Garvey v. Duncan

05-5764
Garvey v. Duncan

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 _______________
5
6 August Term, 2006
7
8 (Argued September 15, 2006 Decided May 9, 2007)
9
10 Docket No. 05-5764-pr
11
12 _______________
13
14 Thomas Garvey,
15
16 Petitioner-Appellant,
17
18 v.
19
20 George Duncan, Eliot Spitzer, New York State Attorney General,
21
22 Respondents-Appellees.
23
24 _______________
25
26 Before:
27 CARDAMONE, MINER, and STRAUB,
28 Circuit Judges.
29
30 _______________
31
32 Defendant Thomas Garvey appeals from the September 21, 2005
33 order of the United States District Court for the Southern
34 District of New York (Wood, J.) dismissing his petition for a
35 writ of habeas corpus.
36
37 Affirmed.
38
39 Judge Straub dissents in a separate opinion.
40
41 _______________
42
43 JOHN W. BERRY, New York, New York (Ashley F. Waters, Akin Gump
44 Strauss Hauer & Feld, L.L.P., New York, New York; David
45 Crow, The Legal Aid Society, Criminal Appeals Bureau, New
46 York, New York, of counsel), for Petitioner-Appellant.
47
48 HAE JIN LIU, Assistant District Attorney, Bronx, New York (Robert
49 T. Johnson, District Attorney, Joseph N. Ferdenzi, Nancy D.
50 Killian, Assistant District Attorneys, Bronx County, Bronx,
51 New York, of counsel), for Respondents-Appellees.
1 CARDAMONE, Circuit Judge:

2 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. Yet, on appeal from the

9 denial of habeas relief defendant faces a procedural hurdle

10 before the merits of his argument may be examined. If firmly

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. Here, the district

17 court denied defendant habeas relief on the merits. We do not

18 reach the merits because such review is barred by independent and

19 adequate state law grounds.

20 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. Defendant's principal argument is that the New York

24 state trial judge (Bernstein, J.) violated Garvey's due process

25 rights by allowing into evidence his identification allegedly

2
1 made under suggestive circumstances. The state trial court judge

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. On appeal to the New

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. Garvey contends before us that the state procedural

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 district court found Garvey's claim was not procedurally

17 barred, but nonetheless dismissed the petition after reviewing

18 the merits. In our view Garvey's claim was procedurally barred.

19 Hence, while we affirm the result reached in the district court,

20 we do so on different grounds.

21 BACKGROUND

22 A. The Burglary, and Identification of Defendant

23 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. McKenzie got out of bed,

3
1 turned on the lights at the top of the stairs, and began to walk

2 downstairs. As she went down she saw two strange men hurriedly

3 fleeing from her house carrying what appeared to be her personal

4 property in their arms.

5 McKenzie had two opportunities at the scene of the crime to

6 view one of the perpetrators, whom she later identified as

7 Garvey. She first observed him for 30 seconds at a distance of

8 12 to 15 feet in the hallway of her home. She observed him a

9 second time from a second floor window as he quickly walked away.

10 McKenzie later testified that on both occasions she was able to

11 observe the person's clothing, skin color, and facial hair. But

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. According to routine police procedure, which was

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. The complaint report reflects that the only

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.

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. The neighbor knew

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. When McKenzie arrived in

9 Gaines' yard, she saw Gaines holding Garvey. At Garvey's feet

10 was McKenzie's video compressor, an object that had been taken

11 during the burglary. She immediately identified Garvey as the

12 person whom she had seen earlier that morning.

13 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. Officer Raftery escorted Garvey to one

16 side for his own safety, while Officer Davis spoke to Gaines. As

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. Upon learning this, the

20 officers placed Garvey under arrest.

