throbber
Cite as: 571 U. S. ____ (2013)
`
` ALITO, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`DAVID UNGER, SUPERINTENDENT, WYOMING
`
`CORRECTIONAL FACILITY v.
`
`
`RUDOLF YOUNG
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
`
`No. 13-95. Decided November 12, 2013
`
`
`The motion of respondent for the leave to proceed in
`
`forma pauperis is granted. The petition for a writ of certi-
`orari is denied.
`JUSTICE ALITO, joined by JUSTICE SCALIA, dissenting
`from the denial of certiorari.
`
`The United States Court of Appeals for the Second
`Circuit granted habeas relief in this case after concluding
`that New York’s highest court unreasonably applied our
`decision in United States v. Wade, 388 U. S. 218 (1967),
`when it determined that a witness’ prolonged observation
`of a burglar in a well-lighted area of her own home pro-
`vided an independent source for her in-court identification of
`respondent. Because the Second Circuit’s decision contra-
`venes the Antiterrorism and Effective Death Penalty Act
`
`of 1996 (AEDPA), 110 Stat. 1214, our decision in Cullen v.
`
`Pinholster, 563 U. S. ___ (2011), and Wade itself, I would
`grant the petition and reverse.
`I
`
`In 1991, a burglar invaded the home of William and
`Lisa Sykes. In a well-lighted area of the home, the bur-
`glar brandished an axe over the head of Mr. Sykes, who
`was confined to a wheelchair, and demanded money. Mrs.
`Sykes was standing only three or four feet away from the
`burglar. Although his body was covered with a blanket
`and the lower part of his face with a scarf, Mrs. Sykes was
`able to observe clearly the upper part of his face. At first
`Mrs. Sykes was unable to believe that a burglar had en-
`
`
`
`
`
`
`
`1
`
`

`
`2
`
`
`
`
`
`
`UNGER v. YOUNG
`
` ALITO, J., dissenting
`
`
`tered the house; she thought the incident might be a
`prank by someone she knew, and therefore stared at the
`
`burglar’s eyes to see if she could detect his identity.
`The burglar remained in the Sykeses’ home for five to
`
`seven minutes. During the course of the burglary, he took
`cash from Mr. Sykes’ wallet and Mrs. Sykes’ purse, as well
`as three watches, and a pair of binoculars with the name
`“Sykes” written on them. Mrs. Sykes continued to stare
`
`at the burglar while he was in the house, at one point
`prompting the burglar to order her, “‘Don’t look at my
`face.’” App. C to App. to Pet. for Cert. 101a. After ripping
`two telephones out of the wall to prevent Mr. or Mrs.
`
`Sykes from calling the police, the burglar left the house.
`
`The police later arrested respondent. Mrs. Sykes identi-
`fied him at a lineup on the basis of his appearance and
`voice, but a state court later concluded that the police
`lacked probable cause to arrest respondent, and that the
`lineup was tainted by the illegal arrest.
`
`At respondent’s trial, the prosecution introduced a va-
`riety of evidence that respondent was the burglar. For in-
`stance, an acquaintance of respondent’s testified that, at
`about the time of the burglary, respondent sold her a pair
`of binoculars bearing the name “Sykes” and three watches
`like those stolen from the Sykeses’ home. Mrs. Sykes also
`testified and identified respondent as the burglar. She
`was permitted to identify respondent on the grounds that
`her observations of the burglar during the course of the
`crime provided an independent source of identification.
`
`On direct appeal, the New York Court of Appeals cor-
`rectly cited this Court’s decision in Wade, supra, as provid-
`ing the governing standard for respondent’s independent
`source challenge, which it rejected. People v. Young, 7
`
`N. Y. 3d 40, 44, 850 N. E. 2d 623, 626 (2006). Respondent
`then filed a petition for habeas relief, which the District
`Court granted. The Second Circuit affirmed, concluding
`that the New York Court of Appeals’ application of Wade
`was unreasonable because all six Wade factors favored
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 571 U. S. ____ (2013)
`
` ALITO, J., dissenting
`
`
`respondent. In particular, the Second Circuit cited two
`
`sources of authority for its determination that the first
`Wade factor, the witness’ “prior opportunity to observe the
`
`alleged criminal act,” Wade, supra, at 241, favored re-
`spondent: Second Circuit precedent and several social
`science studies that questioned an eyewitness’ ability to
`make an accurate identification in circumstances like
`those present here. Young v. Conway, 698 F. 3d 69, 80–83
`(2012).
`
`The State petitioned for rehearing en banc. The Second
`
`Circuit denied the petition, with Judges Cabranes, Raggi,
`
`and Livingston dissenting from denial.
`
` II
`
`There is no dispute that the New York Court of Appeals
`
`applied the correct legal standard in this case. Nor is it
`disputed that, because this 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. In the first
`place, the Second Circuit relied on its own precedent to
`determine that the first Wade factor favored respondent—
`
`a choice that AEDPA clearly forecloses. See 28 U. S. C.
`
`§2254(d)(1) (limiting habeas relief to cases in which a state
`court rendered a decision “that was contrary to, or in-
`volved an unreasonable application of, clearly established
`Federal law, as determined by the Supreme Court of the
`United States”).
`
`The only other basis for the Second Circuit’s conclusion
`
`on the first factor is its citation to several social science
`studies that were never presented to the state courts. We
`stated very clearly in Pinholster that “review under
`§2254(d)(1) is limited to the record that was before the
`
`state court that adjudicated the claim on the merits.” 563
`
`U. S., at ___ (slip op., at 9). The lower court attempted to
`distinguish Pinholster by explaining that the social science
`
`
`
`
`
`
`
`3
`
`

