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analyzing habeas claim under both standards where Appellate Division found no error on part of trial court in denying defendant's motion to suppress
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Nos. 97 Civ. 3862 (MBM), 97 Civ. 4415 (MBM).
December 14, 2004
ALVIN BROWN, Stormville, NY, Petitioner pro se.
ELIOT SPITZER, ESQ., Attorney General of the State of New York, BRUNO V. GIOFFRE, JR., ESQ., Assistant Attorney General New York, NY, Attorneys for Respondent.
ROBERT T. JOHNSON, ESQ., District Attorney, Bronx County, DANIEL R. WANDERMAN, ESQ., Assistant District Attorney, Bronx, NY, Attorneys for Respondent.
Petitioner Alvin Brown brings two petitions for habeas corpus pursuant to 28 U.S.C. § 2254 (2000). The first petition (the "New York County petition") challenges a May 19, 1986 conviction following a jury trial in New York County on three counts of first degree rape, three counts of first degree robbery involving the display of a gun, two counts of first degree robbery involving the use of a knife, and one count of first degree escape. The second petition (the "Bronx petition") challenges a July 18, 1986 conviction upon his own plea of guilty in Bronx County to two counts of first degree rape, two counts of first degree robbery, and one count of first degree attempted robbery. In a Report and Recommendation ("Report") dated July 7, 2004, Magistrate Judge Theodore H. Katz recommended that both petitions be denied. For the reasons set forth below, the Report is accepted as modified, the writs are denied, and the petitions are dismissed.
I.
Familiarity with the Report is assumed for current purposes, and only so much of the factual background as is necessary to resolve petitioner's objections to the Report is set forth below. The factual background is derived primarily from the Report and supplemented with references to the trial and appellate records.
A. The Crimes
1. New York County Crimes
In the early afternoon of January 25, 1984, petitioner knocked on the door of the Palma Boutique, a small women's clothing store located on Thompson Street in Manhattan. (New York Trial Transcript ("N.Y. Tr.") at 115, 152-54) At the time, Maureen McCarron, an employee of the store, was preparing to open for the day. (Id. at 152-54) She told petitioner through the glass door that the store was not open yet and that he would have to come back later. (Id. at 154-55) Petitioner left the storefront. (Id. at 155) McCarron recognized petitioner from several weeks before when she had spoken to him for approximately 30 minutes about purchasing some merchandise. (Id. at 152-53)
About half an hour later, petitioner returned to the store. (Id. at 155) By then, Yolanda Variano, the owner of the store, had arrived and was speaking on the telephone in the office located in the rear of the store. (Id. at 116) Petitioner spoke to McCarron alone for several minutes. Variano emerged from the office, whereupon McCarron introduced petitioner as the man who had "come back for that shirt he saw the first time he was here a couple of weeks ago." (Id. at 158) Variano also recognized petitioner from the prior occasion. (Id. at 117-18) While McCarron and Variano were showing him merchandise, petitioner drew a handgun, pointed it at Variano's face, announced that "this is a hold-up," and ordered the two women to go with him to the back of the store. (Id. at 119-20, 158-59) Upon reaching the back of the store, petitioner ordered McCarron and Variano to get down on the floor. (Id. at 120, 160) He then drew a knife, and blindfolded and tied up the two women. (Id.) After locking the front door, he went through the two women's purses and a file cabinet, and then raped McCarron and Variano. (Id. at 121-22, 160-62) Fingerprints lifted by police investigators from the bottom of the file cabinet were later identified as petitioner's. (Id. at 274-81)
A few weeks later, on February 16, 1984, petitioner appeared at the door of a women's clothing store located at 394 Third Avenue in Manhattan. (Id. at 210) Fleta Hickman, the store owner, let him in. (Id. at 210-11) The two spoke for 30 to 40 minutes and petitioner bought several articles of clothing. (Id. at 211-213) Petitioner left the store but then returned 10 to 15 minutes later. (Id. at 214-15) As Hickman reached for a pair of slacks, petitioner grabbed her from behind around the neck and said, "Don't scream. I have a gun." (Id. at 218) He dragged her by the neck into the dressing room, where he tied her hands behind her back and gagged her. (Id. at 219) He took more than $300 from a desk drawer, and then raped Hickman in the dressing room. (Id. at 220) Finally, after grabbing some shopping bags containing clothes, he left the store. (Id. at 221)
Police investigators later found petitioner's birth certificate on the floor of the dressing room. (Id. at 225-26) Latent fingerprints lifted by police investigators from a desk drawer in the store were later identified as petitioner's. (Id. at 286-87)
By an indictment filed on February 29, 1984, a Manhattan grand jury charged petitioner with one count of first degree rape and one count of first degree robbery, both arising from petitioner's assault on Hickman. By a superseding indictment filed on March 14, 1984, these two counts were joined with two additional counts of first degree rape and four additional counts of first degree robbery, arising from petitioner's attacks on McCarron and Variano. (Ex. B to Affidavit of Bruno Gioffre ("Gioffre Aff.") at 4))
2. Bronx County Crimes
On October 8, 1983, petitioner entered a store owned by Esther Chatelain at 1336 Jerome Avenue in the Bronx. (Bronx Plea Transcript ("Bronx Plea Tr.") at 3) He drew a gun and ordered Chatelain to the back room, where he raped her. (Id.) Then, he left after taking money and jewelry. (Id. at 3-4)
On February 8, 1984, petitioner entered a store at 3514 White Plains Road in the Bronx, where Doris Ciani was working alone. (Id. at 4, 9) This time, he had the aid of a female accomplice who held Ciani down at knifepoint while petitioner raped her. (Id. at 9) He then robbed Ciani of money and jewelry. (Id.)
Five days later, on February 14, 1984, petitioner entered a store at 931 Morris Park Avenue, where Eleanor Finiguerra was working. (Id. at 9) Petitioner forced Finiguerra at gunpoint into the back of the store. (Id. at 4-5) After discovering that she did not have any money on her, he struck her over the head with his gun and left the store. (Id. at 5, 9-10)
On March 14, 1984, a Bronx grand jury charged petitioner with first degree attempted robbery, second degree attempted robbery and second degree criminal use of a firearm. On March 19, 1984, another Bronx grand jury, under a separate indictment, charged petitioner with two counts of first degree rape, three counts of first degree robbery, three counts of second degree robbery, two counts of first degree criminal use of a firearm, and fourth degree criminal possession of a weapon. (Ex. 2 to Affidavit of Daniel Wanderman ("Wanderman Aff.") at 4)
3. Line-up Identifications
Petitioner was in custody on the New York County charges when he was ordered to appear at a line-up conducted at the Manhattan Sex Crimes Squad of the 20th Precinct on February 29, 1984. (N.Y. Tr. at 176; Ex. 21 to Wanderman Aff.) Petitioner was represented by Shelli Williams of the Legal Aid Society, who, although not yet admitted to the New York State bar, was a law school graduate who had passed the New York State bar exam and was practicing pursuant to the rules of the Appellate Division, First Department. (Report at 8, 54)
Petitioner and five other men were seated in a row of six chairs facing a one-way mirror. (N.Y. Tr. at 177) Detective Maureen Kempton, who conducted the line-up, chose the other men — known as "fillers" — from a men's shelter. (Id. at 176) They were all, like petitioner, African-American men, had little or no facial hair, ranged in age from 24 years to 34 years, in height from 5'7" to 5'11", and in weight from 145 to 180 pounds. (Report at 8-9) Petitioner was 35 years old at the time, stood somewhere between 5'4" and 5'6", and weighed 132 pounds. (Id.) A band-aid was used to conceal a scar on petitioner's forehead and band-aids were similarly placed on the foreheads of all five fillers. (N.Y. Tr. at 178) Petitioner conferred with Williams before choosing his position in the line-up. (Report at 9) Kempton also spoke with Williams, who indicated that she had no objections to the arrangement of the line-up. (Id.)
The line-up was viewed separately by 18 complainants in connection with the crimes committed in Manhattan and the Bronx. (Id. at 8) Each complainant waited separately outside the Sex Crimes Unit until the line-up was ready for them to view individually. (Id. at 9) Once the complainant entered the viewing room, Kempton asked three questions: (1) "Do you recognize anyone?"; (2) "What number is he wearing?"; and (3) "Where do you remember him from?" (Id.)
