Opinion
No. 00 Civ. 6668 (VM)(DFE)
July 25, 2002
REPORT AND RECOMMENDATION TO JUDGE ORDER
Petitoner James Allen brings this pro se habeas petition challenging his conviction after a 1995 trial in Supreme Court, New York County, before Justice Edwin Torres. The jury found Allen guilty of two counts of Attempted Robbery in the Second Degree, two counts of Assault in the Second Degree and one count of Assault in the Third Degree. He was sentenced (as a discretionary persistent felony offender) to four concurrent prison terms of 25 years to life on the four felonies, and a one-year concurrent term on the misdemeanor.
Allen's trial attorney was Karen Funk, and his appellate attorney was Robin Nichinsky of the Center for Appellate Litigation.
Allen's pro se petition is dated August 2, 2000. On March 30, 2001, Assistant Attorney General Dian Kerr McCullough filed a memorandum of law and also an affidavit with Exhibits A through G (I will cite certain of those exhibits as "Exh. ___"). I will refer to the pretrial hearing testimony as "H. __"and the trial transcript as "Tr. __".
Allen did not submit any reply. For the reasons set forth below, I recommend that Allen's habeas petition be denied.
The Prosecution's Case
The jury heard testimony from two men who were victims of assaults about two hours apart, and also from two eyewitnesses to the second assault.
David Gonzalez, a reporter for the New York Times, testified that he was walking on Tenth Avenue between 24th and 25th Streets when he was attacked by Allen. At approximately 12:30 p.m. on October 29, 1994, Allen struck Gonzalez in the chest with his knee. While Gonzalez was doubled over from the blow, Allen proceeded to pat down Gonzalez's pockets. Gonzalez broke free and ran to a nearby restaurant before Allen could take anything from him. (Tr. 126-128, 143)
At 2:30 p.m. on the same day, Sam Fishman, aged 87, was attacked on Eighth Avenue, between 26th and 27th Streets. Fishman testified that he was struck on the back of the neck and fell to the ground. (Tr. 207) The attacker demanded money, but fled when two men came to Fishman's rescue. (Tr. 208) These two men, Justin Arbuthnot and Robert McCoy, testified that the attacker was Allen, and that later that day they both saw Allen enter a Meyers Parking Garage. (Tr. 223-58, 292-316)
At 6:10 p.m., Police Officer Christopher Navarra arrived at the garage at 230 West 31st Street in response to a radio call. There he met Arbuthnot, who said he believed the attacker had recently entered the parking garage. Officer Navarra entered and came out with Allen, whom Arbuthnot identified as the attacker. (H. 5-8, Tr. 270-86)
The Defense Case
Allen testified that he was in the Meyers parking garage the entire time from 10:30 a.m. until his arrest at 6:00 p.m. (Tr. 325-31. 343) The jury was permitted to hear that he had prior convictions for 2 felonies and 10 misdemeanors; Justice Torres had barred the prosecution from revealing that the true numbers were 3 felonies and 34 misdemeanors. (H. 36-38)
The Rebuttal Case
Two employees from Meyers Garage testified that Allen sometimes hung around the garage, but did not enter it until about 5:30 p.m. on the day in question. (Tr. 347-61)
Procedural History
The respondent has not invoked the 1-year statute of limitations, 28 U.S.C. § 2244(d), and I will assume that Allen's petition is timely. The procedural history is as follows.
After thorough briefing by Allen's appellate attorney Robin Nichinsky (Exhs. A and C), the Appellate Division affirmed the conviction and wrote, in part:
The court properly exercised its discretion in denying the defense challenges for cause at issue, since the court had the opportunity to witness the venirepersons and their responses and since the totality of those responses ( People v. Middleton, 220 A.D.2d 202, lv. denied 87 N.Y.2d 848) established that the prospective jurors would be able to remain impartial.
The court properly denied defendant's motion to suppress identification testimony, since the precinct lineup was not unduly suggestive. The clothing worn by defendant at the lineup, and allegedly matching the description given by a witness, was not so distinctive as to be capable of influencing the identification.
