Opinion
00 Civ. 1356 (LTS) (AJP)
August 2, 2001
REPORT AND RECOMMENDATION
To the Honorable Laura Taylor Swain, United States District Judge
Pro se petitioner Michael Ferguson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from his 1995 second degree murder conviction in Supreme Court, Bronx County, alleging that: (1) he "was deprived of due process because the evidence did not establish his guilt beyond a reasonable doubt in this single eyewitness identification case" (Dkt. No. 1: Pet. ¶ 12(A)); (2) his sentence of twenty-five years to life "was excessive and should be reduced in the interest of justice" since he had no prior felony record (Pet. ¶ 12(B)); (3) he was denied his Sixth Amendment right to counsel during the line-up (Dkt. No. 13: 5/10/01 Ferguson Aff. on Motion to Amend, Point III); (4) he was denied his right to a fair trial because the prosecution withheld material evidence (id., Point IV).
For the reasons set forth below, Ferguson's petition should be denied.
FACTS
The Prosecution Case at Trial
Trial began on September 18, 1995 in Supreme Court, Bronx County. (Trial Transcript ["Tr."] 1.) The prosecution's main witness was Michael Zelenz, the sole eyewitness to the crime. (Zelenz: Tr. 124-75.)
Zelenz testified that on March 17, 1993, he was a United Parcel Service supervisor and was delivering packages in the Bronx. (Zelenz: Tr. 125-26, 143-44.) At approximately 12:45 p.m., Zelenz was at the intersection of White Plains Road and East 228th Street waiting to make a left turn. (Zelenz: Tr. 126-27, 130.) Zelenz saw a commotion approximately thirty feet away on the right side of the street, and saw two men running in his direction, one man approximately five feet behind the other. (Zelenz: Tr. 127-28, 146, 148, 151-52.) Zelenz testified that he had an unobstructed view of the men. (Zelenz: Tr. 128-29, 134-35.)
Zelenz testified that the man closest to him (later identified as Donovan Smith) wore a dark blue windbreaker, a black baseball cap and green pants. (Zelenz: Tr. 130-31, 155, 171; see also Pearl: Tr. 73-74; Rochester: Tr. 112; O' Rourke: Tr. 217.) Zelenz testified that the man farther away from him (later identified as petitioner Michael Ferguson) was approximately six feet tall, weighted 175 pounds, and wore a waist length, puffy tan jacket and a sweatshirt hood over his head. (Zelenz: Tr. 131-33, 153, 155, 171, 173.) Zelenz also noted that Ferguson was holding a large, black, automatic gun. (Zelenz: Tr. 133-34, 163, 173.)
According to Zelenz, his written statement taken that day by the police reversed the victim's and the shooter's descriptions. (Zelenz: Tr. 154-56.) The police report regarding Zelenz's statements described the victim as wearing a tan jacket and the shooter wearing the blue windbreaker; the report also indicated that Zelenz stated the victim weighed about 160 pounds and was approximately six feet tall and that the shooter was approximately five feet eight inches tall. (Zelenz: Tr. 154.) Zelenz did not review what the detective wrote and he was not asked to sign the document. (Zelenz: Tr. 171-72.) At trial, Zelenz testified that the written description was incorrect and reversed the clothing and body type descriptions. (Zelenz: Tr. 154-55.) Zelenz also testified that it was a "very emotionally charged day" and it was possible he gave the police the wrong description. (Zelenz: Tr. 155.)
When the two men were about fifteen feet away, Zelenz saw Smith, the man running ahead, jump or slip over a snow bank. (Zelenz: Tr. 128, 133, 152.) Zelenz heard a shot ring out, and saw Smith twist and fall onto his back. (Zelenz: Tr. 128, 133, 151-52.) Zelenz saw Ferguson, who was running behind Smith, walk up to the prone Smith, place his feet on either side of Smith's body, put the gun against Smith's head and fire. (Zelenz: Tr. 128, 133-34.) Ferguson turned around, looked in Zelenz's direction, put the gun in his jacket and walked down a driveway between the apartment houses on East 228th Street. (Zelenz: Tr. 128, 134-36, 166, 170.) Zelenz testified that when the shooter turned and looked in his direction, he got "a good look at the shooter's face." (Zelenz: Tr. 170-71.)
Zelenz testified that the whole incident took approximately thirty seconds, and that he observed Ferguson's face for "probably about three or four seconds." (Zelenz: Tr. 159-60.) After the shooting, Zelenz made a left turn, pulled his truck over to the side of the road, and called 911 from a public telephone. (Zelenz: Tr. 136, 164-66.)
