United States District Court, S.D. New York
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
REPORT and RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT 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
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), 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
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 conditional release
date one year prior to the end of that term.
Garvey appealed from the judgment of conviction to the New York
State Supreme Court, Appellate Division, First Department
("Appellate Division"). Garvey contended, inter alia, that
the admission into evidence of "suggestive identification"
testimony violated his constitutionally guaranteed right to due
process under both the New York and federal constitutions. The
Appellate Division affirmed the judgment of conviction. See
People v. Garvey, 278 A.D.2d 74, 717 N.Y.S.2d 181 (App.Div.
1st Dep't 2000). The court found, in pertinent part, that
Garvey's suggestive identification claim was raised for the first
time on appeal, and declined to review the claim in the interest
of justice. The court held further that were it to review the
claim, it would find "that the identification was sufficiently
reliable under all the circumstances." Id. The petitioner
sought leave to appeal from the Appellate Division's
determination to the New York Court of Appeals. On March 5, 2001,
that request was denied. See People v. Garvey, 96 N.Y.2d 783,
725 N.Y.S.2d 647 (2000). On June 4, 2002, Garvey filed the
instant application for a writ of habeas corpus, seeking relief
on the ground noted above.
The respondents contend that the instant petition is untimely
because it was not filed within one year of the New York Court of Appeals' decision to
deny Garvey leave to appeal to that court. This contention is
foreclosed by 28 U.S.C § 2244(d)(1), which provides, in pertinent
part, that the one-year limitations period for habeas corpus
petitions shall run from the latest of several dates, one of
which is "the date on which the judgment [of conviction] became
final by the conclusion of direct review or the expiration of the
time for seeking such review." See also Williams v. Artuz,
237 F.3d 147, 151 (2d Cir. 2001) ("We . . . hold that the . . .
limitations period specified in Section 2244(d)(1)(A) does not
begin to run until the completion of direct appellate review in
the state court system and either the completion of certiorari
proceedings in the United States Supreme Court, or if the
prisoner elects not to file a petition for certiorari the time
to seek direct review via certiorari has expired.")
The New York Court of Appeals denied Garvey's application for
leave to appeal to that court on March 5, 2001. The ninetieth day
thereafter was June 3, 2001, which was a Sunday. Accordingly, the
period of time for Garvey to file a petition for certiorari in
the Supreme Court ended on June 4, 2001. See Fed.R.Civ.P.
6(a). As the instant petition was filed one year after that date,
it is timely.
A federal court may not review a question of federal law
decided by a state court if the state court's decision rested on
a state law ground, be it substantive or procedural, that is
independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 729,
111 S. Ct. 2546, 2553-54 (1991). The Second Circuit has held that
federal habeas review is foreclosed when a state court has
expressly relied on a procedural default as an independent and
adequate state ground, even where the state court has also ruled
in the alternative on the merits of the federal claim. See
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
The Appellate Division found that Garvey did not preserve his
identification evidence challenge for appellate review, as is
required by New York law. Therefore, the court found that his
claim was procedurally defaulted. However, the court did note,
alternatively, that if it were to review the claim, it would find
that the claim lacked merit.
In most cases, a state procedural bar constitutes an adequate
and independent state law ground that is sufficient to preclude
federal habeas corpus review. "In exceptional cases, however, an
`exorbitant application of a generally sound rule' may affect the
adequacy and independence of the state procedural ground, and
allow the United States district court to consider the merits of
a constitutional claim." Rosa v. Herbert, 277 F. Supp. 2d 342,
351 (S.D.N.Y. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 376,
122 S. Ct. 877, 885 ). Before accepting a procedural bar
defense, a federal court must examine the adequacy of the alleged
procedural default, as:
a procedural bar will be deemed adequate only if it
is based on a rule that is firmly established and
regularly followed by the state in question. When a
federal court finds that the rule is inadequate under
this test the rule should not operate to bar federal
review. Nonetheless, the principles of comity that
drive the doctrine counsel that a federal court that
deems a state procedural rule inadequate should not
reach that conclusion lightly or without clear
support in state law.
Garcia v. Lewis, 188 F.3d 71
, 77 (2d Cir. 1999) (internal
citations and quotation marks omitted).
The Second Circuit has stated that a procedural bar is adequate
to support a state court judgment only if it is based on a rule
that is "firmly established and regularly followed" by the state
court in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d
Cir. 2003). Thus, the parties to an action must have notice of the state procedural rule and
the rule must be applied consistently in similar circumstances.
