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 ...