At approximately 1:00 p.m. on March 17, 1993, police officer Edward Brogan and his partner responded to a call of "a man possibly shot" at White Plains Road and East 228th Street. (Brogan: Tr. 35-37.) The officers observed Smith's body, apparently deceased, on a snow bank with a gunshot wound to his head. (Brogan: Tr. 37-38, 45-46; O'Rourke: Tr. 216; see also Rochester: Tr. 93-94.) Officer Brogan called the Crime Scene Unit, roped off the area and conducted a search for evidence. (Brogan: Tr. 38-39, 44, 47-48; Rochester: Tr. 121-22; O' Rourke: Tr. 217.) Crime Scene Unit Detective Abe Rochester found a copper-jacketed lead bullet and a .9 millimeter discharge shell underneath Smith's body. (Rochester: Tr. 91-93, 99, 102-03, 105-08, 110.) No weapon was found during the police's canvassing. (O'Rourke: Tr. 219.)
Detective Anthony Tota, the State's ballistic expert (Tota: Tr. 248, 250), testified that the .9 millimeter copper-jacketed bullet and the discharge shell together constituted the by-product of a .9 millimeter semi-automatic or automatic weapon. (Tota: Tr. 252.) Detective Tota explained how shell casings eject (Tota: Tr. 255-57, 259) and stated that the possible trajectory of a shell, after a .9 millimeter is fired, would be 6-10 feet outward (i.e., not straight down) (Tota: Tr. 256-59). Detective Tota noted, however, that once the shell casing hit the ground it "would bounce like a football" and that the shooting victim could fall on it and that in his prior experience that had happened. (Tota: Tr. 258-59.) The police found the shell directly underneath Smith (Rochester: Tr. 99, 103), and the defense tried to discredit Zelenz's testimony by arguing that it would have been impossible for the shell case to have landed underneath Smith since the normal trajectory is 6 to 10 feet outward. (Summation: Tr. 346-47.)
Dr. Jon Pearl, Acting Deputy Chief of the Medical Examiner's Office, testified that Smith's autopsy report revealed that Smith died from two gunshot wounds, one shot that entered through his right cheek and another in his back. (Pearl: Tr. 59-60, 63, 65-69.) Dr. Pearl said that the shot in the face was a contact wound because there was a muzzle imprint mark. (Pearl: Tr. 66-67, 74-75.) Dr. Pearl testified that the gunshot wounds were consistent with Zelenz's testimony. (Pearl: Tr. 69-70.)
On April 22, 1993, Ferguson was arrested on White Plains Road, a half block from the crime scene, wearing a tan jacket. (O' Rourke: Tr. 221-24.) Ferguson told police his address was 858 East 230th Street, two blocks from the shooting. (O'Rourke: Tr. 225.) At the time of his arrest, Ferguson had a mustache (O'Rourke: Tr. 226-27) and a scar on his lip on which no facial hair grew (Murphy: Tr. 267-68). On the day Ferguson was arrested, Zelenz viewed a line-up and identified Ferguson as the shooter. (Zelenz: Tr. 138-40; O' Rourke: Tr. 225-26.) At trial, Zelenz again identified Ferguson as the shooter. (Zelenz: Tr. 140-42, 144.)
On cross-examination, Zelenz testified that at a distance of approximately fifteen feet, he could see a scar on Ferguson's lip in the courtroom. (Zelenz: Tr. 145. 157.) Zelenz did not tell police that the shooter had a mustache or scar on his left lip, nor could he remember whether the shooter had either. (Zelenz: 157-58, 170-71.) Detective O'Rourke testified that he did not notice any scars on Ferguson's face at the time of his arrest, but he could see the scar at trial. (O'Rourke: Tr. 229.) Detective O'Rourke stated that Ferguson had a mustache at the time of his arrest and line-up that could have covered the scar. (O'Rourke: Tr. 229.)
The Defense Case at Trial
Ferguson's mother, Sonia Murphy, testified that Ferguson injured his face in a 1992 car accident and received stitches that left a scar along the side of his nose. (Murphy: Tr. 264-67.) Murphy testified that no hair grows on the scar tissue and that the scar is visible even when Ferguson has facial hair. (Murphy: Tr. 267-68.) Murphy noted that her son's facial hair at trial was about as full as the mustache he had in his arrest photograph, where the scar was visible. (Murphy: Tr. 268.)
