By Alan Lewis (posted by JK)
Last week, in Young v. Conway, the Second Circuit affirmed the grant of a writ of habeas corpus by a WDNY Magistrate (Bianchini) based upon a 4th amendment claim! Successful 4thamendment habeas claims are extremely rare because, so long as the petitioner was permitted an opportunity to fully and fairly litigate the claim in state court, the Supreme Court’s Stone v. Powell holding is that “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
So how did Young win a 4th amendment claim in spite of Stone? In short, the State waived theStone argument by failing to make it in District Court. The Second Circuit could have exercised discretion to nevertheless apply Stone on appeal, but declined to do so. The Court was seemingly exasperated by the State’s failure below, describing the record as “bereft of any reason as to why it failed” to make the Stone argument in District Court.
Yet, this may be a rare case where, even if the State had argued the Stone bar, the Petitioner might nevertheless have had a chance. Let me try to explain.
The nature of the 4th Amendment claim here was that the Petitioner’s conviction was the result of an in-court identification by the victim that should not have been allowed to occur. It should not have been allowed, as Young argued and the Court agreed, because the pre-trial identification procedures were suppressed and the victim did not have a source, truly independent of the suppressed pre-trial identification procedures, for her ability to make the in-court ID.
Whether an in-court identification truly rests on an independent source must be assessed under a six factor test, first laid out by the Supreme Court in United States v. Wade. But when Young raised his independent source argument in the New York Court of Appeals, that court failed to apply the test. Instead, it treated the independent source question as an “issue of fact” subject to highly deferential review, which asked only if there is “support in the record” for the lower court finding. Because the N.Y. Court of Appeals failed to apply the Wade test mandated by the Supreme Court to assess independent source issues, its decision was “contrary to” clearly established law, and therefore not entitled to habeas deference.
Had the State not waived the Stone argument in District Court, the Petitioner would likely have argued that Stone did not apply. That is, how could the state court review be deemed a “full and fair” adjudication of the Wade claim, given the state court’s refusal, based on state law, to apply the Wadestandard to the claim? In pointing out that this case lacked the “typical indicia of reliability that ordinarily weigh against re-litigating a Fourth Amendment claim on collateral review,” the Second Circuit hinted it might have well been sympathetic to such an argument. But we’ll never know.
In granting the writ, the District Court had also barred a retrial on the ground that, with the victim’s identification of the defendant now precluded, the prosecution did not have other evidence sufficient to obtain a conviction. The Second Circuit vacated this aspect of the remedy, but only because it concluded that its “grave doubts” about the sufficiency of the remaining evidence should be resolved in the first instance by the state courts.
One final point – this Petitioner isn’t going anywhere, as he is currently serving a term of 25 to life on an unrelated charge.