United States of America Ex Rel. Roosevelt Stevenson v. Vincent R. Mancusi, Warden, Attica State Prison, Attica, New York
409 F.2d 801
2d Cir.
1969
Check Treatment

*1 Before LUMBARD, Judge, SMITH, Judge, Circuit and McLEAN, Judge.* District McLEAN, Judge: 1963relator was convicted crime of in the second jury after a County trial in the Court County. of Erie His conviction originally affirmed. He was sen- e,t Tijerina quoted 17. 16. footnote States of America Some of these are ah, (10th 1969) ; and there in addition usual F.2d 349 Cir. Moore presumption States, (8th v. United structions 375 F.2d 877 Cir. 1967) ; government’s States, innocence and the burden of Bloch v. United Of. proof (9th 1955). each essen- F.2d 786 to establish evidence Cir. charge beyond tial element of rea- * Sitting designation. sonable doubt. *2 802 pointed The officer to Henderson. felony offender She fifth as

teneed a “No, said, pointed and County Court, a then relator after subsequently the money, your wasn’t 1965, him that took February was hearing resentenced in ” said, There it? Mrs. Michaels “Yes.” felony was He offender. a him fourth as lineup prior trial. years life. no other was given fifteen a sentence guilt. Ap- Relator did admit his the affirmed The resentence was pellate the Court Division and in- were both and Henderson Relator leave to York denied of New iden- At the Michaels trial Mrs. dieted. having in the tified both as 1967, applied to relator robbery. and Hen- Relator was convicted the for District Court the United States acquitted. derson was for a writ of New Western At the written corpus. He maintained of habeas officer, arresting Mrs. Michaels and the was fourth offender as a resentence his Goebel, 1932, taken in in- October three convictions invalid because troduced in evidence. Mrs. Michaels said for preceded the conviction August in 29,1932, her statement that on in burglary obtained had been in 1963 walking Street, while rights. she was on Peoria constitutional of his violation purse Stevenson for snatched her and prior ran of these One away and that 1929, she run- sec- saw Henderson burglary in in Tennessee ning 1932, also. She said that on October in Illinois for ond was police took her “to in the the show at the third was and 11th County, & State Sts. and Erie third holding up.” two fellows as me She in 1947. further stated that “later- —Stevenson Judge hearing Burke held a on rela- holding up.” admitted me 11, application. September tor’s On 1967, statement upheld validity prior Goebel’s said that he ar- he rested “these Accordingly, two colored men” on Octo- he found that convictions. said, ber “I 15. He remembered this relator’s offender sentence fourth as being woman held and went over and was correct and he dismissed the writ. got her,” and that “she came down April 30, 1968, On this court denied following day and identified the two of application relator’s for a certificate them, snatching and Stevenson probable cause, remand- but nevertheless purse.” ed the ease “for consideration of further accepted relator’s testi- Burke petitioner’s attack on the identification mony. He concluded that the identifica- procedure used in Illinois conviction his prejudi- tion was unfair and * * thereupon held Burke rights cial to relator’s constituted a hearing. another This time he decided process. violation of due was invalid. conviction 6, August believed, on he testimony If to be is relator’s- re- sustained the writ and directed that proce- clear the identification Respondent lator be resentenced. “suggestive” dure was as to make so appealed now to this court. identification unreliable. See hearing Relator testified at the sub- Wade, 388 U.S. States stantially as and a follows. Relator 1926, 18 L.Ed.2d 1149 87 S.Ct. friend, Henderson, Nathaniel ar- (1967); Denno, 388 U.S. Stovall rested and taken to street 18 L.Ed.2d 87 S.Ct. officer station. The directed relator and Henderson to stand implicit Moreover, in front of their cell. The we think victim although decision, Michaels, he robbery, then Mrs. brought improp- expressly, that the The officer asked her did not so in. point lineup Mrs. “tainted” out the man who had robbed her. identification er hearing at the of relator General moves for a new based identification Michaels’ recently scanty on evidence at uncovered 1932 letter trial. finding justify a Illinois Assistant State’s was insufficient beyond doubt a reasonable “independent had an court On the evidence before district source.” is difficult for me to understand *3 California, 388 U.S. granted Gilbert 272, how could writ. Pe- 18 L.Ed.2d 1178 obviously S.Ct. self-interested testi- titioner’s mony concerning occurring events 1932, at with written contem- odds conclu- Consequently, poraneous by the victim and due violated sion arresting officer, inherently 'the find- process properly from his followed accept- incredible. The district court’s ing of fact. petitioner’s ance surprising version is all the more principal Respondent’s attack previously it had found since finding, re upon factual allegations petitioner’s several of factual clearly spondent erroneous. claims was concerning his other three agree. question was do not We essentially example, findings For untrue. its credibility. cannot We one of and conclusions dated March district court record that the on this rejected petitioner the court the claim of required testi disbelieve relator’s was mony. represented by that he had not been counsel in connection with his 1929 Ten- argument appeal, re- Upon of this nessee conviction. copy of spondent presented court a to this Perhaps the led into district court was an from December a letter dated by unsatisfactory its resolution below Chicago, Attorney in Assistant State’s reading too into court’s re- much this Illinois, of the Illinois to the Warden mand “for further consideration” of the Reformatory. recounted The letter State by posed identification issue Among history this case. Obviously court did not conviction. this things, it stated that: suggest by mean its order to a view prosecuting October 16th “On proper disposition aat defendants witness issue, concerning petitioner’s nor a belief men; show-up each made of 7 credibility. subsequent ques- upon defendants I feel confident that the district court charge tioning matter will take a different view of the in court.” denied the same but gives opportunity, if attorney Respondent’s advised promptly moving new re letter had been the court this contemporaneous letter to examine the cently It not submitted discovered. the Illinois Assistant State’s Burke. crystal This letter makes properly on this Our before us the method of court’s order affirmance of the district men,” show-up made of 7 used “awas right prejudice respondent’s is without suggestive proce- patently and not the court, respond if in the district to move by petitioner. dure This letter claimed desires, hearing on the for a new ent so strength ambiguities any in the state- clarifies information. of this new and the of the victim ments officer, probity. I and reenforces their my belief thus concur because (concur- LUMBARD, the district after a new ring) : adopt will events the version result, contemporaneous reluctantly in these three concur in the reflected I statements, consequently only the district written because believe Attorney deny deny court will the writ if the writ.