After six of the 18 line-ups had been conducted, approximately three hours after they began, Williams indicated that she would be leaving shortly. (Id.) After conferring with petitioner, Williams left him some money for food and then departed. (Id.) Petitioner was identified by Variano, McCarron, and Hickman. (Report at 9) After Williams left, Ciani and Chatelain viewed the line-up separately; both identified petitioner positively. (Id.)
It is not clear from the record whether these victims' identifications were made before or after Williams's departure from the premises.
B. Procedural Background
1. New York County Wade Hearing
Petitioner moved to suppress the line-up identifications by McCarron and Variano. On October 2, 1984, a Wade hearing was held before the New York Supreme Court, New York County, to determine the reliability of these identifications. See United States v. Wade, 388 U.S. 218 (1967). The following facts were adduced at the hearing.
The Wade hearing facts are excerpted from the state appellate briefs in petitioner's New York County case. (See Exs. A and B to Affidavit of Bruno V. Gioffre, Jr. ("Gioffre Aff.")) Neither party submitted a complete copy of the trial transcript of the hearing, and respondent's counsel represents that he has been unable to obtain the transcript. The court can nonetheless decide the instant petitions without the transcript pursuant to Rule 5 of the Rules Governing § 2254 Cases, which permits the use of a "narrative summary of the evidence" in lieu of an unavailable state court transcript. See El v. Artuz, 105 F. Supp.2d 242, 245 n. 1 (S.D.N.Y. 2000); see also Bundy v.Wainwright, 808 F.2d 1410, 1415 (11th Cir. 1987) (for § 2254 petitions, "if no transcript is available, a narrative summary may be furnished"). Relevant portions of the transcript are narrated in both parties' Appellate Division briefs. Petitioner does not contest any of the facts adduced by respondent.
On February 18, 1984, about three weeks after they had been raped and robbed, McCarron and Variano viewed a photographic array at a police station. While McCarron waited in one room, Detective Kempton brought Variano into another room and asked her to look at six photographs, each of an African-American man, and see if she recognized any of them. In this array was a photograph of petitioner. Variano recognized petitioner immediately as her assailant. After looking at the rest of the photographs to "make sure," she affirmed her identification.
The photographic array, which was examined by the state court, has since been misplaced and is unavailable for review. (Report at 28 n. 7) Petitioner does not challenge the trial court's factual findings as to the photographic array.
Kempton did the same with McCarron. As soon as she looked at the photographs, McCarron identified petitioner as her assailant. Kempton did not communicate in any way to McCarron which photograph Variano had selected.
The suppression court found that both McCarron and Variano identified petitioner from the photographic array. The Court found also that the men depicted in the photographic array were of similar appearance. As for the fact that only petitioner's photograph depicted a man with a scar on his forehead, the Court concluded that it is "not something that immediately . . . jumps out at you," and "there is nothing about the photograph of [petitioner] that would cause one to immediately focus on [the scar] unless one had a number of sound reasons to identify that person." Based on these findings, the Court held that the photographic array was not unduly suggestive.
On February 29, 1984, McCarron and Variano were two of the 18 complainants to view the line-up. McCarron waited in an office while Variano viewed the line-up first. Kempton instructed Variano to approach the viewing window, take her time, and see if she recognized anyone. Variano recognized and identified petitioner immediately as the one who entered the store on January 25, 1984. When asked if she had taken enough time, Variano replied that she was "a hundred percent sure." Next, McCarron viewed the line-up. She too recognized and identified petitioner immediately as her assailant. She asked that the men in the line-up stand up and turn sideways so that she could view them in profile because her initial view of petitioner at the store was in profile. Upon viewing all the men in the line-up in profile, she confirmed her initial identification, noting that she recognized him because he was "small."
The Court found that there was sufficient similarity between petitioner and the line-up fillers. In addition, the Court found that both McCarron and Variano identified petitioner from the line-up. With regard to McCarron's identification, the Court found that "she had already made the identification before she asked that these people stand up." Hence, her observation that petitioner was "short" was "confirming . . . rather than identifying [in] nature" and that her opportunity to observe his short stature in comparison to the fillers did not render the identification unreliable. Accordingly, the Court held that the line-up was not unduly suggestive, but even if it was, there was a "substantial independent basis for an in-court identification of [petitioner] on the part of [McCarron and Variano]."
2. New York County Trial
While petitioner was awaiting trial on the New York County charges, he escaped from custody. He was not apprehended until April 8, 1986, in Florida. (N.Y. Tr. at 328-29) Petitioner was then indicted for the escape and was tried, in a single jury trial, on the escape charge along with the rape and robbery charges. He was convicted of all the charges. (Id. at 498-99) On June 17, 1986, petitioner was sentenced as a predicate felon on each of the three rape counts and each of the 12½ to 25 years. The three sentences for rape and three sentences for robbery involving the display of a gun were to be served consecutively. The two remaining sentences for robbery involving the use of a knife were each to be served concurrently with two of the consecutive robbery sentences; they arose from the same criminal transactions. In addition, petitioner was sentenced as a predicate felon on the escape count to an indeterminate prison term of three-and-one-half years to seven years, to run concurrently with the other sentences imposed.
3. New York County Appeals
Petitioner appealed his New York County convictions to the Appellate Division, First Department, claiming that (1) he was deprived of due process by the trial court's failure to suppress the pretrial identifications of McCarron and Variano; (2) he was deprived of his right to a fair trial by the prosecutor's summation; and (3) he was deprived of his right to a fair trial by the court's failure to instruct the jury as to the limited probative value of his escape as it bore on the other charged crimes. (Ex. A to Gioffre Aff. at 15-28) On March 10, 1988, the Appellate Division, First Department, affirmed the convictions without opinion. See People v. Brown, 138 A.D.2d 983, 525 N.Y.S.2d 452 (1st Dep't 1988). On June 15, 1988, the New York Court of Appeals denied petitioner leave to appeal. See People v. Brown, 72 N.Y.2d 857, 532 N.Y.S.2d 507 (1988).
On June 14, 1993, petitioner filed a motion to vacate the judgment of conviction, pursuant to N.Y. Crim. P. Law § 440.10, contending that he was denied his Sixth Amendment right to counsel at the line-up because Williams, his attorney at the line-up, had not been admitted to the New York State bar and left the line-up before it ended. (See Ex. G to Gioffre Aff.) Petitioner's motion was denied on October 19, 1993, without written opinion. (See Ex. I to Gioffre Aff.) Shortly thereafter, on October 27, 1994, petitioner's application for leave to appeal was denied by the Appellate Division, First Department. (See Ex. L. to Gioffre Aff.) On December 9, 1994, the Court of Appeals dismissed petitioner's application for leave to appeal. See People v. Brown, 84 N.Y.2d 1009, 622 N.Y.S.2d 921 (1994).
On May 30, 1997, petitioner filed the instant petition, which was docketed as Case Number 97-CV-4415.
4. Bronx County Wade Hearing
On June 13, 1986, pursuant to petitioner's motion to suppress line-up identifications by Ciani and Chatelain, a Wade hearing was held before the New York Supreme Court, Bronx County. Petitioner contended that although he had not been indicted for the Bronx County crimes at the time of the line-up, his right to counsel had nevertheless attached because he was compelled by court order to appear in the line-up. (Bronx County Wade Hearing ("Bronx Wade H.") at 64-65) Therefore, petitioner argued, "it was incumbent upon the police personnel conducting the line-up . . . to insure that [petitioner] was in fact represented by counsel." (Id. at 66) He contended that he was denied his right to counsel because Williams left the line-up after the first six viewings, but before the remaining 12.
The Court held that because petitioner appeared in the line-up pursuant to a court order, his right to counsel had attached for the Bronx County crimes at the line-up. (Id. at 85) In response to some question over Williams's professional status, the Court found that "Miss Williams from the Legal Aid Society represented the [petitioner] at the line-up. It is not disputed that she was a law graduate who had passed the bar exam and was practicing within the parameters of the applicable court rule." (Id. at 84) The Legal Aid Society itself confirmed Williams's status in a letter to the Bronx District Attorney, dated June 12, 1986. (Ex. 24 to Wanderman Aff.)