21 B. 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. Defendant maintained he was identified by

4 McKenzie under suggestive circumstances because he was handcuffed

5 and in police custody. The trial court conducted a hearing where

6 the two police officers testified regarding the events occurring

7 at Garvey's arrest. The state trial court ruled the evidence of

8 McKenzie's identification of Garvey would not be excluded at

9 trial, stating:

10 I make the following conclusions of law:
11
12 No suggestive acts occurred by the police
13 department. The holding of the defendant
14 initially was by a private citizen and when
15 the officer was investigating it, another
16 private citizen, identifying herself,
17 approached him and said that she was a
18 witness to complaint of a burglary occurring
19 shortly before in her premises.
20
21 The officer had probable cause to arrest
22 defendant. No suggestiveness occurred, and I
23 find that the out-of-court identification may
24 be testified to and if there is any in-court
25 identification, that, of course, may be
26 testified to, also.
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 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. The appellate

3 division ruled that since this claim had not been raised at

4 trial, it was not preserved. People v. Garvey, 717 N.Y.S.2d 181,

5 182 (1st Dep't 2000). The First Department also noted that were

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. Id.

9 Garvey sought leave to appeal that ruling to the New York

10 State Court of Appeals. On March 5, 2001, the request was

11 denied. See People v. Garvey, 96 NY2d 783 (2000) (table). On

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. The district court denied

16 the petition after considering the merits. A notice of appeal

17 was filed with this Court on October 24, 2005.

18 DISCUSSION

19 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. See Hawkins v. Costello, 460 F.3d

24 238, 242 (2d Cir. 2006); Campusano v. United States, 442 F.3d

25 770, 773 (2d Cir. 2006).

7
1 II Independent and Adequate State Law Grounds

2 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." Lee v. Kemna, 534 U.S. 362,

6 375 (2002) (alteration and emphases omitted). This rule applies

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

10 petition. Id. However, the state law ground is only adequate to

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. Further, in certain limited circumstances, even

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." Id. In Lee, the

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. Id. at 381. Although

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." Id. at 381-85; see Cotto v.

24 Herbert, 331 F.3d 217, 240 (2d Cir. 2003). The three factors are

25 (1) whether the alleged procedural violation
26 was actually relied on in the trial court,

8
 1 and whether perfect compliance with the state
2 rule would have changed the trial court's
3 decision; (2) whether state caselaw indicated
4 that compliance with the rule was demanded in
5 the specific circumstances presented; and (3)
6 whether petitioner had "substantially
7 complied" with the rule given "the realities
8 of trial," and, therefore, whether demanding
9 perfect compliance with the rule would serve
10 a legitimate governmental interest.
11
12 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. To do so, we look at the statute and case law

19 construing it. Cotto, 331 F.3d at 243.

20 III State Procedural Bar

21 Under New York statutory law, there are two distinct ways a

22 question of law can be preserved for appeal. The first is

23 through an objection at trial by a party later claiming error.

24 N.Y. Crim. Proc. Law § 470.05(2). The second is when the trial

25 court makes an express ruling with regard to a particular

26 question. Id. We consider in turn whether the issue Garvey

27 raised on appeal in state court was preserved in either of these

28 two ways.

29 A. What Kind of "Protest" is Sufficient Under § 470.05(2)
30 and the Case Law Interpreting It?
31

9
1 Under the New York statute, a question of law is preserved

2 for appeal

3 [W]hen a protest thereto was registered, by
4 the party claiming error, at the time of such
5 ruling or instruction or at any subsequent
6 time when the court had an opportunity of
7 effectively changing the same. Such protest
8 need not be in the form of an "exception" but
9 is sufficient if the party made his position
10 with respect to the ruling or instruction
11 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). The purpose of this rule

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. People v. Jones, 81 AD2d 22, 41-42 (2d

8 Dep't 1981). A general objection is not sufficient to preserve

9 an issue since such would not alert the court to defendant's

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. See also People v. Parsons, 816 N.Y.S.2d 271, 271

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

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. Thus, defendant's contention is not

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 B. Was Garvey's Protest at Trial Sufficient to
17 Preserve the Issue He Raises on Appeal?
18
19 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. The defendant asserted

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. It is clear from the record that the

27 defendant's suppression motion was based on his contention that

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. There can be no

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 However, this is not the ground on which defendant based his

9 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. The Appellate

12 Division deemed this claim unpreserved. Garvey, 717 N.Y.S.2d at

13 182.

