Biggers, 409 U.S. at 201, 93
S.Ct. at 383 ("[A] lapse of seven months between the [crime] and the
confrontation . . . would be a seriously negative factor in most
While the five Biggers/Brathwaite factors suggest that Mrs. Terzi's
identification was unreliable, they "do not exhaust the possible ways in
which identification evidence may prove to be reliable or unreliable."
Abdur-Raheem, 98 F. Supp.2d at 305. The latter case contains an extensive
argument in support of the proposition that "[r]ather than relying solely
on the five specific factors outlined in Brathwaite, a sixth factor that
looks to corroborating evidence of guilt provides an essential protection
against the `gross miscarriage of justice' that can result from `[a]
conviction which rests on a mistaken identification.'" Id. at 307
(quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18
L.Ed.2d 1199(1967)). I need not rely on Abdur-Raheem here, because Sims
v. Sullivan, 867 F.2d 142 (2d Cir. 1989), a Second Circuit case involving
an in-court identification of the kind challenged here, expressly held
that "where the pretrial identification procedures were proper and the
other evidence of the defendant's guilt was ample, no deprivation of due
process exists." Id. at 145.
The petitioner in Sims was identified at his trial by a witness who had
previously picked the petitioner out of a photo array with some
uncertainty. Sims's request for a lineup prior to the in-court
identification was denied. Holding that the in-court identification was
not so unreliable as to "constitute a denial of fundamental fairness,"
Judge Winter found that it had not been tainted by any suggestive
pretrial procedures. Id. As a result, under Second Circuit precedents, he
was not obligated to address the independent reliability of the in-court
identification. Id. But, significantly for the analysis here, the panel
nevertheless considered whether the failure to grant a lineup resulted in
an in-court identification that was "so unreliable that `a very
substantial likelihood of irreparable misidentification' exists." Id.
(quoting Brathwaite, 432 U.S. at 116, 97 S.Ct. at 2254 (internal
quotation omitted)). In other words, the Second Circuit treated the
in-court identification as a separate, suggestively obtained,
In analyzing the reliability of this apparently fairly typical —
and, thus, highly suggestive — in-court identification of the
accused at the defense table, Sims held that a federal court is "not
bound in a collateral attack upon a state court conviction to view an
in-court identification in isolation from the rest of the evidence." Id.
at 146. Judge Winter went on to explain that "the validity of an in-court
identification, and, conversely, the need for a lineup, will . . . vary
according to the strength and nature of the other evidence against a
defendant." Id. An accomplice had directly implicated Sims in the charged
acts, and another witness had testified that the petitioner had admitted
the crime. Id. Thus the in-court identification was "less crucial" then
it would have been in isolation. Id.
It is quite apparent that the analysis in Sims was not a harmless error
inquiry. As noted, the opinion states expressly that "other evidence of
the defendant's guilt" is relevant to the initial question whether a
"deprivation of due process exists" as the result of a suggestive
identification. Id. at 145. Note also that after asserting that in a
habeas proceeding the court need not view the identification in isolation
from the other evidence, Judge Winter inserted a "cf." citation to United
States v. Archibald, 734 F.2d 938, 943 (2d Cir. 1984), modified on other
grounds, 756 F.2d 223 (2d Cir. 1984), which applied harmless error
Like Sims the present case contains other evidence of petitioner's
guilt that bears on the validity of Mrs. Terzi's identification.
Petitioner's fingerprint was found at the scene of the crime, expert
testimony indicated that the fingerprint could not have lasted for more
than a few days, and another witness identified petitioner as being four
stores from the restaurant a little over an hour before the crime. The
fingerprint evidence also demonstrated the falsity of petitioner's
post-arrest statement denying he had ever been in Caesar's Restaurant.
This evidence reduces the likelihood that petitioner was misidentified.
Moreover, this case is different from Sims in a way that also lends
itself to a traditional harmless error assessment. Unlike Sims, there was
a pretrial lineup at which the eyewitness could not make an
identification. This undermined completely — in a manner quite
apparent to the jury — the force of the in-court identification.
Significantly, the holdings of the Supreme Court recognize that a jury
fully apprised of the relevant facts surrounding a suggestive
identification can make an accurate judgment as to the weight to be
afforded that evidence. See Brathwaite, 432 U.S. at 113 n. 14, 97 S.Ct.
at 2252 n. 14 ("Counsel can both cross-examine the identification
witnesses and argue in summation as to factors causing doubts as to the
accuracy of the identification including reference to both any
suggestibility in the identification procedure and any countervailing
testimony such as alibi." (internal citation omitted)). Indeed, the
underlying premise of United States v. Wade, 388 U.S. 218, 87 S.Ct.