Petitioner argued also that Ciani's identification should be suppressed on due process grounds because a few days before the line-up, Ciani had seen an article about petitioner in the New York Daily News, which mentioned that he was a suspect in five rape-robberies and included a photograph of petitioner, in custody, standing next to Kempton. (Id. at 87) Petitioner claimed that Ciani's line-up identification was unduly influenced by meeting Kempton later at the line-up. (Id.)
After hearing testimony, the Court ruled on "the two issues before the court." First, the Court concluded that the police did not deprive defendant of his right to counsel:
[P]olice procedures before, during and after the line-up were fair and not conducive to irreparable misidentification. . . . The line-up did not commence until counsel arrived. Counsel did participate. She conversed with her client. She voiced no objection to the line-up procedures. She was present when a band-aid was placed on her client and when he selected his line-up position.
(Id. at 85-86)
Second, the Court found "no evidence to suggest that the detective in Manhattan had any reason to believe that the defendant might be a suspect in the Bronx cases" and that "it indeed was fortunate that the photo was published for in part, it resulted in a Bronx victim viewing the defendant in a line-up." (Id. at 87) The Court continued, "[T]he presence of a Manhattan detective who arrested [petitioner] in the photo and later at the line-up, a detective who was otherwise unknown to the victim, cannot be said to have contributed to an irreparable misidentification." (Id.) Based on these conclusions, the Court denied petitioner's motion suppress the line-up identifications. (Id. at 88)
5. Bronx County Plea
On June 23, 1986, petitioner pleaded guilty to two counts of first degree rape, two counts of first degree robbery, and one count of first degree attempted robbery. (Bronx Plea Tr. at 2) On July 18, 1986, he was convicted based on his guilty plea and sentenced as a second felony offender to a term of 15 to 30 years in prison.
6. Bronx County Appeals
Petitioner appealed his Bronx County convictions to the Appellate Division, First Department, claiming that (i) he was denied his Sixth Amendment right to counsel because Williams was not present at the line-ups when petitioner was identified by Chatelain and Ciani and because she was not a licensed attorney at the time of the line-up; (ii) he was denied effective assistance of counsel because of Williams's professional status and her departure midway through the line-ups; (iii) he was denied due process because Ciani saw petitioner's photograph in the Daily News before viewing the line-up; (iv) he was denied due process because the trial court did not allow him to call witnesses to testify at the Wade hearing regarding Ciani's viewing of petitioner's photograph in the newspaper; and (v) he was denied due process because differences in height, weight, and age between petitioner and the line-up fillers, as well as questions asked of the complainants by the line-up detective, rendered the line-up procedures unduly suggestive. (See Ex. 1 to Wanderman Aff. at 9-21) In affirming the conviction, see People v. Brown, 159 A.D.2d 411, 553 N.Y.S.2d 322 (1st Dep't 1990), the Appellate Division agreed with the suppression court as to petitioner's Sixth Amendment claim premised on Williams's early departure from the line-up and the due process claim premised on the complainant's viewing of a newspaper photograph of the petitioner. (Id.) As for his Sixth Amendment claim premised on Williams's bar status, Sixth Amendment claim of ineffective assistance of counsel, due process claim premised on the suggestiveness of the line-up procedures, and due process claim that the trial court improperly disallowed him from calling the complainants to testify, the Appellate Division held that the claims had not been preserved for review pursuant to N.Y. Crim. P. Law § 470.05[2]. (Id.) The Court continued, "Were we to consider these [unpreserved] claims in the interest of justice, we would nevertheless find them to be of no merit." (Id.)
N.Y. Crim. P. Law § 470.05[2] provides in relevant part:
"For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in reponse [sic] to a protest by a party, the court expressly decided the question raised on appeal."
On April 27, 1990, petitioner applied for permission to appeal to the New York Court of Appeals. (Ex. 4 to Wanderman Aff.) He did not identify or discuss any of the issues for his appeal. Instead, he "enclos[ed] herewith a copy of the briefs filed in the Appellate Division and that Court's Order." (Id.) On June 19, 1990, the New York Court of Appeals denied petitioner leave to appeal. See People v. Brown, 76 N.Y.2d 785, 559 N.Y.S.2d 990 (1990).
On December 26, 1991, petitioner moved, pursuant to N.Y. Crim. P. Law § 440.20, to vacate his sentence, claiming that he was wrongly sentenced as a second felony offender. His claim was denied on the merits. (See Ex. 6 to Wanderman Aff.) On April 19, 1995, petitioner moved, pursuant to N.Y. Crim. Pro. Law § 440.10, to vacate his Bronx convictions, claiming that (i) Williams's non-admission to the bar at the time of the line-up constituted newly discovered evidence, and (ii) that had he been aware of Williams's professional status, he would not have pleaded guilty. (See Ex. 7 to Wanderman Aff.) The Court denied the motion upon concluding that there were "several actual references, both pre-plea and post-judgment, to the status of the person assigned pursuant to the line-up order" and that petitioner raised the same issues on direct appeal. (Ex. 9 to Wanderman Aff.) On May 9, 1996, leave to appeal that decision was denied by the Appellate Division, First Department. (See Ex. 10 to Wanderman Aff.)
The Court cited N.Y. Crim. P. Law § 440.10(2) (a) (e). Subsection 2(a) states, in relevant part, that "the court must deny a motion to vacate a judgment when: . . . [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment. . . ." N.Y. Crim. Pro. Law § 440.10(2) (a). Subsection (2) (e) does not exist (Report at 20 n. 5). Magistrate Judge Katz hypothesized that the Court likely intended to cite Subsection 2(c), which states that a court must deny a motion to vacate a judgment when "[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . ." N.Y. Crim. P. Law § 440.10(2) (c).
On May 20, 1996, petitioner applied for a writ of error coram nobis, contending that he was denied his right to counsel at the line-up and that his appellate counsel was ineffective for failing to raise this issue on direct appeal. (See Ex. 11 to Wanderman Aff.) On September 17, 1996, the Appellate Division, First Department denied this application without opinion. See People v. Brown, 231 A.D.2d 971, 647 N.Y.S.2d 648 (1st Dep't 1996). On November 20, 1996, the Court of Appeals dismissed petitioner's appeal of the Appellate Division's decision.People v. Brown, 89 N.Y.2d 862, 653 N.Y.S.2d 285 (1996).
On June 16, 1997, petitioner filed the instant petition, which was docketed as Case Number 97-CV-3862. On April 3, 2001, this petition was consolidated with the petition challenging the New York County convictions.
II.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas relief to a state prisoner on a federal claim that was "adjudicated on the merits" in state court only if it concludes that 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001). A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The inquiry for a federal habeas court is not whether the state court's application of the governing law was merely erroneous or incorrect, but whether it was "objectively unreasonable." See Williams, 529 U.S. at 408-410.
Under the AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct . . . [and the petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e) (1). A state court's findings of fact "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A federal court reviewing the trial record "must credit every inference that could have been drawn in the State's favor, whether the evidence being reviewed is direct or circumstantial."Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir. 1988) (citations omitted).
A district court reviewing a magistrate judge's report follows the standard established in 28 U.S.C. § 636(b) (1) (2000) and Fed.R.Civ.P. 72(b). The district judge must make a de novo determination of those parts of the report to which timely written objection has been made by either party. The uncontested portions of the magistrate judge's report may be adopted unless they show clear error. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Raddatz, 447 U.S. 667, 673-76 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). Although petitioner contests only five of the Report's conclusions specifically, he requests that the rest of his claims be considered. Hence, both petitions are reviewed de novo in their entirety.
III.
In the New York County petition, petitioner argues that (i) he was denied his right to due process because the trial court failed to suppress the line-up identification testimony of two of the rape victims; (ii) he was denied his right to due process because the trial court failed to instruct the jury on the limited probative value of the government's evidence on the escape charge as it bore on the rape and robbery charges; (iii) he was denied his right to a fair trial because of the prosecution's improper summation; and (iv) he was denied his Sixth Amendment right to counsel at the line-up because (a) his counsel left without his consent before all the witnesses had viewed the line-up, and (b) counsel was not a licensed attorney.