See Bell v. Poole, No. 00 CV 5214, 2003 WL 21244625, at *9
(E.D.N.Y. April 10, 2003). "[T]he question of when and how
defaults in compliance with state procedural rules can preclude . . .
consideration of a federal question is itself a federal
question." Henry v. Mississippi, 379 U.S. 443, 447,
85 S. Ct. 564, 567 (1965). Furthermore, a state procedural rule must serve
a legitimate state interest. See Rosa,
277 F. Supp. 2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986).
However, "the adequacy of a state procedural bar is determined
with reference to the particular application of the rule; it is
not enough that the rule generally serves a legitimate state
interest." Cotto, 331 F.3d at 240 (internal quotation marks
omitted). Therefore, an inquiry into whether the application of a
procedural rule is "firmly established and regularly followed" in
the specific circumstances presented in a case includes "an
evaluation of the asserted state interest in applying the
procedural rule in such circumstances." Cotto, 331 F.3d at 240.
The inability of state appellate courts to entertain an issue
that has not been preserved for their review is rooted in New
York's contemporaneous objection rule. That rule is found in New
York Criminal Procedure Law ("NYCPL") § 470.05 which, in its most
pertinent part, provides that:
For purposes of appeal, a question of law with
respect to a ruling or instruction of a criminal
court during a trial or proceeding is presented where
a protest thereto was registered, by the party
claiming error, at the time of such ruling or
instruction or at any subsequent time when the court
had an opportunity of effectively changing the same.
Such protest need not be in the form of an
"exception" but is sufficient if the party made his
position with respect to the ruling or instruction
known to the court, or if in response to a protest by
a party, the court expressly decided the question
raised on appeal. In addition, a party who without
success has either expressly or impliedly sought or requested
a particular ruling or instruction, is deemed to have
thereby protested the court's ultimate disposition of
the matter or failure to rule or instruct accordingly
sufficiently to raise a question of law with respect
to such disposition or failure regardless of whether
any actual protest thereto was registered.
NYCPL § 470.05(2).
The purpose of the rule is "to fairly apprise the court and the
opposing party of the nature and scope of the matter contested."
People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261
(App.Div. 2d Dep't 1981). This provides the court of first
instance an opportunity to correct an alleged error at the
earliest possible juncture in the proceedings.
In the case at bar, Garvey need not demonstrate and indeed,
he does not contend that the contemporaneous objection rule is
generally "inadequate" to preclude federal habeas review; it is
enough that the rule be "misapplied in his case in particular."
Garcia, 188 F.3d at 79; see also Lee, 534 U.S. at 386-87,
122 S. Ct. at 891 (considering circumstances under which state
procedural rule was applied). Accordingly, it must be determined
whether "there is a fair and substantial basis in state law" for
the application of New York's contemporaneous objection rule in
the case at bar. See Garcia, 188 F.3d at 78 (internal
quotation marks omitted).
To analyze the adequacy of the alleged procedural bar, this
court must "look to the statute and caselaw interpreting New
York's statutory preservation rule in criminal proceedings."
Cotto, 331 F.3d at 243; see also Lee, 531 U.S. at 382,
122 S. Ct. at 889. In decisions applying NYCPL § 470.05(2), New
York state courts have held consistently that "an issue of law is
preserved even if it is not specifically raised by the defendant
so long as the trial court expressly rules on the issue following
an earlier objection." Cotto, 331 F.3d at 244 (collecting and
analyzing cases). For example, in People v. Edwards, the New
York Court of Appeals held that "the issue of probable cause to arrest is preserved for our review because, in
its written decision denying defendant's motion to suppress, the
trial court `expressly decided' the question in response to a
`protest by a party.'" People v. Edwards, 95 N.Y.2d 486, 491 n.
2, 719 N.Y.S.2d 202, 204 n. 2 (2000) (citing NYCPL § 470.05);
see also People v. Ayala, 142 A.D.2d 147, 157,
534 N.Y.S.2d 1005, 1011 (App.Div. 2d Dep't 1988) (holding that an issue
pressed by defense on appeal was preserved because "a question of
law is preserved if the point was expressly decided by the trial
court in response to a protest, even though the protesting party
overlooked that argument when making the protest"). Moreover,
NYCPL § 470.05(2) and New York decisional law require only that a
litigant preserve its protest to a trial court ruling for review;
a litigant need not preserve particular legal grounds for that
protest. See, e.g., People v. McGuiness, 245 A.D.2d 701, 702,
665 N.Y.S.2d 752, 754 (App.Div. 3d Dep't 1997) (noting that,
after an amendment in 1986, NYCPL § 407.05(2) "relieves [a]
defendant from stating a particular legal ground in order to
preserve an error for appeal").
As noted above, the prosecution in the case at bar stated its
intention to introduce McKenzie's identification testimony at
trial, and the petitioner requested that the trial court exclude
that evidence from the trial. After a hearing, the trial court
decided to deny the petitioner's request because it found that
the identification at issue was not made under suggestive
circumstances. Therefore, the propriety of permitting the
prosecution to introduce the identification evidence at trial was
preserved for appellate review. Neither the Appellate Division
nor the respondent identifies a fair and substantial basis in New
York law for a contrary determination.
The Appellate Division's rejection of Garvey's claim was not
founded upon an adequate state law ground, and review of the claim by this court is not
procedurally barred. Accordingly, it is appropriate to address
the merits of Garvey's habeas corpus petition.