Verdict and Sentencing
The jury convicted Ferguson of second degree murder. (Tr. 435-37.) On October 16, 1995, the trial court sentenced Ferguson to twenty-five years to life imprisonment. (10/16/95 Sentencing Tr. 5-7.)
Ferguson's Direct State Court Appeal
Represented by counsel, Ferguson's direct appeal to the First Department argued that: (1) Ferguson was deprived of due process since the evidence did not establish his guilt beyond a reasonable doubt because Zelenz mis-identified Ferguson (Dkt. No. 9:2/16/01 A.D.A. Raffaelina Gianfrancesco Aff. Ex. 1: Ferguson 1st Dep't Br. at 13-19); and (2) his sentence was excessive (id. at 19-21).
On December 3, 1998, the First Department affirmed Ferguson's conviction. People v. Ferguson, 256 A.D.2d 46, 680 N.Y.S.2d 848 (1st Dep't 1998). The First Department's opinion, in full, reads:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's determinations concerning reliability of identification testimony. We perceive no abuse of sentencing discretion.
People v. Ferguson, 256 A.D.2d at 46, 680 N.Y.S.2d at 848.
The New York Court of Appeals denied leave to appeal on January 25, 1999. People v. Ferguson, 92 N.Y.2d 1048, 685 N.Y.S.2d 426 427 (1999).
Ferguson's State Post-Conviction Proceedings
In December 1999, Ferguson filed two pro se motions in the trial court to vacate his conviction pursuant to N.Y. CPL § 440.10. (See Dkt. No. 9:2/16/01 Gianfrancesco Aff. ¶ 10 Ex. 3: Ferguson § 440.10 Motions Affidavits.) Ferguson claimed, inter alia, that the prosecution "failed to turn over certain evidence in violation of" his constitutional rights (Gianfrancesco Aff. Ex. 3: Ferguson CPL § 440.10 Motion at p. 1 ¶ A), but he did not in any way describe what that "certain evidence" was. Ferguson also claimed that "defense counsel was not present with defendant during [the] line-up." (Id. at p. 2 ¶ D; see also Gianfrancesco Aff. Ex. 3: Ferguson 12/9/99 Aff. ¶ 6.)
On April 17, 2000, the trial judge denied Ferguson's motions in all respects. (Dkt. No. 9: Gianfrancesco Aff. ¶ 12 Ex. 5:4/17/00 Opinion.) The trial judge held that Ferguson "does not identify what the evidence was that the People failed to provide." (Gianfrancesco Aff. Ex. 5:4/17/00 Opinion at 2.) The trial court denied Ferguson's claim as to lack of counsel at the lineup; since Detective O'Rourke testified at the pretrial suppression hearing and trial that no counsel was present, Ferguson could have, but did not, raise the issue on direct appeal. (Id. at 3.) The trial judge also found "no legal basis for this ground of the defendant's motion." (Id.) On June 20, 2000, the First Department denied leave to appeal from the denial of Ferguson's CPL § 440.10 motions. (See Gianfrancesco Aff. ¶ 12.)
Ferguson's Current Federal Habeas Petition
Ferguson's present timely filed federal habeas petition is dated January 20, 2000 and was received by the Court's Pro Se Office on January 25, 2000. (Dkt. No. 1: Pet. at p. 2, 7.) Ferguson's habeas petition raises two claims: that (1) he "was deprived of due process because the evidence did not establish his guilt beyond a reasonable doubt in this single eyewitness identification case" (Pet. ¶ 12(A)), and (2) his sentence of twenty-five years to life "was excessive and should be reduced in the interest of justice" since he had no prior felony record (Pet. ¶ 12(B)). In May 2001, Ferguson filed a motion to amend his petition pursuant to Rule 15, Federal Rules of Civil Procedure, to assert two additional claims: that (3) he was denied his Sixth Amendment right to counsel during his line-up (Dkt. No. 13:5/10/01 Ferguson Aff. on Motion to Amend, Point III), and (4) he was denied his right to a fair trial because the prosecution withheld material evidence (id., Point IV). By Orders dated June 12 and 14, 2001, Judge Swain referred Ferguson's petition, and his motion to amend, to me for a Report Recommendation. (Dkt. Nos. 14-15.)
ANALYSIS
I. FERGUSON'S CLAIM THAT HIS CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE IS WITHOUT MERIT
"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virgini a, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at * 6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at * 7 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at * 5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at * 7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at * 14 (S.D.N.Y. Nov. 19, 1997) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at * 25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at * 4 (S.D.N Y Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at * 4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).