A. New York Petition: Identification Testimony
Petitioner contends that he was denied his right to due process under the Fourteenth Amendment when the trial court refused to suppress the identification testimony of McCarron and Variano. He argues that this testimony derives from two unduly suggestive pretrial identification procedures: (i) in a photographic array, his picture was the only one of an individual with a scar, and (ii) in the line-up itself, he was the shortest person.
When the defendant objects to identification testimony to be given by a witness who has identified him prior to trial, a sequential inquiry is required in order to determine whether the prior identification and an in-court identification of the defendant at trial is admissible. The court must determine first whether the "identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); see also Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). If the procedures were permissible, the identification evidence is admissible and its reliability is a matter for the jury. See, e.g., Foster v. California, 394 U.S. 440, 442 n. 2 (1969); Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986). However, if the court finds that the procedures were impermissibly suggestive, it must then determine whether the identification was nonetheless independently reliable. See Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977) ("reliability is the linchpin in determining the admissibility of identification testimony"); Neil v. Biggers, 409 U.S. 188, 199 (1972); United States v. Salameh, 152 F.3d 88, 126 (2d Cir. 1998). In doing so, the fact findings of the state court "shall be presumed to be correct" and "the applicant shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e) (1).
1. Photographic Array
First, petitioner claims that line-up identifications by McCarron and Variano were "tainted" because the two victims identified him unhesitatingly as their assailant 11 days earlier from an array of photographs assembled by the police, in which he was the only man with a scar on his face. Hence, he argues, the line-up identifications should have been suppressed. Magistrate Judge Katz found no reason to upset the state court's determination that the men depicted in the photographic array were of similar appearance and that nothing about the presentation of the array was unduly suggestive. (Report at 28-29) Moreover, Magistrate Judge Katz continued, the state court found correctly that McCarron and Variano had sufficient independent observations of petitioner such that identifications at the photographic array and the line-up were reliable. (Id. at 30-31) See, e.g., United States v. Crews, 445 U.S. 463, 473 n. 18 (1980) (line-up identification was reliable because witness had observed defendants close-range for five to 10 minutes under excellent light and unhesitatingly identified him at the line-up).
The propriety of a photographic array depends on factors that include the size of the array, the manner of presentation by law enforcement, and the array's contents. United States v.Concepcion, 983 F.2d 369, 377 (2d Cir. 1992); United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990).
The array here consisted of six photographs, which is sufficient. See United States v. Marrero, 705 F.2d 652, 655 n. 5 (2d Cir. 1983) (six photograph array permissible); United States v. Bennett, 409 F.2d 888, 898-99 (2d Cir. 1969) (same). Petitioner does not dispute that the men depicted in the filler photographs were similar to him in appearance. Detective Kempton, who presented the array to McCarron and Variano, refrained from communicating that any of the men in the array was under suspicion. Upon being called to the police station, McCarron and Variano sat in separate rooms. Kempton first showed the array to Variano, who recognized "immediately" petitioner's photograph as that of her assailant. Then, Kempton brought the array into the room where McCarron was sitting and showed McCarron the array without suggesting which photograph Variano had selected. Like Variano, McCarron recognized the photograph of petitioner immediately as that of her assailant.
As for the scar on petitioner's forehead, the trial court found that the petitioner's scar in the photograph did not "jump out at you" and would not have attracted attention "unless one had a number of sound reasons" for identifying him. Given the deference under Section 2254 to a state trial court's factual findings and petitioner's seeming agreement with the trial court's factual findings, the above findings were reasonable and supported the trial court's denial of petitioner's motion to suppress identification testimony by McCarron and Variano.
The trial court was correct also in concluding that the identification testimony was reliable, regardless of the photographic array. The testifying witness's "opportunity . . . to view the criminal at the time of the crime, the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the time and the confrontation" are all factors in determining whether an identification is reliable. Biggers, 409 U.S. at 199-200.
Both McCarron and Variano were familiar with petitioner from multiple encounters in well-lit settings. As detailed in Magistrate Judge Katz's report and testimony at trial, on the date of the crimes, McCarron first observed petitioner's profile "very clearly" through a glass door while telling him that the store was not yet open. Upon his return, McCarron spoke to him for several minutes, introduced him to Variano, referred to his appearance earlier in the day, and assisted him with some purchases. Both McCarron and Variano remembered petitioner from earlier visits. They observed petitioner for several minutes before he drew his gun and assaulted them.
Both victims identified petitioner with certainty. McCarron recognized petitioner's photograph as soon as she saw it and only looked at the fillers "to make sure." Variano selected petitioner's photograph "immediately." At the line-up, which was 11 days after the photographic array and 24 days after the date of the crime, Variano recognized petitioner "immediately" and was "a hundred percent sure" about her identification. McCarron was "almost positive" when she identified him sitting in the chair and was "sure it was him" upon seeing him stand.
Both victims had ample time to observe petitioner at close range on multiple occasions; the crime was not a hurried hold-up committed by a complete stranger. The concern of a "substantial likelihood of misidentification" is absent in this case.Biggers, 409 U.S. at 198.
2. Line-up Procedure
Petitioner's second challenge to the victims' identification testimony is that at the line-up, McCarron identified him only when he and the fillers stood up and it was revealed that he was the shortest among them. The trial court found that McCarron was "almost positive" of the identification while the line-up participants were sitting, when their heights were not as obvious. The trial court's finding refuted petitioner's contention that McCarron's identification was based on height alone.
Petitioner's argument has not changed and is still meritless.See United States ex rel. Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975) ("that [petitioner], a short man, was placed in line-up with mostly taller men, while certainly not the most desirable procedure, does not by itself warrant a finding of unnecessary suggestiveness"). McCarron's confident identification of petitioner while the line-up was sitting, see Tavarez v.LeFevre, 649 F. Supp. 526, 530 (S.D.N.Y. 1985) ("[s]ince all the line-up participants were seated, any height difference was substantially minimized"), was only confirmed by her second identification of petitioner while standing. There is no reason to conclude that her observation of his height "was so impermissibly suggestive" that it created a "very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384. Again, petitioner does not dispute that he and the line-up fillers were otherwise similar in appearance.
As set forth supra, regardless of the line-up procedure employed by the police, the identifications were independently reliable based on repeated and prolonged encounters between petitioner and the complainants.
Hence, the trial court's decision to deny petitioner's motion to suppress the identification testimony was not "contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412.
B. New York Petition: Prosecutor's Summation
Petitioner claims that he was deprived of his due process right to a fair trial because the prosecutor "denigrated" his defense and counsel in his summation at trial.
The scope of habeas review for allegations of prosecutorial misconduct is "quite limited." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). Relief is available only where the court "find[s] that the prosecutor's comments constituted more than mere trial error, and were instead so egregious as to violate the defendant's due process rights."Id. (citing Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)) and Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) ("The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power.") (internal quotation marks and citations omitted)). Thus, "[e]ven where a prosecutor's remarks are improper, `constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'" Washington v. Walker, No. 89-7841, 1994 WL 391947, at *3 (S.D.N.Y. July 28, 1994) (quoting Floyd, 907 F.2d at 355).
To succeed on a claim of prosecutorial misconduct with respect to comments during summation, a habeas petitioner must show "that he suffered actual prejudice because the . . . [comments] had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). Three factors must be considered to determine whether such prejudice occurred: "(1) the severity of the misconduct; (2) the nature of the curative measures taken to remedy the prejudice, if any; and (3) the certainty of the conviction absent the improper conduct." Jones v. Spitzer, No. 01-9754, 2003 WL 1563780, at *31 (S.D.N.Y. Mar. 26, 2003) (citingBentley, 41 F.3d at 824). The allegedly prejudicial comments must be assessed in light of the defense summation. See United States v. Young, 470 U.S. 1, 12 (1985).
Petitioner objects to the following statements by the prosecutor in his summation:
1. The use of the word "absurd" to describe the defense argument that someone other than petitioner might have left petitioner's birth certificate at the scene of the Hickman rape and robbery. (N.Y. Tr. at 402)
2. The use of analogies in describing the weight of the evidence against petitioner, specifically that the evidence was "a tank" (N.Y. Tr. at 415) and "a giant tidal wave" (Id.) compared to the defense, which he described as "shooting peas or throwing spitballs" (Id.) and "constructing some little barrier of straw." (Id.)
