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Record
u.s. Supreme Court: Justices disagree on cert denial in Penfield
case
by Denise M. Champagne
Published: November 14th, 2013
A chance to clarify interpretation of criminal eyewitness identification factors and their
application is being passed up by the u.s. Supreme Court.
The high court Tuesday denied certiorari to the state of New York in connection with a 1991
Penfield robbery case, but Justices Samuel Alito Jr. and Antonin Scalia disagreed with the
majority. They wrote the U.S. Court of Appeals for the Second Circuit's decision created
loopholes in United States v. Wade, 388 US 218 (1967) and another case, that they felt should
be reviewed.
The case, Unger v. Young, 571 US _ (2013), involves Rudolph Young, 56, whose robbery and
burglary conviction was overturned a year ago by the Second Circuit, which found problems with
the eyewitness identification of Young. David Unger is named as superintendent of the Wyoming
Correctional Facility where Young is housed.
"We're very glad that the Supreme Court agreed with the arguments
in our briefs that the Second Circuit was correct and that certiorari
should not be granted," said attorney Brian Shiffrin, who has been
representing Young for 22 years.
"Certainly we had hoped the Supreme Court would hear the case,"
said Monroe County Assistant District Attorney Geoffrey A. Kaeuper,
who prosecuted the matter in the lower courts and worked on the
certiorari petition. "It's an important case and I think it would have
been useful to get clarification. As things stand now, there is a
circuit split."
Young, according to court documents, was convicted in connection
with a March 29, 1991 burglary at the Penfield home of William and
Brian Shiffrin
Lisa Sykes. The intruder, whose face was covered except for his
eyes, had held an ax over Mr. Sykes' head demanding money and
left with some watches and other items after being in the house for about five to seven minutes.
A month later, Mrs. Sykes did not pick Young out of a photo array that showed his entire face,
but did pick him the following day out of a lineup in which Young was the only person whose
picture had been in the photo array. She also claimed she identified him based on "his eyes and
his voice." Mr. Sykes, who was confined to a wheelchair at the time, did not identify Young at
any point in the process.
Mrs. Sykes also identified Young at his 1993 trial, which resulted in
his conviction of burglary and two counts of robbery. His conviction
was reversed on appeal by the Appellate Division, Fourth
Department, which found his original arrest was illegal because it
lacked probable cause, that Young's consent to the lineup was "by
means affected by the primary taint [of his illegal] arrest," and that
Mrs. Sykes' in-court identification "flowed" from that and should not
have been allowed.
Mrs. Sykes expanded on her identification at Young's second trial,
noting how she had turned on a hall light and looked continuously at
the intruder, particularly his eyes.
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Young was again convicted of all three counts. The convictions were
affirmed by a split Appellate Division (5-2) in 2005 and a divided
Court of Appeals in 2006, prompting a habeas corpus appeal in
federal court which was granted by the Second Circuit.
Geoffrey A. Kaeuper
The Second Circuit, in Young v. Conway, 698 F.3d 69 (2012), concluded the state failed to meet
its burden to prove the identification of Young was made on an independent basis and found the
admission ofthe in-court identification influenced the jury's deliberations. James Conway was
named as superintendent of the Attica Correctional Facility where Young was housed at the time
the case was filed.
Kaeuper then sought to have the full court reconsider the case, a
request denied in April. The petition for a writ of certiorari was filed
in July by District Attorney Sandra Doorley and First Assistant Kelly
C. Wolford.
Justice Alito, joined by Justice Scalia, wrote he would have reversed
the Second Circuit and granted certiorari, noting the Second Circuit
granted habeas relief after concluding the New York Court of
Appeals "unreasonably applied" Wade when it determined Mrs.
Sykes' prolonged observation of a burglar in a well-lighted area of
her home was independent of her in-court identification of Young.
