10-1369-pr (L)
Conner v. Poole
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of October, two thousand eleven.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                         Circuit Judges,
                 RICHARD K. EATON,
                         Judge.*
----------------------------------------------------------------------
LEONARD CONNER,
                         Petitioner-Appellant,

                  v.                                                     Nos. 10-1369-pr (L),
                                                                              10-2060-pr (CON)
THOMAS POOLE, Superintendent,                                                 11-1865-pr (CON)

                         Respondent-Appellee.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                          SALLY WASSERMAN, Esq., New York, New
                                                  York.

APPEARING FOR APPELLEE:                           HANNAH STITH LONG, Assistant Attorney
                                                  General (Barbara D. Underwood, Solicitor
                                                  General, Roseann B. MacKechnie, Deputy
                                                  Solicitor General for Criminal Matters, on the


          *
        Judge Richard K. Eaton of the United States Court of International Trade, sitting by
designation.
                                          brief), for Eric T. Schneiderman, Attorney
                                          General of the State of New York, New York,
                                          New York.

       Appeal from a judgment of the United States District Court for the Western District

of New York (Michael A. Telesca, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s judgment entered on March 31, 2010, is AFFIRMED.

       Leonard Conner appeals from the denial of his petition for a writ of habeas corpus,

see 28 U.S.C. § 2254, which challenged his New York conviction for first-degree robbery

and burglary on various grounds including due process insofar as an in-court identification

was purportedly tainted by a suggestive pre-trial show-up procedure. See Simmons v. United

States, 390 U.S. 377, 384-86 (1968); Stovall v. Denno, 388 U.S. 293, 301-02 (1967),

overruled on other grounds, Griffith v. Kentucky, 479 U.S. 314 (1987). We granted a

certificate of appealability to consider the merits of this challenge and any jurisdictional

issues Conner might raise. We assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Standard of Review

       We review the denial of a habeas corpus petition de novo. See Wood v. Ercole, 644

F.3d 83, 90 (2d Cir. 2011). The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), however, precludes habeas relief based on a claim adjudicated on the merits in

state court unless the state court decision was either (1) “contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent; or (2) “based on


                                             2
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); see Cullen v. Pinholster,

131 S. Ct. 1388, 1398 (2011). Although the district court denied Conner’s trial identification

claim as procedurally defaulted, see Conner v. Poole, No. 07-CV-6230 (MAT), 2010 WL

1404671, at *7 (W.D.N.Y. Mar. 30, 2010), we conclude – and the parties now agree – that

the state court adjudicated the claim on the merits and that Conner properly exhausted his

state remedies, see People v. Conner, 15 A.D.3d 843, 844, 789 N.Y.S.2d 377, 377 (4th Dep’t

2005); People v. Conner, 4 N.Y.3d 885, 798 N.Y.S.2d 730 (2005).1 When we review

Conner’s claim under AEDPA’s deferential standards, we conclude that it lacks merit. See

Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006) (“[W]e are free to

affirm a decision on any grounds supported in the record . . . .”); see also Reid v. Senkowski,

961 F.2d 374, 377 (2d Cir. 1992).

2.     Identification Claim

       Conner submits that his conviction was obtained in violation of due process because

a witness’s trial identification of him as one of the burglars was tainted by a suggestive pre-

trial show-up procedure in which the witness identified Conner as he sat handcuffed in the

back of a police car. See Simmons v. United States, 390 U.S. at 384; Stovall v. Denno, 388

U.S. at 301-02; see also Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (identifying

“reliability” as “linchpin in determining the admissibility of identification testimony”). We



       1
        The state court records that respondent filed with the district court did not include
Conner’s counseled leave application to the New York Court of Appeals raising his
challenge to the in-court identification. This appears to have misled the district court into
thinking that Conner’s claim was procedurally defaulted.

                                              3
are not persuaded. Even assuming that the show-up procedure was unduly suggestive, the

state court reasonably determined from the totality of the circumstances that the eyewitness

had a sufficient independent basis for making a reliable trial identification. See Neil v.

Biggers, 409 U.S. 188, 199-200 (1972) (identifying factors relevant to totality of

circumstances inquiry as (1) witness’s opportunity to view criminal during crime, (2)

witness’s degree of attention, (3) accuracy of prior descriptions of perpetrator, (4) witness’s

level of certainty at time of confrontation, and (5) length of time between crime and

confrontation); accord Brisco v. Ercole, 565 F.3d 80, 88-89, 92-95 (2d Cir. 2009)

(concluding that state court had not unreasonably applied clearly established federal law

because out-of-court identification was independently reliable under totality of circumstances

inquiry).

       Although the witness, whose attentiveness during the crime is not seriously

questioned, understandably focused on the gun one burglar wielded, she nevertheless had

ample opportunity to view the men who invaded her home over the course of five minutes,

and spent part of that time in her well-lit bedroom. See United States v. Finley, 245 F.3d

199, 203-04 (2d Cir. 2001) (concluding identification reliable when witness viewed

perpetrator in well-lit area). The witness could view the face of the burglar later identified

as Conner from the nose to the hairline despite his wearing a hooded sweatshirt. Moreover,

the witness recognized Conner during the crime as a person she had observed in her town

about five times within the past two years. See 2 Wayne R. LaFave et al., Criminal

Procedure § 7.4(c) (3d ed. 2010) (noting that witness’s “prior knowledge” of “perpetrator’s


                                              4
identity” may support reliability finding). The witness explained that she was hysterical

when she told the 911 operators that she did not know the identities of the burglars. Further,

the witness told a responding officer that she thought one of the burglars was named

“Leonard” even before the show-up procedure. Finally, although the witness did not initially

provide a detailed description of the burglars, she was certain of her identification of Conner

at the show-up, which occurred only forty-five minutes after the burglary. Based on this

record, the state court reasonably determined that the witness had an independent basis for

making a reliable trial identification. There is no merit to the argument that this constituted

an unreasonable application of clearly established Supreme Court precedent.2

3.     Conclusion

       We have considered Conner’s other arguments on appeal and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




       2
        Although we need not rely on harmless error to affirm, we note strong record support
for respondent’s argument that the other evidence adduced at the bench trial inculpating
Conner in the burglary was overwhelming. Conner’s belongings were found in the car
containing the witness’s stolen handbag and weapons matching the description of those used
during the crime. The police found Conner close to where the car had been abandoned
wearing only a tee-shirt in cold weather and with mud and water on his clothes. A hooded
sweatshirt matching the description of the one worn by the robber was found in the muddy
woods, along with latex gloves missing fingertips. Conner had a cut latex glove fingertip in
his pocket when he was arrested. Finally, a fellow inmate testified to Conner detailing an
armed robbery he committed in which he failed to remove from a vehicle documents
identifying him.

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