1926, 18 L.Ed.2d 1149(1967), which held that a defendant was entitled to
counsel at a lineup, was that counsel's presence would enable the
defendant to "reconstruct the manner and mode of lineup identification."
Id. at 230, 87 S.Ct. at 1934. In so holding, the Supreme Court observed
that one of the principal problems faced by an accused at trial is
establishing the nature and extent of any unfairness that may have
affected the pretrial identification procedures. "[A]ny protestations by
the suspect of the fairness of the lineup made at trial are likely to be
in vain; the jury's choice is between the accused's unsupported version
and that of the police officers present. In short, the accused's
inability effectively to reconstruct at trial any unfairness that
occurred at the lineup may deprive him of his only opportunity
meaningfully to attack the credibility of the witness' courtroom
identification." Id. at 231-32, 87 S.Ct. at 1934-35 (footnotes omitted).
The circumstances here are exactly the opposite of the Wade paradigm.
The accused here was represented by counsel at a fairly conducted lineup
where the witness could not identify him. Indeed, one of petitioner's
lawyers actually testified at the trial and contradicted Mrs. Terzi's
explanation for her failure to make an identification. Tr. 251-53.
Moreover, the jury was a witness to the in-court identification and the
effect the suggestiveness must have had on it. Particularly apposite here
is Hernandez v. Senkowski, Nos. CV 98-5270, CV 99-169, 1999 WL 1495443
(E.D.N.Y. Dec. 29, 1999). Judge Raggi there highlighted the difference
between suggestive out-of-court procedures (such as a pretrial lineup),
where "the fact finder does not have the benefit of seeing the
contemporaneous effect of the suggestive procedure on the witness," and
suggestive in-court procedures, where "deference to the jury would seem
even more appropriate . . . for there `the jury is present and able to
see first-hand the circumstances which may influence a witness.'"
Hernandez, 1999 WL 1495443, at *18-19 (quoting United States v. Bush,
749 F.2d 1227, 1231 (7th Cir. 1984)); see also Bond
West Page 438
68 F. Supp.2d 287, 303-04 (S.D.N.Y. 1999) (Peck, M.J.) (citing United
States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (noting that
regarding suggestive pretrial identifications, the jurors "are not able
to observe the witness making th[e] initial identification" — the
"certainty or hesitation of the witness when making the identification,
the witness's facial expressions, voice inflection, body language, and
the other normal observations one makes in everyday life when judging the
reliability of a person's statements")).
In Hernandez, after the witness initially failed to identify the
defendant in-court, the prosecutor pointed to the defendant and asked the
witness whether he was the perpetrator. Judge Raggi concluded that the
"jury could decide whether her identification of [the defendant] was a
mere timid adoption of the prosecutor's blunt suggestion or the product
of her own independent reliable recollection." Hernandez, 1999 WL
1495443, at * 19. In the present case, Mrs. Terzi viewed petitioner
seated at the defense table prior to seeing him taken from the
courtroom, and she recognized him while she was on the stand. As a
result, the jury was able to see the critical surrounding circumstances
of Mrs. Terzi's in-court identification — petitioner seated at the
defense table and Mrs. Terzi's manner and demeanor on the stand.
More significantly, perhaps, defense counsel's cross-examination of
Mrs. Terzi amply demonstrated the use that petitioner was able to make of
the evidence undermining the reliability of her identification.
Specifically, Mrs. Terzi's testimony was discredited in a number of ways.
Defense counsel elicited the fact that Mrs. Terzi had failed to identify
petitioner from photographs or at the lineup in July 1980. Tr. 71-75,
79-81. Mrs. Terzi claimed that she blacked out and "didn't see nobody" at
the lineup, Tr. 71, and stated "I was scared. I was terrified. I couldn't
see nothing." Tr. 80. Raymond Kobus, an attorney associated with the
defense and who was present at the lineup, however, testified that Mrs.
Terzi did not state at the time of the lineup that she blacked out, only
that she was unable to identify petitioner, and that she appeared
"visibly calm," not upset or emotionally disturbed. Tr. 251-53. In
addition, Detective James Restivo, who was also present at the lineup,
agreed that Mrs. Terzi said that she could not identify anyone, not that
she blacked out. Tr. 215.
Petitioner's counsel also questioned how Mrs. Terzi's "memory suddenly
[came] to life," when the incident had occurred over a year and a half
before the trial. Tr. 73-75. He intimated that Detective Restivo and
Mrs. Terzi had formed a close relationship, Tr. 67-68, 86; 210-11, and
that Restivo had pressured Mrs. Terzi into identifying petitioner by
telling her the case would be in trouble without an identification. Tr.
