Garvey v. Duncan

05-5764
Garvey v. Duncan
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
_______________ 4
5
August Term, 2006 6
7
(Argued September 15, 2006 Decided May 9, 2007) 8
9
Docket No. 05-5764-pr 10
11
_______________ 12
13
Thomas Garvey, 14
15
Petitioner-Appellant, 16
17
v. 18
19
George Duncan, Eliot Spitzer, New York State Attorney General, 20
21
Respondents-Appellees. 22
23
_______________ 24
25
Before: 26
CARDAMONE, MINER, and STRAUB, 27
Circuit Judges. 28
29
_______________ 30
31
Defendant Thomas Garvey appeals from the September 21, 2005 32
order of the United States District Court for the Southern 33
District of New York (Wood, J.) dismissing his petition for a 34
writ of habeas corpus. 35
36
Affirmed. 37
38
Judge Straub dissents in a separate opinion. 39
40
_______________ 41
42
JOHN W. BERRY, New York, New York (Ashley F. Waters, Akin Gump 43
Strauss Hauer & Feld, L.L.P., New York, New York; David 44
Crow, The Legal Aid Society, Criminal Appeals Bureau, New 45
York, New York, of counsel), for Petitioner-Appellant. 46
47
HAE JIN LIU, Assistant District Attorney, Bronx, New York (Robert 48
T. Johnson, District Attorney, Joseph N. Ferdenzi, Nancy D. 49
Killian, Assistant District Attorneys, Bronx County, Bronx, 50
New York, of counsel), for Respondents-Appellees. 51

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2
CARDAMONE, Circuit Judge: 1
On this appeal, after defendant had been convicted of 2
burglary in state court, he filed a petition in the United States 3
District Court for the Southern District of New York seeking 4
habeas corpus relief alleging a violation of his due process 5
rights based on identity evidence admitted against him at trial. 6
It is clear that the burglar's identity did not at the time of 7
the burglary press itself on the victim. Yet, on appeal from the 8
denial of habeas relief defendant faces a procedural hurdle 9
before the merits of his argument may be examined. If firmly 10
established and regularly followed state law provides an 11
independent (from the federal issue raised) and adequate basis 12
for sustaining the state court's judgment, a federal court is 13
precluded from reviewing the merits of a petitioner's claim for 14
habeas relief so long as application of the state rule was not 15
exorbitant on the facts of petitioner's case. Here, the district 16
court denied defendant habeas relief on the merits. We do not 17
reach the merits because such review is barred by independent and 18
adequate state law grounds. 19
Defendant Thomas Garvey (defendant or petitioner) appeals 20
from the September 21, 2005 order of the Southern District of New 21
York (Wood, J.) dismissing his petition for a writ of habeas 22
corpus. Defendant's principal argument is that the New York 23
state trial judge (Bernstein, J.) violated Garvey's due process 24
rights by allowing into evidence his identification allegedly 25

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3
made under suggestive circumstances. The state trial court judge 1
reasoned that since Garvey was not in police custody at the time 2
of the identification his claim of identification under 3
suggestive circumstances was groundless. On appeal to the New 4
York State Supreme Court, Appellate Division, Garvey asserted 5
that even if the suggestive identification was entirely 6
orchestrated by civilians, it still should not have been admitted 7
into evidence against him, and instead should have been quashed. 8
The appellate division ruled that Garvey's due process claim was 9
unpreserved on appeal because that claim was not raised at trial 10
as required by the applicable New York rule of criminal 11
procedure. Garvey contends before us that the state procedural 12
rule was misapplied in his case and thus does not constitute an 13
adequate state ground for decision that would bar federal habeas 14
jurisdiction. 15
The district court found Garvey's claim was not procedurally 16
barred, but nonetheless dismissed the petition after reviewing 17
the merits. In our view Garvey's claim was procedurally barred. 18
Hence, while we affirm the result reached in the district court, 19
we do so on different grounds. 20
BACKGROUND 21
A. The Burglary, and Identification of Defendant 22
At 4:40 in the early morning of September 20, 1996 Violet 23
McKenzie was abruptly awakened in her Bronx County home when she 24
heard noises in her downstairs kitchen. McKenzie got out of bed, 25

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4
turned on the lights at the top of the stairs, and began to walk 1
downstairs. As she went down she saw two strange men hurriedly 2
fleeing from her house carrying what appeared to be her personal 3
property in their arms. 4
McKenzie had two opportunities at the scene of the crime to 5
view one of the perpetrators, whom she later identified as 6
Garvey. She first observed him for 30 seconds at a distance of 7
12 to 15 feet in the hallway of her home. She observed him a 8
second time from a second floor window as he quickly walked away. 9
McKenzie later testified that on both occasions she was able to 10
observe the person's clothing, skin color, and facial hair. But 11
in the police report she made at 5:40 a.m. on the day of the 12
burglary, McKenzie was unable to provide a physical description 13
of the thief. According to routine police procedure, which was 14
followed here, the reporting officer asked McKenzie to provide a 15
physical description of the intruder, including such details as 16
his age, height, weight, hair, facial hair, complexion, and 17
clothing. The complaint report reflects that the only 18
description McKenzie was able to provide the officer at that time 19
was that the person she observed was wearing "dark clothing." 20
Because such is hardly a distinguishing characteristic of a 21
nighttime burglar, from this it is not surprising that the 22
officer concluded McKenzie was unable to identify the perpetrator 23
of the burglary. 24

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5
About five hours later that same morning, at 10:30 a.m., 1
McKenzie was summoned to her neighbor's yard. The neighbor's 2
husband, Theodore Gaines, had caught a man retrieving "some type 3
of video machine" from Gaines' trash cans. The neighbor knew 4
McKenzie had been burglarized a few hours earlier, so Gaines and 5
other neighbors surrounded Garvey -- whom they believed might be 6
one of the burglars -- to give McKenzie an opportunity to come 7
over and see if she could identify him. When McKenzie arrived in 8
Gaines' yard, she saw Gaines holding Garvey. At Garvey's feet 9
was McKenzie's video compressor, an object that had been taken 10
during the burglary. She immediately identified Garvey as the 11
person whom she had seen earlier that morning. 12
Two police officers, Dwayne Davis and John Raftery, arrived 13
a few minutes later, and found Garvey surrounded by a group of 14
people in Gaines' yard. Officer Raftery escorted Garvey to one 15
side for his own safety, while Officer Davis spoke to Gaines. As 16
Officer Davis spoke with Gaines, McKenzie approached Officer 17
Davis and informed him that Garvey was one of the men that had 18
burglarized her home just hours before. Upon learning this, the 19
officers placed Garvey under arrest. 20
B. Prior Proceedings 21
On October 1, 1996 Garvey was indicted for burglary in the 22
second degree, N.Y. Penal Law § 140.25[2], grand larceny in the 23
third degree, N.Y. Penal Law § 155.35, and criminal possession of 24
stolen property in the third degree, N.Y. Penal Law § 165.50. 25

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6
Before trial Garvey moved to suppress McKenzie's 1
identification of him at the time of his arrest, arguing that it 2
was suggestive. Defendant maintained he was identified by 3
McKenzie under suggestive circumstances because he was handcuffed 4
and in police custody. The trial court conducted a hearing where 5
the two police officers testified regarding the events occurring 6
at Garvey's arrest. The state trial court ruled the evidence of 7
McKenzie's identification of Garvey would not be excluded at 8
trial, stating: 9
I make the following conclusions of law: 10
11
No suggestive acts occurred by the police 12
department. The holding of the defendant 13
initially was by a private citizen and when 14
the officer was investigating it, another 15
private citizen, identifying herself, 16
approached him and said that she was a 17
witness to complaint of a burglary occurring 18
shortly before in her premises. 19
20
The officer had probable cause to arrest 21
defendant. No suggestiveness occurred, and I 22
find that the out-of-court identification may 23
be testified to and if there is any in-court 24
identification, that, of course, may be 25
testified to, also. 26
27
As a result, McKenzie's in-court and out-of-court identifications 28
of defendant were both admitted into evidence at his trial. 29
Garvey was convicted of burglary in the second degree by a 30
jury. Judgment was rendered by the New York Supreme Court, Bronx 31
County, on March 31, 1998, and since Garvey was a second felony 32
offender, he was sentenced to a ten-year term of imprisonment. 33
On appeal to the Appellate Division, Garvey urged for the first 34

