Opinion
02 Civ. 2878
April 23, 2004
DECISION AND ORDER
Petitioner Chang Fe Lin, ("Petitioner"), pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in the New York State Supreme Court, New York County on three counts of robbery. Petitioner takes issue with two evidentiary rulings made by the trial court admitting testimony about a pretrial identification of him by a witness and by a police officer.
Magistrate Judge Michael H. Dolinger, to whom this Court referred the matter, issued a Report and Recommendation (the "Report") dated March 19, 2004, recommending that the writ be denied and the petition be dismissed with prejudice. The Report is incorporated and attached hereto. Petitioner's original date to file objections to the Report was March 29, 2004. Responding to a letter from Petitioner dated March 21, 2004 in which he indicated that he had been moved to another correctional facility, the Court inferred that Petitioner had not received the Report. Accordingly, the Court had a copy of the Report forwarded to Petitioner at the address he gave and extended the deadline for submission of objections to April 15, 2004. To date, Petitioner has filed no objections.
Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of a Magistrate Judge's Report and Recommendation to which objection is made is subject to de novo review. The Court is also authorized to accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. Accordingly, this Court, having received no objections to the Report, reviewed the full record of the petition, including each of the issues Petitioner raises therein, and considered Magistrate Judge Dolinger's analysis and conclusions with respect to them. On this basis the Court dismisses the petition.
Magistrate Judge Dolinger, putting aside respondent's claims that several of Petitioner's claims remained unexhausted, concluded instead that the petition was meritless and should be dismissed because it fails to demonstrate a violation of Petitioner's constitutional rights. The Court agrees. It finds no meritorious basis in law to support Petitioner's challenge to his conviction on any of the grounds he asserts with respect to the identification of him by either the photographic array or by the police officer who testified to having seen Petitioner in the company of a fellow robber sometime after the robbery at issue. In examining the record and the law pertinent to this petition, the Court concludes that there is a sufficient basis in fact for the verdict and sentence reflected in the judgment entered against Petitioner. The Court finds no clear error of fact or law in the Report, and concludes that the principles and authorities relied upon by Magistrate Judge Dolinger in recommending denial of the petition are sufficiently controlling to warrant dismissal of each of Petitioner's arguments. Accordingly, the Court accepts and adopts the Report in its entirety and denies the writ.
ORDER
For the reasons discussed above, it is
ORDERED that the petition of Chang Fe Lin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
Because Petitioner has not made a substantial showing of the denial of a constitutional right, this Court will not grant a certificate of appealability. See Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 121 So. Ct. 175 (2000).
The Clerk is directed to close this case. SO ORDERED. Chang Fe Lin v. Gary H. Filion 02 Civ 2878
Attachment to the Court's Decision and Order dated April 23, 2004
REPORT RECOMMENDATION
Petitioner Chang Fe Lin seeks a writ of habeas corpus to challenge his 1998 conviction in New York State Supreme Court, New York County, on two counts of Robbery in the First Degree and one count of Robbery in the Second Degree. Petitioner is presently serving two concurrent prison terms of nine to eighteen years and a concurrent term of five to ten years.In support of Mr. Lin's application, he challenges two evidentiary rulings of the state trial court, one permitting testimony about a pretrial photographic identification of him by a witness, and the other authorizing a police officer's testimony that he had seen Lin together with his alleged fellow robber one year after the robbery. Lin also complains that he was denied a hearing on whether this identification of him was the fruit of an illegal search, that the prosecutor's summation violated his right to a fair trial and that he was denied a statutory right to challenge his sentencing status as a predicate felon.
Respondent has opposed the petition. In doing so, he argues that all of the petitioner's claims are unexhausted and procedurally barred, and that they are also otherwise meritless. For the reasons that follow, we recommend that the writ be denied and the petition dismissed with prejudice.
PRIOR PROCEEDINGS
Petitioner's conviction stemmed from the July 14, 1995 robbery of a restaurant on Ninth Avenue in Manhattan. That robbery was conducted by two men, one of whom — named Lin Pong — was a former employee of the establishment. According to the victims' trial testimony, Fong and the second man, whom they identified as petitioner, entered the restaurant with guns and ordered the owner, Min Cheng, and his wife, together with three employees, into the basement. (Tr. 310-14, 438-41). Fong then took the owner's wife back upstairs to open the cash register while petitioner held the others downstairs at gunpoint. (Tr. 339-40). The men took more than $2,000.00 and then fled together after threatening Mr. and Mrs. Cheng with death if they reported the crime. (Tr. 442-49, 472, 317-21).