95-96; 220. Additionally, Mrs. Terzi admitted during questioning that the
man she identified as petitioner did not have a scar on his face, Tr.
93, even though Detective Restivo later testified that petitioner has a
three inch scar on his left cheek. Tr. 216. Finally, regarding her
ability to identify petitioner at the trial, Mrs. Terzi stated that,
"[t]he moment I saw that boy today, the eyes of that boy I couldn't
forget," Tr. 73, and that she recalled telling the police that she
remembers "his eyes and his front." Tr. 78. Counsel suggested through
questioning that Mrs. Terzi had never told anyone, particularly Detective
Restivo or the Grand Jury, about remembering the eyes or front of
petitioner, the man who pointed a gun at her. Tr. 85-88; 211-12.
Significantly, the testimony that the jury asked to have read back
confirms that Mrs. Terzi's identification did not have a
injurious effect on the verdict. The jury asked for (1) the testimony of
Irving Silver, who identified petitioner as a person he had seen about
four stores away from Caesar's Restaurant a little over an hour before
the robbery, (2) the testimony of the fingerprint experts, and (3) the
cross-examination of Detective Restivo. While the Restivo
crossexamination related to more than one issue, it did contain his
recollection of the lineup at which Mrs. Terzi made no identification, it
contradicted Mrs. Terzi's explanation that she blacked out at the
lineup, and it contained other facts which further undermined her
In conclusion, the admission of Mrs. Terzi's in-court identification
did not violate petitioner's right to due process because of the other
corroborative evidence of petitioner's guilt. Moreover, this evidence
combined with the jury's ability to see for itself the suggestive
circumstances under which Mrs. Terzi identified petitioner and hear
petitioner's counsel attack the identification on cross-examination,
rendered harmless error in admitting her testimony. Brecht v.
Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353
(1993); Samuels v. Mann, 13 F.3d 522, 528 (2d Cir. 1993) ("[T]o conclude
that the error was harmless in a case of this kind, we need not find that
the improperly admitted evidence had no effect at all . . . we need only
find that the effect was not `substantial and injurious.'" (internal
On a final note, petitioner's challenge to the in-court identification
implicated the one-year period of limitations applicable to writs of
habeas corpus. 28 U.S.C. § 2244(d)(1). The limitation period "is
tolled during the time that a properly filed application for state
post-conviction review is pending." Acosta v. Artuz, 221 F.3d 117, 119 (2d
Cir. 2000) (citing 28 U.S.C. § 2244(d)(2)). In this case, since
petitioner's judgment of conviction became final before the enactment of
this limitations period, the one-year period of limitation began to run
on April 24, 1996, the date of enactment. See id. at 120. A review of the
timing of petitioner's state court proceedings indicates that the
one-year period of limitations expired before petitioner raised his
challenge to Mrs. Terzi's in-court identification in his amended
petition. Consequently, this claim would be time-barred, unless petitioner
can establish that it relates back to his original petition in accordance
with Rule 15(c) of the Federal Rules. See Fama v. Commissioner of Corr.
Servs., 235 F.2d 804, 815-16 (2d Cir. 2000) (holding that Rule 15(c)
governs whether an amended habeas petition relates back to an original
petition). Rule 15(c) provides that "[a]n amendment of a pleading relates
back to the date of the original pleading when . . . the claim . . .
asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original
pleading." Fed.R.Civ.P. 15(c).
The relief petitioner sought in his original petition was clearly
limited to his Brady claim. In the same petition, however, he described
the circumstances of Mrs. Terzi's eyewitness identification, and alleged
that the trial judge erred in denying counsel's motion for a Wade
hearing. Original Petition, ¶ 12. Petitioner also described Mrs.
Terzi's identification as "a weak and probably, suggested,
identification." Id., ¶ 18. Under these circumstances, the original
petition was sufficient to give notice of petitioner's later challenge to
Mrs. Terzi's identification. See Stevelman v. Alias Research Inc.,
174 F.3d 79, 86 (2d Cir. 1999) ("[T]he central inquiry is whether
adequate notice of the matters raised in the amended pleading has been
given to the opposing party within the statute of limitations `by the
general fact situation alleged in the original pleading.'" (citation
omitted)). Indeed, based on the allegations in the original petition, I
suggested that petitioner file an amended petition asserting formally the
argument that Mrs. Terzi's identification was not admissible.
The petition for a writ of habeas corpus is denied. Petitioner is
granted a certificate of appealability with respect to each of the two
issues on which he sought habeas corpus relief.