The opinion of the court was delivered by: Bua, District Judge.
This case is before the Court on a petition for a Writ of
Habeas Corpus. 28 U.S.C. § 2254. Now pending is the
respondents' Motion for Summary Judgment. For the reasons
stated herein, summary judgment is granted for the respondents.
On April 11, 1980, Petitioner Walter Canity was tried by a
jury in the Circuit Court of Lake County, Illinois and found
guilty of the offenses of deviate sexual assault, Ill.
Rev.Stat. 1979, ch. 38, par. 11-3(a), and burglary,
Ill.Rev.Stat. 1979, ch. 38, par. 19-1(a). After the Circuit
Court vacated the burglary
conviction, petitioner was sentenced to a term of six years in
the Department of Corrections on the sexual assault charge.
The conviction was affirmed in the Illinois Appellate Court.
People v. Canity, 100 Ill. App.3d 135, 55 Ill.Dec. 445,
426 N.E.2d 591 (2nd Dist. 1981). After a petition for leave to
appeal to the Illinois Supreme Court was denied, petitioner
filed this lawsuit.
Petitioner's conviction arose out of an incident which
occurred in the early morning hours of July 24, 1979. On that
date, Mary Duke Harlan was awakened from her sleep by voices
outside of her window, one of which she recognized as that of
Robert Wolff, a witness at petitioner's trial. As she began to
doze off, she was again awakened, this time by a man standing
at the side of her bed. In the light from the outside pool and
that reflecting from her kitchen, she was able to observe this
man for roughly a minute and a half. He then ordered her to
bury her head into her pillow and submit to an act of deviate
She later described her attacker as a black male,
approximately six feet tall, roughly 30 years old, and
weighing 200 pounds. She testified that he had a gap between
his front teeth; however, it does not appear that this
characteristic was given to the investigating officers.
Defendant does, indeed, have a gap between his teeth. He
testified that he is five feet, eight inches tall and weighs
On August 6, 1979, a black male was observed at the
apartment complex by David Harris and by Lake County Sheriff's
Deputy Dan Dunn. Harris spoke with the man for about two
minutes from a distance of about 75 feet. He described the
individual as being five feet, ten inches tall and weighing
roughly 180 pounds. He estimated that the individual was in
his twenties and noted that he was wearing a peach-colored
shirt with grey trousers.
Dunn first saw the man standing next to the mailboxes in the
entranceway to the apartment complex. When first asked what he
was doing, the man replied that he lived in the building.
However, Dunn later determined that no blacks lived in the
During the evening of August 14, 1982, and into the
following morning, the Lake County Sheriff's Department was
involved in a stake-out of the apartment complex where Harlan,
the victim of the assault, resided. The stake-out was
undertaken in response to reports of a black prowler. Sometime
around midnight, petitioner, who was employed as a U.S. Army
recruiter, drove an army vehicle into the parking lot at the
apartment building. After parking the vehicle, he began
walking around the building. He testified that he was looking
for the building in which a friend of his lived. Once he
realized that he was unable to determine which building the
friend lived in, he began to return to his car. He then
realized that the friend might have been living in a building
in the complex which he had not previously seen and went by
that building. Again unable to find his friend, he started
back toward his car. Once he reached the car, he was
approached by two individuals who identified themselves as
deputy sheriffs and asked him for identification. He gave the
officers his military identification card. One officer then
said to the other, "Hold him here while I go get the
witnesses." Two men were then brought to look at the
petitioner while he was illuminated by flashlights and told to
stand in various positions. Two women also viewed the
defendant. One of them, the victim Mary Harlan, returned two
more times to view the petitioner, once when he was seated
inside the police car.
Petitioner now makes two claims. First, he asserts that his
conviction is based on improperly admitted identification
testimony which was secured as a result of an impermissibly
suggestive show-up procedure.
In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53
L.Ed.2d 140 (1977), the Court rejected a per se test which
would have excluded all identification testimony
regardless of reliability whenever it had been obtained
through confrontation procedures which were deemed to be
unnecessarily suggestive in favor of a "totality of the
circumstances" test. Under the totality of circumstances test,
confrontation evidence is admitted if, despite being
suggestive, "the out-of-court identification possesses certain
features of reliability." 432 U.S. 98, 110, 97 S.Ct. 2243,
2251, 53 L.Ed.2d 140. The factors upon which the reliability
determination shall be made are: (1) the opportunity of the
witness to view the criminal at the time of the crime; (2) the
witness' degree of attention; (3) the accuracy of his prior
description of the criminal; (4) the level of certainty
demonstrated at the confrontation; and (5) the time between
the crime and the confrontation. Against these factors, this
Court must weigh the corrupting effect of the suggestive
identification itself. 432 U.S. 98, 114, 97 S.Ct. 2243, 2253,
53 L.Ed.2d 140.
In the instant case, two of the identification witnesses
placed the petitioner at the scene of the assault on the night
of the incident, while the other two merely identified him as
an individual they had seen prowling around the building some
13 days later. Utilizing the Manson standards, the
identification testimony of the witnesses who claim to have
observed petitioner nearly two weeks after the attack was
clearly properly admitted.
The testimony of Mr. Harris clearly reveals that his
identification of the petitioner was reliable. As the Illinois
Appellate Court noted, Harris had sufficient opportunity to
view the criminal as petitioner was standing near a light and
was only 75 feet from the witness during their two-minute
conversation. Because the witness and petitioner were engaged
in conversation, the witness' attention was undoubtedly
focused on petitioner. Furthermore, Harris' description of
petitioner was quite accurate and the identification was made
with a high degree of certainty. Finally, only nine days
elapsed between the time Harris first saw petitioner and the
identification. In view of these factors, even if Harris'
identification of petitioner was unnecessarily suggestive, it
was clearly reliable and therefore properly admitted into
The identification testimony of Dan Dunn also was clearly
reliable. He saw petitioner from a distance of two or three
feet in a lighted hallway wherein Dunn spoke with petitioner.
Clearly, his opportunity to view defendant was good and his
degree of attention was high. In addition, while he did not
describe the individual he had seen on August 6, 1979 at the
time of the identification, when, at the pre-trial hearing, he
did describe the prowler, his description quite accurately
described petitioner. He was quite certain of the
identification and, like Harris, made the identification but
nine days after first ...