14 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. See McLane, 682 N.Y.S.2d at

18 25. Here, defendant did not provide the trial court with a fair

19 opportunity to consider the legal issue of whether the civilian-

20 facilitated identification was suggestive and needed to be

21 suppressed. The fact that the defendant had declared that the

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.

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. The dissent does not,

9 nor could it, dispute the fact that Garvey's motion did not

10 expressly challenge his identification based upon civilian

11 conduct. In fact, the motion cannot be read to encompass

12 anything beyond a police suggestiveness claim:

13 The People have given notice of their
14 intention to offer testimony identifying the
15 defendant herein as the person who committed
16 the crimes charged, which testimony will be
17 given by a witness who has previously
18 identified the defendant at a "corporeal
19 showup" conducted on September 20, 1996.
20 Defendant seeks herein to suppress said
21 identification on the ground that the
22 "showup" was unconstitutionally suggestive,
23 and was the product of an illegal arrest.
24
25 Upon information and belief (source:
26 police reports and investigations) on
27 September 20, 1996, the defendant was walking
28 along a public street in the vicinity of
29 Grace Avenue and Ely Avenues, Bronx, New
30 York, when he was seized by several
31 officers. . . .
32
33 Despite the fact that the defendant was
34 not engaged in criminal conduct, he was
35 seized by police and handcuffed. Almost six
36 and one half hours after the alleged burglary
37 took place the witness identified the

14
 1 defendant in a corporeal show-up as he stood
2 handcuffed in the street.
3
4 The defendant contends that the
5 identification violated his constitutional
6 rights because it was so unnecessarily
7 suggestive as to be a denial of due process
8 of law.
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 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. Based upon the foregoing, it would have been

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. Indeed, counsel never indicated that

20 the record contained anything other than a police suggestiveness

21 claim.

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. Counsel's foundational

27 questions to Officer Davis related to the fact that he observed a

28 crowd of people when he came upon the scene. The questions are

29 not equivalent to a discrete objection based upon civilian

30 suggestiveness. 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. Such a showing would

3 relate to the issue of whether the identification procedures were

4 orchestrated by the police. In short, there is nothing in the

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 C. When Has a Court Expressly Decided an Issue
9 Under § 470.05(2)?
10
11 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). New York's highest court explained how this

16 standard should be applied in a case involving a defendant whose

17 U-Haul rental van was pulled over by police. See People v.

18 Turriago, 90 NY2d 77 (1997). In Turriago, after the defendant

19 consented to a police search of his vehicle, the police found a

20 dead body inside. At trial, the defendant argued that his

21 consent had been involuntary, and the evidence should therefore

22 be suppressed. Id. at 82. The trial court found the defendant's

23 consent to the search was voluntary and denied suppression of the

24 physical evidence. Id. On appeal, the Appellate Division ruled

25 the consent invalid because "the police lacked a founded

26 suspicion that criminal activity was afoot so as to give rise to

16
1 the common-law right to inquire" when they pulled the vehicle

2 over. Id. at 83.

3 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. Id. at 83-84. Turriago noted

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. 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. Id. at

13 84 (emphases omitted). The Court of Appeals emphasized that, in

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. Id. at 83.

18 Turriago indicates three things that are useful in

19 determining how to apply § 470.05(2) in the present case. First,

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. See People v.

