United States Ex Rel. Alton Cannon v. Harold J. Smith, Superintendent, Attica Correctional Facility, Attica, New York

FEINBERG, Circuit Judge:

Two years ago, this court heard an appeal by Alton Cannon, a prisoner in state custody, from the denial by the United States District Court for the Western District of New York of his petition for a writ of habeas corpus. Cannon attacked his state conviction of first degree rape on a number of grounds, all but one of which we rejected. United States ex rel. Cannon v. Montanye, 486 F.2d 263 (1973), cert. denied sub nom. Cannon v. Smith, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974).¹ The exception was Cannon’s claim that the victim s identifications of him at a lineup and later at trial were constitutionally tainted by an improper lineup. On that issue, we remanded the case to the district court for a further hearing on whether the lineup had been “so impermissibly •suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The reasons for the remand, as will be explained further below, were that neither the state trial court nor the federal district court had considered one aspect of appellant’s lineup claim and the record on that “significant factual question” was, therefore, “sparse.” 486 F.2d at 268. Our decision to remand was unanimous, although Judge Friendly, dissenting in part, would' have granted the writ in any event because of another alleged error of constitutional proportions in the conduct of the state trial.²

Upon remand, Chief Judge John T. Curtin held an evidentiary hearing and concluded that “the possibility of irreparable misidentification was so great that it was error to admit [at the state trial] any testimony with regard to identification at all.” 388 F.Supp. 1201, at 1204. The judge granted the writ, releasing Cannon from custody “unless the respondent commences proceedings within thirty days to afford the petitioner a new trial.” Id.³ Respondent Harold J. Smith, Superintendent of Attica Correctional Facility appeals.⁴ For reasons set forth below, we affirm the judgment of the district court.

I

Familiarity with our prior opinion will be assumed, and we will state the essential facts very briefly. Almost five days after the crime had been committed, the victim identified Cannon in a lineup with four other males of similar race and size. When picked up in his hotel room earlier that day, Cannon had been directed to put on a green sweater or shirt. This was significant because the police knew that the victim’s initial description was “almost valueless,” except that she had gotten “a glimpse of a green shirt.” 388 F.Supp. at 1202, 1204. On the prior appeal, what most troubled this court about the identification was the dress of the other men in the lineup. Citing, inter alia, Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), we pointed out that the method used to identify Cannon might well have been unduly suggestive, particularly in view of the possible “police complicity in arranging an unfair lineup.” 486 F.2d at 267. Noting that the record of the state Wade hearing did not indicate the color of the clothes worn by the other men in the lineup, we said:

If all were dressed in green the inference of undue suggestion would clearly fail. If one or two had on green shirts, the inference would weaken very considerably. On the other hand, if the inference remained, it would acquire great importance in a case where the victim’s “opportunity ... to view the criminal at the time of the crime” was limited.

486 F.2d at 268. Since the significance of the green shirt had not been explored, we declined “to decide the ultimate issue of taint.” Id. Instead, we remanded to the district court to conduct a Wade hearing itself, “taking into account the factors which we have cited,” or to hold the case while the state court did so.

Upon remand, the district court followed the former course. At the hearing, the only witness offered by the state was William Mahoney, Chief of Detectives for the Monroe County Sheriff’s Department in Rochester, New York. In 1968, Mahoney had conducted the challenged lineup with the assistance of then Lieutenant George Reiss and Detective Daniel Funk. There were no other witnesses for the state, although Reiss and Funk were still in the employ of the Rochester Police Department and there was no indication that either was unavailable. Cannon produced no witnesses.

In his direct testimony, Mahoney stated that one of the four men in the lineup with Cannon “was wearing a green sweater similar, in fact, almost identical,” to the one Cannon had on. However, as Judge Curtin put it: “Cross-examination considerably weakened Mahoney’s testimony.” 388 F.Supp. at 1203. The judge obviously did not believe Ma-honey, stating that his testimony “can only be characterized as equivocal,” and that “at least three or four, if not all of the other men in the lineup, were not wearing shirts anything like Cannon’s.” 388 F.Supp. at 1203-04. The judge also noted that the state’s failure to call other available witnesses “when they have sided with the state in the past, indicates that their testimony would have been unfavorable.”⁵ Id. From the record in the state court and the hearing before him, Judge Curtin found that the lineup was impermissibly suggestive. Pointing out that “the victim was unable to see the perpetrator’s face, that her initial description to the police was of no real value,⁶ and that the lineup was not held “until almost five days had passed,” the judge felt

forced to conclude that the possibility of irreparable misidentification was so great that it was error to admit any testimony with regard to identification at all.

Id. Finally, the judge concluded that the error was “constitutionally harmful” because “there was almost no other conclusive evidence introduced at the trial.” Id.