Pretrial Identification Procedures
Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, 28 U.S.C. § 2254
provides that a writ of habeas corpus may issue only if the state
court's adjudication resulted in a decision that: (1) was
contrary to, or involved an unreasonable application of federal
law, as determined by the Supreme Court of the United States; or
(2) was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
See 28 U.S.C. § 2254(d); see also Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495 (2000). Under this standard, "a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established law erroneously
or incorrectly. Rather, that application must also be
unreasonable." Id. at 411, 1522. In order to grant the writ,
there must be "[s]ome increment of incorrectness beyond error.
[T]he increment need not be great; otherwise, habeas relief would
be limited to state court decisions so far off the mark as to
suggest judicial incompetence." Francis S. v. Stone,
221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Garvey contends that when the trial court denied his request to
exclude the identification evidence, it relied improperly upon
the fact that the police did not have any role in creating the
allegedly suggestive circumstances under which McKenzie
encountered Garvey in Gaines' yard. However, in order to obtain
habeas corpus relief, it is the Appellate Division's decision to
affirm his conviction that Garvey must demonstrate to be contrary
to or an unreasonable application of federal law. That court
noted, although it did not have to reach the issue to resolve
Garvey's appeal, that Garvey's claim concerning identification evidence
lacked merit because the identification evidence at issue was
"sufficiently reliable under the circumstances." Garvey,
278 A.D.2d at 74, 717 N.Y.S.2d at 182.
Identification evidence should not be admitted into evidence at
a trial when "`the confrontation conducted . . . was so
unnecessarily suggestive and conducive to irreparable mistaken
identification that [the defendant] was denied due process of
law.'" Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 380
(1972) (quoting Stovall v. Denno, 388 U.S. 293, 301-02,
93 S. Ct. 375, 380 ). Ultimately, the standard "is that of
fairness as required by the Due Process clause of the Fourteenth
Amendment." Manson v. Braithwaite, 432 U.S. 98, 113,
97 S. Ct. 2243, 2252 (1977).
Even if an out-of-court identification procedure is
unnecessarily suggestive, evidence of it is still admissible at
trial "if, when viewed in the totality of the circumstances, it
possesses sufficient indicia of reliability." United States v.
Simmons, 923 F.2d 934, 950 (2d Cir. 1991). "[R]eliability is the
linchpin in determining the admissibility of identification
testimony." Manson, 432 U.S. at 114, 97 S. Ct. at 2253. "[T]he
factors to be considered in evaluating the likelihood of
misidentification include  the opportunity of the witness to
view the criminal at the time of the crime,  the witness'
degree of attention,  the accuracy of the witness' prior
description of the criminal,  the level of certainty
demonstrated by the witness at the confrontation, and  the
length of time between the crime and the confrontation."
Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382.
The petitioner contends that McKenzie was unable to provide a
detailed description of the burglar to Officer Elliot immediately
after the burglary. Moreover, the petitioner characterizes McKenzie's opportunities to observe the burglar as limited, and
the distances from which she observed the burglar as
"considerable." The petitioner also points to evidence in the
record that McKenzie was nervous at the time of the burglary.
According to the petitioner, these factors make McKenzie's
pretrial identification of Garvey unreliable.
There was, however, evidence in the trial record that: (a)
McKenzie had a clear opportunity to observe Garvey at the time of
the crime; (b) she was not a casual or inattentive observer, as
she descended the stairs for the specific purpose of
investigating the loud noise she had heard; (c) after turning on
the downstairs lights, McKenzie had a clear, unobstructed view of
the second burglar as he was trying to escape through McKenzie's
front door; (d) McKenzie also observed the second burglar's face
again, a few moments later, from a bedroom window, as he looked
back repeatedly toward McKenzie's house while fleeing; (e)
McKenzie expressed certainty that Garvey was the burglar she saw
fleeing her home; (f) it was just a few hours after the burglary
that McKenzie told Officer Davis that Garvey was one of the
burglars and was wearing the same clothes that one of the
burglars had worn.
In light of the factors set forth in Biggers, the above-noted
evidence in the trial record provided a sufficient basis upon
which to conclude that McKenzie's identification of Garvey was
reliable. Therefore, the Appellate Division did not apply federal
law unreasonably when it noted that Garvey's suggestive
identification claim was without merit and affirmed his judgment
of conviction. Consequently, Garvey is not entitled to habeas
For the reasons set forth above, I recommend that petitioner's
application for a writ of habeas corpus be denied. V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28. U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have ten (10)
days from service of this Report to file written objections.
See also Fed.R.Civ.P. 6. Such objections, and any
responses to objections, shall be filed with the Clerk of Court,
with courtesy copies delivered to the chambers of the Honorable
Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York,
10007, and to the chambers of the undersigned, 40 Centre Street,
Room 540, New York, New York, 10007. Any requests for an
extension of time for filing objections must be directed to Judge
Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolwk v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).