Dunlap v. Burge

07-0592-pr
Dunlap v. Burge
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2008
(Argued: February 5, 2009 Decided: September 28, 2009)
Docket No. 07-0592-pr
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RAHEEM DUNLAP,
Petitioner-Appellant,
-- v. --
SUPERINTENDENT J. W. BURGE,
Respondent-Appellee.
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Before: SACK and PARKER, Circuit Judges, and STANCEU, Judge.*
Petitioner-appellant appeals from an order of the United States District Court for the
Southern District of New York (Stephen C. Robinson, J.) denying his petition for a writ of
habeas corpus following his conviction in the Supreme Court, Westchester County, State of New
York (James R. Cowhey, J., sitting with a jury), of assault in the first degree (two counts),
*
The Honorable Timothy C. Stanceu, Judge, United States Court of International Trade,
sitting by designation.
attempted robbery in the second degree (two counts), criminal use of a firearm in the first degree,
assault in the second degree (two counts), and reckless endangerment in the first degree.
AFFIRMED.
SALLY WASSERMAN, New York, New York, for Petitioner-Appellant.
JOHN SERGI (Janet DiFiore, Joseph M. Latino, and Anthony J. Servino, on the
brief), Westchester County District Attorney’s Office, White Plains, New York,
for Respondent-Appellee.
STANCEU, Judge:
Petitioner-appellant Raheem Dunlap, proceeding pro se, filed a petition for a writ of
habeas corpus, contending that unconstitutionally suggestive pretrial identification procedures
were used to obtain his conviction in New York State Supreme Court. He appeals from the
denial of his petition by the United States District Court for the Southern District of New York
(Robinson, J.).
In ruling on the petition, the district court concluded that the identification procedures at
issue were unduly suggestive and that no independent source existed for the trial identifications
by two witnesses who previously were shown photo arrays by the police. The district court
concluded that the state court erred in failing to suppress the identification testimony but held
that the failure to do so was harmless error because additional evidence was sufficient to support
the conviction.
We conclude that the district court erred in failing to accord the deference required by
28 U.S.C. § 2254(d) to the state court’s evaluation of the pretrial identification procedures.
Because we conclude that the state court’s resolution of this issue was not reached in
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contravention of, or pursuant to an unreasonable application of, clearly established federal law,
we affirm the judgment but on an alternate ground from that on which the district court relied.
I. BACKGROUND
On August 27, 2001, in Mount Vernon, New York, a masked passenger in a taxicab
driven by Rafael Bridge attempted to rob Bridge at gunpoint and repeatedly assaulted him. Both
Bridge and Joan Grant, the only other passenger in the cab, had noticed the perpetrator on that
clear and sunny day, when the perpetrator, then unmasked, was standing on a corner nearby.
Bridge had seen the man walk up to the cab, lean his face down to the open front passenger-side
window to ask for a ride, and walk around the front of the cab to enter the taxi from the rear
driver’s side. Bridge had another opportunity to observe the perpetrator, still unmasked, when
the perpetrator paid his fare and received his change from Bridge. Grant had observed the
unmasked man seating himself next to her in the back of the cab, in the course of exchanging
hellos, and again when the man pulled out a mask and gun. The assault the masked man
committed caused Bridge to lose consciousness, after which the cab collided with a light pole.
Locksey Manning, who was standing outside his home at the time of the collision, saw an
unmasked man climb out of the cab through the broken windshield and leave the scene.
Both Bridge and Grant were injured in the collision and hospitalized for treatment.
Police visited them in the hospital on the day of the collision and asked each of them,
independently, for a description of the perpetrator and to attempt to identify the assailant from an
array of six photographs that included a photograph of Raheem Dunlap. Bridge described the
perpetrator to the police as a light-complexioned African-American man who was approximately
five feet, nine inches tall and had a slim build. Bridge also described the perpetrator’s clothing.
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Bridge selected a photograph of a man who was not Dunlap but indicated that he was not certain
of his identification. He also informed the police that he could not see the photographs clearly
because his vision was blurred as a result of the injuries he had sustained. Bridge, who was
hospitalized for three days, suffered an orbital fracture near his right eye, which was swollen shut
at the time he viewed the photo array.
