Garvey v. Duncan
| Decision Date | 09 May 2007 |
| Docket Number | Docket No. 05-5764-PR. |
| Parties | Thomas GARVEY, Petitioner-Appellant, v. George DUNCAN, Eliot Spitzer, New York State Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
John W. Berry, New York, New York (Ashley F. Waters, Akin Gump Strauss Hauer & Feld, L.L.P., New York, New York; David Crow, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, of counsel), for Petitioner-Appellant.
Hae Jin Liu, Assistant District Attorney, Bronx, New York (Robert T. Johnson, District Attorney, Joseph N. Ferdenzi, Nancy D. Killian, Assistant District Attorneys, Bronx County, Bronx, New York, of counsel), for Respondents-Appellees.
Before: CARDAMONE, MINER, and STRAUB, Circuit Judges.
Judge STRAUB dissents in a separate opinion.
On this appeal, after defendant had been convicted of burglary in state court, he filed a petition in the United States District Court for the Southern District of New York seeking habeas corpus relief alleging a violation of his due process rights based on identity evidence admitted against him at trial. It is clear that the burglar's identity did not at the time of the burglary press itself on the victim. Yet, on appeal from the denial of habeas relief defendant faces a procedural hurdle before the merits of his argument may be examined. If firmly established and regularly followed state law provides an independent (from the federal issue raised) and adequate basis for sustaining the state court's judgment, a federal court is precluded from reviewing the merits of a petitioner's claim for habeas relief so long as application of the state rule was not exorbitant on the facts of petitioner's case. Here, the district court denied defendant habeas relief on the merits. We do not reach the merits because such review is barred by independent and adequate state law grounds.
Defendant Thomas Garvey (defendant or petitioner) appeals from the September 21, 2005 order of the Southern District of New York (Wood, J.) dismissing his petition for a writ of habeas corpus. Defendant's principal argument is that the New York state trial judge (Bernstein, J.) violated Garvey's due process rights by allowing into evidence his identification allegedly made under suggestive circumstances. The state trial court judge reasoned that since Garvey was not in police custody at the time of the identification his claim of identification under suggestive circumstances was groundless. On appeal to the New York State Supreme Court, Appellate Division, Garvey asserted that even if the suggestive identification was entirely orchestrated by civilians, it still should not have been admitted into evidence against him, and instead should have been quashed. The appellate division ruled that Garvey's due process claim was unpreserved on appeal because that claim was not raised at trial as required by the applicable New York rule of criminal procedure. Garvey contends before us that the state procedural rule was misapplied in his case and thus does not constitute an adequate state ground for decision that would bar federal habeas jurisdiction.
The district court found Garvey's claim was not procedurally barred, but nonetheless dismissed the petition after reviewing the merits. In our view Garvey's claim was procedurally barred. Hence, while we affirm the result reached in the district court, we do so on different grounds.
At 4:40 in the early morning of September 20, 1996 Violet McKenzie was abruptly awakened in her Bronx County home when she heard noises in her downstairs kitchen. McKenzie got out of bed, turned on the lights at the top of the stairs, and began to walk downstairs. As she went down she saw two strange men hurriedly fleeing from her house carrying what appeared to be her personal property in their arms.
McKenzie had two opportunities at the scene of the crime to view one of the perpetrators, whom she later identified as Garvey. She first observed him for 30 seconds at a distance of 12 to 15 feet in the hallway of her home. She observed him a second time from a second floor window as he quickly walked away. McKenzie later testified that on both occasions she was able to observe the person's clothing, skin color, and facial hair. But in the police report she made at 5:40 a.m. on the day of the burglary, McKenzie was unable to provide a physical description of the thief. According to routine police procedure, which was followed here, the reporting officer asked McKenzie to provide a physical description of the intruder, including such details as his age, height, weight, hair, facial hair, complexion, and clothing. The complaint report reflects that the only description McKenzie was able to provide the officer at that time was that the person she observed was wearing "dark clothing." Because such is hardly a distinguishing characteristic of a nighttime burglar, from this it is not surprising that the officer concluded McKenzie was unable to identify the perpetrator of the burglary.
About five hours later that same morning, at 10:30 a.m., McKenzie was summoned to her neighbor's yard. The neighbor's husband, Theodore Gaines, had caught a man retrieving "some type of video machine" from Gaines' trash cans. The neighbor knew McKenzie had been burglarized a few hours earlier, so Gaines and other neighbors surrounded Garvey — whom they believed might be one of the burglars — to give McKenzie an opportunity to come over and see if she could identify him. When McKenzie arrived in Gaines' yard, she saw Gaines holding Garvey. At Garvey's feet was McKenzie's video compressor, an object that had been taken during the burglary. She immediately identified Garvey as the person whom she had seen earlier that morning.
Two police officers, Dwayne Davis and John Raftery, arrived a few minutes later, and found Garvey surrounded by a group of people in Gaines' yard. Officer Raftery escorted Garvey to one side for his own safety, while Officer Davis spoke to Gaines. As Officer Davis spoke with Gaines, McKenzie approached Officer Davis and informed him that Garvey was one of the men that had burglarized her home just hours before. Upon learning this, the officers placed Garvey under arrest.
On October 1, 1996 Garvey was indicted 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.
Before trial Garvey moved to suppress McKenzie's identification of him at the time of his arrest, arguing that it was suggestive. Defendant maintained he was identified by McKenzie under suggestive circumstances because he was handcuffed and in police custody. The trial court conducted a hearing where the two police officers testified regarding the events occurring at Garvey's arrest. The state trial court ruled the evidence of McKenzie's identification of Garvey would not be excluded at trial, stating:
I make the following conclusions of law:
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 complaint of a burglary occurring 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.
As a result, McKenzie's in-court and out-of-court identifications of defendant were both admitted into evidence at his trial.
Garvey was convicted of burglary in the second degree by a jury. Judgment was rendered by the New York Supreme Court, Bronx County, on March 31, 1998, and since Garvey was a second felony offender, he was sentenced to a ten-year term of imprisonment. On appeal to the Appellate Division, Garvey urged for the first time that his identification should have been excluded because of civilian-orchestrated suggestive circumstances. The appellate division ruled that since this claim had not been raised at trial, it was not preserved. People v. Garvey, 278 A.D.2d 74, 717 N.Y.S.2d 181, 182 (1st Dep't 2000). The First Department also noted that were it to review the merits of Garvey's claim, it would find that the identification was sufficiently reliable under all the circumstances. Id.
Garvey sought leave to appeal that ruling to the New York State Court of Appeals. On March 5, 2001, the request was denied. See People v. Garvey, 96 N.Y.2d 783, 725 N.Y.S.2d 647, 749 N.E.2d 216 (2001) (table). On June 4, 2002 Garvey sought a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254 based on his claim that it was error for the state trial court to admit into evidence the allegedly suggestive identification. The district court denied the petition after considering the merits. A notice of appeal was filed with this Court on October 24, 2005.
When this Court reviews a district court ruling on a habeas corpus petition, we examine the factual findings of the district court for clear error, but we consider questions of law, like the one at issue here, de novo. See Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006); Campusano v. United States, 442 F.3d 770, 773 (2d Cir. 2006).
Federal courts generally will not consider a federal issue in a case "if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (alteration and emphases omitted). This rule...
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