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
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. See People v. Cusumano, 484

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."). 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 D. Did the Trial Court Expressly Decide the Issue
14 Garvey Raised on Appeal?
15
16 In this case, the trial court ruled that

17 No suggestive acts occurred by the police
18 department. The holding of the defendant
19 initially was by a private citizen and when
20 the officer was investigating it, another
21 private citizen, identifying herself,
22 approached him and said that she was a
23 witness to complaint of a burglary occurring
24 shortly before in her premises.
25
26 The officer had probable cause to arrest
27 defendant. No suggestiveness occurred, and I
28 find that the out-of-court identification may
29 be testified to . . . .
30
31 The state trial court at no point expressly decided whether the

32 civilian-arranged identification was suggestive. Although the

33 court stated that "no suggestiveness occurred," this conclusory

34 statement was clearly limited to suggestive acts by the police --

18
1 the sole source of suggestiveness raised by the defendant in his

2 motion and at the hearing. It would be strange indeed if, in

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." Contrary to the dissent's observation, the

9 trial court's determination that "[n]o suggestive acts occurred

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). Rather, the court's discussion encompassed

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. Further, under New York law, the fact that the

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. Finally, when the court's decision is read in context,

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. Instead, the

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. 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. Consequently, we conclude the trial

3 court did not expressly decide the issue that the defendant

4 attempted to raise on appeal.

5 IV Would it Be Exorbitant to Apply § 470.05(2) in This Case?

6 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. To determine whether it would be exorbitant to apply

11 § 470.05(2) in this case, we look at Lee's three considerations.

12 See Cotto, 331 F.3d at 240. Since the three considerations are

13 closely tied to the facts in Lee, a brief summary of those facts

14 is helpful.

15 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. 534 U.S. at 365. The trial court explained it

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. Id. at 366. Having had no opportunity to present

22 alibi witnesses, Lee was subsequently found guilty. Id. The

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. Id. at 365. The Supreme Court ruled that such

20
1 application of a state rule was exorbitant, based on the

2 following three considerations. Id. at 376, 381-83. We consider

3 each in turn.

4 (1) Whether the alleged procedural violation was
5 actually relied on in the trial court, and whether
6 perfect compliance with the state rule would have
7 changed the trial court's decision.
8
9 See Cotto, 331 F.3d at 240 (summarizing Lee's first

10 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. It is therefore meaningless to ask whether the alleged

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. We may ask,

17 however, whether perfect compliance with the state rule would

18 have changed the trial court's decision. Unlike in Lee, where

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. Had Garvey complied with § 470.05(2),

24 the trial court would have had the opportunity to consider

25 whether the civilian-orchestrated identification should be

26 suppressed. Thus, the first consideration does not indicate that

27 this application of § 470.05(2) was exorbitant.

21
1 (2) Whether state case law indicated that compliance
2 with the rule was demanded in the specific
3 circumstances presented.
4
5 See Cotto, 331 F.3d at 240 (summarizing Lee's second

6 consideration).

7 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. Lee, 534

12 U.S. at 382. In contrast, this case presents no unique set of

13 circumstances similar to the circumstances in Lee. There was no

14 sudden or unanticipated event that led Garvey not to comply with

15 § 470.05(2). Therefore, the second consideration also does not

16 indicate that application of § 470.05(2) was exorbitant.

17 (3) Whether petitioner had substantially complied with
18 the rule given the realities of trial, and,
19 therefore, whether demanding perfect compliance
20 with the rule would serve a legitimate.
21 governmental interest.
22
23 See Cotto, 331 F.3d at 240 (summarizing Lee's third

24 consideration).

25 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. Id. at 383-85. Thus, the

30 Supreme Court ruled it would be "so bizarre as to inject an

22
1 Alice-in-Wonderland quality into the proceedings" to apply the

2 state procedural rule in such a case. Id. at 383. The Court

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. Id. at 385.

7 In the present case, in contrast, the defendant did not just

8 violate the formal requirements of § 470.05(2). He violated the

9 very substance of the rule. 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. Had the defendant here

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). Such is not our case. The

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. Hence, the third

21 consideration, as the first two, does not indicate that this

22 application of § 470.05(2) was exorbitant.