(Exh. D; People v. Allen, 257 A.D.2d 397, 685 N.Y.S.2d 171 (1st Dept. 1999)).
On February 1, 1999, Ms. Nichinsky wrote a four-page application for leave to appeal to the New York Court of Appeals. (Exh. E) She dropped her points about the lineup and the sentence. She presented only one issue. and she presented it solely as an issue of state law. This was the claim that the judge should have excused two potential jurors for cause, and that the defense was wrongfully forced to use two of its peremptory challenges to strike those two jurors. On February 5, 1999, Judge Joseph W. Bellacosa denied leave. (Exh. F)
It is possible that Allen's conviction became final on May 6, 1999, upon the expiration of the 90-day deadline to seek a writ of certiorari from the United States Supreme Court. At some point, however, Ms. Nichinsky moved for reconsideration; Judge Bellacosa denied leave upon reconsideration on August 9, 1999. People v. Allen, 93 N.Y.2d 1013, 697 N.Y.S.2d 572 (8/9/99).
AAG McCullough's 3/30/01 memorandum to me, at pages 9 to 10, gets several dates wrong, and then says at n. 2 on p. 10:
The New York County's District Attorney's Office was unable to locate copies of the leave application or the People's response. Respondent will therefore assume, for purposes of the exhaustion requirement, that petitioner raised the same claims in the leav application that he raised in his appellate brief. See Petition, p. 3 ¶ 9(e)(4).
This footnote's assumption about exhaustion is totally illogical. The District Attorney's Office did locate the leave application; it is Exh. E, dated February 1, 1999, and it clearly dropped two of the claims that had been raised in the Appellate Division. Apparently no one has been able to locate the motion asking Judge Bellacosa to reconsider his February 5, 1999 denial. (Exh. F) But surely that was limited to the point made in February, about being forced to "waste" two peremptory challenges. This is crystal clear in light of Ms. Nichinsky's next move, which I shall now discuss.
On April 25, 2000, Ms. Nichinsky went to the Appellate Division, with a motion "for an order granting reargument and reconsideration of the affirmance by this Court, dated January 7, 2000 [actually 1999] . . . ." This motion, seven pages long, was later annexed to Allen's habeas petition. (See Exh. G) It raised only the claim about the two prospective jurors, and again presented it as an issue of state law. This time it pointed to a very recent decision, People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134 (April 13, 2000). It was undisputed that the Johnson decision was issued after Allen's conviction became final. But Ms. Nichinsky requested the Appellate Division to re-open Allen's final conviction "in the interest of justice" so that Allen "may have the same equal protection under the laws, as did the litigants in Johnson." (Exh. G, Nichinsky aff. at p. 6.) Allen's pro se habeas petition, at page 4, indicates that the Appellate Division denied the April 2000 motion on "June 20, 2000 (M-2618)."
The habeas petition is dated August 2, 2000, and came to our Court in an envelope postmarked August 7, 2000.
Legal Analysis
In his habeas petition and in its 4-page memorandum (both at Exh. G), Allen alleges the same three grounds but in a different sequence. The point headings in the 4-page memorandum are more detailed. Therefore, I will quote those three point headings. However, I choose to discuss them in reverse order.
"Point III: Petitioner was denied his federal constitutional right to due process of law by an unduly suggestive lineup, where he was the only participant entirely in blue clothes, a prominent feature of the perpetrator."
Allen contends that his lineup was unduly suggestive and that Gonzalez's identification of him violated his due process rights under the Fourteenth Amendment. (Exh. G mem. at 3-4) The lineup was not involved in the evidence of the assault on Fishman and that evidence was overwhelming — the testimony of the two eyewitnesses in addition to the testimony of Fishman. The evidence of the earlier assault rested primarily on the testimony of Gonzalez. He did view the lineup, and only 8 hours after the assault. Moreover, he would seem to be quite a sophisticated person — a metropolitan staff reporter for the New York Times.