3. In describing the fingerprint evidence, the statement that "defense arguments usually can go one way or the other. If there's no fingerprints found at the scene they're screaming where are the fingerprints . . . If we do find fingerprints . . . then they start questioning the reliability of the examiner. They can't have it both ways." (Id. at 403)
4. With regard to petitioner's escape, the statement that "petitioner was about to have his fair trial approximately two years ago when he saw what was coming and escaped from custody." (Id. at 416)
These comments were "invited" by defense counsel in his summation. Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (prosecutor's response to defense counsel's summation was unlikely to have affected the jury's ability to evaluate the evidence fairly). It is "[t]he right of the prosecution to rebut an argument raised by the defense, even to the extent of permitting the prosecutor to inject his view of the facts to counter the defense counsel's view of the facts." Orr v.Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978) (footnote omitted).
First, the prosecutor responded to the defense theory that the actual rapist left petitioner's birth certificate at the scene of the Hickman rape and robbery to frame petitioner. The prosecutor did so by recounting the evidence, explaining why petitioner would have carried his birth certificate, and postulating how it could have come to rest on the floor of the store. (N.Y. Tr. at 401-02) The word "absurd" only summarized what the prosecutor argued was the incredibility of the defense theory. See United States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992) (prosecutor's comment that defense arguments were "ridiculous" was permissible). Moreover, it is not the prosecutor's job to stress the significance of a defense theory. To the contrary, arguing the implausibility of an opponent's theory is one of the tools at the prosecutor's (and defense counsel's) disposal.
Second, the various analogies employed by the prosecutor to refute each of defense counsel's summation points were nothing more than vigorous advocacy. According to petitioner, these analogies "conveyed to the jury the unfair and fallacious message that the defense was so meritless that it was unworthy of serious evaluation or consideration." (Ex. A to Gioffre Aff. at 23) Prosecutor used these analogies only after detailing the evidence presented at trial, including the victims' identification testimony, the expert fingerprint testimony, and the discovery of petitioner's birth certificate at the Hickman crime scene. Magistrate Judge Katz summarized cases where courts have upheld similar, if not more aggressive and colorful comments by prosecutors in their summations. (Report at 39-40 (citing Vega v. Lord, Nos. 00-6661 and 03-0066, 2003 WL 21822636, at *4 (E.D.N.Y. July 7, 2003); Montero v. Sabourin, No. 02-8666, 2003 WL 21012072, at *7 (S.D.N.Y. May 5, 2003); Flores v.Keane, 211 F. Supp.2d 426, 436 (S.D.N.Y. 2001); Snow v.Reid, 619 F. Supp. 579, 585 (S.D.N.Y. 1985))).
Likewise, prosecutor's comments about the fingerprint evidence were a permissible response to defense counsel's attempts to cast doubt on the fingerprint expert and evidence. The prosecutor countered petitioner's summation on the expert's qualifications by arguing that defense counsel's remarks amounted to nothing more than attempt to divert attention from the fingerprint identification evidence. The comments were vigorous advocacy and did not come close to the line of prejudice. Montero, 2003 WL 21012072, at *7 (prosecutor's comment that defense counsel wanted "to distract you from the evidence" was permissible).
Finally, the prosecutor's comment on petitioner's escape was a response to defense counsel's argument on the same issue. (N.Y. Tr. at 387-88) Petitioner offers no argument on how this particular comment denied him a fair trial. Regardless, as with the other allegedly violating comments, the prosecutor was well within bounds in arguing why petitioner would have tried to escape from custody.
Moreover, the trial court instructed the jury that
what an attorney says is not evidence. It's his opinion, his evaluation, his impressions, his recollection. That's his opinion, his recollection. It may not necessarily be yours. What an attorney says to you is not evidence. He is not under oath. He was not a witness to anything. So, again, it's their analysis, their conclusions, their opinions. It's not evidence. It is not necessarily your opinion.
(Report at 40; N.Y. Tr. at 421)
Because (i) the prosecutor's comments included accurate representations of the evidence and were legitimate responses to defense counsel's summation and (ii) the trial court instructed the jury that the summations were not evidence, any prejudice arising from prosecutor's summation was not enough to deprive petitioner of a fair trial. Accordingly, the claim fails.
C. New York Petition: Limiting Instruction
Petitioner claims that he was denied due process because the trial court did not instruct the jury that evidence of his alleged escape had limited probative value as to his guilt on the other charges. Petitioner neither requested such an instruction nor objected to its absence. In Wainwright v. Sykes, 433 U.S. 72 (1977), the Supreme Court held that failure to comply with state procedural rules governing the presentation of federal claims would bar federal habeas review of those claims, absent a showing of cause for noncompliance with the state rule and actual prejudice from the alleged violation of the constitutional right. Resolution of the claim through the state procedural rule must be "independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). New York's contemporaneous objection rule, see N.Y. Crim. P. Law § 470.05(2), constitutes an adequate and independent state procedural rule. See Garcia v. Lewis, 188 F.3d 71, 78-79 (2d Cir. 1999); Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994).
Where a claim is not raised in the trial court and a procedural bar is among the grounds argued by the state on appeal, an affirmance without opinion by the Appellate Division is assumed to have rested on that state procedural ground in the absence of any "good reason to question whether there is an independent and adequate state ground for the decision." Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (quoting Coleman, 501 U.S. at 739).
The state argued to the Appellate Division that petitioner's conviction should be affirmed on both procedural and substantive grounds. The Appellate Division affirmed petitioner's conviction without opinion. Hence, petitioner's jury instruction claim is deemed to have been dismissed by the Appellate Division on procedural grounds. "There is `no good reason' to believe the Appellate Division's silence reflects a decision on the merits."Id.
Federal habeas review is therefore unavailable on the jury charge claim unless petitioner can demonstrate cause for the default of the claim and prejudice or that "a fundamental miscarriage of justice" occurred as a result of the alleged error. Murray v. Carrier, 477 U.S. 478, 496 (1986);Coleman, 501 U.S. at 750; Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir. 2002). Cause exists if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists if "`there is a reasonable probability' that the result of the trial would have been different" absent the alleged constitutional violation. Stickler v. Greene, 527 U.S. 263, 289 (1999). Petitioner provides no explanation for his failure to preserve the claim, and as Magistrate Judge Katz concluded, no cause is "apparent from the record." (Report at 44) Absent a showing of cause, prejudice and "fundamental miscarriage of justice" need not be addressed.
D. New York Petition: Sixth Amendment Claims
Petitioner claims that he was denied his Sixth Amendment right to counsel at the February 29, 1984 line-up because his counsel, Legal Aid attorney Shelli Williams, left the line-up early without his effectively waiving such right, and was not admitted to the New York State bar at the time. Hence, according to petitioner, the trial court erred in denying his motion to suppress the line-up identifications. The state courts rejected this claim without opinion.
1. Departure From the Line-up
A suspect to a crime has a constitutional right to the assistance of counsel at a police line-up, United States v.Wade, 388 U.S. 218, 236-37 (1967), but only after there has been a formal charge, preliminary hearing, indictment, or information with respect to the particular offense for which the line-up is being conducted. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
The Supreme Court warned in Wade that "counsel's presence should [be] a requisite to conduct of the line-up, absent an `intelligent waiver.'" 388 U.S. at 237. "Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a `knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.'" Iowa v.Tovar, 124 S. Ct. 1379, 1383 (2004) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). The Supreme Court has held that a waiver is "an intentional relinquishment or abandonment of a known right or privilege." Schneckloth v. Bustamonte, 412 U.S. 218, 236-37 (1973).
By the time petitioner was transported from Rikers Island to the Manhattan Sex Crimes Unit pursuant to a court order, he had been formally charged with five counts of rape and robbery in New York County. Accordingly, petitioner's right to counsel had attached for petitioner's New York County case. See McNeil, 501 U.S. at 175.