On that same day, Grant, who was bleeding, crying, and hysterical when being questioned
by police in the hospital, did not provide a description but identified a photograph of Dunlap
from a photo array that was a duplicate of that shown to Bridge. She, too, indicated that she was
not certain, and she asked to see another photograph.
On August 31, 2001, after Bridge was released from the hospital and four days after
Bridge had viewed the first photo array, police showed Bridge a second photo array that included
a different photograph of Dunlap than the one included in the first array. The new photograph
appeared in a different position in the array than the one occupied by Dunlap’s photograph in the
first array. Other than Raheem Dunlap, none of the other persons portrayed, including the person
that Bridge had originally identified tentatively as the perpetrator, was portrayed in the second
photo array. This time, Bridge identified Dunlap’s photograph as that of the perpetrator.
After her release from the hospital, Grant provided police a description of the assailant,
stating that he was a young African-American man with a light complexion. On September 9,
2001, thirteen days after Grant viewed the first photo array, police presented Grant with a second
photo array that included a photograph of Dunlap that was not the same photograph used in the
first array Grant had seen, and that was placed in a different position than Dunlap’s photograph
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had occupied in the first array. From the second array, Grant identified Dunlap, who was the
only person who also had been pictured in the first array.
On October 26, 2001, Dunlap was charged with assault in the first degree (two counts),
attempted robbery in the second degree (two counts), criminal use of a firearm in the first degree,
assault in the second degree (two counts), and reckless endangerment in the first degree. Pretrial
hearings on Dunlap’s motion to suppress identification testimony were held before the trial court
on May 15 and 16, 2002. The trial court denied the motion to suppress, holding that the pretrial
identification procedures were “not in any degree whatsoever suggestive and did not deny
defendant any due process of law.” People v. Dunlap, No. 01-1177, slip op. at 3-4 (N.Y. Sup.
Ct. May 16, 2002). The trial court found that the photographs used in each of the photo arrays
were of “young, black males . . . with comparatively light skin complexion,” id. at 1, and that
“[t]he photo participants were sufficiently similar in appearance to the defendant so that no
characteristic would have influenced the viewer to choose the defendant.” Id. at 1-2.
At trial, Bridge and Grant identified Dunlap as the perpetrator. Locksey Manning, when
called as a defense witness, testified that he could not identify Dunlap as the person whom he had
observed emerge from the cab and leave the scene. However, one day after witnessing the
collision, Manning, upon being shown a six-photo array and being asked for his “best guess” as
to the identity of the man whom he had seen climb out of the cab, had selected a photo of
Dunlap. His signature beneath this photo array was entered into evidence on cross-examination.
The trial concluded on May 30, 2002, and a jury found Dunlap guilty on all counts.
On appeal, the conviction was affirmed by the Appellate Division, Second Department,
which held that “[t]wo separate showings of a suspect’s picture in successive photographic arrays
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are not per se impermissibly suggestive.” People v. Dunlap, 780 N.Y.S.2d 171, 172 (N.Y. App.
Div. 2004). The Appellate Division concluded that “the potential for irreparable
misidentification such as where a witness repeatedly views the same photograph of a defendant
until a positive identification results did not exist,” id., and that, “[u]nder the totality of the
circumstances surrounding the pretrial identification . . . , the photographic arrays were not
unduly suggestive.” Id. at 172-73. The New York Court of Appeals denied petitioner’s
application for leave to appeal. People v. Dunlap, 786 N.Y.S.2d 819 (N.Y. 2004).
On July 22, 2005, Dunlap filed a petition for a writ of habeas corpus, contending that the
pre-trial identification procedures were unduly suggestive and violated due process. Upon
referral of the petition, Magistrate Judge George A. Yanthis issued a Report and
Recommendation concluding that the petition should be denied. The Report and
Recommendation rejected the state court’s conclusion that the pretrial identification procedures
were not unduly suggestive, but it concluded, notwithstanding the deficiencies it found to exist in
the identification procedures, that Bridge’s identification was independently reliable. Grant’s
identification of Dunlap was found not to be independently reliable, but the Report and
Recommendation concluded that the error was harmless due to the strength of the other evidence
against Dunlap.