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7
time that his identification should have been excluded because of 1
civilian-orchestrated suggestive circumstances. The appellate 2
division ruled that since this claim had not been raised at 3
trial, it was not preserved. People v. Garvey, 717 N.Y.S.2d 181, 4
182 (1st Dep't 2000). The First Department also noted that were 5
it to review the merits of Garvey's claim, it would find that the 6
identification was sufficiently reliable under all the 7
circumstances. Id. 8
Garvey sought leave to appeal that ruling to the New York 9
State Court of Appeals. On March 5, 2001, the request was 10
denied. See People v. Garvey, 96 NY2d 783 (2000) (table). On 11
June 4, 2002 Garvey sought a writ of habeas corpus in federal 12
court pursuant to 28 U.S.C. § 2254 based on his claim that it was 13
error for the state trial court to admit into evidence the 14
allegedly suggestive identification. The district court denied 15
the petition after considering the merits. A notice of appeal 16
was filed with this Court on October 24, 2005. 17
DISCUSSION 18
I Standard of Review 19
When this Court reviews a district court ruling on a habeas 20
corpus petition, we examine the factual findings of the district 21
court for clear error, but we consider questions of law, like the 22
one at issue here, de novo. See Hawkins v. Costello, 460 F.3d 23
238, 242 (2d Cir. 2006); Campusano v. United States, 442 F.3d 24
770, 773 (2d Cir. 2006). 25

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8
II Independent and Adequate State Law Grounds 1
Federal courts generally will not consider a federal issue 2
in a case "if the decision of the state court rests on a state 3
law ground that is independent of the federal question and 4
adequate to support the judgment." Lee v. Kemna, 534 U.S. 362, 5
375 (2002) (alteration and emphases omitted). This rule applies 6
regardless of whether the independent state law ground is 7
substantive or procedural and whether the case is in federal 8
court on direct review or from state court via a habeas corpus 9
petition. Id. However, the state law ground is only adequate to 10
support the judgment and foreclose review of a federal claim if 11
it is "firmly established and regularly followed" in the state. 12
Id. at 376. Further, in certain limited circumstances, even 13
firmly established and regularly followed state rules will not 14
foreclose review of a federal claim if the application of the 15
rule in a particular case is "exorbitant." Id. In Lee, the 16
Supreme Court factored in three considerations to determine that 17
application of the firmly established and regularly followed 18
state procedural rule would be exorbitant. Id. at 381. Although 19
we have observed that these three factors are not a test for 20
determining adequacy, they are nonetheless used as guides in 21
evaluating "the state interest in a procedural rule against the 22
circumstances of a particular case." Id. at 381-85; see Cotto v. 23
Herbert, 331 F.3d 217, 240 (2d Cir. 2003). The three factors are 24
(1) whether the alleged procedural violation 25
was actually relied on in the trial court, 26

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9
and whether perfect compliance with the state 1
rule would have changed the trial court's 2
decision; (2) whether state caselaw indicated 3
that compliance with the rule was demanded in 4
the specific circumstances presented; and (3) 5
whether petitioner had "substantially 6
complied" with the rule given "the realities 7
of trial," and, therefore, whether demanding 8
perfect compliance with the rule would serve 9
a legitimate governmental interest. 10
11
Cotto, 331 F.3d at 240. 12
Since the adequacy of a state procedural bar to the 13
assertion of a federal question is itself a federal question, 14
Lee, 534 U.S. at 375, we must ascertain whether the state rule at 15
issue here is firmly established and regularly followed, and 16
further whether application of that rule in this case would be 17
exorbitant. To do so, we look at the statute and case law 18
construing it. Cotto, 331 F.3d at 243. 19
III State Procedural Bar 20
Under New York statutory law, there are two distinct ways a 21
question of law can be preserved for appeal. The first is 22
through an objection at trial by a party later claiming error. 23
N.Y. Crim. Proc. Law § 470.05(2). The second is when the trial 24
court makes an express ruling with regard to a particular 25
question. Id. We consider in turn whether the issue Garvey 26
raised on appeal in state court was preserved in either of these 27
two ways. 28
A. What Kind of "Protest" is Sufficient Under § 470.05(2) 29
and the Case Law Interpreting It? 30
31

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10
Under the New York statute, a question of law is preserved 1
for appeal 2
[W]hen a protest thereto was registered, by 3
the party claiming error, at the time of such 4
ruling or instruction or at any subsequent 5
time when the court had an opportunity of 6
effectively changing the same. Such protest 7
need not be in the form of an "exception" but 8
is sufficient if the party made his position 9
with respect to the ruling or instruction 10
known to the court. 11

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11
Id. New York courts have explained that to preserve a claim of 1
error in the admission of evidence at trial under § 470.05(2) a 2
defendant must make his or her position known to the court. 3
People v. Gray, 86 NY2d 10, 19 (1995). The purpose of this rule 4
is to apprise the trial judge and the prosecutor of the nature 5
and scope of the matter defendant contests, so that it may be 6
dealt with at that time. People v. Jones, 81 AD2d 22, 41-42 (2d 7
Dep't 1981). A general objection is not sufficient to preserve 8
an issue since such would not alert the court to defendant's 9
position. See Gray, 86 NY2d at 20. Instead New York's highest 10
courts uniformly instruct that to preserve a particular issue for 11
appeal, defendant must specifically focus on the alleged error. 12
Id. at 19. See also People v. Parsons, 816 N.Y.S.2d 271, 271 13
(4th Dep't 2006) ("Defendant failed to preserve for our review 14
his further contention that the evidence is legally insufficient 15
. . . inasmuch as his motion to dismiss was not specifically 16
directed at that alleged insufficiency."); People v. Rodriguez, 17
693 N.Y.S.2d 54, 55 (2d Dep't 1999) (defendant's claim "is 18
unpreserved for appellate review since it was not advanced with 19
specificity before the trial court"); People v. McLane, 682 20
N.Y.S.2d 24, 25 (1st Dep't 1998) ("By failing to elaborate on the 21
basis for his objection to the court's charge on justification, 22
defendant failed to provide the court with a fair opportunity to 23
rectify any error and failed to preserve the issue for appellate 24
review."); People v. Cooper, 537 N.Y.S.2d 700, 701 (4th Dep't 25

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12
1989) ("Although defendant objected on two occasions to receipt 1
of such evidence, neither objection specifically questioned 2
admissibility upon the ground now raised" and consequently 3
claimed error "was not preserved for appellate review."). 4
This rule applies with respect to motions to suppress as it 5
does in every other context. See, e.g., People v. Brooks, 808 6
N.Y.S.2d 517, 518 (4th Dep't 2006) ("In support of his further 7
contention that the [trial] court erred in denying his 8
suppression motion, defendant raises a ground not raised before 9
the suppression court. Thus, defendant's contention is not 10
preserved for our review."); People v. Fabricio, 763 N.Y.S.2d 11
619, 620 (1st Dep't 2003) ("Since defendant's suppression motion 12
[at trial] was made on completely different grounds from those 13
raised on appeal, his present challenges . . . are 14
unpreserved."). 15
B. Was Garvey's Protest at Trial Sufficient to 16
Preserve the Issue He Raises on Appeal? 17
18
In this case the defendant timely moved to suppress the 19
identification testimony. He argued in an omnibus motion before 20
the trial court that the fact that the victim identified him 21
after he was seized and handcuffed by the police made that 22
identification unnecessarily suggestive. The defendant asserted 23
that the proper course of action would have been for the 24
arresting officers to have taken him back to the precinct to be 25
put in a lineup. It is clear from the record that the 26
defendant's suppression motion was based on his contention that 27