Justice Torres held a pretrial hearing about the lineup and made the following finding of fact at H. 34-35:
. . . [T]he fillers certainly resembled, the general structure, age range, what not and appearance [of Mr. Allen]. . . There was nothing suggestive in so far as Detective O'Brien's behavior with respect to Mr. Gonzalez. He separated him, isolated him from the fillers and the defendant until the actual . . . lineup possibly ten after 8[:00]. The questions that he put to him were the proper questions. . . There is no evidence of impropriety or anything untoward on the part of the police, and of course the complainant promptly identified the defendant of the attempted robbery.
The Appellate Division ruled:
The court properly denied defendant's motion to suppress identification testimony, since the precinct lineup was not unduly suggestive. The clothing worn by the defendant at the lineup, and allegedly matching the description given by a witness, was not so distinctive as to be capable of influencing the identification.
(Exh. D) At that point, Ms. Nichinsky quite sensibly dropped the lineup claim, a weak claim that detracted from her attempt to get review from the highest court of New York.
"[B]efore seeking a writ of habeas corpus in federal court, a state prisoner must first have presented his claim to the highest court of the state." Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). Allen's lineup claim was not presented to the highest court of New York, and there is no way to do so now. Allen has not shown any cause to excuse the failure to exhaust, and has not shown any prejudice from the failure. Therefore, Point III cannot be the basis of a habeas petition in Federal court.
To underscore the lack of prejudice, I will discuss the merits briefly. On July 13, 2001, shortly after the briefing to me was completed, the Second Circuit granted habeas because of a suggestive lineup in Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001). But the Raheem case differ's from Allen's in many ways.
First, Raheem did present his lineup claim to the highest court of New York. Second, the only two witnesses who identified Raheem had been drinking scotch in a dimly lit bar ( 257 F.3d at 138); Gonzalez was a New York Times reporter walking on a sidewalk at mid-day. (Tr. 124-125) Third, the Raheem lineup was held almost 3 weeks after the shooting; Allen's was held only about 8 hours after Gonzalez was assaulted. Fourth, the two witnesses who identified Raheem testified that they were struck by the fact that Raheem was the only person in the lineup who was wearing a three-quarter length black leather coat, which had been a major part of their initial description of the shooter. In the case at bar, Police Officer David Loucurto interviewed. Gonzalez and wrote up the description of the attacker as a black male with facial hair, approximately six feet tall, about 180 pounds, wearing dark blue work jacket and dark blue pants. (Tr. 155-56, 162-63) At the lineup, Allen was the only participant wearing both a blue jacket and blue pants, but some of the fillers wore blue jackets and some of them wore blue pants. (H. 32, Tr. 196) Gonzalez testified that he was absolutely certain when he selected Allen, and that he did so because of: "The eyes, the face structure. Which is a little puffy, roundish. [And the clothing and the boots.]" (Tr. 137) No one has disputed Justice Torres's finding that "the fillers certainly resembled the general structure, age range . . . and appearance" of Allen. (H. 34)
Justice Torres and the Appellate Division found that the lineup was not unduly suggestive. Allen's case is not one of those rare cases where there is "clear and convincing evidence" that rebuts the "presumption of correctness" which applies to each "determination of a factual issue made by a State court." 28 U.S.C. § 2254(e)(1).
"Point II: "Petitioner was denied his Federal constitutional right to a fair trial and an impartial jury when [the judge rejected the defense] challenge [of] two jurors for cause."
During jury selection, Allen's attorney Karen Funk asked Justice Torres to excuse certain potential jurors for cause, including Karen Reynolds (Tr. 56-57) and Patty Carr (Tr. 94-95). Justice Torres denied these requests. and the defense then used two of its peremptory challenges to strike those two potential jurors. (Tr. 57, 95)
Before the Appellate Division, Ms. Nichinsky noted that the defense eventually used all of its peremptory challenges, and sought reversal on the ground that the judge had forced the defense to "waste" two of those peremptories to strike the two jurors in question. In her main brief, she cited "U.S. Const. Amends. VI and XIV" but she cited no federal cases, only state cases. (Exh. A at pp. 23-28) The Appellate Division ruled (Exh. D):
The court properly exercised its discretion in denying the defense challenges for cause at issue, since the court had the opportunity to witness the venirepersons and their responses and since the totality of those responses ( People v. Middleton, 220 A.D.2d 202, lv. denied 87 N.Y.2d 848) established that the prospective jurors would be able to remain impartial.
