Cite as: 571 U. S. ____ (2013) 1 

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 certiorari 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 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. ___ (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 burglar 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-
 

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 identified 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 variety of evidence that respondent was the burglar. For instance, 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 correctly cited this Court’s decision in Wade, supra, as providing 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) 3 

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 respondent: 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 involved 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 
 

 

 

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 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.* 

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 independent 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 Committee’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.