The Second Circuit found all six factors of Wade favored Young:
Kelly Wolford
.. Prior opportunity to observe the alleged criminal act;
.. Existence of any discrepancy between the prelineup and
defendant's actual description;
.. Any identification prior to the lineup of another person;
.. Photographic identification of defendant prior to an illegal lineup;
.. Failure to identify defendant on a prior occasion; and
.. Lapse of any time between the alleged act and lineup
Wolford, in the petition, argued certiorari should have been granted to resolve a split between
the Second and Ninth circuits based on Stone v. Powell, 428 US 465 (1976), which established a
state prisoner may not be granted federal habeas relief on a Fourth Amendment claim if he has
had a full and fair opportunity to litigate that claim in state court.
She noted the Second Circuit panel chose not to apply the Stone bar - a first by any Circuit
Court of Appeals - because the state raised the issue on appeal and not at the District Court
level, but she said it misconstrued the jurisdictional question.
Wolford also notes the Ninth Circuit, the only other circuit to address whether a state could
waive Stone, came to the opposite conclusion, holding a state could not waive it because it is a
categorical limitation on the exclusionary rule, Woolery v. Arave, 8 F.3d 1325 (1993).
Shiffrin, of the Rochester firm Easton Thompson Kasperek Shiffrin, questioned how categorical is
distinguished from jurisdictional and noted none of the federal Courts of Appeals since has
applied Stone as nonwaivable.
"There is no dispute that the New York Court of Appeals applied the correct legal standard in this
case," Justice Alito wrote, referring to Wade. "Nor is it disputed that because [the Supreme
Court] has not given relevant guidance on how to weigh the various Wade factors, the Second
Circuit's decision is tenable only if that court correctly concluded that all the factors favor
respondent. That conclusion, however, is deeply flawed."
He noted the Second Circuit relied on its own precedent to determine the first Wade factor
favored Young, something he said the Antiterrorism and Effective Death Penalty Act (of 1996)
"clearly forecloses," under U.S. Code Title 28 Section 2254(d)(1).
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Justices Alito and Scalia also fault the Second Circuit's citing social science studies when the high
court "very clearly" in Cullen v. Pinho/ster, 563 US __ (2011), stated review under that section is
limited to the record before the state court thClt adjudicated the claim on the merits.
"More fundamentaUy, the Second Circuit's disagreement is not with the New York Court of
Appeals; it is with us," Justice Alito noted. "The Second Circuit's decision creates loopholes in
both Pinholster and Wade. In my view, the importance of this issue warrants review at this
time."
Kaeuper said the point of law is unclear. He said his office also hoped the Supreme Court would
review the case because they thought it was wrong on several other issues.
"We certainly felt that the Second Circuit panel's decision was contrary to Stone v. Powell," he
said. "Fourth Amendment claims are not cognizable on habeas review."
While vacating Young's conviction, the Second Circuit left the door open for continued
prosecution which Kaeuper said was still being evaluated on whether or not his office will be able
to go forward with a third trial.
Shiffrin and Kaeuper agreed not only is it rare for the Supreme Court to dissent in a certiorari
petition, it is also unusual for the court to conference several times.
The Supreme Court conferenced five times between Sept. 30 and Friday, releasing its certiorari
denial Tuesday. At least four votes are needed to grant certiorari.
"That's very unusual," Shiffrin said. "It happens about twice a year. Some years it may not
happen. Out of the thousands of cases they get a year, just a handful would be conferenced that
many times."
Young had been paroled from state prison about 18 months before the Penfield robbery. He had
served two years for conviction of attempted second-degree robbery. Kaeuper said Young has a
lengthy criminal history.
Young is serving a sentence of 25 years to life for conviction of fourth-degree criminal possession
of stolen property. He was sentenced as a predicate felony offender, but Shiffrin said one of the
predicate felonies was in connection with the Penfield conviction which has been vacated and will
be the subject of a separate appeal.
Working with Shiffrin is John H. Blume, a professor at Cornell Law School.
Young is eligible for parole in April 2016.
CompleteURL:http://nydailyreoord.com/blog/2013/11/14/u-s-supreme-court-justices-disagree-on-cert-denialin-penfield-ease/
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