In her four-page application for leave to appeal to New York's high court, Ms. Nichinsky did not mention federal law at all. (Exh. E) She may well have realized that this point about the two potential jurors has no merit as far as federal law is concerned. The Supreme Court has clearly stated that "the trial court's findings of impartiality [may] be overturned [by a federal court] only for `manifest error.'" Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889 (1984) (quoting Irwin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643 (1961)). Moreover, Allen has not even attempted to demonstrate any impartiality on the part of the jurors who were actually selected. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278 (1988), a case much like Allen's, rejected claims under the Sixth Amendment and the Due Process Clause:
We have long recognized that peremptory challenges are not of constitutional dimension. . . So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774 (2000), a case arising from a federal trial, rejected claims under the Sixth Amendment, the Due Process Clause, and Rule 24 of the Federal Rules of Criminal Procedure, where the defense (a) peremptorily challenged a juror who should have been excused for cause. and (b) exhausted all its peremptories.
"Point I: Petitioner was denied was denied his federal constitutional rights to due process and equal protection of the law under the Fourteenth Amendment when the New York State Court of Appeals reversed the case of Karim Johnson but the Appellate Division failed to reverse petitioner's case."
To put this point in context, I shall now repeat most of a paragraph from pages 4-5 of this Report.
On April 25, 2000, Ms. Nichinsky went to the Appellate Division, with a motion "for an order granting reargument and reconsideration of the affirmance by this Court, dated January 7, 2000 [actually 1999] . . . ." This motion, seven pages long, was later annexed to Allen's habeas petition. (See Exh. G) It raised only the claim about the two prospective jurors, and again presented it as an issue of slate law. This time it pointed to a very recent decision, People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134 (April 13, 2000). It was undisputed that the Johnson decision was issued after Allen's conviction became final. But Ms. Nichinsky requested the Appellate Division to re-open Allen's final conviction "in the interest of justice" so that Allen "may have the same equal protection under the laws, as did the litigants in Johnson." (Exh. G, Nichinsky aff. at p. 6.)
The fifteen words just quoted were not clear enough to present the Appellate Division with an issue under the Equal Protection Clause or any other provision of federal law. Nevertheless, Allen's pro se habeas petition now asserts that the Appellate Division violated both the Equal Protection Clause and the Due Process Clause when it denied the motion to re-open Allen's final conviction.
The habeas statute provides:
An application for a writ of habeas corpus . . . shall not be granted . . . unless the adjudication of the claim — (1) resulted in 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; . . . .28 U.S.C. § 2254(d)(1).
As to Allen's underlying claim (Point II), I have already shown that it has no merit under "Federal law, as determined by the Supreme Court." See my discussion of Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273 (1988).
I turn now to Allen's claim that the Appellate Division violated the U.S. Constitution by refusing to re-open his final conviction and to give him a new trial — on the basis of a state-law decision which was made after Allen's conviction became final (and which he asserts was factually identical to his own case). This refusal to re-open was not contrary to any "clearly established" Supreme Court decision that I am aware of. Indeed, the Supreme Court's view appears to be the opposite of Allen's. See Teague v. Lane, 489 U.S. 288, 310, 315, 109 S.Ct. 1061, 1075, 1078 (1989):
We . . . now adopt Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.
* * *
. . . Because the absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, we conclude that a rule requiring that petit juries be composed of a fair cross section of the community would not be a "bedrock procedural element" that would be retroactively applied under the second exception we have articulated.Conclusion and Recommendation
For the reasons stated above, I recommend that Allen's habeas petition be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, any party may object to this recommendation within 10 business days after being served with a copy, by filing written objections with the Clerk of the U.S. District Court and mailing copies (a) to the opposing party, (b) to the Hon. Victor Marrero, U.S.D.J. at Room 414, 40 Foley Square, New York, N.Y. 10007 and (c) to me at Room 1360, 500 Pearl Street, New York, N.Y. 10007. Failure to file objections within 10 business days will preclude appellate review. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988). Any request for an extension of time must be addressed to the District Judge.