Williams conferred with petitioner about which position he should take in the line-up. Before the commencement of the line-up, Detective Kempton covered a scar on petitioner's forehead with a band-aid and similarly placed band-aids on each filler's forehead. Williams voiced no objection to this procedure or any other. Petitioner then proceeded to participate in a series of line-ups. Kempton conducted each line-up from the viewing room. Almost two-and-one-half hours and six line-ups later, Williams conferred with petitioner before she left the station. The content of this conversation is not of record, except for petitioner's protestation that he did not waive his right to counsel. Alhough petitioner himself did not object to the police proceeding with the line-ups in the absence of counsel, nothing in the record indicates that petitioner waived his right to counsel explicitly. There is nothing in the record that indicates whether McCarron, Variano, or Hickman identified petitioner before or after Williams departed. Detective Kempton proceeded with 12 more line-ups.
Kempton testified that petitioner did not state that he was waiving his right to an attorney. (Report at 49) She did not ask him whether he was aware of his right to counsel at the line-up or if he intended to waive it. (Id.) Although neither Williams nor petitioner told the police that petitioner wanted Williams's assistance at the remaining line-ups, or that the line-ups should cease upon Williams's departure, their silence did not constitute waiver. See Carnley v. H.G. Cochran, 369 U.S. 506, 516 (1962) ("[p]resuming waiver from a silent record is impermissible").
Respondent offers no evidence, nor is it apparent from the record, that petitioner was aware of his right to counsel at the line-up. Hence, his silence following Williams's departure from the line-up could not have "suggest[ed] an abandonment of his entitlement to counsel" or an "implied waiver" of his Sixth Amendment right. United States v. Ming He, 94 F.3d 782, 794 (2d Cir. 1996) (citing North Carolina v. Butler, 441 U.S. 369, 373 (1979)).
However, this case does not involve solely issues of waiver. Petitioner can cite no case establishing that, as a matter of federal constitutional law, he had the right to have counsel observe witnesses' identifications of petitioner. Indeed, the case law leans to the contrary. Although the post-indictment line-up is a "critical stage" in a defendant's prosecution during which the defendant is entitled to the presence of counsel,Wade, 388 U.S. at 237, "the actual identification from a line-up . . ., if made outside the presence of the defendant, is constitutionally valid, since the actual confrontation is the only `critical stage' requiring the presence of counsel." United States v. Tolliver, 569 F.2d 724, 728 (2d Cir. 1978) (citingUnited States v. Bennett, 409 F.2d 888, 900 (2d Cir. 1969));see also Sams v. Walker 18 F.3d 167, 170 (2d Cir. 1994); Lewis v. Strack, No. 97-7787, 1998 WL 404793, at *2 (S.D.N.Y. July 17, 1998). The Second Circuit suggested "that the purpose for which counsel must be present is essentially to see that the line-up procedure is itself adequate to avoid improper suggestion, such as the wearing of differentiating clothes, or a disparity in appearance between the other persons in the line-up and the suspect himself." Tolliver, 569 F.2d at 727. These concerns appear to have been satisfied here, given that Williams did not object to the line-up procedure or composition during the first six line-ups, that she conferred with petitioner over his position in the line-up, and that nothing in the record suggests that the procedure changed with respect to the remaining line-ups or that the police actively deprived petitioner of Williams's presence.
Regardless of whether there was a constitutional error here, it was harmless in light of the overwhelming evidence establishing petitioner's guilt. See United States v. Santopietro, 166 F.3d 88, 94-95 (2d Cir. 1999) (applying harmless error standard to alleged error in federal prosecution regarding jury instruction without first determining that error occurred);Yarborough v. Keane, 101 F.3d 894, 896 (2d Cir. 1996) (upon concluding that any constitutional error was harmless, it was unnecessary to pass on whether constitutional error actually occurred).
The threshold issue in harmless error analysis in a habeas corpus case is whether the alleged constitutional error is a "structural" or a "trial" error. "Structural" errors are fundamental "defects in the constitution of the trial mechanism," of sufficient magnitude to render the criminal process itself unable to "reliably serve its function as a vehicle for determination of guilt or innocence." Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (internal citation omitted). "[B]ecause they infect the entire trial process," "structural" errors require automatic reversal. Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). "Trial" errors, on the other hand, are limited to particular stages of a trial and are "amenable to harmless-error analysis because [they] may be quantitatively assessed in the context of other evidence presented in order to determine the effect [they] had on the trial." Id. at 629 (internal quotations omitted). Unconstitutional denials of counsel at post-indictment pre-trial identification procedures are "trial" errors subject to harmless error analysis. See Moore v. Illinois, 434 U.S. 220, 231-32 (1977); Gilbert v.California, 388 U.S. 263, 272 (1967); Meadows v. Kuhlmann, 812 F.2d 72, 76 (2d Cir. 1987).
Before enactment of AEDPA, courts applied two different harmless error standards. For cases on direct appeal, courts applied the Chapman standard, holding an error was harmless if the reviewing court found "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."Chapman v. California, 386 U.S. 18, 24 (1967). For cases on collateral review, courts applied the Brecht standard, holding that an error was harmless if it did not result in a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
The Second Circuit has suggested that the Brecht standard is less stringent for the government than the Chapman standard.See Peck v. United States, 102 F.3d 1319, 1321 n. 2 (2d Cir. 1996).
After the enactment of AEDPA, many courts have questioned whether they should continue to apply the pre-AEDPA Brecht standard to cases on collateral review, or whether courts should now apply a mixed AEDPA/Chapman standard, examining "whether the state court's decision was `contrary to, or involved an unreasonable application of' Chapman." Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.) (per curiam) (quoting 28 U.S.C. § 2254(d)(1)), cert. denied, 534 U.S. 886 (2001). Post-AEDPA Second Circuit cases have declined to rule on this issue, finding instead that the result is the same under either standard. See, e.g., Cotto v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (noting Chapman/Brecht conflict post-AEDPA and declining to decide the issue because result is the same under either test);Loliscio v. Goord, 263 F.3d 178, 185 n. 1 (2d Cir. 2001) (same); Fuller v. Gorczyk, 273 F.3d 212, 220-21 (2d Cir. 2001) (noting that "the continued vitality of Brecht in light of amended § 2254 remains open in this circuit" but declining to decide the issue because "the result would be the same [under Brecht] as under our analysis that the state court did not `unreasonably apply' the Chapman harmless error test on direct review"). Here, where the state courts found no error at all and hence did not engage in a harmless error analysis, an AEDPA/Chapman standard seems inapposite. See Fuller, 273 F.3d at 220-21 (noting that inLainfiesta v. Artuz, 253 F.3d 151, 158 (2d Cir. 2001), cert. denied, 535 U.S. 1019 (2002), the Court applied the Brecht harmless error standard because "the state court did not apply the Chapman harmless error test on direct review, as it found no constitutional error"). Regardless, it is unnecessary to decide which standard to apply here because the error complained of was harmless error by either standard.
Subtracting the line-up identification testimony of McCarron, Variano, and Hickman, the state's evidence included fingerprint evidence and expert testimony, the victims' photographic and in-court identifications, and the discovery of petitioner's birth certificate at the scene of the Hickman rape and robbery. This evidence is sufficient to deem the admission of the line-up identification testimony harmless. Meadows, 812 F.2d at 76-77 (witness's testimony about his line-up identification was "merely surplusage"; hence, admission of evidence on line-up, which was held in absence of counsel, was harmless"); Elliott v. Kuhlmann, No. 97-2987, 2004 WL 1375160, at *7 (S.D.N.Y. June 17, 2004).
The victims' photographic identifications (which occurred before the line-up), see supra, and in-court identifications are reliable and untainted by the line-up identifications. See Wade, 388 U.S. at 239-41. McCarron, who spoke with petitioner on four separate occasions, spent about half an hour answering his questions during his first two visits to the store and was so familiar with him that she recognized him when he appeared at the store on the day of the crime. Upon his final visit to the store, McCarron introduced petitioner to Variano as a familiar customer. Variano herself recognized petitioner from his previous visits. All these encounters were at close range and in well-lit surroundings. The Second Circuit has recognized that "when a witness also is the victim of a crime, the reliability of the identification is enhanced." Meadows, 812 F.2d at 76 (citingUnited States ex rel. Phipps v. Follette, 428 F.2d 912, 915-16 (2d Cir. 1970)).