Once the robbers had left, Mr. Cheng called the police while his wife went to the street and returned with several police officers. (Tr. 322-25, 446-49). They told the police at the time that one of the robbers was a former employee, and later in the day Mr. Cheng identified petitioner from a photo array as the second gunman. (Tr. 322-25, 389-92, 446-49, 458, 553-60).
Lin and Fong were not arrested until October 2, 1997. That day Cheng identified the two men in separate lineups. (Tr. 383-87, 407-11, 418-19, 347-48).
A New York County grand jury returned an indictment of petitioner in December 1997, charging him with two counts of first-degree robbery and two counts of second-degree robbery. (See Declaration of Assistant Attorney General Darian B. Taylor, executed Dec. 4, 2002 ("Taylor Decl."), Ex. A, pp. 25-27). Petitioner filed an omnibus pretrial motion that sought, inter alia, to suppress all identification testimony, claiming irremediable taint from suggestive photographic and lineup identification procedures. (See id. at pp. 42-54). The court (the Hon. Felice Shea, S.C.J.) conducted a suppression hearing and denied Lin's application, finding that the procedures "were conducted in a fair and impartial manner." (Tr. 626).
Lin Fong separately pled guilty to one count of first-degree robbery. (See Taylor Decl., Ex. C at p. 2 n. 1).
Trial commenced on July 6, 1998 before Justice Shea and a jury. On July 9, following the presentation of all evidence, the jury convicted Lin on both counts of first-degree robbery and one count of second-degree robbery. (Tr. 745-46). It also acquitted him on the second count of second-degree robbery. (Tr. 746). Justice Shea sentenced Lin on September 22, 1998, as a predicate felon, to three concurrent prison terms, but declined to impose a separate sentence for probation violation. (Sent. Tr. 9, 25-27).
Petitioner appealed to the Appellate Division, asserting five claims. He (1) challenged the introduction of evidence of the photo identification of him, (2) complained about the testimony linking him to Fong a year after the robbery, (3) argued that he had been denied the right to show that the testimonial link between him and Fong was a product of an illegal police entry into his apartment, (4) asserted that the prosecutor's summation had denied him a fair trial, and (5) attacked the sentencing procedure. (See Taylor Decl., Ex. B at pp. 24-44). On March 21, 2001 the Appellate Division affirmed the conviction but remanded for re-sentencing to permit Lin to challenge his status as a predicate felon. See People v. Lin, 281 A.D.2d 32, 722 N.Y.S.2d 155 (1st Dept. 2001). That remand led to the reimposition of the same sentences. (See Taylor Decl., Ex. L; Respondent's Memo of Law in Opposition to Petition ("Resp. Memo") at p. 2 n. 4).
Lin next sought leave to appeal to the New York Court of Appeals. On that application he requested permission to raise only the first two claims from his direct appeal, that is, the arguments about the photo array and the police sighting of him in the company of Pong. (See Taylor Decl., Ex. F). The Court of Appeals denied leave on June 20, 2001. See People v. Lin, 96 N.Y.2d 860, 730 N.Y.S.2d 34 (2001).
Rebuffed by the state courts, Lin turned to this court, filing his habeas petition with the Pro Se Clerk on August 7, 2001. By order dated April 15, 2002, Chief Judge Mukasey directed that Lin file an amended petition that specified the claims he was asserting in this proceeding. Lin complied with that directive by filing an amended petition dated May 10, 2002.
ANALYSIS
Respondent first argues that Lin failed to exhaust his state-court remedies with respect to all of his claims and that these claims should now be deemed procedurally barred. He also contends that they are not of constitutional dimension and are otherwise meritless.