Both sides filed objections to Judge Yanthis’s Report and Recommendation. The district
court adopted the Report and Recommendation in large part but concluded that Bridge’s
identification was not independently reliable. Dunlap v. Burge, No. 05 Civ. 7054, slip op.
at 12-13 (S.D.N.Y. Sept. 29, 2006). The court found the errors in admitting Bridge’s and Grant’s
identifications to be harmless in light of the other evidence supporting the conviction. Id.6
at 14-16. This evidence included Manning’s identification of Dunlap from a photo array, a black
mask recovered from Dunlap’s residence, a key recovered from the back of the taxicab that
unlocked the front door of Dunlap’s residence, and wounds on Dunlap’s face that were consistent
with those that would have been sustained in a vehicle collision. Id. at 15.
II. DISCUSSION
We review de novo a district court’s denial of a petition for a writ of habeas corpus.
Mosby v. Senkowski, 470 F.3d 515, 518 (2d Cir. 2006). A federal court’s grant or denial of a
state prisoner’s habeas petition is governed by 28 U.S.C. § 2254(d) (2006), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat.
1214, 1219 (1996) (“AEDPA”).1 Habeas relief is available under the first ground provided in
§ 2254(d) only if the state court’s decision on the merits “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court.” Id. § 2254(d)(1). The Supreme Court has stated with respect to § 2254(d)(1) that “a
decision by a state court is ‘contrary to’ our clearly established law if it ‘applies a rule that
1
As amended by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d) provides as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
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contradicts the governing law set forth in our cases’ or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless arrives at a result
different from our precedent.’” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)). The Supreme Court also has instructed that a decision
involves an unreasonable application of federal law “if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Williams, 529 U.S. at 413. The Supreme Court further has
instructed that “[f]or purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined
by this Court ‘refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the
time of the relevant state-court decision.’” Yarborough v. Alvarado 541 U.S. 652, 660-61 (2004)
(quoting Williams, 529 U.S. at 412).
Habeas corpus relief is available under the alternate ground in § 2254(d) only if the state
court’s decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Dunlap does not dispute the
factual findings underlying his conviction, and the due process question arising from the state
court’s refusal to exclude eyewitness testimony is a question of law. Therefore, Dunlap raises no
factual issue on which his petition could qualify for relief under § 2254(d)(2).
With respect to § 2254(d)(1), we conclude that the state court’s resolution of the issue
raised by Dunlap’s petition was neither contrary to, nor an unreasonable application of, clearly
established federal law as determined by Supreme Court precedent. In Simmons v. United States,
390 U.S. 377 (1968), the Supreme Court considered the question of impermissible
suggestiveness in successive pretrial photo arrays in the context of a conviction based on
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subsequent eyewitness identification at trial. The defendant Simmons was charged with
committing an armed robbery of a savings and loan institution that occurred in front of five
witnesses who were employees of the institution. Id. at 380-81. One day after the robbery, each
of the witnesses was shown a series of at least six photographs, with the defendant and another
man “each appearing several times in the series.” Id. at 385. Each witness identified the
defendant, and none identified the other man whose photograph recurred in the series, “who
apparently was as prominent in the photographs as Simmons.” Id. As has Dunlap, the defendant
in Simmons argued “that in the circumstances the [pretrial] identification procedure was so
unduly prejudicial as fatally to taint his conviction.” Id. at 383.
The Supreme Court set forth in Simmons a governing principle for judicial review of
convictions that, like Dunlap’s, were based on in-court identifications following pretrial
identification using photographs. The Court held that after considering a conviction “on its own
facts,” courts may set the conviction aside “only if the photographic identification procedure was
so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Id. at 384.
We first consider whether the state court “‘applie[d] a rule that contradicts the governing
law set forth in’” Simmons. Price, 538 U.S. at 640 (quoting Williams, 529 U.S. at 405-06). In
affirming Dunlap’s conviction, the Appellate Division considered “whether there was any
substantial likelihood that the defendant would be singled out for identification.” People v.