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13
the police orchestrated an unduly suggestive identification. 1
Defendant's motion to suppress the identification was denied 2
because the trial court found that defendant was not in police 3
custody at the time the identification was made. There can be no 4
question defendant preserved his right to appeal on this ground 5
and attempted to persuade the Appellate Division that he was in 6
fact in police custody at the time the identification occurred. 7
However, this is not the ground on which defendant based his 8
appeal. Rather, on appeal defendant averred for the first time 9
that his identification should have been suppressed due to the 10
suggestive circumstances created by civilians. The Appellate 11
Division deemed this claim unpreserved. Garvey, 717 N.Y.S.2d at 12
182. 13
New York courts consistently interpret § 470.05(2) to 14
require that a defendant specify the grounds of alleged error in 15
sufficient detail so that the trial court may have a fair 16
opportunity to rectify any error. See McLane, 682 N.Y.S.2d at 17
25. Here, defendant did not provide the trial court with a fair 18
opportunity to consider the legal issue of whether the civilian- 19
facilitated identification was suggestive and needed to be 20
suppressed. The fact that the defendant had declared that the 21
identification was suggestive because he was in police custody at 22
the time of the identification did not put the trial court on 23
notice that there might be a legal issue as to whether a 24
civilian-facilitated identification could be problematic as well. 25

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14
Under the firmly established and regularly followed New York 1
interpretation of § 470.05(2), this issue cannot be raised for 2
the first time on appeal. 3
The dissent's contention that Garvey's counsel was prevented 4
from presenting the issue of civilian suggestiveness at the 5
suppression hearing because the trial court interrupted him is 6
undermined by both the limited nature of the suppression motion 7
and counsel's statements at the hearing. The dissent does not, 8
nor could it, dispute the fact that Garvey's motion did not 9
expressly challenge his identification based upon civilian 10
conduct. In fact, the motion cannot be read to encompass 11
anything beyond a police suggestiveness claim: 12
The People have given notice of their 13
intention to offer testimony identifying the 14
defendant herein as the person who committed 15
the crimes charged, which testimony will be 16
given by a witness who has previously 17
identified the defendant at a "corporeal 18
showup" conducted on September 20, 1996. 19
Defendant seeks herein to suppress said 20
identification on the ground that the 21
"showup" was unconstitutionally suggestive, 22
and was the product of an illegal arrest. 23
24
Upon information and belief (source: 25
police reports and investigations) on 26
September 20, 1996, the defendant was walking 27
along a public street in the vicinity of 28
Grace Avenue and Ely Avenues, Bronx, New 29
York, when he was seized by several 30
officers. . . . 31
32
Despite the fact that the defendant was 33
not engaged in criminal conduct, he was 34
seized by police and handcuffed. Almost six 35
and one half hours after the alleged burglary 36
took place the witness identified the 37

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15
defendant in a corporeal show-up as he stood 1
handcuffed in the street. 2
3
The defendant contends that the 4
identification violated his constitutional 5
rights because it was so unnecessarily 6
suggestive as to be a denial of due process 7
of law. 8
9
Affirmation in Supp. of Def.'s Mot. to Suppress at 8-9, New York 10
v. Garvey, No. 7174/96 (Sup. Ct. Bronx County Dec. 9, 1996) 11
(emphases added). 12
As even the dissent recognizes, Garvey's allegation that the 13
identification was flawed rested upon his counsel's belief that 14
Garvey had already been handcuffed by the police when he was 15
identified. Based upon the foregoing, it would have been 16
reasonable for the trial court to anticipate hearing only the 17
police conduct issue at the hearing and instruct counsel to "rest 18
on the record" accordingly. Indeed, counsel never indicated that 19
the record contained anything other than a police suggestiveness 20
claim. 21
In addition, the dissent's conclusion that our opinion in 22
Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998), could not 23
have apprised the trial court to consider the issue of civilian 24
suggestiveness necessarily reveals the likelihood that Garvey 25
would not have known to raise it. Counsel's foundational 26
questions to Officer Davis related to the fact that he observed a 27
crowd of people when he came upon the scene. The questions are 28
not equivalent to a discrete objection based upon civilian 29
suggestiveness. Given the prevailing law in New York at the 30

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16
time, the questions sought only to show that the civilians were 1
holding Garvey before the police arrived. Such a showing would 2
relate to the issue of whether the identification procedures were 3
orchestrated by the police. In short, there is nothing in the 4
record to show that Garvey adequately challenged his 5
identification based upon civilian, as opposed to police, 6
conduct, and any inference to the contrary is purely speculative. 7
C. When Has a Court Expressly Decided an Issue 8
Under § 470.05(2)? 9
10
Under New York law, even in the absence of a proper 11
objection on a particular issue, a question of law is preserved 12
for appeal if "in reponse [sic] to a protest by a party, the 13
court expressly decided the question raised on appeal." 14
§ 470.05(2). New York's highest court explained how this 15
standard should be applied in a case involving a defendant whose 16
U-Haul rental van was pulled over by police. See People v. 17
Turriago, 90 NY2d 77 (1997). In Turriago, after the defendant 18
consented to a police search of his vehicle, the police found a 19
dead body inside. At trial, the defendant argued that his 20
consent had been involuntary, and the evidence should therefore 21
be suppressed. Id. at 82. The trial court found the defendant's 22
consent to the search was voluntary and denied suppression of the 23
physical evidence. Id. On appeal, the Appellate Division ruled 24
the consent invalid because "the police lacked a founded 25
suspicion that criminal activity was afoot so as to give rise to 26

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17
the common-law right to inquire" when they pulled the vehicle 1
over. Id. at 83. 2
The Court of Appeals reversed, emphasizing that under 3
§ 470.05(2), the trial court must expressly decide an issue 4
before it is preserved on appeal. Id. at 83-84. Turriago noted 5
that while the trial court had "allu[ded] to the subjective 6
suspicions of the troopers in seeking to search the rental van," 7
those comments "were made in response to defendant's claim of 8
involuntariness of his consent." Id. at 83. Because the trial 9
court had never "expressly decided that the request for consent 10
to search was justified by a founded suspicion of criminal 11
activity," that issue had not been preserved on appeal. Id. at 12
84 (emphases omitted). The Court of Appeals emphasized that, in 13
determining whether particular statements of a trial court 14
constitute a ruling on an issue not raised by the parties, it is 15
essential to look to the context in which those statements are 16
made. Id. at 83. 17
Turriago indicates three things that are useful in 18
determining how to apply § 470.05(2) in the present case. First, 19
New York courts take seriously § 470.05(2)'s requirement that an 20
issue must be expressly decided by the trial court (if not raised 21
by a party) for it to be preserved for appeal. See People v. 22
Baughan, 812 N.Y.S.2d 528, 529 (1st Dep't 2006) (finding 23
defendant's argument on appeal unpreserved because the court did 24
not expressly decide the issue); People v. Alston, 778 N.Y.S.2d 25

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18
881, 881 (1st Dep't 2004). Second, Turriago instructs that when 1
a court rules against suppressing evidence on one ground that 2
ruling does not preserve for appeal all other potential grounds 3
for suppressing that evidence. See People v. Cusumano, 484 4
N.Y.S.2d 909, 912 (2d Dep't 1985) ("[D]efendant's present 5
challenge to the court's ruling which denied suppression of his 6
statements to the police was also not preserved for appellate 7
review since this particular ground for suppression was not 8
raised at the hearing."). Third, Turriago tells us that 9
statements made by the trial court that might imply that it was 10
considering an issue not raised by the parties should be read in 11
context rather than in a vacuum. 12
D. Did the Trial Court Expressly Decide the Issue 13
Garvey Raised on Appeal? 14
15
In this case, the trial court ruled that 16
No suggestive acts occurred by the police 17
department. The holding of the defendant 18
initially was by a private citizen and when 19
the officer was investigating it, another 20
private citizen, identifying herself, 21
approached him and said that she was a 22
witness to complaint of a burglary occurring 23
shortly before in her premises. 24
25
The officer had probable cause to arrest 26
defendant. No suggestiveness occurred, and I 27
find that the out-of-court identification may 28
be testified to . . . . 29
30
The state trial court at no point expressly decided whether the 31
civilian-arranged identification was suggestive. Although the 32
court stated that "no suggestiveness occurred," this conclusory 33
statement was clearly limited to suggestive acts by the police -- 34