I. Exhaustion
Before seeking federal habeas review, a petitioner must exhaust all state-court remedies by "fairly present[ing]" each federal claim for relief to the highest state court capable of review. See Fama v. Commissioner of Correctional Services, 235 F.3d 804, 808-809 (2d Cir. 2000) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). Prior to 1996, a petitioner's failure to exhaust his state-court remedies required the district court to dismiss the petition in its entirety, without prejudice, unless the petitioner withdrew the unexhausted claim. See Levine v. Commissioner of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). However, pursuant to the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." 28 U.S.C. § 2254 (b)(2). See, e.g., Jones v. Keane, 329 F.3d 290, 294 n. 6 (2d Cir. 2003) (noting that a district court may reject an unexhausted habeas claim on the merits);Aparicio v. Artuz, 269 F.3d 78, 91 n. 5 (2d Cir. 2001) (same); Nieblas v. Smith, 204 F.3d 29, 31 (2d Cir. 1999) (declining to address issues of exhaustion and failure to preserve because habeas petition can be denied on its merits); Brown v. Kuhlmann, 142 F.3d 529, 534 (2d Cir. 1998) (declining to address whether a state-law procedural default is a bar to federal habeas review because petition can be denied on its merits).
In this case Lin never asserted his third, fourth and fifth claims on his leave application to the New York Court of Appeals, and respondent correctly contends that this represents a failure to exhaust. As for the first two claims, respondent argues that neither claim was presented to the state appellate courts in constitutional terms and asserts that this too amounts to non-exhaustion. Finally, respondent suggests that since petitioner has no viable remedies left in state court, all of these claims should be analyzed under procedural bar rules and found to be barred fromhabeas review. (See Resp. Memo of Law at pp. 14-17).
Although respondent's assessment of the exhaustion requirement and its application to Lin's petition may well be correct, we note that all of petitioner's claims are plainly meritless and that one is procedurally barred for reasons other than a failure to exhaust. Accordingly, we choose to bypass the exhaustion issue and instead recommend dismissal with prejudice on the basis that petitioner fails to demonstrate a violation of his constitutional rights.
II. Asssessment of Petitioner's Claims
A. The Photo Arrays
Lin's first complaint is that the trial court impermissibly allowed the State to introduce testimony at trial that Mr. Cheng had twice identified him from large photo arrays. This issue does not raise a constitutional question, since there is no constitutional prohibition on the use of evidence of a photo-array identification, provided that the photo array itself was not unduly suggestive, a claim that Lin never made. See, e.g., United States v. Salameh, 152 F.3d 88, 125-26 (2d Cir. 1998).Compare United States v. Eltayib, 88 F.3d 157, 166 (2d Cir. 1996) (stating that photo array is improperly suggestive if accused's picture stands out so as to suggest to the viewer that the accused is the likely culprit). Indeed, evidence of photo-array identification is routinely admitted in federal court. See, e.g., Salameh, 152 F.3d at 125 (citing cases).
Indeed, he could scarcely have done so, since the first time that Cheng identified petitioner from a photograph, he selected petitioner's image from among three hundred to five hundred photos of Asian men. (Tr. 553-57, 606).
Petitioner's claim arises solely under New York law, which ordinarily prohibits the State from introducing evidence of a pre-trial identification from a photo array. See, e.g., People v. Cioffi, 1 N.Y.2d 70, 73, 150 N.Y.S.2d 192, 194 (1956); People v. Cuiman, 229 A.D.2d 280, 282, 656 N.Y.S.2d 243, 247 (1st Dept.), leave denied, 90 N.Y.2d 903, 663 N.Y.S.2d 515 (1997). Since the source of petitioner's photo-array claim is state law, no relief could be granted here even if Lin were correct that the trial court had violated that law. See, e.g., Givens v. Surge, 2003 WL 1563775, *6 (S.D.N.Y. March 4, 2003) (citing cases); United States ex rel. Bryant v. Vincent, 373 F. Supp. 1180, 1183-84 (S.D.N.Y. 1973). See Estelle v. McGuire, 502 U.S. 52, 67 (1992)(habeas relief available only for violations of federal law);Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (same).
In any event, we note that the ruling of the trial judge has not been shown to have contravened state law. The issue arose as a result of the defense counsel's cross-examination of Mr. and Mrs. Cheng. In the course of his questioning of Mr. Cheng, he asked why the restaurant owner had not originally given a detailed physical description of the second robber to the police. (Tr. 390-92). In answering, Mr. Cheng alluded vaguely to having looked at photographs. (Tr. 391-92). Moreover, when questioning Mrs. Cheng, counsel asked her about her visit to a police precinct two days after the robbery. Counsel elicited her admission that she had reviewed a photo array and had selected a photograph that she had pronounced herself to be eighty percent certain depicted the other robber, an identification that had proven to be erroneous. (Tr. 462, 464-65, 587).