Petitioner Ferguson bears a very heavy burden:
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. . . . In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor."), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7; Simmons v. Mazzuca, 2001 WL 537086 at * 7; Jones v. Duncan, 2001 WL 322190 at * 7; Cassells v. Ricks, 2000 WL 1010977 at * 6; Ventura v. Artuz, 2000 WL 995497 at * 8; Roldan v. Artuz, 78 F. Supp.2d at 267; Estrada v. Senkowski, 1999 WL 1051107 at * 15; Cruz v. Greiner, 1999 WL 1043961 at * 25; Jones v. Strack, 1999 WL 983871 at * 13 n. 9; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at * 5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).
Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d 1383, 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43; Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); Simpson v. Portuondo, 2001 WL 830946 at *7-8; Simmons v. Mazzuca, 2001 WL 537086 at * 7; Jones v. Duncan, 2001 WL 322190 at *7; Cassells v. Ricks, 2000 WL 1010977 at * 6; Ventura v. Artuz, 2000 WL 995497 at * 8; Roldan v. Artuz, 78 F. Supp.2d at 267; Estrada v. Senkowski, 1999 WL 1051107 at * 15; Cruz v. Greiner, 1999 WL 1043961 at * 25; Jones v. Strack, 1999 WL 983871 at * 13; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at * 5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at * 4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
Here, Ferguson argues that he "was deprived of due process because the evidence did not establish his guilt beyond a reasonable doubt in this single eyewitness identification case." (Pet. ¶ 12(A).) Ferguson's argument is without merit.
Zelenz testified that he saw Ferguson commit the murder. (See pages 3,5 above.) Zelenz testified that he got a good look at Ferguson and concentrated on Ferguson's face for approximately three or four seconds. (Zelenz: Tr. 160, 170-71.) Zelenz observed that Ferguson was approximately six feet tall and wore, inter alia, a waist length, puffy tan jacket. (Zelenz: Tr. 131-33, 1153, 155, 171, 173.) The police arrested Ferguson, wearing a tan jacket, half a block away from the crime scene, which was two blocks away from his home. (O'Rourke: Tr. 221-25.) Finally, Zelenz unequivocally identified Ferguson as the killer in a line-up and at trial. (Zelenz: Tr. 138-42, 144.)
The jury chose to credit Zelenz's (and the other prosecution witnesses') testimony and convicted Ferguson of Smith's murder. "[T]he jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)).
Accord, e.g., United States v. Rosa, 11 F.3d at 337; Simpson v. Portuondo, 2001 WL 830946 at *8; Simmons v. Mazzuca, 2001 WL 537086 at * 8; Ventura v. Artuz, 2000 WL 995497 at * 8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Senkowski, 1999 WL 1051107 at * 16; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at * 5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at * 4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
This Court may not reassess the jury's finding of credibility: "' [f]ederal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution."' Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at * 3 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993)).
Accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 8; Simmons v. Mazzuca, 2001 WL 537086 at * 8; Ventura v. Artuz, 2000 WL 995497 at * 8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Artuz, 1999 WL 1051107 at * 16; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416-17; Williams v. Bennet, 1998 WL 236222 at * 5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; see also, e.g., Huber v. Schriver, 140 F. Supp.2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. . . . However, under both the state law . . . and federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury . . . . "); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").
Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). The fact that Zelenz was the only eyewitness and his testimony was the primary evidence against Ferguson, and/or that there were some inconsistencies in Zelenz's testimony, does not change the result. See, e.g., Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction."); Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[T]his was 'not a case in which the sole witness was uncertain of his identification . . . [n]or is it one of testimony incredible as a matter of law.'"); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at * 4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . . The alleged inconsistencies in Mendez's description of Means's earring and facial hair are insufficient to undermine Mendez's testimony.").
Accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at *8; Simmons v. Mazzucca, 2001 WL 537086 at *8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Senkowski, 1999 WL 1051107 at * 17; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at * 5; Williams v. Bennet, 1998 WL 236222 at *6; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
See also, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 9; Carromero v. Strack, 1998 WL 849321 at *5 (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 1998 WL 236222 at * 5 ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at * 4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness. . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").
Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. The AEDPA amended 28 U.S.C. § 2254(d) to provide that:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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; 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). See, e.g., Williams v. Taylor, 529 U.S. 362, 402-09, 120 S.Ct. 1495, 1518-21 (2000) (explaining scope of "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1)). For the reasons stated above, this Court cannot say that the First Department's decision that the evidence was sufficient to convict Ferguson of murder was contrary to established federal law or was based on an unreasonable determination of the facts.
