Young v. Conway

• Decision Date: 16 October 2012
• Docket Number: Docket No. 11–830–pr.
• Citation: 698 F.3d 69
• Parties: Rudolph YOUNG, Petitioner–Appellee, v. James CONWAY, Respondent–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

698 F.3d 69

Rudolph YOUNG, Petitioner–Appellee,

v.James CONWAY, Respondent–Appellant.

Docket No. 11–830–pr.

United States Court of Appeals,Second Circuit.

Argued: May 23, 2012.

Decided: Oct. 16, 2012.

Geoffrey Kaeuper, Assistant District Attorney, for Sandra Doorley, District Attorney of Monroe County, Rochester, NY, for Respondent–Appellant.

John H. Blume, Cornell Death Penalty Project, Cornell Law School, Ithaca, N.Y. (Brian Shiffrin, Easton Thompson Kasperek Shiffrin, LLP, Rochester, NY, on the brief), for Petitioner–Appellee.

James L. Brochin, Jennifer H. Wu, Cassius K. Sims, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Barry C. Scheck, David Loftis, Karen Newirth, Innocence Project, Inc., New York, NY, for Amicus Curiae the Innocence Project.

Before: B.D. PARKER, HALL, and CARNEY, Circuit Judges.

BARRINGTON D. PARKER, Circuit Judge:

The State of New York appeals from a judgment of the United States District Court for the Western District of New York (Bianchini, M.J.) granting defendant Rudolph Young's petition for a writ of habeas corpus, vacating his convictions for robbery and burglary, and barring the State of New York from retrying him.¹ Young was convicted at his first trial in August 1993 based on the victim's in-court identification and her testimony that she had identified him in a lineup held one month after the crime. He was the only member of the lineup whose picture had also been included in a photographic array shown to the victim two days earlier, when she failed to make an identification. After the lineup identification testimony was suppressed as the product of Young's unconstitutional arrest under the Fourth Amendment,² at a second trial held almost six years later, the state trial court nonetheless permitted the victim to identify Young in court as the person who had broken into her home, based on its finding that her in-court identification had a basis independent of the tainted lineup. The New York courts affirmed Young's convictions on direct appeal. Young filed a petition for habeas corpus arguing, inter alia, that the source of the victim's in-court identification could not possibly have been independent of the tainted lineup. The district court agreed and granted the petition.

The State now appeals, arguing principally that, because Young had a full and fair opportunity to litigate his Fourth Amendment claim in state court, federal habeas relief is not available. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Because the State failed to raise this non-jurisdictional argument in the district court, we decline in the exercise of our discretion to consider it for the first time on appeal. We agree with the district court that the state courts' determination that the victim's in-court identification derived from a source independent of a tainted lineup constituted an unreasonable application of, and was contrary to, clearly established Supreme Court law. See United States v. Crews, 445 U.S. 463, 472–74, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); United States v. Wade, 388 U.S. 218, 240–41, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Finally, although we conclude that the in-court identification substantially and injuriously influenced the jury's deliberations, and while we share the district court's “grave doubts whether th[e] circumstantial evidence was ... legally sufficient to convict Young” without it, Young v. Conway, 761 F.Supp.2d 59, 76 (W.D.N.Y.2011), such doubts must be resolved if at all by the state court, not ours. Accordingly, we vacate that portion of the district court's judgment barring the State from retrying Young, but affirm its vacatur of Young's convictions.

BACKGROUND

The crimes for which Young was convicted occurred on March 29, 1991. That evening, an intruder entered the home of William and Lisa Sykes carrying an axe and sledgehammer and wearing a blanket draped over his clothes. He wore a scarf around his mouth that covered his lips, nose, ears, and cheeks, leaving only his eyes and the top of his head uncovered. Brandishing the axe over Mr. Sykes's head, the intruder demanded money and then took some watches from the bedroom. The Sykeses later reported that a pair of binoculars, a red bicycle, a mirror, and a pair of workout gloves from Mrs. Sykes's car were also missing.

The intruder was in the house for approximately five to seven minutes. After he left, Mr. Sykes immediately called the police. In the police report taken later that evening, which she signed, Mrs. Sykes, who is white, described the intruder as “[a] black man in his twenties, five-ten, medium build.” App. at 131.³ When the police asked if she could assist in preparing a composite sketch of the intruder, Mrs. Sykes replied that she could not. Id.

