United States ex rel. Stevenson v. Mancusi

• Decision Date: 25 March 1969
• Docket Number: Dockets 32702,No. 402,403,32745.,402
• Citation: 409 F.2d 801
• Parties: UNITED STATES of America ex rel. Roosevelt STEVENSON, Petitioner-Appellee, v. Vincent R. MANCUSI, Warden, Attica State Prison, Attica, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

409 F.2d 801 (1969)

UNITED STATES of America ex rel. Roosevelt STEVENSON, Petitioner-Appellee, v. Vincent R. MANCUSI, Warden, Attica State Prison, Attica, New York, Respondent-Appellant.

Nos. 402, 403, Dockets 32702, 32745.

United States Court of Appeals Second Circuit.

Argued March 4, 1969.

Decided March 25, 1969.

Brenda Soloff, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondent-appellant.

Ronald S. Rauchberg, New York City, for petitioner-appellee.

Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and McLEAN, District Judge.^*

McLEAN, District Judge:

In February 1963 relator was convicted of the crime of burglary in the second degree after a jury trial in the County Court of Erie County. His conviction was affirmed. He was originally sentenced as a fifth felony offender but subsequently the County Court, after a hearing in February 1965, resentenced him as a fourth felony offender. He was given a sentence of fifteen years to life. The resentence was affirmed by the Appellate Division and the Court of Appeals of New York denied leave to appeal.

In February 1967, relator applied to the United States District Court for the Western District of New York for a writ of habeas corpus. He maintained that his resentence as a fourth offender was invalid because the three convictions which had preceded the conviction for burglary in 1963 had been obtained in violation of his constitutional rights. One of these prior convictions was for burglary in Tennessee in 1929, the second was for robbery in Illinois in 1932, and the third was for burglary in the third degree in Erie County, New York, in 1947.

Judge Burke held a hearing on relator's application. On September 11, 1967, he upheld the validity of the prior convictions. Accordingly, he found that relator's sentence as a fourth offender was correct and he dismissed the writ.

On April 30, 1968, this court denied relator's application for a certificate of probable cause, but nevertheless remanded the case "for further consideration of petitioner's attack on the identification procedure used in his Illinois conviction * * *." Judge Burke thereupon held another hearing. This time he decided that the Illinois conviction was invalid. Consequently, on August 6, 1968, he sustained the writ and directed that relator be resentenced. Respondent has now appealed to this court.

Relator testified at the hearing substantially as follows. Relator and a friend, Nathaniel Henderson, were arrested on the street and taken to the police station. The arresting officer directed relator and Henderson to stand in front of their cell. The victim of the robbery, Mrs. Michaels, was then brought in. The officer asked her to point out the man who had robbed her. She pointed to Henderson. The officer then pointed to relator and said, "No, it was him that took your money, wasn't it?" Mrs. Michaels said, "Yes." There was no other lineup prior to the trial. Relator did not admit his guilt.

Relator and Henderson were both indicted. At the trial Mrs. Michaels identified both as having been involved in the robbery. Relator was convicted and Henderson was acquitted.

At the hearing, written statements of Mrs. Michaels and the arresting officer, Goebel, taken in October 1932, were introduced in evidence. Mrs. Michaels said in her statement that on August 29, 1932, while she was walking on Peoria Street, Stevenson snatched her purse and ran away and that she saw Henderson running also. She said that on October 16 the police took her "to the show up at 11th & State Sts. and I identified the two fellows as holding me up." She further stated that "later — Stevenson admitted holding me up."

Goebel's statement said that he arrested "these two colored men" on October 15. He said, "I remembered this woman being held up and went over and got her," and that "she came down the following day and identified the two of them, and Stevenson admitted snatching the purse."

Judge Burke accepted relator's testimony. He concluded that the identification procedure was unfair and prejudicial to relator's rights and constituted a violation of due process.

If relator's testimony is to be believed, it is clear that the identification procedure was so "suggestive" as to make the identification unreliable.

See

United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Moreover, we think that it is implicit in Judge Burke's decision, although he did not say so expressly, that the improper lineup identification "tainted" Mrs. Michaels' identification of relator at the trial. The scanty evidence at the hearing was insufficient to justify a finding beyond a reasonable doubt that the in-court identification had an "independent source."

Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

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