`
`4
`
`
`
`
`
`
`UNGER v. YOUNG
`
` ALITO, J., dissenting
`
`
`studies “reinforced,” but did not “compe[l] or contro[l],” its
`conclusion that the New York Court of Appeals unreason-
`
`ably applied Wade. 698 F. 3d, at 79, n. 8. But we drew
`no such distinction between “reinforcing” and “controlling”
`
`evidence in Pinholster, and the Second Circuit erred by
`doing so here. In any event, if it is true that the studies
`merely “reinforced” the Second Circuit’s conclusion, then
`that conclusion must have been “compelled” by the only
`other authority on which the court relied: its own prec-
`edent. And as noted, AEDPA flatly prohibits such
`reliance.*
`
`More fundamentally, the Second Circuit’s disagreement
`
`is not with the New York Court of Appeals; it is with us.
`Mrs. Sykes unquestionably had a substantial opportunity
`to observe the burglar. We held in Wade that “the prior
`
`opportunity to observe the alleged criminal act” favors
`finding that an independent source exists. 388 U. S., at
`241. The Second Circuit held, to the contrary, that such
`an opportunity does not suggest the existence of an in-
`dependent source in the circumstances of this case. Wade
`
`simply does not leave that option on the table.
`
`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. I respectfully dissent
`from the denial of certiorari.
`
`
`
`
`
`
`
`
`
`——————
`*The analysis of the court below cannot be defended on the ground
`that Pinholster concerns only adjudicative facts and that the data in the
`
`social science studies constituted legislative facts. See Advisory Com-
`mittee’s Note on subd. (a) of Fed. Rule Evid. 201, 28 U. S. C. App.,
`p. 319. Pinholster does not mention any such distinction, but even if
`Pinholster is limited in this way, the Second Circuit’s analysis would
`still be flawed. By accepting and applying the factual conclusions
`drawn in the studies in question to conclude that, in the circumstances
`presented, Mrs. Sykes’ prior opportunity to observe the burglar did not
`
`suggest the existence of an independent source, the Second Circuit
`significantly altered the holding in Wade, as explained infra this page.

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