Approximately one month later, police showed Mrs. Sykes a photographic array containing six full-color photographs, including one of Young's entire face. She could not at that time identify Young as the intruder.⁴ The next day, Mr. Sykes viewed the same array in his home—with Mrs. Sykes present—but also failed to make an identification.

The next day, Young was arrested and placed in a lineup that Mr. and Mrs. Sykes viewed separately. As noted, the Appellate Division, Fourth Department, subsequently held that there was no probable cause for the arrest. See Young, 202 A.D.2d at 1026, 609 N.Y.S.2d at 726–27. Of the lineup participants, Young was the only person whose picture had been included in the photo array viewed by the Sykeses. The lineup participants—none of whom wore scarves around their faces or blankets over their bodies—each stepped forward and said three things that the intruder had allegedly said the night of the crime. Mr. Sykes did not identify Young. Instead, he said the voice of a different lineup participant sounded most like the intruder, while the eyes and face of yet another lineup participant most resembled him. Mrs. Sykes, however, identified Young based just on “his eyes and the voice.” App. at 161.

Young was indicted for burglary and two counts of robbery and went to trial in August 1993. At trial, Mrs. Sykes identified Young as “that person that [she] identified at the lineup.” 1993 Trial Tr. (“Trial I”) 57. She later testified that she made this identification based on a “combination” of factors “from seeing him and also the voice.” App. at 73. Due largely to Mrs. Sykes's in-court identification, which stemmed from the prior lineup, Young was convicted. See761 F.Supp.2d at 77.

Young's conviction was reversed on appeal. The Appellate Division concluded that, because the police had obtained Young's consent to the lineup “by means affected by the primary taint [of his illegal arrest],” and because “the line-up identification flowed directly from the illegal arrest and was not attenuated therefrom,” Mrs. Sykes's testimony concerning the lineup should not have been admitted at trial. People v. Young, 255 A.D.2d 905, 683 N.Y.S.2d 677, 678 (1998). The court ordered a new trial and provided the prosecution with an opportunity to prove that Mrs. Sykes had “a basis independent of the unlawful arrest and tainted identification procedure” to identify Young in court. Id.

In March 1999—eight years after the initial incident at the Sykeses' residence—the trial court held an independent source hearing to determine whether Mrs. Sykes would be permitted to make an in-court identification of Young at a re-trial. At that hearing, Mrs. Sykes described the robbery in detail and testified as to why she remembered the intruder from her observations of him during the crime rather than from the tainted lineup. According to her testimony, she first encountered the intruder standing “a couple of feet” away from her in her well-lit dining room. App. at 117. Mrs. Sykes, who is “five-eight, fine-nine,” testified that she was “[e]ssentially ... looking at [the intruder] face-to-face,” and therefore estimated his relative height to be 5'10?. Id. Young is black, is six feet tall and was almost 34 at the time of the incident. Mrs. Sykes said the intruder had a “[s]carf over his face and a blanket covering all his clothes.” Id. at 131. The scarf “covered up the intruder's mouth[,] chin,” ears and the “majority of the intruder's cheeks and jawbone.” Id. at 136–138. Mrs. Sykes did not recall whether the intruder had a beard or mustache, or the length or kind of hair on his head; whether he was muscular or had any “noticeable or distinct physical characteristics,” id. at 138; whether he wore a hat or any jewelry; what type of shoes or pants he wore; whether he was wearing a jacket underneath the blanket; or whether he was wearing gloves.

After initially screaming, Mrs. Sykes said she looked carefully at the intruder, in disbelief that the incident was not a prank, but realized after staring at his eyes that she did not know him. The burglar then walked directly behind Mr. Sykes, brandished the axe over his head, looked directly at Mrs. Sykes, and said, “I will kill him. Give me your wallets.” Id. at 118 (quotation marks omitted).

The three then walked down the hallway to the master bedroom to retrieve Mr. Sykes's wallet. Mrs. Sykes turned on the hall light and the intruder turned and looked right at her. She continued to watch him as he relieved Mr. Sykes of his money and took the watches. After next demanding that Mrs. Sykes give him her money, he proceeded to rip two telephones out of the walls, instructing Mrs. Sykes not to “look at [his] face.” Id. at 123. The intruder left the house shortly thereafter.

Mrs. Sykes testified that, up until the point the intruder instructed her to avert her eyes, she had continuously looked at his face, primarily his eyes, trying to determine who he was. She said that for many nights after the crime, she woke up seeing the intruder's eyes in her nightmares. However, she also testified that there was “[n]othing unusual that stood out” about them. Id. at 140. She further...