United States of America Ex Rel. Robert Phipps, Relator-Appellant v. Harold W. Follette, as Warden of Green Haven Prison, at Stormville, New York

FRIENDLY, Circuit Judge:

This appeal by a state prisoner presents the question whether a station-house identification, alleged and here found to have been made under circumstances that were unduly suggestive, requires a conviction obtained in part on the basis of a subsequent court-room identification to be set aside in federal habeas.

Petitioner Robert Phipps was convicted in the County Court of Nassau County, New York, of burglary in the third degree, petit larceny, and possession of burglars’ tools. The Appellate Division affirmed without opinion, 31 A.D.2d 1007, 300 N.Y.S.2d 296 (2d Dept.…