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. As a

8 consequence, the procedural bar of § 470.05(2) constitutes an

9 independent and adequate state ground for the Appellate

10 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 CONCLUSION

16 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. Even so, Garvey still succeeded in

9 raising the issue of suggestive civilian conduct through the

10 testimony elicited during the suppression hearing. Indeed,

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. Moreover,

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. Ironically, and

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 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. Finally, perceiving no obstacle

24 to our review of the merits, I conclude that the state appellate

25 court unreasonably applied clearly established Supreme Court law.

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.” Wray v. Johnson,

5 202 F.3d 515, 525 (2d Cir. 2000) (internal quotation marks

6 omitted).

7 I. There Is No Independent and Adequate State Procedural Bar

8 For simplicity’s sake, I shall assume that the majority’s

9 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). Nevertheless, this issue is not the crux of my

19 disagreement. Taking for granted the majority’s exacting view of

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

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. After

7 the close of testimony at the suppression hearing, Garvey’s

8 counsel began to explain her motion, as follows:

9 Counsel: Your Honor, I would move to suppress
10 the identification of Mr. Garvey at
11 the time of his arrest. Based on
12 the fact that it was, that the
13 information that Officer Davis had
14 at the time was unreliable, Mr.
15 Garvey should have been taken to the
16 precinct and put in a lineup and
17 afforded the opportunity of having,
18 you know, suggestive – –
19 The Court: Rest on the record.
20 Counsel: Yes. We rest on the record.

21 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. To

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.” Cotto, 331 F.3d at 238.

27
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 Counsel: Now, you said that you arrived at
7 the scene and you saw a crowd of
8 people; is that correct?
9 Davis: Yes, ma’am.
10 Counsel: And where was Mr. Garvey in relation
11 to that crowd?
12 Davis: He was – he was surrounded by
13 the crowd.
14 Counsel: Okay. And was anybody [i.e., any
15 civilian] holding him at the time?
16 Davis: Not that I recall, no.
17
18 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 Counsel: Now, when you came upon this crowd
25 surrounding Mr. Garvey, did you
26 notice any merchandise . . . [i]n
27 the area?
28 Davis: There was a machine which I
29 later learned to be a video
30 compressor.
31 Counsel: Where exactly was this located?
32 Davis: It was on the ground in the
33 same area where they were all
34 standing.
35
36 Garvey’s counsel then questioned the manner in which

37 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.” Once

6 McKenzie made that identification, Davis arrested Garvey.

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. Nowhere does the motion contain

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. Read

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.

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. In particular, the

25 trial court found that when the arresting officer arrived, he

29
 1 observ[ed] a small group of people, in the
2 midst of which was the defendant. The officer
3 did not observe the defendant being held by
4 anyone. The officer was already in the
5 driveway, and Mr. Theodore Ga[i]nes,
6 approached him and told the officer that
7 defendant had been trying to move property
8 from his backyard; that he grabbed him and was
9 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 No suggestive acts occurred by the police
23 department. The holding of the defendant
24 initially was by a private citizen and when
25 the officer was investigating it, another
26 private citizen, identifying herself,
27 approached him and said that she was a witness
28 to [the] complaint of a burglary occurring
29 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 The record passages cited above establish two points.

35 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. Simply put, the motion sought to suppress the

9 identification on the ground of suggestiveness, and the

10 testimony, not to mention the trial court’s findings of fact and

11 legal conclusions, specifically addressed suggestive civilian

12 conduct. Accordingly, I cannot understand how the majority

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. Supra, at 12.