Hickman's in-court identification is similarly reliable. Assistant District Attorney Linda Fairstein, who interviewed Hickman shortly after she was assaulted and robbed, testified at trial that Hickman described her assailant as "small," that she "saw him almost eye to eye," and that "he was about five foot five." (N.Y. Tr. at 346) Hickman told Fairstein also that during her first encounter with petitioner, she "had worked with him for approximately fifteen minutes alone face to face in a well-lit room." (Id.) During their second encounter, which included the sexual assault, Hickman was able to view petitioner's face for almost half an hour and that "she could not forget her assailant's face." (Id. at 346-47)
Petitioners' fingerprints were found at both the McCarron/Variano and Hickman crime scenes on furniture known to have been touched by the rapist. Detective Philip Lynch, an expert in fingerprint identification, testified that the similarities between petitioner's thumb-print and the prints found at the crime scenes established conclusively that they were one and the same. (Id. at 287) Petitioner fails to explain how or why his birth certificate found at the Hickman crime scene is not incriminating.
Hence, this claim is dismissed because the victims' testimony regarding their line-up identifications of petitioner neither "contribute[d] to the verdict," Chapman, 386 U.S. at 24, nor had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.
2. Williams's Bar Status
At the time of the line-up, Shelli Williams was a law school graduate who had passed the New York State bar examination and was employed by the Legal Aid Society. She represented petitioner pursuant to New York law that allows certain law school graduates who have taken the bar examination to act as counsel. Williams was also admitted pro hac vice pursuant to New York court rules.
N.Y. Judiciary Law Section 478 forbids the practice of law without a license and admission to practice in the state. The statute does not apply
to law students who have completed at least two semesters of law school or persons who have graduated from a law school, who have taken the examination for admittance to practice law in the courts of record in the state immediately available after graduation from law school, or the examination immediately available after being notified by the board of law examiners that they failed to pass said exam, and who have not been notified by the board of law examiners that they have failed to pass two such examinations, acting under the supervision of a legal aid organization when such students and persons are acting under a program approved by the appellate division of the supreme court of the department in which the principal office of such organization is located and specifying the extent to which such students and persons may engage in activities otherwise prohibited by this statute.
N.Y. Jud. Law § 478. See also N.Y. Jud. Law § 495(7) (excepting legal aid organizations from rule forbidding corporations and voluntary associations from legal practice).
Section 602.2(c) of the Appellate Division, First Department's Rules of Court provides:
An attorney and counselor at law, or the equivalent from another state, territory, district or foreign country, who is a graduate of an approved law school, may apply to this court, by duly verified petition, for admission pro hac vice to advise and represent clients and participate in the trial or argument of any case while employed or associated with an organization, described in subdivision 7 of section 495 of the Judiciary Law, whose principal office is located in this department, or during employment with a district attorney, corporation counsel or the Attorney General; but such admission pro hac vice shall be for no longer than 18 months.
N.Y. Ct. Rules § 602.2(c) (1st Dep't).
Petitioner argues that because Williams was unlicensed, he suffered a "total denial" of his Sixth Amendment right to counsel not amenable to harmless error analysis. The Second Circuit has found such "per se" violations in two limited circumstances: where, unknown to the defendant, his or her counsel was, at the time of trial (i) not duly licensed to practice law because of a failure ever to meet the substantive requirements for the practice of law, see United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990) (counsel fraudulently procured license by misrepresenting that he was entitled to a special dispensation from the bar examination); Solina v. United States, 709 F.2d 160, 167 (2d Cir. 1983) (counsel repeatedly failed the bar exam and was not a member of any bar) or (ii) implicated in the defendant's crimes, see United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Even on these rare occasions, the Court has applied the per se rule "without enthusiasm." United States v. Aiello, 900 F.2d 528, 532 (2d Cir. 1990); see also Hurel Guerrero v. United States, 186 F.3d 275, 279 (2d Cir. 1999).
The Second Circuit has advanced two rationales for applying the per se rule. The first is "jurisdictional" and applies in cases where the attorney is not duly licensed at the time of trial. It stems from the Supreme Court's decision in Johnson v. Zerbst, 304 U.S. 458, 468 (1938), that the failure to provide a criminal defendant with counsel created "a jurisdictional bar to a valid conviction." See Solina, 709 F.2d at 168-69 (discerning no meaningful distinction between total absence of representation and representation by unlicensed counsel). The second rationale is based on notions of conflict of interest, and applies in cases both where the lawyer is not duly licensed, see Novak, 903 F.2d at 890; Solina, 709 F.2d at 164, and where the lawyer is implicated in the crimes of his or her client, see Cancilla, 725 F.2d at 870. In these cases, the defense counsel is necessarily compromised because the advocate ordinarily "cannot be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his [or her] background and discover his [or her] lack of credentials," Solina, 709 F.2d at 164, or own wrongdoing.
However, in Solina, the Second Circuit cautioned that the per se rule did not mandate that "any technical defect in the licensed status of a defendant's representative would amount to a violation of the Sixth Amendment." 709 F.2d at 167. The rule is limited "to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character." Id. Here, the only "defect" in Williams's status at the time of the line-up was that she had not been sworn in to the bar. It does not stem from any of the concerns articulated by the Court in Solina. Williams was neither masquerading as an attorney nor laboring under a conflict of interest. The trial court was fully aware of Williams's status as a law graduate representing clients under the supervision of the Legal Aid Society and pursuant to New York court rules. Hence, Williams's professional status and compliance with court rules satisfied Sixth Amendment concerns.
As examples of cases in which mere technical flaws in licensure had not been deemed sufficient to deprive the accused of the right to counsel, the Second Circuit in Solina citedWilson v. People, 652 P.2d 595 (Colo. 1982) (counsel had graduated from an accredited law school and passed the bar examination and the requisite moral scrutiny but had simply failed to take the oath, which the state, upon discovery of that fact, allowed him to do), and People v. Cornwall, 3 Ill. App.3d 943, 277 N.E.2d 766 (1971) (out-of-state attorney had failed to seek admission pro hac vice).
IV.
In his Bronx petition, petitioner argues that (i) he was denied his Sixth Amendment right to counsel at the line-up for substantially the same reasons as in his New York petition; (ii) he was denied effective assistance of counsel on the same two grounds cited in his New York petition; (iii) he was denied his right to due process because the trial court denied his request to call two complainants to testify at the Wade hearing regarding a newspaper photograph of petitioner; (iv) the line-up procedure was unduly suggestive because of physical discrepancies between petitioner and the line-up fillers; and (v) he was denied effective assistance of counsel because his trial counsel failed to contest line-up counsel's professional status, rendering petitioner's guilty plea unknowing and involuntary. I must address first whether state remedies were exhausted with respect to certain claims and whether they are procedurally barred from federal habeas review.
A. Bronx Petition: Procedural Bar
In his brief to the Appellate Division, petitioner raised the following claims: (i) denial of his Sixth Amendment right to counsel at the line-up because Williams left before the Bronx witnesses identified him and because Williams was not a licensed attorney at the time of the line-up; (ii) denial of his Sixth Amendment right to effective assistance of counsel based on the same two grounds; (iii) denial of due process because one of the victims had seen a newspaper photograph of petitioner before identifying him at the line-up; (iv) denial of due process because the trial court did not allow him to Ciani and Chatelain to testify during the Wade hearing with regard to theDaily News photograph; and (v) denial of due process because physical discrepancies between petitioner and the line-up fillers rendered the line-up unduly suggestive.(fn11)
Petitioner does not raise this claim in his habeas petition.
Magistrate Judge Katz concluded that the claims raised in petitioner's Appellate Division brief were not presented fairly to the New York Court of Appeals. However, he deemed the claims exhausted under Section 2254 because they are barred from further review in the state courts. All state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A);O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy this exhaustion requirement, a habeas petitioner must present his federal claims fairly to the highest state court from which a decision can be had and inform the court of the factual and legal bases for the claims asserted. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990).
