Darrell B. McNary v. Robert Farley and Indiana Attorney General

Citation: 16 F.3d 1225Docket: 92-2874

Court: Court of Appeals for the Seventh Circuit; April 4, 1994; Federal Appellate Court

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Seventh Circuit Rule 53(b)(2) prohibits the citation of unpublished orders as precedent, except for specific legal doctrines. In the case of Darrell B. McNary v. Robert Farley and the Indiana Attorney General, McNary, serving a 35-year sentence for attempted robbery, filed a habeas corpus petition after exhausting state remedies. He alleged violations of his rights due to lack of probable cause for his arrest, an impermissibly suggestive pre-trial identification, and improper use of his post-arrest silence by the prosecution. The district court dismissed his petition, citing procedural default since these claims were not raised on direct appeal.

The Indiana Court of Appeals used the waiver doctrine to deny relief, limiting further review unless McNary demonstrated cause and prejudice for his default. McNary argued that his counsel's ineffectiveness constituted cause, requiring proof of deficient performance and resulting prejudice as per Strickland v. Washington. However, he failed to establish this.

His first claim regarding the lack of probable cause was deemed meritless. The court found sufficient evidence, including a robbery in progress report, victim statements, and physical evidence linking McNary to the crime scene, to establish probable cause for his arrest. His second claim about the pre-trial identification procedure also failed; despite the suggestiveness of the procedure, an in-court identification could still be deemed reliable based on the totality of circumstances.

In Neil v. Biggers, the Supreme Court established factors for assessing the reliability of eyewitness identification, including the witness's opportunity to view the suspect during the crime, degree of attention, accuracy of prior descriptions, certainty at confrontation, and the time elapsed between the crime and identification. In McNary v. State, the Indiana Court of Appeals upheld the reliability of the victim Niedbala's identification of McNary, emphasizing that Niedbala had ample opportunity to observe McNary during the robbery and had previously encountered him. Despite some inconsistencies in Niedbala's descriptions, these did not undermine the identification's reliability. 

McNary's claim of ineffective counsel regarding the failure to challenge the pre-trial identification was dismissed. Additionally, although McNary's counsel should have objected to testimony regarding his post-arrest silence—a violation of his Fifth Amendment rights—this omission did not prejudice his defense. The prosecution did not rely on this testimony for establishing guilt. Other evidence, including Niedbala's identification and matching shoe prints, sufficiently supported the conviction, demonstrating that McNary's trial was fair and reliable despite the constitutional violation.

The district court's conclusion that McNary did not demonstrate cause for and prejudice from his procedural default is affirmed. The court initially notified the parties that oral argument was deemed unnecessary, allowing for the submission of a statement regarding the need for it. McNary submitted such a statement, but the request for oral argument was ultimately denied, and the appeal was decided based on the briefs and record. McNary's claim that Niedbala acknowledged his attacker wore a mask was incorrect; Niedbala testified that McNary wore a cap with a brim. The Indiana Court of Appeals, as adopted by the district court, found no attempt by the State to use McNary's post-arrest silence against him, leading to the conclusion that counsel was not ineffective for failing to object on those grounds. Although procedural default typically results in a petition being dismissed with prejudice, McNary's petition was dismissed without prejudice, and the court noted that it lacked jurisdiction to rectify this dismissal since the respondents did not appeal.