United States Second Circuit

In State's appeal from district court's grant of defendant's petition for writ of habeas corpus vacating his convictions for robbery and burglary, and barring the State from re-prosecuting him, judgment is affirmed in part and vacated in part, where: 1) all six Wade factors weigh against a finding that the witness' in-court identification could derive from a source other than the tainted lineup; 2) the Stone rule is non-jurisdictional, and argument thereunder was waived by the State, and the court declines to consider it on appeal; 3) the improper admission of the witness' uncorroborated identification testimony at defendant's trial had a substantial and injurious effect on the jury's verdict; but 4) the district court's remedy of precluding the prosecution from re-trying defendant was premature.

Appellate Information

• Decided 10/16/2012
• Published 10/16/2012

Judges

• PARKER

Court

• United States Second Circuit

Counsel