16 B. The Trial Court Issued a Ruling on the Issue of

17 Civilian Suggestiveness

18 Further, the trial court actually ruled on whether

19 suggestive civilian conduct required suppression of McKenzie’s

20 identification testimony. I do not pretend that the trial

21 court’s ruling is perfectly neat; brief oral bench rulings, such

22 as the one issued here, rarely are. Nevertheless, the trial

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

31
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. Hence its conclusion, styled

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. Also telling is what the trial court did not say:

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 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. It was

25 not until one month after the trial court’s ruling that we

32
1 expressly held that suggestive civilian conduct, just as much as

2 police conduct, may raise constitutional concerns. See Dunnigan

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 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. Each of those acts satisfies

15 § 470.05(2)’s preservation requirement, even as the majority

16 strictly interprets it. Indeed, both the Magistrate Judge and

17 the District Court Judge who reviewed Garvey’s petition similarly

18 concluded.

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. Section 470.05(2), as Applied by the Majority, Is An

2 Inadequate Bar to Review

3 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. As the

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.’” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534

10 U.S. 362, 376 (2002)). Three factors guide the inquiry into

11 whether a case fits “within that limited category.” Id.

12 (internal quotation marks omitted).

13 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.” Id. Second, “whether state caselaw

17 indicate[s] that compliance with the rule was demanded in the

18 specific circumstances presented.” Id. Third, “whether

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.” Id. (quoting Lee, 534 U.S. at 381-85).

23 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. This

5 factor, therefore, favors Garvey.

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. His counsel elicited testimony regarding

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. In light of the trial court’s instruction to stop

16 speaking, Garvey’s counsel substantially complied with the

17 state’s preservation requirement by raising the issue through the

18 prior testimony. The third factor thus favors Garvey as well.

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.

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 II. The Appellate Division Unreasonably Applied Clearly
2 Established Supreme Court Law

3 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.” 28 U.S.C. § 2254(d). Clearly

14 established Supreme Court law consists of the Supreme Court’s

15 holdings, as opposed to dicta. See Kennaugh v. Miller, 289 F.3d

16 36, 42 (2d Cir.), cert. denied, 537 U.S. 909 (2002).

17 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.” Cotto, 331 F.3d at 247 (internal quotation

21 marks omitted). The application of federal law must be

22 “objectively unreasonable,” which requires the petitioner to

23 demonstrate “some increment of incorrectness beyond error.” Id.

24 at 248 (internal quotation marks omitted). Nevertheless, “[t]his

25 increment need not be great; otherwise, habeas relief would be

36
1 limited to state court decisions so far off the mark as to

2 suggest judicial incompetence.” Jenkins v. Artuz, 294 F.3d 284,

3 292 (2d Cir. 2002) (internal quotation marks omitted).

4 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. Cotto, 331 F.3d at 251-52.

12 B. Substantive Standards Governing the Admission of
13 Identification Testimony Following a Suggestive
14 Confrontation
15
16 The Due Process Clause forbids the admission of

17 identification testimony where there exists a “very substantial

18 likelihood of irreparable misidentification.” Neils v. Biggers,

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). In Biggers, the

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. Those factors

37
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.” Id. at 199-200. In Manson v. Brathwaite, 432

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.” See

10 also id. at 116.

11 C. The Decisions of the Appellate Division and the

12 District Court

13 On the merits, the Appellate Division concluded, without

14 elaboration, that “the identification was sufficiently reliable

15 under all the circumstances.” After unsuccessfully seeking leave

16 to appeal in the Court of Appeals, Garvey filed this habeas

17 petition. He principally urges that pursuant to the Biggers

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 The District Court agreed that “[c]learly, the

24 identification of Mr. Garvey was suggestive.” The Court also

25 “agree[d] that McKenzie’s inability to describe the burglars

38
1 weighs against finding her later identification sufficiently

2 reliable.” Nevertheless, the Court rejected Garvey’s claim that

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 Accordingly, the District Court analyzed each Biggers factor