See also, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (same; "[s]ome increment of incorrectness is required" for there to be "unreasonable application") (quoting Francis S. v. Stone, 221 F.3d 100, 107-11 (2d Cir. 2000)); Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000), cert. denied, 121 S.Ct. 865 (2001); Simpson v. Portuondo, 2001 WL 830946 at * 9; Simmons v. Mazzuca, 2001 WL 537086 at *9; Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *21 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Collins v. Travis, 00 Civ. 3746, 2000 WL 1476664 at *5-6 (S.D.N.Y. Oct. 5, 2000) (Peck, M.J.); Ventura v. Artuz, 2000 WL 995497 at * 5-6; Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at * 13-23 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report recommendation adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Roldan v. Artuz, 78 F. Supp.2d at 269-70.
See, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 9 (applying AEDPA review standard to insufficiency of evidence claim); Simmons v. Mazzuca, 2001 WL 537086 at * 9 (same); Huber v. Schriver, 140 F. Supp.2d at 276-78 (same); Manning v. Walker, No. 99 Civ. 5747, 2001 WL 25637 at * 5-6 (E.D.N.Y. Jan. 3, 2001) (same); Davis v. Keane, 97 Civ. 8328, 2000 WL 1041454 at *2-3 (S.D.N.Y. July 28, 2000) (same); Garvey v. Kelly, 104 F. Supp.2d 169, 170-73 (W.D.N.Y. 2000) (same); Roldan v. Artuz, 78 F. Supp.2d at 269-70 (same); Estrada v. Senkowski, 1999 WL 1051107 at * 17-18 (same); see also, e.g., Hurtado v. Tucker, 245 F.3d 7, 14-20 (1st Cir. 2001) (suggesting "guidelines as to some . . . of the principles in an insufficiency-of-the-evidence case to be used in making the evaluation of objective unreasonableness under § 2254(d)(1)"); Romano v. Gibson, 239 F.3d 1156, 1164-65 n. 2 (10th Cir. 2001) (recognizing split in Tenth Circuit "as to whether under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1)").
Ferguson's insufficient evidence habeas claim should be denied.
II. FERGUSON'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF
Ferguson's second habeas claim, that his sentence was excessive, does not provide a basis for federal habeas relief.
"No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Accord, e.g., Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at * 6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at * 7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. People of the State of New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at * 4 (E.D.N.Y. Aug. 8, 1995); Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd mem., No. 88-2359, 875 F.2d 857 (table) (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).
Ferguson was convicted of second degree murder (Tr. 435-37) and was sentenced to twenty-five years to life imprisonment (10/16/95 Sentencing Tr. 5-7). In New York, second degree murder is a class A-I felony. P.L. §§ 125.25. The statutory sentence range for a class A-I felony is a minimum of fifteen to twenty-five years and a maximum of life imprisonment. P.L. §§ 70.00(2)(a), 70.00(3)(a)(i). Ferguson's sentence of twenty-five years to life imprisonment thus was within the authorized statutory range. Accordingly, Ferguson's excessive sentence claim does not raise a federal constitutional issue and is not cognizable on habeas review.
Ferguson's excessive sentence habeas claim should be denied.
III. FERGUSON'S SIXTH AMENDMENT CLAIM THAT HE DID NOT HAVE COUNSEL AT HIS LINEUP IS BARRED FROM HABEAS REVIEW BECAUSE THE STATE COURT'S DECISION WAS BASED ON AN ADEQUATE AND INDEPENDENT STATE GROUND, AND IN ANY EVENT LACKS MERIT
The Court grants Ferguson's motion to amend his petition to assert his third and fourth habeas grounds. Fed.R.Civ.P. 15(a); see also, e.g., Moore v. United States, 00 Civ. 4560, 98 Cr. 833, 2001 WL 253432 at *8 n. 5-6 (S.D.N.Y. Mar. 15, 2001) (Peck, M.J.). The Court therefore addresses the merits of those additional habeas claims.
Ferguson contends that he "was denied his right to the assistance of counsel at pretrial lineup procedure violating his Sixth Amendment right." (Dkt. No. 18: Ferguson Br. at 2; see also Dkt. No. 13:5/10/01 Ferguson Aff. on Motion to Amend, Point III.)
A. Adequate and Independent State Ground
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996, cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at * 10 (S.D.N Y July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at * 9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at * 4 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at * 12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at * 4 (Apr. 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at * 12 (S.D.N Y Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at * 12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at * 7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at * 12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "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 at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding."); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d at 724-25. Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.
Accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at * 9; Jones v. Duncan, 2001 WL 322190 at * 4; Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at * 4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at * 5 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Estrada v. Senkowski, 1999 WL 1051107 at * 9; Cruz v. Greiner, 1999 WL 1043961 at * 13; Avincola v. Stinson, 60 F. Supp.2d at 153 n. 7.
See also, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 9; Jones v. Duncan, 2001 WL 322190 at * 4; Cruz v. Greiner, 1999 WL 1043961 at * 13; Chisolm v. Headley, 58 F. Supp.2d at 286-87; Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at * 4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."); Torres v. Irvin, 33 F. Supp.2d at 274; Campbell v. Brunnelle, 925 F. Supp. 150, 157 (S.D.N.Y. 1996) (Leisure D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at * 6 (S.D.N.Y. Apr. 20, 1996) (Baer, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. at 285.
Accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at * 9; Jones v. Duncan, 2001 WL 322190 at * 4; Cruz v. Greiner, 1999 WL 1043961 at * 13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irwin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at * 6; Vera v. Hanslmaier, 928 F. Supp. at 275.
With respect to Ferguson's challenge that he was improperly deprived of his right to counsel at his line-up, the trial court, in denying his § 440 motion, stated that "[t]here is no legal basis for this ground of the defendant's motion," citing New York Court of Appeals cases that have held there is no federal or state constitutional right to counsel at an investigatory, pre-indictment lineup. (Gianfrancesco Aff. Ex. 5:4/17/00 Opinion at 3.) The trial court continued that, "[I]n any case, to the extent that the defendant's claim is based on facts adduced at the Wade hearing, it must be denied because, although there were sufficient facts on the record to permit adequate review on appeal, the defendant failed to raise the issue on appeal," citing CPL § 440.10(2)(c). (Gianfrancesco Aff. Ex. 5:4/17/00 Opinion at 3.)
State courts are not required to use any particular language in denying relief for a federal claim:
We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), here the trial court clearly found that Ferguson "failed to raise the issue on [direct] appeal," thereby waiving his claim (Gianfrancesco Aff. Ex. 5:4/17/00 Opinion at 3).
Accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 10; Jones v. Duncan, 2001 WL 322190 at * 4-5; Cruz v. Greiner, 1999 WL 1043961 at * 13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at * 6; Vera v. Hanslmaier, 928 F. Supp. at 286.
In the more usual case, the state court first states the procedural bar and then that "in any event" the claim is lacking merit. See, e.g., Simpson v. Portuondo, 2001 WL 830946 at *11 n. 36 ( cases cited therein). Here, the trial court first stated that the claim lacked merit and second that in any event it was procedurally barred. The order of the sentences should not deprive the State of the benefit of the "adequate and independent state ground" doctrine. See cases cited on p. 20 above.
Here, the state trial court rejected Ferguson's CPL § 440 motion as to Sixth Amendment lineup issues because CPL § 440.10(2)(c) requires denial of such a motion when the issue could have been raised on direct appeal. New York law bars consideration via collateral attack of an issue that could have been raised on direct appeal. N.Y. CPL § 440.10(2)(c); see, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 505 (1986); People v. Byrdsong, 234 A.D.2d 468, 469, 651 N.Y.S.2d 903, 903 (2d Dep't 1996) ("Pursuant to CPL 440.10(2)(c) a court must deny a postjudgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on a direct appeal and the defendant unjustifiably failed to raise the claim on appeal."), appeal denied, 89 N.Y.2d 1033, 659 N.Y.S.2d 863 (1997); People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 935 (1st Dep't) ("defendant's failure to present his constitutional attack upon his conviction after trial in the course of his direct appeal forecloses any consideration of it [in a § 440.10 proceeding]"), appeal denied, 76 N.Y.2d 796, 559 N.Y.S.2d 1001 (1990). The Second Circuit has held CPL § 440.10(2)(c) to be an adequate and independent state ground. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995).
See also, e.g., Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at * 2 (S.D.N.Y. May 7, 1997) ("The procedural ground on which the state court denied his § 440.10 motion[, precluding claims that could have been raised on direct appeal but were not,] is an independent and adequate state ground that prevents him from asserting those claims in a federal habeas corpus proceeding absent cause and prejudice."); Wells v. LaFavre, 1996 WL 692003 at * 3 (" CPL § 440.10(2) presents an adequate and independent state ground for denying Petitioner relief").
