Anderson, Feinberg and Mulligan, Circuit Judges.
This is an appeal from an order of Hon. Irving Ben Cooper, United States District Court Judge for the Southern District of New York, entered on July 7, 1972, granting the relator's petition for a writ of habeas corpus, after a hearing, pursuant to 28 U.S.C. § 2241. Reversed.
On March 18, 1966 the State Laundry in Hempstead, Nassau County, New York, was robbed by two armed men. The relator Manuel Gonzalez and one James F. Castellano were indicted and convicted in the Nassau County Court after a trial by jury, receiving concurrent sentences of 10 to 20 years for Robbery in the First Degree; 5 to 10 years for Grand Larceny in the First Degree; 2 1/2 to 5 years for Assault in the Second Degree and suspended sentences for Assault in the Third Degree. Both defendants appealed their convictions to the Appellate Division, Second Judicial Department, which affirmed without opinion (31 A.D.2d 1006, 299 N.Y.S.2d 389 (1969)). The New York Court of Appeals subsequently affirmed 4-2 (27 N.Y.2d 53, 313 N.Y.S.2d 673, 261 N.E.2d 605 (1970)) with Chief Judge Fuld and Associate Judge Breitel dissenting. Certiorari was denied by the Supreme Court on January 11, 1971 (400 U.S. 996, 91 S. Ct. 470, 27 L. Ed. 2d 445).
A writ of habeas corpus was then sought in the Southern District Court of New York on April 6, 1971. Judge Cooper referred the proceeding to United States Magistrate, Hon. Gerard L. Goettel, for report and recommendation. The Magistrate recommended that an evidentiary hearing be held and Judge Cooper so ordered. On February 3, 1972 a hearing was held before Magistrate Goettel. The principal witness, Marguerite D'Amora, was unable to attend and was deposed upon written interrogatories by the Hon. Gilbert Swink, a Magistrate of the United States District Court for the Eastern District of Virginia, the state where she now resides. On May 17, 1972 Magistrate Goettel submitted a report and recommended that the writ of habeas corpus issue. Judge Cooper adopted the report on June 19, 1972 and entered an order directing the respondent to release the petitioner unconditionally unless he was retried within sixty days. The order, however, was stayed and the petitioner is presently enlarged on bail pending the decision of this Court.
At the trial of this case Marguerite D'Amora testified that on March 18, 1966 she was working as a switchboard operator at the State Laundry in Hempstead, Long Island. At about 1:10 P.M. a new blue and very shiny car attracted her eye as it pulled up across the street, made a U turn and stopped in front of the laundry. Both men in the car got out and walked into the office. They were about 12 feet from her and she could clearly see their faces. She later identified the two men in court as Castellano and the relator Gonzalez. Gonzalez walked past her toward a staircase leading to the cashier's office and because it was her job to see that no one passed, she took particular notice, asking him if she could help. Gonzalez looked into another room, walked toward her and when about one foot away pointed a gun and said "This is a stickup. Come with me." Gonzalez brought D'Amora to the foot of the stairs together with another employee, Kitty Clarke. Gonzalez then placed a ski mask over his face and he and Castellano took the women up the stairs to the cashier's office. Other employees were rounded up. Gonzalez rifled the contents of the safe taking cash and employees' checks. Both men left with a blue school bag in the same blue car. The police were called.
Patrolman Guzzo testified that he was on patrol in Hempstead on March 18, 1966 shortly after 1:20 P.M. About a mile from the State Laundry he saw a blue Chevrolet. He identified on trial the State's exhibit 19 (a picture of the car Gonzalez was driving just prior to arrest) as a picture of the car he had observed and also identified Castellano as the driver, but he could not identify the other occupant. Guzzo had been cut off by the car and was about to stop it when he was advised by radio of the robbery at the laundry. He passed the car and went to the scene of the crime where he advised the detectives of the blue Chevrolet which he considered suspicious. Detective Moran testified that while checking out Guzzo's lead in Lindenhurst, shortly after 3:15 P.M., a 1960 blue Chevrolet drove past with 3 men in the front seat and with the license SK 8918.*fn1 He identified Gonzalez as the driver. He and Detective Kreitzman followed the car and pulled alongside. Detective Kreitzman showed his shield and ordered the car to pull over. The driver slowed down but then accelerated with the police car in pursuit, siren blaring. The Chevrolet stopped, Gonzalez said "Stop, stop, turn it off" and dashed between two houses. Castellano however remained with the car and was arrested immediately. Gonzalez was observed at a phone booth one quarter of a mile away. With helicopter assistance Gonzalez was chased through a woods and finally arrested after the firing of shots and a brief wrestling match with a policeman. After their arrest both Castellano and Gonzalez confessed that they had committed the crime charged. Gonzalez led the police to a refuse can near the location where he escaped from the vehicle and turned over to the police, checks which had been taken from the laundry. Weapons and clothing used in the robbery were also recovered as a result of information given by the relator.
The sole issue before the court below and now on appeal is the reliability of the identification of Gonzalez by Mrs. D'Amora who was the sole witness on trial to identify him as one of the two robbers. The case for the State was overwhelming as of March 18, 1966. Mrs. D'Amora's eyewitness identification was not anticipated as a major factor in the trial in view of the confession and recovery of weapons, clothing and loot. From the State's point of view a conviction could be reasonably anticipated. Then on June 13, 1966 the Supreme Court decided Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, holding that a confession without appropriate warnings, even though otherwise voluntary, was inadmissible in evidence. On June 20, 1966 Johnson v. New Jersey, 384 U.S. 719, 58 S. Ct. 1019, 82 L. Ed. 1461, was decided, holding that the Miranda requirements were to be applicable to all trials subsequently conducted. The State determined not to introduce either the confession or its fruits and thus the testimony of Mrs. D'Amora for the first time assumed major significance.
On May 12, 1966 Mrs. D'Amora had testified before the Grand Jury and was shown two photographs. She identified one as the relator Gonzalez and the other as Castellano, the men she stated had robbed the laundry seven weeks before. On June 12, 1967 the United States Supreme Court decided Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, holding that in some cases an unnecessarily suggestive line-up is violative of due process. On August 10, 1967 just before the trial, she was shown the photograph of Gonzalez whom she again identified as the man who robbed the laundry on March 18, 1966. She adhered to this identification on trial under rigorous cross-examination. The confession of Gonzalez and the evidence of the recovery of the weapon and the fruits of the crime, were not before the jury and were not sought to be introduced by the State. Evidence was offered to establish Gonzalez' presence in the blue Chevrolet after the robbery as well as his flight and capture. On March 18, 1968 the Supreme Court decided Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, holding that an unnecessarily suggestive photographic identification will, in some instances, be violative of due process. After the affirmances by the Appellate Division and Court of Appeals, the denial of the writ of certiorari, the present application for a writ of habeas corpus issued as previously set forth.
A threshold question here is what weight, if any, we are to accord the findings of fact of the Magistrate which were adopted by the court below. Normally such findings are to stand unless clearly erroneous under Fed.R.Civ.P. 52(a). We do not consider this rule to be here applicable. Mr. Justice Powell writing the opinion for the Court in Neil v. Biggers, 409 U.S. 188, 193, 93 S. Ct. 375, 379 n. 3, 34 L. Ed. 2d 401 (Dec. 6, 1972) noted:
This rule of practice, under which the Court does not lightly overturn the concurrent findings of fact of two lower federal courts, is a salutary one to be followed where applicable. We think it inapplicable here where the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them. Moreover, this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below) and ...