The opinion of the court was delivered by: CURTIN
This matter was initially before the late Chief Judge John O. Henderson. Petitioner submitted a pro se application for a writ of habeas corpus, alleging that his 1969 conviction for first degree rape in Monroe County Court was unconstitutionally obtained. In 1972 Judge Henderson denied the petitioner's application, without a hearing, on the merits. After timely notice was filed, an appeal was taken to the Second Circuit Court of Appeals.
In a decision and order of the Circuit Court, the matter was remanded for further proceedings. United States ex rel. Cannon v. Montanye, 486 F.2d 263 (2d Cir. 1973), cert. denied, 416 U.S. 962, 94 S. Ct. 1982, 40 L. Ed. 2d 313 (1974). The panel held, pursuant to 28 U.S.C. § 2254(d)(3), that the record of the state court proceedings lacked development of essential material facts regarding the in-court identifications of the petitioner. 486 F.2d at 268. The district court was directed to conduct or supervise an evidentiary hearing on the issues of unnecessary suggestiveness of the lineup and the likelihood of misidentification. 486 F.2d at 268.
The appellate tribunal was particularly concerned by the victim's inability to observe the rapist at the time of the attack, save for a glimpse of a green shirt. At the lineup, four days after the offense was committed, Cannon was wearing a green shirt and was selected by the victim. The testimony in the state court proceedings, however, failed to reveal details of how the other men in the array were clothed.
Furthermore, Cannon had been directed to wear a green shirt when he was arrested in his hotel room on the day of the lineup. The possible constitutional infirmity of the procedure was characterized by Judge Feinberg as follows:
If all were dressed in green the inference of undue suggestion would clearly fail. If one or two had on green shirts, the inference would weaken very considerably. . . . if the inference remained, it would acquire great importance . . . where the victim's "opportunity . . . to view the criminal at the time of the crime" was limited, . . . .
On December 3, 1973 Judge John O. Henderson appointed William H. Gardner, Esq. to represent the petitioner and Frederick A. Provorny, Esq., the petitioner's appellate lawyer, was appointed co-counsel. Shortly thereafter, following Judge Henderson's decease, the matter came before me. At that point counsel for the petitioner commenced discovery proceedings to obtain matter deemed essential to prepare for the hearing. The bulk of the material sought, however, was either unavailable or not produced. After discovery reached an impasse, a hearing was scheduled and held in this court on July 12, 1974.
The only witness called by either party was William Mahoney, Chief of Detectives for the Monroe County Sheriff's Department in Rochester, New York. On September 5, 1968 Mahoney conducted the lineup in his capacity as a supervisor for the Rochester Police Department's Detective Bureau. Mahoney conducted numerous lineups during this period for the police department. Although he stated that he had reviewed his trial testimony, Mahoney claimed to have a vivid independent recollection of the 1968 lineup because of prior contacts he had had with Cannon.
According to Mahoney, Lieutenant George Reiss and Detective Daniel Funk were assisting him, and the complainant was present. In keeping with the practice then, the names and positions of the persons in the array were recorded, but no photographs were taken or descriptions noted. In response to questions from the State Attorney General, Mahoney testified as follows:
Q. They were all in civilian clothing?
Q. Does that include Alton ...