Dunlap, 780 N.Y.S.2d at 172. The Appellate Division concluded that “[u]nder the totality of the
circumstances surrounding the pretrial identification . . . , the photographic arrays were not
unduly suggestive” and that “the potential for irreparable misidentification . . . did not exist.” Id.9
at 172-173. Applying various state precedents, the Appellate Division also concluded that “[t]wo
separate showings of a suspect’s picture in successive photographic arrays are not per se
impermissibly suggestive” and that “the fact that a suspect is the only person whose photo was
repeated in successive photographic arrays, while a practice not to be encouraged, does not per se
invalidate the identification procedure.” Id. at 172. These various conclusions do not contradict
the governing law established in Simmons, or any other principle of federal law clearly
established by the Supreme Court.
We next consider whether the state court decision involved an unreasonable application
of clearly-established federal law. It is not sufficient for a habeas petitioner to convince the
district court that the state court applied a federal legal standard incorrectly; instead the petitioner
must demonstrate that the legal standard was applied in a way that was objectively unreasonable.
Price, 538 U.S. at 641 (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)).
Thus, a federal court might agree with a petitioner that the relevant federal law should have been
interpreted differently than the way it was interpreted by the state court yet still conclude that the
state court’s application of the federal law was not unreasonable. See id. at 641-43; see also
Woodford, 537 U.S. at 25 (“An ‘unreasonable application of federal law is different from an
incorrect application of federal law.’” (quoting Williams, 529 U.S. at 410, and citing Bell v.
Cone, 535 U.S. 685, 694 (2002))).
As the Supreme Court stated in Yarborough, “evaluating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S.
at 664. In Simmons, the Supreme Court spoke in general terms in holding that suppression of in-
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court identification testimony will not result unless, based on the totality of the circumstances,
the pre-trial photographic identification presents a very substantial likelihood of irreparable
misidentification. Simmons, 390 U.S. at 384. This rule affords significant discretion to the state
court.
In affirming Dunlap’s conviction, the Appellate Division “agree[d] with the hearing
court’s determination that the photographic arrays were not unduly suggestive,” and it did so
“[u]nder the totality of the circumstances surrounding the pretrial identification.” People v.
Dunlap, 780 N.Y.S.2d at 172-73. Although acknowledging that the use of successive photo
arrays in which the defendant is the only person who is repeated is not a practice to be
encouraged, the Appellate Division considered it significant that different photographs of Dunlap
were used, and that the photographs were placed in different locations, in the successive arrays.
Id. at 172. The Appellate Division concluded that “the potential for irreparable misidentification
such as where a witness repeatedly views the same photograph of a defendant until a positive
identification results did not exist.” Id. These conclusions did not involve any unreasonable
application of the rule established in Simmons. Habeas relief is therefore not permissible under
§ 2254(d)(1).
The district court properly identified Simmons as the relevant, clearly-established federal
law under § 2254(d)(1), but it did not discuss whether the state court decision was contrary to
Simmons or whether the state court applied Simmons unreasonably. Instead, the district court
undertook its own analysis of whether the identification procedures were impermissibly
suggestive, applying New York state law and the precedent of this Court. See Dunlap v. Burge,
No. 05 Civ. 7054, slip op. at 9-12. Doing so did not comport with the procedure Congress
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established in AEDPA, as construed by the Supreme Court. See Williams, 529 U.S. at 386(“AEDPA plainly sought to ensure a level of deference to the determinations of state courts,
provided those determinations did not conflict with federal law or apply federal law in an
unreasonable way.” (internal quotation marks omitted)); see also Woodford, 537 U.S. at 24(“[R]eadiness to attribute error is inconsistent with the presumption that state courts know and
follow the law. . . . It is also incompatible with § 2254(d)’s ‘highly deferential standard for
evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), which demands
that state-court decisions be given the benefit of the doubt.”).
III. CONCLUSION
Because Dunlap has failed to establish grounds entitling him to relief under 28 U.S.C.
§ 2254(d), the district court’s order denying Dunlap’s application for a writ of habeas corpus is
AFFIRMED.
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