In the face of these references to photo arrays, the State asked permission to show that Mr. Cheng had in fact picked Lin's picture from among the vast number of photographs shown to him on the day of the robbery. (Tr. 514-18). The trial judge ruled for the prosecutor, finding that the defense attorney had opened the door to this inquiry, apparently because — if left unexplained — Cheng's statement about photographs could have been understood by the jurors to have meant that he had not been able to identify Lin. (Tr. 522-23, 525-26).
The prosecutor had previously asked leave to refer to the photo identification in order to explain why Cheng had selected Lin from a lineup two and one-half years after the robbery. (Tr. 209). According to the prosecutor, the jurors needed to know that Cheng had originally identified Lin on the day of the robbery. (Tr. 209-11). The trial judge did not grant this request at the time, noting that the request risked alerting the jurors to the fact that the police had a mug shot of petitioner at the time of the array, and she indicated that she would only allow the testimony if defense counsel subsequently opened the door to it. (Tr. 214-15).
New York law recognizes such an exception to its ordinary prohibition on photo-array identification testimony. See, e.g., People v. Giallombardo, 128 A.D.2d 547, 548, 512 N.Y.S.2d 481, 482 (2d Dept. 1987). in any event, the decision of the Appellate Division explicitly rejecting this claim — a decision that is entitled to presumptive deference as a statement of New York law, see, e.g., West v. Amer. Tel. Tel., 311 U.S. 223, 237 (1940) (noting the presumptive deference accorded to intermediate appellate state court decisions on state law); Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994) (federal courts must defer to state court decisions on issues of state law) — establishes that the trial judge correctly applied state law. See Lin, 281 A.D.2d at 321, 722 N.Y.S.2d at 155 (citing Cuiman, 229 A.D.2d at 282, 656 N.Y.S.2d at 245).
B. The Post-Robbery Linkage Between Lin and Fong
Lin's second claim arises from the trial testimony of a police officer, Theodore Hall, who reported that in June 1996, he had entered the apartment of Lin and found him in the company of Fong. (Tr. 531-35). Hall also testified that at the time Lin's hair was shorter than it was at trial. (Tr. 534-35). This testimony was deemed pertinent both to the questioned linkage between Lin and Fong, the former employee whom the restaurant owners had unequivocally identified as one robber, and to petitioner's physical appearance prior to his growing his hair longer.
Petitioner's challenge to the trial court ruling allowing this testimony is based on the contention that it was both irrelevant and prejudicial, apparently because it linked him to Fong. According to petitioner, the evidence at his trial never definitively established that Fong was the other robber, and hence the linkage of him to Fong was unfairly misleading, a problem compounded by the court's instruction to the jurors that they should decide whether petitioner had acted in concert with Fong. (See Taylor Decl., Ex. B at pp. 31-34).
This claim amounts to a challenge to the trial court's evidentiary ruling, an issue that ordinarily does not rise to the level of a constitutional violation. See, e.g., Estelle, 502 U.S. at 67. To trigger constitutional review, the ruling must either have violated a specific constitutional guarantee or else have violated state law and have been so significant and egregious as to have rendered the trial fundamentally unfair. See, e.g., Panzarino v. Phillips, 2004 WL 99868, *18-19 (S.D.N.Y. Jan. 22, 2004) (citing cases).
Petitioner's argument on this point does not suggest that the court's admission of Officer Hall's testimony linking him to Fong long after the robbery violated any specific constitutional guarantee. As for his due-process right to a fundamentally fair trial, that protection is not implicated unless the state court erroneously admitted evidence that was so significant as to have eliminated a reasonable doubt about the defendant's guilt that would otherwise have existed. See, e.g., Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.), cert. denied, 525 U.S. 840 (1998). To meet this rigorous standard, the court must conclude that the disputed evidence was "crucial, critical, highly significant", Collins v. Scully, 755 F.2d 16, 8-19 (2d Cir. 1985), that is, that it had "a substantial and injurious effect in determining the jury's verdict." Noble v. Kelly, 246 F.3d 93, 101 (2d Cir. 2001). That did not occur here.