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19
the sole source of suggestiveness raised by the defendant in his 1
motion and at the hearing. It would be strange indeed if, in 2
this single sentence, the trial court intended to raise and 3
resolve sua sponte the question of whether the civilian- 4
orchestrated identification was unconstitutionally suggestive. 5
Rather, it is clear that the court was simply summarizing its 6
earlier statement that "[n]o suggestive acts occurred by the 7
police department." Contrary to the dissent's observation, the 8
trial court's determination that "[n]o suggestive acts occurred 9
by the police department" was not a "conclusion[] of law 10
bear[ing] directly on the issue of suggestive civilian conduct" 11
(emphasis added). Rather, the court's discussion encompassed 12
factual findings relating to the scene of Garvey's arrest that, 13
by themselves, did not decide the identification issue as a 14
matter of law. Further, under New York law, the fact that the 15
trial court ruled the evidence should not be suppressed on one 16
ground does not preserve for appeal any other ground the 17
defendant might have raised -- but did not -- for suppressing the 18
evidence. Finally, when the court's decision is read in context, 19
the references to the defendant having been held by civilians do 20
not indicate the trial court was ruling upon whether the 21
civilian-arranged identification was suggestive. Instead, the 22
trial court was simply pointing out that it was parties other 23
than the police who took part in any suggestive acts that 24
occurred. This was relevant because it negated Garvey's 25

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20
contention that he was in police custody at the time the 1
identification was made. Consequently, we conclude the trial 2
court did not expressly decide the issue that the defendant 3
attempted to raise on appeal. 4
IV Would it Be Exorbitant to Apply § 470.05(2) in This Case? 5
Although § 470.05(2) is a firmly established and regularly 6
followed New York procedural rule, it will not bar us from 7
reviewing the federal claim on the merits if the application of 8
the state rule to this case is exorbitant. See Lee, 534 U.S. at 9
376. To determine whether it would be exorbitant to apply 10
§ 470.05(2) in this case, we look at Lee's three considerations. 11
See Cotto, 331 F.3d at 240. Since the three considerations are 12
closely tied to the facts in Lee, a brief summary of those facts 13
is helpful. 14
In Lee, the trial court refused to grant the defendant an 15
overnight continuance of his trial to locate subpoenaed, 16
previously present, but suddenly missing witnesses that were key 17
to his defense. 534 U.S. at 365. The trial court explained it 18
was refusing to grant Lee the continuance because it was busy the 19
next day and had another trial scheduled to begin the weekday 20
after that. Id. at 366. Having had no opportunity to present 21
alibi witnesses, Lee was subsequently found guilty. Id. The 22
state appellate court disposed of the case on procedural grounds, 23
explaining that Lee's continuance motion was defective under the 24
state rules. Id. at 365. The Supreme Court ruled that such 25

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21
application of a state rule was exorbitant, based on the 1
following three considerations. Id. at 376, 381-83. We consider 2
each in turn. 3
(1) Whether the alleged procedural violation was 4
actually relied on in the trial court, and whether 5
perfect compliance with the state rule would have 6
changed the trial court's decision. 7
8
See Cotto, 331 F.3d at 240 (summarizing Lee's first 9
consideration). 10
In this case the alleged procedural violation was the 11
defendant's failure to raise a specific issue before the trial 12
court. It is therefore meaningless to ask whether the alleged 13
procedural violation was actually relied on in the trial court -- 14
the violation only first occurred when defendant raised an 15
argument on appeal that he had not raised earlier. We may ask, 16
however, whether perfect compliance with the state rule would 17
have changed the trial court's decision. Unlike in Lee, where 18
the trial court would have reached exactly the same decision for 19
exactly the same reasons had Lee perfectly complied with the 20
state rules governing continuance motions, here perfect 21
compliance with the state rule would have had an impact on the 22
trial court's decision. Had Garvey complied with § 470.05(2), 23
the trial court would have had the opportunity to consider 24
whether the civilian-orchestrated identification should be 25
suppressed. Thus, the first consideration does not indicate that 26
this application of § 470.05(2) was exorbitant. 27

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22
(2) Whether state case law indicated that compliance 1
with the rule was demanded in the specific 2
circumstances presented. 3
4
See Cotto, 331 F.3d at 240 (summarizing Lee's second 5
consideration). 6
In Lee, the Court demonstrated that in the "unique 7
circumstances" presented, that is, "the sudden, unanticipated, 8
and at the time unexplained disappearance of critical, subpoenaed 9
witnesses on what became the trial's last day," the state courts 10
had never before applied the state rule in question. Lee, 534 11
U.S. at 382. In contrast, this case presents no unique set of 12
circumstances similar to the circumstances in Lee. There was no 13
sudden or unanticipated event that led Garvey not to comply with 14
§ 470.05(2). Therefore, the second consideration also does not 15
indicate that application of § 470.05(2) was exorbitant. 16
(3) Whether petitioner had substantially complied with 17
the rule given the realities of trial, and, 18
therefore, whether demanding perfect compliance 19
with the rule would serve a legitimate. 20
governmental interest. 21
22
See Cotto, 331 F.3d at 240 (summarizing Lee's third 23
consideration). 24
The Lee Court deemed the third consideration the "most 25
important." 534 U.S. at 382. It explained that although the 26
form of Lee's continuance motion was defective, he had presented 27
to the trial court all of the information that would have been 28
included in a properly served motion. Id. at 383-85. Thus, the 29
Supreme Court ruled it would be "so bizarre as to inject an 30

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23
Alice-in-Wonderland quality into the proceedings" to apply the 1
state procedural rule in such a case. Id. at 383. The Court 2
explained that demanding perfect compliance under the 3
circumstances would not serve any legitimate governmental 4
interest because the essential requirements of the rule had 5
already been substantially met. Id. at 385. 6
In the present case, in contrast, the defendant did not just 7
violate the formal requirements of § 470.05(2). He violated the 8
very substance of the rule. The basis of § 470.05(2) is that the 9
trial court must be given a fair opportunity to rule on an issue 10
of law before it can be raised on appeal. Had the defendant here 11
put the trial court on notice regarding his argument that the 12
civilian-orchestrated identification was suggestive, perhaps it 13
would have been exorbitant to punish him for not complying with 14
some technical aspect of § 470.05(2). Such is not our case. The 15
defendant violated the very essence of § 470.05(2), and demanding 16
compliance with § 470.05(2) serves a legitimate governmental 17
interest in this case, that is to say, the interest in allowing 18
the trial court to have the first opportunity to rule on and 19
possibly rectify any alleged legal error. Hence, the third 20
consideration, as the first two, does not indicate that this 21
application of § 470.05(2) was exorbitant. 22
Therefore, because § 470.05(2) is a state law ground on 23
which the New York appellate court's decision is based, and that 24
ground is both independent of any federal question and adequate 25

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24
under firmly established and regularly followed state law, we 1
will not disturb the state appellate court's ruling that the 2
defendant's protest at trial was insufficient to preserve the 3
arguments he wishes to raise on appeal. 4
Defendant's claim that the civilian-orchestrated 5
identification should be suppressed was not raised either by 6
specific objection or by the trial court's decision. As a 7
consequence, the procedural bar of § 470.05(2) constitutes an 8
independent and adequate state ground for the Appellate 9
Division's holding. 10
We need not reach or decide the defendant's federal claims, 11
since there was an independent and adequate state law ground for 12
the state appellate court's decision to affirm the defendant's 13
conviction. 14
CONCLUSION 15
For the foregoing reasons, the order of the district court 16
dismissing Garvey's petition for a writ of habeas corpus is 17
affirmed. 18

