Unger v. Young

Counsel

The motion of respondent for the leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied., 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, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), when it determined that a witness' prolonged observation of a burglar in a well-lighted area of her own home provided an independent source for her in-court identification of respondent. Because the Second Circuit's decision contravenes the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, our decision in Cullen v. Pinholster, 563 U.S. ----, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), and Wade itself, I would grant the petition and reverse., 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 *21on 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 State petitioned for rehearing en banc. The Second Circuit denied the petition, with Judges Cabranes, Raggi, and Livingston dissenting from denial., 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 ----, 131 S.Ct., at 1398-1399. The lower court attempted to *22distinguish Pinholster by explaining that the social science studies "reinforced," but did not "compe[l] or contro[l]," its conclusion that the New York Court of Appeals unreasonably 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 precedent. And as noted, AEDPA flatly prohibits such reliance.*