Because there is an adequate and independent finding by the state trial court that Ferguson had procedurally defaulted on this claim, Ferguson would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.
See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence"); Simpson v. Portuondo, 2001 WL 830946 at * 12; Simmons v. Mazzuca, 2001 WL 537086 at *11; Jones v. Duncan, 2001 WL 322190 at * 6; Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d at 145-46; Owens v. Portuondo, 1999 WL 378343 at * 6; Torres v. Irvin, 33 F. Supp.2d at 264, 274; Williams v. Bennet, 1998 WL 236222 at * 6; Farrington v. Senkowski, 19 F. Supp.2d at 180 ("The miscarriage of justice exception applies where a petitioner is 'actually innocent' of the crime of which he was convicted or the penalty which was imposed.").
B. Ferguson's Claim Lacks Merit
Even if Ferguson's claim were not procedurally barred, it would fail on the merits because the right to counsel at a lineup attaches only upon the initiation of adversary criminal proceedings, such as by formal charge, indictment or arraignment. See, e.g., Kirby v. Illinois, 406 U.S. 682, 690-91, 92 S.Ct. 1877, 1882-83 (1972); Boyd v. Henderson, 555 F.2d 56, 60-61 (2d Cir.) ("In Kirby, the [Supreme] Court clarified its Wade and Gilbert decisions by holding that the right to counsel at identification procedures attaches only with the initiation of adversary criminal proceedings, such as by formal charge, indictment, or arraignment."), cert. denied, 434 U.S. 927, 98 S.Ct. 410 (1977); Murray v. McGinnis, 00 Civ. 3510, 2001 WL 26213 at *3 (S.D.N.Y. Jan. 10, 2001) ("The United States Constitution does not require that a suspect in a pre-indictment lineup be represented by counsel . . ."); DeJesus v. Duncan, 00 Civ. 2095, 2000 WL 1654853 at *1 (S.D.N Y Nov. 3, 2000) ("Because the case was still in the investigatory stage at the time that the line-up was conducted, and petitioner had not been formally charged with any crime, there was no requirement that an attorney be present at the lineup."); Lewis v. Strack, 97 Civ. 7787, 1998 WL 404793 at * 2 n. 3 (S.D.N.Y. July 17, 1998); Green v. Artuz, 990 F. Supp. 267, 272 n. 6 (S.D.N.Y. 1998) ("It is well established that an accused does not have a Sixth Amendment right to counsel [at a line-up] prior to the State's commencement of formal adversarial proceeding against him."); Aziz v. Warden of Clinton Corr. Facility, 89 Civ. 6053, 1991 WL 278907 at * 6 (S.D.N.Y. Dec. 18, 1991).
Here, it is undisputed that Ferguson's lineup occurred prior to his indictment. (See, e.g., Zelenz: Tr. 138 (lineup occurred on April 22, 1993); State First Dep't Br. at 3 (stating that indictment was filed "on or about May 15, 1993").) Thus, Ferguson's Sixth Amendment claim fails on the merits.
IV. FERGUSON'S CLAIM THAT THE PROSECUTION WITHHELD MATERIAL EVIDENCE DEPRIVING HIM OF A FAIR TRIAL LACKS MERIT, BECAUSE HE NOWHERE DESCRIBES THE EVIDENCE
Ferguson's fourth habeas claim is that he was denied his right to a fair trial because the prosecution withheld material evidence. (Dkt. No. 13:5/10/01 Ferguson Aff. on Motion to Amend, Point IV.) Ferguson's claim that the State withheld "material evidence" raises a claim pursuant to Brady v. Maryland.
Under Brady v. Maryland and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material either to guilt or to punishment. See, e.g., United States v. Bagley, 473 U.S. 667, 676, 682, 105 S.Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963).
A defendant's due process rights are only violated if the prosecutor fails to turn over "material" evidence. E.g., United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995) ("information not disclosed to the defense creates constitutional error warranting a new trial only when that information is material"), cert. denied, 517 U.S. 1187, 116 S.Ct. 1671 (1996); United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.), cert. denied, 482 U.S. 929, 107 S.Ct. 3214 (1987). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also, e.g., United States v. Gambino, 59 F.3d at 365; Lamberti v. United States, 22 F. Supp.2d 60, 69-70 (S.D.N.Y. 1998), aff'd mem., 201 F.3d 430 (2d Cir. 1999). "To determine whether a defendant was deprived of his due process right to a fair trial, the court must evaluate the omission in the light of the entire record: 'If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.'" United States v. Gambino, 59 F.3d at 365 (quoting United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2402).