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25
STRAUB, Circuit Judge, dissenting. 1
Because I cannot agree with the majority’s narrow view of 2
the record in this case, I respectfully dissent. The majority 3
requires that Garvey articulate his objections with near-surgical 4
precision, yet casts aside the inconvenient fact that the trial 5
court prevented Garvey’s counsel from explaining the full scope 6
of his suppression motion after the close of evidence – arguably 7
the most important time. Even so, Garvey still succeeded in 8
raising the issue of suggestive civilian conduct through the 9
testimony elicited during the suppression hearing. Indeed, 10
Garvey’s counsel so readily raised the issue that the trial 11
court’s findings of fact and conclusions of law specifically 12
address it in language that the majority glosses over. Moreover, 13
the trial court rendered a ruling on the issue of suggestive 14
civilian conduct by erroneously dismissing it as immaterial to 15
the constitutional suppression analysis. Ironically, and 16
unfortunately, the majority endeavors to transform the trial 17
court’s dismissal of the question into Garvey’s failure to raise 18
it. 19
Principally as a result of my view of the facts, I also 20
conclude that the majority’s application of N.Y. C.P.L. § 21
470.05(2) is exorbitant and thus inadequate to bar our review of 22
Garvey’s constitutional claim. Finally, perceiving no obstacle 23
to our review of the merits, I conclude that the state appellate 24
court unreasonably applied clearly established Supreme Court law. 25

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26
I therefore would vacate the judgment of the District Court and 1
remand for a determination, in the first instance, of whether the 2
trial court’s error had a “substantial and injurious effect or 3
influence in determining the jury’s verdict.” Wray v. Johnson, 4
202 F.3d 515, 525 (2d Cir. 2000) (internal quotation marks 5
omitted). 6
I. There Is No Independent and Adequate State Procedural Bar 7
For simplicity’s sake, I shall assume that the majority’s 8
strict view of § 470.05(2) is correct. See supra, at 9-17. I 9
note that reasonable minds can differ on this point. See N.Y. 10
C.P.L. § 470.05(2) (“[A] party who without success has either 11
expressly or impliedly sought or requested a particular ruling or 12
instruction, is deemed to have thereby protested the court's 13
ultimate disposition of the matter . . . sufficiently to raise a 14
question of law with respect to such disposition or failure 15
regardless of whether any actual protest thereto was registered.” 16
(emphases added)); Cotto v. Herbert, 331 F.3d 217, 247 (2d Cir. 17
2003). Nevertheless, this issue is not the crux of my 18
disagreement. Taking for granted the majority’s exacting view of 19
§ 470.05(2) – i.e., that in seeking suppression, Garvey had to 20
challenge suggestive civilian conduct as opposed to suggestive 21
conduct generally – Garvey satisfied that standard for two 22
reasons: because he raised the issue of suggestive civilian 23
conduct at the suppression hearing, and because the trial court 24

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27
rendered a ruling on the issue, albeit an erroneous and 1
dismissive ruling. 2
A. Garvey Raised the Issue of Suggestive Civilian Conduct 3
I wish to make clear something that the majority has 4
downplayed: the trial court abruptly cut short Garvey’s counsel’s 5
explanation of all the grounds of the suppression motion. After 6
the close of testimony at the suppression hearing, Garvey’s 7
counsel began to explain her motion, as follows: 8
Counsel: Your Honor, I would move to suppress 9
the identification of Mr. Garvey at 10
the time of his arrest. Based on 11
the fact that it was, that the 12
information that Officer Davis had 13
at the time was unreliable, Mr. 14
Garvey should have been taken to the 15
precinct and put in a lineup and 16
afforded the opportunity of having, 17
you know, suggestive – – 18
The Court: Rest on the record. 19
Counsel: Yes. We rest on the record. 20
The trial court’s directive to “rest on the record” most 21
certainly hampered counsel’s ability to fully articulate the 22
grounds of the suppression motion once all the evidence was in. 23
This handicap alone raises serious questions as to the adequacy 24
of the purported procedural bar that the majority embraces. To 25
me, it seems unwise to require Garvey to lodge pinpoint 26
objections when the trial court directs his counsel to quit 27
explaining his objections and rest on the record, especially 28
given that the independent and adequate state bar doctrine “is 29
prudential rather than jurisdictional.” Cotto, 331 F.3d at 238. 30

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28
Even setting aside this pragmatic concern, prior to the 1
trial court’s instruction to rest on the record, Garvey’s 2
counsel’s questions and Officer Davis’s responses more than 3
adequately raised the issue of suggestive civilian conduct. 4
Specifically, Garvey’s counsel questioned Davis as follows: 5
Counsel: Now, you said that you arrived at 6
the scene and you saw a crowd of 7
people; is that correct? 8
Davis: Yes, ma’am. 9
Counsel: And where was Mr. Garvey in relation 10
to that crowd? 11
Davis: He was – he was surrounded by 12
the crowd. 13
Counsel: Okay. And was anybody [i.e., any 14
civilian] holding him at the time? 15
Davis: Not that I recall, no. 16
17
Shortly after that exchange, Garvey’s counsel again queried 18
“the location where [Davis] came upon Mr. Garvey surrounded by 19
the neighbors?” 20
Garvey’s counsel further probed the civilian-created, and 21
suggestive, conditions under which Davis first encountered 22
Garvey, as follows: 23
Counsel: Now, when you came upon this crowd 24
surrounding Mr. Garvey, did you 25
notice any merchandise . . . [i]n 26
the area? 27
Davis: There was a machine which I 28
later learned to be a video 29
compressor. 30
Counsel: Where exactly was this located? 31
Davis: It was on the ground in the 32
same area where they were all 33
standing. 34
35
Garvey’s counsel then questioned the manner in which 36
McKenzie identified Garvey under the conditions described above. 37

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29
In particular, Garvey’s counsel elicited testimony that after 1
Garvey had been held by Gaines and surrounded by a crowd of 2
neighbors with the purloined compressor at his feet, one member 3
of that crowd, McKenzie, approached Davis and identified Garvey 4
as the man who “had burglarized her home earlier that day.” Once 5
McKenzie made that identification, Davis arrested Garvey. 6
It was that identification, made under the circumstances 7
described above, that Garvey challenged in his suppression motion 8
as “unconstitutionally suggestive.” The fact that Garvey’s 9
counsel also asserted in the motion papers that Garvey was 10
handcuffed at the time of McKenzie’s identification – which was 11
not true, as the testimony showed – does not mean that Garvey 12
challenged only police conduct. Nowhere does the motion contain 13
any limitation as to police conduct only; rather, the motion 14
papers challenge the identification on the broad “ground that the 15
‘showup’ was unconstitutionally suggestive,” among others. Read 16
fairly and in context, the motion challenged and the testimony 17
specifically addressed all the circumstances surrounding the 18
identification, including those related to civilian and police 19
conduct. 20
Given the broad wording of the motion papers and the scope 21
of the testimony, it is no wonder, then, that the trial court’s 22
factual findings bear directly, and in some instances only, on 23
the issue of suggestive civilian conduct. In particular, the 24
trial court found that when the arresting officer arrived, he 25

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30
observ[ed] a small group of people, in the 1
midst of which was the defendant. The officer 2
did not observe the defendant being held by 3
anyone. The officer was already in the 4
driveway, and Mr. Theodore Ga[i]nes, 5
approached him and told the officer that 6
defendant had been trying to move property 7
from his backyard; that he grabbed him and was 8
holding him until the police came. 9
10
Indeed, the trial court concluded that the crowd surrounding 11
Garvey was aggressive enough that Garvey “was moved [by the 12
officer] to a doorway some distance away from the crowd for his 13
own protection,” and that shortly thereafter, “Violet McKenzie 14
approached the officer and said that she had observed the 15
defendant remove property from her home earlier and that also the 16
property that was in Ga[i]nes’ backyard was property that 17
belonged to her.” 18
Similarly, the trial court’s conclusions of law bear 19
directly on the issue of suggestive civilian conduct, 20
specifically the conclusion that, 21
No suggestive acts occurred by the police 22
department. The holding of the defendant 23
initially was by a private citizen and when 24
the officer was investigating it, another 25
private citizen, identifying herself, 26
approached him and said that she was a witness 27
to [the] complaint of a burglary occurring 28
shortly before in her premises. 29
30
I cannot help but wonder why, if Garvey had failed to raise the 31
issue of suggestive civilian conduct, the trial court rendered 32
factual findings and legal conclusions on that very subject. 33
The record passages cited above establish two points. 34
First, Garvey raised the issue of suggestive civilian conduct 35

