, that Conner viewed Clark face-to-face for three to four minutes, that both Conner’s and Walker’s descriptions were “fairly” accurate, that there was a minimal delay between the robbery and the identifications, and that Conner expressed no difficulty in making a positive identification. Clark, 809 S.W.2d at 142-43. Clark presents no evidence now to suggest that the state court’s view of the facts was unreasonable based on the evidence presented, and the state court’s reliability conclusion is not unreasonable in light of the indicia of reliability upon which it based its decision. Because the Missouri Court of Appeals’ decision in Clark’s case cannot be labeled as an unreasonable application of the principles enunciated by the Supreme Court in Manson. I concur in our court’s affirmance of the district court’s judgment.