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August 9, 2005.

THOMAS GARVEY, Petitioner,
GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, and ELLIOT SPITZER, New York State Attorney General, Respondents.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Before the Court is the petition of Thomas Garvey ("Garvey") for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Garvey alleges that his confinement by the state of New York is unlawful because the trial court admitted unreliable identification evidence, thereby violating his right to due process.

  The respondents oppose Garvey's application for habeas corpus relief on the grounds that it is time-barred, otherwise procedurally barred and without merit.


  At around 4:30 a.m. on September 20, 1996, in Bronx County, New York, noises from Violet McKenzie's ("McKenzie") downstairs kitchen woke her as she slept in her upstairs bedroom. According to her trial testimony, she turned on the downstairs lights using a light switch at the top of the staircase and then descended half-way down the stairs to investigate the noises. She testified that she saw one man climbing out her downstairs kitchen window and another exiting through her front door. As the second man ("second burglar") attempted to unlock the front door, McKenzie's microwave oven and toaster lay at his feet, and her stereo was under his right arm. She testified that she was approximately 12 to 15 feet away from the second burglar when she observed him. McKenzie testified that she ran back upstairs, and, through an upstairs window, observed the second burglar again as he left the house. According to McKenzie, the second burglar turned his head to look back in her direction several times as he fled, and so McKenzie was able to see his face. McKenzie testified that the area in front of her home was lit by a streetlamp, as well as by light from her kitchen.

  According to McKenzie, a video compressor*fn1 was among the items missing from her home after the burglary.

  At approximately 5:40 a.m., Police Officer James Elliot ("Officer Elliot") arrived at McKenzie's apartment to investigate the burglary. According to the complaint form completed by Officer Elliot at that time, McKenzie reported that the burglar was black and wore "dark clothing." According to the form, McKenzie provided no other information, and Officer Elliot indicated on the form that McKenzie would probably not be able to identify the burglar.

  Later that morning, McKenzie's neighbor, Theodore Gaines ("Gaines"), saw Garvey walk down Gaines' driveway, toward Gaines' backyard. Gaines asked Garvey where he was going, and Garvey responded "I'm going to get something, I'll be right back." Gaines followed Garvey, who retrieved from some trash cans in Gaines' yard what Gaines described at trial as "some type of video machine." Gaines testified that he knew McKenzie's home had been burglarized earlier that morning, and that he believed that he had caught the burglar. Gaines asked his wife to call McKenzie over to their yard. McKenzie arrived and saw Garvey surrounded by Gaines and some of her other neighbors. According to McKenzie, Garvey was standing next to the video compressor that was stolen from her home earlier that morning.

  Police Officers Dwayne Davis ("Officer Davis") and John Raferty ("Officer Raferty") arrived at the scene to find Garvey surrounded by a small group of people in Gaines' yard. While Officer Davis spoke with Gaines, Officer Raferty escorted Garvey away from the crowd. Officer Raferty testified that he did so "for [Garvey's] own safety." McKenzie approached Officer Davis and informed him that Garvey had stolen property from her home. Thereafter, Garvey was placed under arrest.

  On October 1, 1996, a grand jury indicted Garvey for burglary in the second degree (N.Y. Penal Law § 140.25[2]), grand larceny in the third degree (N.Y. Penal Law § 155.35) and criminal possession of stolen property in the third degree (N.Y. Penal Law § 165.50).

  Prior to the trial, Garvey moved to exclude from the trial testimony of McKenzie's out-of-court identification of Garvey, on the ground that it was made under suggestive circumstances. The court conducted a hearing at which Officers Davis and Raferty testified about the circumstances of Garvey's arrest. Thereafter, the court determined that evidence of McKenzie's identification of Garvey would not be excluded from the trial. In explaining its decision, the trial court stated:
No suggestive acts occurred by the police department. The holding of the defendant initially was by a private citizen and when the officer was investigating it, another private citizen, identifying herself, approached him and said that she was a witness to a complaint of a burglary shortly before in her premises. The officer had probable cause to arrest defendant. No suggestiveness occurred, and I find that the out-of-court identification may be testified to and if there is any in-court identification, that, of course, may be testified to, also.
Affidavit of John W. Berry, Exh. F, at 38.

  On March 31, 1998, the jury found Garvey guilty of burglary in the second degree and acquitted him of the other charges. Thereafter, the court sentenced the petitioner to a ten-year determinate term of imprisonment and fixed a ...

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