11 independently and concluded that the identification was

12 sufficiently reliable. In particular, the District Court relied

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. The

16 District Court reasoned that,

17 (a) McKenzie had a clear opportunity to observe Garvey at
18 the time of the crime; (b) she was not a casual or
19 inattentive observer, as she descended the stairs for the
20 specific purpose of investigating the loud noise she had
21 heard; (c) after turning on the downstairs lights,
22 McKenzie had a clear, unobstructed view of [Garvey] as he
23 was trying to escape through McKenzie’s front door; (d)
24 McKenzie also observed [his] face again, a few moments
25 later, from a bedroom window, as he looked back
26 repeatedly towards McKenzie’s house while fleeing; (e)
27 McKenzie expressed certainty that Garvey was the burglar
28 she saw flee[]ing her home; (f) it was just a few hours
29 after the burglary that McKenzie told [the police] that
30 Garvey was one of the burglars and was wearing the same
31 clothes that one of the burglars had worn.
32

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. In

8 turn, those errors caused the District Court to ratify a

9 conclusion that amounts to an unreasonable application of

10 established Supreme Court precedent.

11 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. For example, in Raheem v. Kelly, 257 F.3d

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. There, a man in a black leather coat entered a

20 bar in which two witness, Shiloh and Cooke, were drinking. Id.

21 at 125. Shortly after the man shot and killed the owner of the

22 bar, Shiloh and Cooke attempted to describe him to police, but

23 could give only vague descriptions. Id. at 125-26, 139. They

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

40
1 admitted their identification testimony. Id. at 126-27, 130.

2 After his conviction, Raheem brought a habeas petition

3 challenging the admission of that testimony, and the District

4 Court dismissed the petition. Id. at 125.

5 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). Whatever their certainty, it was engendered by the

12 suggestive element itself, the black leather coat.” Id. at 139.

13 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. There, a man

17 named Colon was carjacked and robbed at gunpoint. Id. at 240-41.

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. After the crime, Colon, much like McKenzie, could

21 describe his assailants to the police only as “four black males.”

22 Id. at 242.

23 Colon later saw Dickerson at the arraignment of another man

24 who had been arrested while driving Colon’s stolen car. At that

25 arraignment, Colon identified Dickerson as the man in the rear

41
1 passenger seat of his car at the time of the carjacking. Id. at

2 241. Colon’s identification testimony was admitted at

3 Dickerson’s trial. Id. at 239-40. After Dickerson was

4 convicted, he petitioned for a writ of habeas corpus. Id.

5 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.” Id. at 245. As in

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.” Id. at 246.

22 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. According to the complaint

25 report, McKenzie described the perpetrator only as a black male.

42
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.” Her

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

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. Both Supreme Court

18 and Second Circuit precedent expressly require this additional

19 analytical step, yet the District Court simply did not undertake

20 it. See Brathwaite, 432 U.S. at 114 (“Against these [Biggers]

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

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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. When McKenzie’s sister came to

7 McKenzie’s door a few hours after the burglary, she told

8 McKenzie, “they caught a guy.” McKenzie and her sister then went

9 to Gaines’s house. 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. At the moment McKenzie first encountered Garvey, her

15 stolen property quite literally lie at his feet. By failing

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.

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. As I have said, her inability to give

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. Likewise, the

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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. Instead, it is the combination of three

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. If any of those facts

17 were tempered, the outcome might be different.

18 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. Pursuant to the three factors

22 we set forth in Cotto, I believe that it is. The first factor –

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

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1 such as this one are very fact-specific. Cotto, 331 F.3d at 251.

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. Raheem, 257 F.3d 122; Dickerson,

7 692 F.2d 238. This factor therefore somewhat favors a finding of

8 objective unreasonableness.

9 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. Id. The third factor asks whether

14 the state court’s conclusion is consistent with the purpose

15 behind the rule. The Supreme Court has explained that the

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). The

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. This factor also

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1 weighs in favor of a finding of objective unreasonableness. On

2 balance, therefore, I conclude that the Appellate Division’s

3 judgment is an unreasonable application of clearly established

4 Supreme Court law.

5 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.” Raheem, 257 F.3d at 142 (internal quotation marks

12 omitted); see also Wray v. Johnson, 202 F.3d 515, 525 (2d Cir.

13 2000).

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