-- 30 of 47 --

31
because his counsel elicited specific testimony as to (1) 1
whether, prior to McKenzie’s identification, her neighbors 2
surrounded Garvey in the driveway, (2) whether any of the 3
neighbors, such as Gaines, were holding Garvey, (3) whether, at 4
the time the crowd surrounded Garvey, McKenzie’s stolen property 5
was lying at Garvey’s feet, and (4) whether McKenzie came forth 6
from the crowd to identify Garvey under the circumstances already 7
described. Simply put, the motion sought to suppress the 8
identification on the ground of suggestiveness, and the 9
testimony, not to mention the trial court’s findings of fact and 10
legal conclusions, specifically addressed suggestive civilian 11
conduct. Accordingly, I cannot understand how the majority 12
concludes that Garvey failed to raise the issue in a manner 13
sufficient “to provide the trial court with a fair opportunity to 14
consider” it. Supra, at 12. 15
B. The Trial Court Issued a Ruling on the Issue of 16
Civilian Suggestiveness 17
Further, the trial court actually ruled on whether 18
suggestive civilian conduct required suppression of McKenzie’s 19
identification testimony. I do not pretend that the trial 20
court’s ruling is perfectly neat; brief oral bench rulings, such 21
as the one issued here, rarely are. Nevertheless, the trial 22
court said enough to show that it considered the issue of 23
suggestive civilian conduct and found it irrelevant. 24
Specifically, the trial court’s rulings that “[n]o suggestive 25

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32
acts occurred by the police department” and that “[t]he holding 1
of the defendant initially was by a private citizen,” establish 2
that the trial court (1) was quite aware of the issue of 3
suggestive conduct by private citizens, such as Gaines’s holding 4
of Garvey, but (2) believed that suggestive civilian conduct – as 5
opposed to police conduct – raised no constitutional concerns. 6
That is, counsel’s questions brought the issue of civilian 7
conduct to the trial court’s attention, but the trial court 8
considered civilian conduct to be legally immaterial, and 9
therefore dismissed it in passing. Hence its conclusion, styled 10
as one of law, that the “[t]he holding of the defendant initially 11
was by a private citizen,” and thus not a proper ground for 12
suppression. Also telling is what the trial court did not say: 13
after noting that some suggestive civilian conduct had occurred – 14
again, Gaines holding Garvey – the trial court did not rule, or 15
even imply, that Garvey had failed to challenge such conduct. 16
Instead, the trial court erroneously treated the question, 17
properly raised for decision, as if it were irrelevant to the 18
constitutional suppression analysis. 19
Lest one think that I am adopting a strained reading of the 20
trial court’s decision, I note that it is unsurprising that the 21
trial court took this view; the state of the law in our circuit 22
at the time of the trial court’s ruling left open the possibility 23
that suggestive civilian conduct was legally immaterial. It was 24
not until one month after the trial court’s ruling that we 25

-- 32 of 47 --

1The fact that we did not expressly clarify this point until
shortly after the trail court’s decision does not impact the
merits of Garvey’s petition. Were we to reach the merits, we
would look to the law in effect “at the time of the Appellate
Division’s judgment,” not that in effect at the time of the trial
court’s decision. Harris v. Kuhlmann, 346 F.3d 330, 345 (2d Cir.
2003). By the time the Appellate Division rejected Garvey’s
appeal, we had decided Dunnigan, in which we interpreted Supreme
Court precedent to require suppression of identification
testimony when the identification initially was made under unduly
suggestive, civilian-created circumstances. See Dunnigan, 137
F.3d at 128-30.
33
expressly held that suggestive civilian conduct, just as much as 1
police conduct, may raise constitutional concerns. See Dunnigan 2
v. Keane, 137 F.3d 117, 128 (2d Cir. 1998) (“The linchpin of 3
admissibility, therefore, is not whether the identification 4
testimony was procured by law enforcement officers, as contrasted 5
with civilians, but whether the identification is reliable.”).1
6
What is surprising, however, is the majority’s effort to morph 7
the trial court’s erroneous ruling on an issue into Garvey’s 8
failure to raise it. 9
In sum, as I see the facts of this case, Garvey’s counsel 10
raised the issue of suggestive civilian conduct, the trial court 11
considered it in its factual and legal findings, and the trial 12
court actually, although improperly, ruled on it by dismissing 13
the question as legally irrelevant. Each of those acts satisfies 14
§ 470.05(2)’s preservation requirement, even as the majority 15
strictly interprets it. Indeed, both the Magistrate Judge and 16
the District Court Judge who reviewed Garvey’s petition similarly 17
concluded. 18

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34
C. Section 470.05(2), as Applied by the Majority, Is An 1
Inadequate Bar to Review 2
In addition to my factual disagreement with the majority, 3
its application of § 470.05(2) is exorbitant and thus inadequate 4
to bar our review of Garvey’s constitutional claim. As the 5
majority recognizes, “there are ‘exceptional cases in which 6
exorbitant application of a generally sound rule renders the 7
state ground inadequate to stop consideration of a federal 8
question.’” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 9
U.S. 362, 376 (2002)). Three factors guide the inquiry into 10
whether a case fits “within that limited category.” Id. 11
(internal quotation marks omitted). 12
First, “whether the alleged procedural violation was 13
actually relied on in the trial court, and whether perfect 14
compliance with the state rule would have changed the trial 15
court’s decision.” Id. Second, “whether state caselaw 16
indicate[s] that compliance with the rule was demanded in the 17
specific circumstances presented.” Id. Third, “whether 18
petitioner had ‘substantially complied’ with the rule given ‘the 19
realities of trial,’ and, therefore, whether demanding perfect 20
compliance with the rule would serve a legitimate government 21
interest.” Id. (quoting Lee, 534 U.S. at 381-85). 22
My view of the facts drives my analysis of these three 23
factors. In respect of the first factor, the trial court did 24
not rely, and could not have relied, on Garvey’s purported 25

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35
default because there was no default. Further, Garvey’s 1
compliance with § 470.05(2) had no effect on the trial court’s 2
decision because Garvey raised the issue of suggestive civilian 3
conduct and the trial court erroneously brushed it aside. This 4
factor, therefore, favors Garvey. 5
As to the second factor, I have accepted, for the sake of 6
argument, the majority’s strict interpretation of § 470.05(2), 7
and found it satisfied here, which, in my view, quite decisively 8
favors Garvey. Finally, regarding the third factor, Garvey 9
substantially complied with the rule given the reality of the 10
suppression hearing. His counsel elicited testimony regarding 11
the civilian-created circumstances surrounding McKenzie’s 12
identification and, before counsel could fully explain the bases 13
of the motion, the trial court instructed her to rest on the 14
record. In light of the trial court’s instruction to stop 15
speaking, Garvey’s counsel substantially complied with the 16
state’s preservation requirement by raising the issue through the 17
prior testimony. The third factor thus favors Garvey as well. 18
Accordingly, the majority’s application of § 470.05(2) to the 19
facts of this case is exorbitant and consequently inadequate to 20
bar our review of Garvey’s constitutional claim. 21
For all those reasons, I conclude that there is no 22
independent and adequate state bar to our review of Garvey’s 23
constitutional claim. 24