Petitioner's letter requesting leave to appeal to the New York Court of Appeals did not identify any issues for appeal but instead stated that his Appellate Division brief was attached. (Ex. 4 to Wanderman Affidavit) The Second Circuit has held consistently that an issue is not "fairly presented" to the New York Court of Appeals if it is not identified in the letter requesting leave to appeal. In Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), the petitioner identified one claim in his leave-to-appeal letter to the Court of Appeals and also attached his Appellate Division briefs, which raised three issues including the one specified in the letter. The Second Circuit held that only the claim raised expressly in the petitioner's leave-to-appeal letter had been exhausted. Id. Similarly, inJordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000), the Second Circuit held that "[a]rguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly apprise the state court of those remaining claims." Although the issue must be identified, it need not be discussed at length in the letter requesting leave to appeal. In Ramirez v. Attorney General of the State of New York, the Second Circuit stated:
We perceive the line drawn between Morgan and Jordan to be as follows. References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal.280 F.3d 87, 97 (2d Cir. 2002); see also Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000) (An explicit request that the Court of Appeals "consider and review all issues outlined in the [defendant's appellate] brief" presents fairly all the claims in the brief to the Court of Appeals.).
This case is indistinguishable from Richardson v. Greiner, No. 97-5448, 2003 WL 76994 (S.D.N.Y. Jan. 9, 2003), where Judge Cedarbaum concluded that the attachment of the appellate brief to the leave-to-appeal letter, without identifying explicitly any of the issues to be reviewed, did not "fairly present" those issues to the Court of Appeals. Id. at 1-2. She held ultimately that the claims were exhausted under Section 2254, but that they were barred from habeas review because the petitioner's failure to fairly present his claims to the Court of Appeals constituted an "independent and adequate state law ground for judgment." Id. at 2. In this case, the attached appellate brief raised six issues, four of which the Appellate Division had held procedurally barred from further review because they were unpreserved at trial. Petitioner did not identify a single issue to the exclusion of the others, as in Jordan or Grey. Rather, he merely stated in his application that he was enclosing his Appellate Division brief, and did not mention any of his claims. The New York Court of Appeals' bare determination that "there is no question of law which ought to be reviewed by the Court of Appeals" could be responsive to any or all of the claims argued in petitioner's appellate brief. (Ex. 5 to Wanderman Aff.) By failing to identify any issues in his request for leave to appeal, petitioner failed to "fairly present the substance of a federal constitutional claim to the state court," Daye v. Attorney Gen. of New York, 696 F.2d 186, 192 (2d Cir. 1982).
Petitioner's failure to preserve these four claims is another "adequate and independent" state ground barring habeas review. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); Chisolm v. Headley, 58 F. Supp.2d 281, 284 (S.D.N.Y. 1999). These claims are: (i) the Sixth Amendment claim premised on Williams's bar status; (ii) the ineffective-assistance-of-counsel claims; (iii) the due process claim that the line-up procedures were unduly suggestive because of physical discrepancies between petitioner and the line-up fillers; and (iv) the due process claim that the trial court erred by not allowing him to call Ciani and Chatelain to testify at the Wade hearing. Dismissal of a claim for failure to preserve is "an adequate and independent state ground" for dismissal on a procedural default. Because the last "reasoned" opinion on petitioner's claims — the Appellate Division's decision — explicitly imposed a state procedural bar on the four claims described above, federal habeas review of these claims is unavailable. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (applying the presumption that where "the last reasoned opinion on [a] claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits").
The procedural bar is no less effective because the Appellate Division considered briefly and rejected the merits of plaintiff's unpreserved claims. "Federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also Harris, 489 U.S. at 264 n. 10.
Petitioner has shown neither cause nor prejudice for his delinquency. Grey, 933 F.2d at 162.
Petitioner is barred now from making any additional leave application because his application for leave to appeal has been denied already by the New York Court of Appeals. N.Y. Court Rules § 500.10(a); Bossett, 41 F.3d at 829; Alston v. Senkowski, 210 F. Supp.2d 413, 419 (S.D.N.Y. 2002). On collateral review, the state courts have already denied petitioner relief as to his Sixth Amendment claims because they either could have been, or were in fact, raised on direct appeal. N.Y. Crim. P. Law §§ 410.10(2)(a) (c); Bossett, 41 F.3d at 829. Therefore, petitioner's claims raised in his Appellate Division brief are deemed exhausted for purposes of habeas review, but his procedural default is an independent and adequate state law ground for the judgment, which renders habeas review unavailable.Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Since petitioner has shown neither cause nor prejudice for his state delinquency, his claims must be dismissed. See id. at 162.
After deciding that the claims were procedurally barred, Magistrate Judge Katz concluded also that each of the claims was meritless. (Report at 62-68) I adopt this portion of the Report.
B. Bronx Petition; Guilty Plea
Petitioner raised a due process claim regarding his guilty plea for the first time in his Section 440.10 motion. (Ex. 7 to Wanderman Aff.) Citing Sections 440.10(2) (a) and (e), the Bronx Supreme Court dismissed the claim, along with the rest of the motion, because the issues underlying the claim "were also before the Appellate Division on Defendant's direct appeal." (Ex. 9 to Wanderman Aff.) Magistrate Judge Katz surmised that instead of the non-existent Subsection (e), the state court meant to cite Subsection (c), see supra note 5, which is applicable to such procedural defaults. Nonetheless, because the order dismissing the state collateral proceeding also cited Subsection (a), albeit incorrectly, it is not clear that the federal habeas court may rely on that procedural default. The Supreme Court stated the standard to be applied in determining procedural default:
In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.Coleman, 501 U.S. at 739 (footnote omitted). By that standard, petitioner has not forfeited his guilty plea claim. A dismissal under § 440.10(2) (a) is not based on any procedural default. See Douglas v. Hollins, No. 00-7928, 2004 WL 187130, at 6 n. 5 (S.D.N.Y. Jan. 29, 2004). "To the contrary, it is premised on a prior decision" on the merits, Anderson v. Scully, No. 90-171, 1991 WL 156234, at *3 (S.D.N.Y. Aug. 7, 1991), such that it does "not constitute a state law ground for dismissal that is independent of the merits of petitioner's federal claims." Id. at *3 (citing Ylst, 501 U.S. at 804).
Although it is questionable whether the state court properly cited Section 440.10(2) (a), it did unquestionably cite it. Thus, in terms of the Coleman analysis, the "decision of the last state court to which the petitioner presented his federal claims fairly appeared . . . to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground." The Supreme Court directs that in such cases, "a federal court may address the petition."
In the Bronx petition, petitioner fashions his guilty plea claim in terms of ineffective assistance of counsel, arguing that trial counsel allowed him to plead guilty without challenging the bar status of Williams.14
To prevail on a claim of ineffective assistance of counsel, petitioner must establish (i) that his counsel's performance fell below an objective standard of reasonableness and "that there was a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different."Strickland v. Washington, 466 U.S. 668, 687-94 (1984). As to a guilty plea, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). "A heavy measure of deference" is accorded "to counsel's judgments."Strickland, 466 U.S. at 691.
The claim is meritless. Petitioner has not shown a deficiency in counsel's performance at the plea hearing, much less shown that such deficiency caused petitioner's plea to have been involuntary and unknowing. Williams's professional status was clarified during the Wade hearing. A prosecutor provided the trial court with a letter from the Legal Aid Society confirming that at the time of the line-up, Williams had completed law school and had passed the New York State bar examination. The trial court found the same. In the face of documentary proof, it is unsurprising that trial counsel chose not to contest Williams's status as an attorney. His failure to do so cannot be considered ineffective assistance. As for what petitioner calls "newly discovered evidence," letters attached by petitioner which state that Williams was not admitted to the bar merely confirm facts found by the trial court and known to petitioner throughout state proceedings. Hill, 474 U.S. at 59 (where it is unlikely "that discovery of the evidence would have led counsel to change his recommendation as to the plea," ineffective assistance claim fails); Miller v. Angliker, 848 F.2d 1312, 1322 (2d Cir. 1988). Accordingly, this claim is dismissed.
* * *
For the reasons set forth above, the writs are denied and the petitions are dismissed. Magistrate Judge Katz's Report is modified to the extent that it differs from this opinion. Because reasonable jurists could differ on whether petitioner was denied his Sixth Amendment right to counsel as to his New York County conviction and whether admission of the line-up identification testimony in alleged derogation of that Sixth Amendment right was harmless error, a certificate of appealability will issue.SO ORDERED.