II

On this record of careful findings by a conscientious judge after a remand for just that purpose, appellant Superintendent has a particularly heavy burden to overcome. We conclude that he has not done so; though appellant offers a number of arguments, we find them unpersuasive. Appellant says that the hearing on remand was a continuation of the state Wade hearing and that once all the testimony was in, Judge Curtin should have given more weight to the conclusion of the state trial judge and the trial jury that Mahoney was a credible witness. He also argues that Mahoney’s testimony was not ambiguous or equivocal. But Judge Curtin, as the trier of fact, was free to disbelieve Mahoney, whether or not the state trial judge would have reacted the same way. Appellant argues that our remand “somewhat narrowed the normal scope of discretion” in the district court.⁷ This is incorrect. Our remand obviously contemplated that the district court could hear further evidence and decide the still unresolved factual and legal issues either way, so long as conflicting inferences were fairly available. Perhaps what appellant really means is that on the record as it now stands Judge Curtin could decide the issues only one way as a matter of law. But this is clearly not so. Mahoney’s testimony, if not credited on the key issue, or even if credited only in part, allowed the inferences that the police had made Cannon put on a green shirt and that this unfairly led to a misidentification.

Appellant also maintains that the victim had an independent basis for her in-court identification, which neither the state court nor Judge Curtin apparently considered. On the evidence, the existence of such an independent basis was unlikely. More important, on this record it would not cure the error in allowing evidence at trial of the unfair lineup identification.

Appellant also contends that the judge improperly shifted to the state the burden of persuasion in the habeas proceeding by inferring that various uncalled witnesses would testify unfavorably to its position and by not requiring Cannon to call witnesses. The argument is unsound. Certainly, the state’s failure to call Reiss and Funk, both of whom had been present at the lineup and were still in the state’s employ, allowed the trier of fact to infer that their testimony would be unfavorable.⁸ This is particularly so when the trier of fact gives notice, as Judge Curtin did here, that he might draw the inference because of the failure to produce such a witness.⁹ Moreover, even if the inference had been unavailable, the judge was entitled on this record to find, as he did, that apart from Cannon no more than one, possibly not even one, person in the lineup wore a green shirt. In our prior opinion, we pointed out that an inference of “undue suggestion” would then still be permissible, which “would acquire great importance.” 486 F.2d at 268. Finally, Judge Curtin did not improperly shift the burden of persuasion. That Cannon produced no witnesses at the hearing is of no moment, for by the time the case came to Judge Curtin on remand, Cannon had made out a sufficient case to allow granting the writ. The evidence before Judge Curtin did not compel a contrary conclusion.

In sum, we find that Judge Cur-tin committed no error. At least one of us in the position of the district judge on remand might have followed this court’s earlier suggestion to let the state court conduct the further hearing or might not have decided the case in the same way as Judge Curtin did but that is not the issue. The question is whether the judge made any clearly erroneous findings of fact or incorrect conclusions of law. Finding the answer in the negative, we affirm the judgment of the district court.

1 . Cannon’s petition for certiorari sought review of the issues decided against him by this court. The Attorney General of the State of New York opposed the petition primarily on the ground that the judgment was interlocutory because we had remanded on one issue, and the other issues could be rendered moot if the district court finally did issue the writ. Justices Douglas, Brennan and Marshall dissented from the denial of certiorari.

2 . Judge Friendly characterized this as “the rare state prisoner habeas appeal where there is reasonable doubt whether petitioner committed the crime.” 486 F.2d at 268. Judge Lumbard, also a member of the earlier panel, later agreed that this was the “rare” case where “a claim of innocence could be seriously advanced.” Ralls v. Manson, 503 F.2d 491, 494 & n. 1 (2d Cir. 1974) (concurring opinion).

3 . By then, Cannon had served some six years of his original sentence of six years and eight months to 20 years. The state raised no objection to Cannon’s release pending this appeal.

4 . Although the Attorney General represented respondent on the prior appeal and in the remand proceedings before Judge Curtin, on this appeal respondent is represented by the District Attorney of Monroe County.

5 . One of the uncalled witnesses, Lt. Reiss, had been the officer who directed Cannon to put on a green shirt.

6 - . . he had a green shirt on, dark pants and black shoes. He was a male negro. He was on the thin side.”

7 . Appellant’s Brief, at 9.

8 . United States v. Beekman, 155 F.2d 580, 584 (2d Cir. 1946). Cf. United States v. Ploof, 464 F.2d 116, 119 (2d Cir.), cert. denied sub nom. Godin v. United States, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972); United States v. Crisona, 416 F.2d 107, 118 (2d Cir. 1969), cert. denied sub nom. Delyra v. U. S., 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). See generally McCormick, Evidence § 272, at 656-59 (2d ed. 1973); 2 Wigmore, Evidence §§ 285-88 (3d ed. 1940).

9 . A third potential witness, Detective McDonald, had been at the lineup “part of the time,” and was apparently available, although retired.