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36
II. The Appellate Division Unreasonably Applied Clearly 1
Established Supreme Court Law 2
Having concluded that there exists no bar to our review of 3
the merits of Garvey’s petition, I also conclude that the 4
judgment of the Appellate Division, First Department constitutes 5
an unreasonable application of clearly established Supreme Court 6
law, as explained below. 7
A. Standards Applicable to Garvey’s Habeas Petition 8
In order to prevail on a habeas petition, Garvey must show 9
that the state court’s “adjudication of the claim . . . resulted 10
in a decision that . . . involved an unreasonable application of, 11
clearly established Federal law, as determined by the Supreme 12
Court of the United States.” 28 U.S.C. § 2254(d). Clearly 13
established Supreme Court law consists of the Supreme Court’s 14
holdings, as opposed to dicta. See Kennaugh v. Miller, 289 F.3d 15
36, 42 (2d Cir.), cert. denied, 537 U.S. 909 (2002). 16
An “unreasonable application” occurs when a “state court 17
identifies the correct governing legal principle . . . but 18
unreasonably applies that principle to the facts of the 19
prisoner’s case.” Cotto, 331 F.3d at 247 (internal quotation 20
marks omitted). The application of federal law must be 21
“objectively unreasonable,” which requires the petitioner to 22
demonstrate “some increment of incorrectness beyond error.” Id. 23
at 248 (internal quotation marks omitted). Nevertheless, “[t]his 24
increment need not be great; otherwise, habeas relief would be 25

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37
limited to state court decisions so far off the mark as to 1
suggest judicial incompetence.” Jenkins v. Artuz, 294 F.3d 284, 2
292 (2d Cir. 2002) (internal quotation marks omitted). 3
Although there exists no test to determine whether a state 4
court ruling is objectively unreasonable, three factors guide the 5
inquiry: (1) whether there exists a “lack of any precedent 6
supporting [the state court’s] result in the Supreme Court or any 7
federal court of appeals”; (2) whether the state court has given 8
“specific reasons” for its conclusion; and (3) whether the state 9
court’s conclusion is consistent with the “purpose behind” the 10
relevant rule. Cotto, 331 F.3d at 251-52. 11
B. Substantive Standards Governing the Admission of 12
Identification Testimony Following a Suggestive 13
Confrontation 14
15
The Due Process Clause forbids the admission of 16
identification testimony where there exists a “very substantial 17
likelihood of irreparable misidentification.” Neils v. Biggers, 18
409 U.S. 188, 198 (1972) (internal quotation marks omitted). 19
Once a suggestive confrontation occurs between the identifying 20
witness and the suspect, “the central question” is “whether, 21
under the totality of the circumstances, the identification was 22
reliable even though the confrontation procedure was suggestive.” 23
Id. at 199 (internal quotation marks omitted). In Biggers, the 24
Supreme Court set forth “the factors to be considered” in 25
determining whether an identification is sufficiently reliable 26
notwithstanding some degree of suggestiveness. Those factors 27

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38
“include the opportunity of the witness to view the criminal at 1
the time of the crime, the witness’ degree of attention, the 2
accuracy of the witness’ prior description of the criminal, the 3
level of certainty demonstrated by the witness at the 4
confrontation, and the length of time between the crime and the 5
confrontation.” Id. at 199-200. In Manson v. Brathwaite, 432 6
U.S. 98, 114 (1977), the Court added another step to the 7
analysis: “Against these [Biggers] factors is to be weighed the 8
corrupting effect of the suggestive identification itself.” See 9
also id. at 116. 10
C. The Decisions of the Appellate Division and the 11
District Court 12
On the merits, the Appellate Division concluded, without 13
elaboration, that “the identification was sufficiently reliable 14
under all the circumstances.” After unsuccessfully seeking leave 15
to appeal in the Court of Appeals, Garvey filed this habeas 16
petition. He principally urges that pursuant to the Biggers 17
analysis, McKenzie’s near-total failure to initially describe the 18
burglar to the police required the District Court to severely – 19
if not entirely – discount other factors that might weigh in 20
favor of admissibility, such as McKenzie’s opportunity to view 21
the burglar and the certainty of her later identification. 22
The District Court agreed that “[c]learly, the 23
identification of Mr. Garvey was suggestive.” The Court also 24
“agree[d] that McKenzie’s inability to describe the burglars 25

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39
weighs against finding her later identification sufficiently 1
reliable.” Nevertheless, the Court rejected Garvey’s claim that 2
McKenzie’s initial failure to describe the burglar undercuts 3
other Biggers factors, mainly because “[i]f the Court were to 4
weigh the Biggers factors as Garvey urges, the ability of a 5
witness to describe a suspect to the police prior to the 6
identification would be dispositive” by itself, whereas the 7
Biggers analysis is based upon “the totality of the 8
circumstances.” 9
Accordingly, the District Court analyzed each Biggers factor 10
independently and concluded that the identification was 11
sufficiently reliable. In particular, the District Court relied 12
upon the strength of three Biggers factors: McKenzie’s 13
opportunity to observe Garvey, her attentiveness during the 14
crime, and the certainty of her later identification. The 15
District Court reasoned that, 16
(a) McKenzie had a clear opportunity to observe Garvey at 17
the time of the crime; (b) she was not a casual or 18
inattentive observer, as she descended the stairs for the 19
specific purpose of investigating the loud noise she had 20
heard; (c) after turning on the downstairs lights, 21
McKenzie had a clear, unobstructed view of [Garvey] as he 22
was trying to escape through McKenzie’s front door; (d) 23
McKenzie also observed [his] face again, a few moments 24
later, from a bedroom window, as he looked back 25
repeatedly towards McKenzie’s house while fleeing; (e) 26
McKenzie expressed certainty that Garvey was the burglar 27
she saw flee[]ing her home; (f) it was just a few hours 28
after the burglary that McKenzie told [the police] that 29
Garvey was one of the burglars and was wearing the same 30
clothes that one of the burglars had worn. 31
32

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40
Despite its conclusion, the District Court granted a 1
certificate of appealability on the ground that “the resolution 2
of the constitutional issue underlying Garvey’s petition can be 3
debated.” 4
D. The District Court Misapplied the Biggers Factors 5
As explained below, the District Court committed two legal 6
errors in applying Biggers and Brathwaite to Garvey’s claim. In 7
turn, those errors caused the District Court to ratify a 8
conclusion that amounts to an unreasonable application of 9
established Supreme Court precedent. 10
First, the District Court erred by considering the Biggers 11
factors in isolation. As we have pointed out before, one Biggers 12
factor affects another – especially in cases where the victim 13
initially fails to describe the perpetrator – and this interplay 14
is not to be ignored. For example, in Raheem v. Kelly, 257 F.3d 15
122, 139-40 (2d Cir. 2001), cert. denied, 534 U.S. 118 (2002), we 16
reasoned that a witness’s inability to describe the perpetrator 17
shortly after the crime devalued the certainty of his later 18
identification. There, a man in a black leather coat entered a 19
bar in which two witness, Shiloh and Cooke, were drinking. Id. 20
at 125. Shortly after the man shot and killed the owner of the 21
bar, Shiloh and Cooke attempted to describe him to police, but 22
could give only vague descriptions. Id. at 125-26, 139. They 23
later picked Raheem out of a suggestive lineup in which he was 24
the only person wearing a black leather coat, and the state court 25

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41
admitted their identification testimony. Id. at 126-27, 130. 1
After his conviction, Raheem brought a habeas petition 2
challenging the admission of that testimony, and the District 3
Court dismissed the petition. Id. at 125. 4
In reversing, we reasoned that, “To the extent that either 5
Cooke or Shiloh exhibited certainty [in their later 6
identification of petitioner], we find it difficult to view that 7
certainty as an indicator of reliability independent of the 8
suggestive lineup, given their lack of recollection as to any 9
physical features of the shooter’s face (except, as to Cooke, its 10
roundness). Whatever their certainty, it was engendered by the 11
suggestive element itself, the black leather coat.” Id. at 139. 12
Likewise, in Dickerson v. Fogg, 692 F.2d 238, 245-47 (2d 13
Cir. 1982), we reasoned that a witness’s initial failure to 14
describe the perpetrator to police undercut the Biggers factors 15
that might otherwise weigh in favor of reliability. There, a man 16
named Colon was carjacked and robbed at gunpoint. Id. at 240-41. 17
As the perpetrators ordered him out of the car, he briefly 18
glanced the face of a man sitting in the rear passenger seat. 19
Id. at 241. After the crime, Colon, much like McKenzie, could 20
describe his assailants to the police only as “four black males.” 21
Id. at 242. 22
Colon later saw Dickerson at the arraignment of another man 23
who had been arrested while driving Colon’s stolen car. At that 24
arraignment, Colon identified Dickerson as the man in the rear 25