Nowhere has Ferguson indicated what evidence the prosecution withheld. Thus, his claim of withheld Brady material is without evidence and speculative and must be rejected. See, e.g., United States v. Avellino, 136 F.3d 249, 261 (2d Cir. 1998) ("In the absence of a proffer by [defendant] of any nonspeculative basis for inferring that . . . the government had not made available to him all pertinent material in its possession, it was well within the discretion of the court to conclude that no evidentiary hearing was necessary."); Grullon v. United States, 94 Cr. 466, 99 Civ. 1877, 2001 WL 43603 at *6 (S.D.N.Y. Jan. 17, 2001) ("It is well-established that 'suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment.' Brady v. Maryland. Grullon has provided no details or evidence to support his allegations. Consequently, there is no reason to believe that the Government engaged in any misconduct relating to the evidence in his case. A § 2255 petition must be based on more than '[a]iry generalities, conclusory assertions and hearsay statements.' The Court therefore rejects Grullon's unsupported due process allegations.") (citations omitted); United States ex rel. Whitehead v. Page, No. 96 C 5013, 2000 WL 343209 at *17 (N.D.Ill. Mar. 30, 2000) (Petitioner "fails to present this court with any proof that the prosecution withheld evidence; rather, he merely speculates that there was other evidence. Mere speculation is not enough to show a Brady violation."); Franza v. Stinson, 58 F. Supp.2d 124, 154 (S.D.N.Y. July 1, 1999) (Peck, M.J.) (Petitioner's "claim of withheld Brady material is speculative, conclusory and unsupported, and thus must be rejected."); United States v. Walker, No. 94-CR-328, 1998 WL 760260 at * 3-4 (N.D.N.Y. Oct. 30, 1998) (denying defendant's motion for a new trial based upon withholding of Brady evidence, because "[d]efendant's claim of prosecutorial misconduct based on allegations that the government withheld material evidence . . . is speculative"); Harris v. United States, 9 F. Supp.2d 246, 275 (S.D.N.Y. 1998) (denying petitioner's § 2255 habeas petition based upon withheld evidence because "the government does not bear the burden of establishing that documents were not withheld; it is [petitioner's] burden to prove that the government failed to disclose evidence favorable to [petitioner]. Conclusory allegations that the government 'suppressed' or 'concealed' evidence do not entitle [petitioner] to relief.") (citations omitted); United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y. 1994) ("As a matter of law, mere speculation by a defendant that the government has not fulfilled its obligations under Brady v. Maryland . . . is not enough to establish that the government has, in fact, failed to honor its discovery obligations. . . . The government is under no obligation to turn over that which it does not have."); Shuman v. Wolff, 543 F. Supp. 104, 110 (D.Nev. 1982) ("Petitioner . . . baldly asserts, without any additional support or argument, that his conviction was obtained due to the prosecution's failure to provide him favorable evidence (i.e., Brady material) after a timely request for discovery was made. Where a habeas petitioner does not identify or otherwise at least generally specify what evidence was allegedly wrongfully withheld, no relief is available on those grounds."); United States ex rel. Jiggetts v. Follette, 308 F. Supp. 468, 471 (S.D.N.Y 1970) (dismissing § 2255 habeas petitioner's Brady violation claim because "[p]etitioner is engaging in mere unsupported speculation. There is a total lack of any support for his contention that the prosecution suppressed evidence favorable to petitioner and material to the question of his guilt."), aff'd, 446 F.2d 114 (2d Cir. 1971).
Accordingly, Ferguson's claim that the State withheld exculpatory evidence is without merit.
Moreover, under the AEDPA review standard, the Court certainly could not say, in light of Ferguson's failure to in any way describe the allegedly withheld Brady evidence, that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). For a discussion of the meaning of the AEDPA review standard, see, e.g., Williams v. Taylor, 529 U.S. 362, 404-13, 120 S.Ct. 1495, 1519-23 (2000); Lurie v. Wittner, 228 F.3d 113, 127-28 (2d Cir. 2000), cert. denied, 121 S.Ct. 1404 (2001); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Clark v. Stinson, No. 97-2885, 214 F.3d 315 (table), 2000 WL 710044 at * 4 (2d Cir. June 1, 2000), cert. denied, 121 S.Ct. 865 (2001); James v. New York, 99 Civ. 8796, 2001 WL 706044 at *12 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at * 6 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at * 22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.).
CONCLUSION
For the reasons stated above, the Court should deny Ferguson's petition (as amended) and not issue a certificate of appealability.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).