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passenger seat of his car at the time of the carjacking. Id. at 1
241. Colon’s identification testimony was admitted at 2
Dickerson’s trial. Id. at 239-40. After Dickerson was 3
convicted, he petitioned for a writ of habeas corpus. Id. 4
In affirming the District Court’s grant of the petition, we 5
noted that Colon’s initial, vague description devalued other 6
relevant factors, such as the degree of Colon’s attentiveness 7
during the crime: “Lastly, any possibility that Colon’s training 8
as a security supervisor contributed to his attentiveness is 9
belied by his inability to describe the back seat passenger to 10
the police with any degree of specificity.” Id. at 245. As in 11
Raheem, we also concluded that the poor initial description 12
undercut the certainty of the later identification: “In sum, not 13
only does the technically accurate but unduly vague description 14
of the back seat passenger furnished to the police before the 15
confrontation diminish the reliability of [Colon’s] later 16
identification, but, considering that Colon did not describe 17
[Dickerson] in greater detail until after he viewed [Dickerson] 18
in the courtroom, his second specific description was 19
unmistakably the product of the [suggestive] viewing, and 20
questionably reliable as well.” Id. at 246. 21
In this case, McKenzie almost completely failed to describe 22
the burglar to the police when they first arrived at her house 23
shortly after the crime occurred. According to the complaint 24
report, McKenzie described the perpetrator only as a black male. 25

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When the responding officer asked her to describe the burglar’s 1
age, height, weight, hair color, eye color, whether he had facial 2
hair, and what clothes he was wearing, McKenzie could provide no 3
information whatsoever, except that his clothes were “dark.” Her 4
recollection of his appearance was so lacking that she would not 5
even view photographs of suspects in an attempt to identify him. 6
Pursuant to Raheem and Dickerson, McKenzie’s inability to 7
describe the perpetrator shortly after the crime diminishes the 8
extent to which one could conclude that she had ample opportunity 9
to view the perpetrators or was attentive during the event. The 10
District Court erred by failing to account for the manner in 11
which McKenzie’s initial descriptive failure affects those other 12
Biggers factors. 13
Second, the District Court erred by failing to weigh the 14
corrupting effect of the suggestive confrontation against the 15
Biggers factors, especially the factor addressing the certainty 16
with which McKenzie later identified Garvey. Both Supreme Court 17
and Second Circuit precedent expressly require this additional 18
analytical step, yet the District Court simply did not undertake 19
it. See Brathwaite, 432 U.S. at 114 (“Against these [Biggers] 20
factors is to be weighed the corrupting effect of the suggestive 21
identification itself.”); see also id. at 116; Solomon v. Smith, 22
645 F.2d 1179, 1185 (2d Cir. 1981) (“[A]s Brathwaite makes clear, 23
the constitutional assessment of reliability requires a balancing 24
of the factors outlined in Biggers, against the degree of 25

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suggestiveness in the impermissible procedures.”) (internal 1
citation omitted). 2
Here, an extraordinary “degree of suggestiveness,” see 3
Solomon, 645 F.2d at 1185, permeated McKenzie’s identification; 4
one might go so far as to call these circumstances accusatory 5
rather than merely suggestive. When McKenzie’s sister came to 6
McKenzie’s door a few hours after the burglary, she told 7
McKenzie, “they caught a guy.” McKenzie and her sister then went 8
to Gaines’s house. When they arrived, Gaines was “holding” 9
Garvey. Further, an agitated crowd had surrounded Garvey. 10
Gaines testified that he apprehended Garvey after Garvey entered 11
Gaines’s backyard in an attempt to remove property that Garvery 12
had placed there “last night,” specifically, the video 13
compressor. At the moment McKenzie first encountered Garvey, her 14
stolen property quite literally lie at his feet. By failing 15
expressly to weigh the degree of suggestiveness against the other 16
Biggers factors – especially in light of these rather extreme 17
circumstances – the District Court erred. 18
Correcting for the two errors identified above, it is 19
apparent that there is no independent basis of reliability for 20
McKenzie’s identification. As I have said, her inability to give 21
but the most rudimentary and generic description of the 22
perpetrator, even shortly after the crime, virtually precludes 23
one from concluding that she had a reliable opportunity to view 24
him or was attentive to any reliable degree. Likewise, the 25

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certainty of her later identification owes to the remarkably 1
suggestive circumstances under which she encountered Garvey. 2
Accordingly, both the Appellate Division and the District Court 3
erroneously concluded that McKenzie’s identification was 4
reasonably reliable. 5
I pause briefly to note that, as this analysis demonstrates, 6
the District Court was mistaken in believing that if it allowed 7
McKenzie’s initial descriptive failure to affect the other 8
Biggers factors, then “the ability of a witness to describe a 9
suspect to the police prior to the identification would be 10
dispositive” by itself. Instead, it is the combination of three 11
relatively rare facts that is dispositive here: (1) McKenzie’s 12
almost total failure to describe the perpetrator to the police 13
(2) despite the fact that she was interviewed shortly after the 14
burglary, plus (3) the severely suggestive circumstances that 15
prevailed during her later identification. If any of those facts 16
were tempered, the outcome might be different. 17
As things stand, however, the next question is whether the 18
Appellate Division’s judgment is more than merely erroneous, such 19
that it constitutes an unreasonable application of Supreme Court 20
law within the meaning of § 2254. Pursuant to the three factors 21
we set forth in Cotto, I believe that it is. The first factor – 22
whether there exists a “lack of any precedent supporting [the 23
state court’s] result in the Supreme Court or any federal court 24
of appeals” – is somewhat difficult to evaluate because cases 25

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such as this one are very fact-specific. Cotto, 331 F.3d at 251. 1
Nevertheless, as explained above, our precedent strongly 2
indicates that when a witness fails to describe a perpetrator 3
shortly after the crime, and then later identifies someone under 4
highly suggestive circumstances, the identification testimony 5
generally should be suppressed. Raheem, 257 F.3d 122; Dickerson, 6
692 F.2d 238. This factor therefore somewhat favors a finding of 7
objective unreasonableness. 8
The second factor – whether the state court has given 9
“specific reasons” for its conclusion – strongly favors a finding 10
of objective unreasonableness, as neither the state trial court 11
nor the Appellate Division gave a single reason why McKenzie’s 12
identification was reliable. Id. The third factor asks whether 13
the state court’s conclusion is consistent with the purpose 14
behind the rule. The Supreme Court has explained that the 15
purpose of the Biggers analysis is to avoid the “primary evil” of 16
“a very substantial likelihood of irreparable misidentification.” 17
Biggers, 409 U.S. at 199 (internal quotation marks omitted). The 18
state court’s conclusion in this case – that “the identification 19
was sufficiently reliable under all the circumstances” – is 20
inconsistent with the goal of avoiding misidentification. 21
Allowing testimony about identifications, such as McKenzie’s, 22
that occur after an almost total failure of recollection and 23
arise from highly suggestive circumstances, only increases the 24
chances that a misidentification will occur. This factor also 25

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weighs in favor of a finding of objective unreasonableness. On 1
balance, therefore, I conclude that the Appellate Division’s 2
judgment is an unreasonable application of clearly established 3
Supreme Court law. 4
For the above reasons, I would vacate the judgment of the 5
District Court. I would remand for consideration of the only 6
remaining question in this case, and one that the District Court 7
did not reach given its conclusion that no constitutional error 8
occurred: whether the error I have identified had a “substantial 9
and injurious effect or influence in determining the jury’s 10
verdict.” Raheem, 257 F.3d at 142 (internal quotation marks 11
omitted); see also Wray v. Johnson, 202 F.3d 515, 525 (2d Cir. 12
2000). 13

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