The ruling in question here has not been shown to have violated state law. New York gives the trial court broad discretion to admit testimony that is relevant to the issues in the case. See, e.g., People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 11 (1987). Moreover, the court may admit evidence that will be pertinent only if the jury finds certain facts that are in dispute at the trial —such as, in this case, Fong's participation in the robbery. See, e.g., People v. Seifert, 152 A.D.2d 433, 441, 548 N.Y.S.2d 971, 975 (4th Dept. 1989), leave denied, 75 N.Y.2d 924, 555 N.Y.S.2d 43 (1990).
Fong's role in the robbery was strongly supported by the testimony of both Mr. and Mrs. Cheng. Under those circumstances, a post-robbery discovery by the police that petitioner and Pong were sharing an apartment was certainly pertinent to the question of Lin's participation in the robbery and to his guilt on the charge of second-degree robbery under Penal Law § 160.10(1), which requires proof of acting in concert. See, e.g., People v. Berry, 267 A.D.2d 102, 102, 700 N.Y.S.2d 131, 132 (1st Dept. 1999) (noting relevance of evidence that defendant was acquaintance of co-defendant). Moreover, the physical description of Lin offered by Officer Hall was relevant to the jury's assessment of the reliability of the victim's identification of Lin, particularly since Lin's physical appearance had changed in one respect since his arrest, and since Mr. Cheng himself had testified to such a change. (Tr. 349-51).
Lin points out that Mrs. Cheng concededly picked the wrong photograph of the first robber (Tr. 587-88), but her testimony and that of her husband (both of whom obviously knew Pong from his prior employment at the restaurant), was certainly sufficient to permit the jurors to find —if they had to — that Pong was one of the participants in the robbery. (See, e.g., Tr. 462).
In any event, the testimony can scarcely be said to have been so crucial as to have eliminated a reasonable doubt that would otherwise have existed at trial. Both Mr. and Mrs. Cheng testified that the robbery was conducted by two individuals, thus satisfying the acting-in-concert requirement of Penal Law § 160.10(1). Furthermore, Mr. Cheng positively identified Lin not only from the two photo arrays shortly after the robbery, but also from a lineup nearly three years later.
Given the strength of the State's case and the marginal significance of Officer Hall's testimony, there is no basis to find that the court's challenged ruling eliminated an otherwise available reasonable doubt.See, e.g., Collins, 755 F.2d at 18-20.
C. The Denial of an Evidentiary Hearing
Petitioner's next claim rests on his complaint that he was not afforded a suppression hearing concerning Officer Hall's testimony. Petitioner apparently contends that since Officer Hall had not obtained a warrant for entry into the apartment, his presence there had violated Lin's Fourth Amendment protections.
The short answer to this argument is that Fourth Amendment claims may not be heard by a habeas court if the state courts provide an adequate mechanism for adjudicating such claims. See Stone v. Powell, 428 U.S. 465, 481-82 (1976). There is no question that New York supplies an adequate method for airing such issues, see, e.g., Capellan v. Riley, 975 F.2d 67, 70 n. 1 (2d Cir. 1992), and hence petitioner cannot be heard to complain on Fourth Amendment grounds about the trial court ruling admitting this testimony, unless he can demonstrate that the mechanism was unavailable to him because of "an unconscionable breakdown in the underlying process." Id. at 70 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.) (en banc),cert. denied, 434 U.S. 1038 (1978)). This is an extremely narrow exception, and may be invoked only if "the state furnished no process, or if the process furnished was `. . . meaningless [because] the totality of state procedures . . . did not provide rational conditions for inquiry into federal-law . . . questions.'" Id. (quoting P. Bator, "Finality in Criminal Law and Federal Habeas Corpus for State Prisoners", 76 Harv. L. Rev. 441, 456-57 (1963)). Petitioner does not make a meaningful effort to meet this standard.
Lin relies upon a colloquy between defense counsel and the court during the course of the trial, in which the attorney objected in general terms to the State calling Officer Hall to testify about his observation of Lin and Fong in 1996. Counsel asserted that he was moving to suppress at that late date because he had only just learned that the State intended to call the witness to offer such testimony. Counsel said that there "may" have been a problem with the officer having entered the apartment in question since he did not have a warrant. (Tr. 512-13). The prosecutor had specified that the officer had obtained consent, and petitioner's attorney did not pursue the matter further. (Tr. 511).
Petitioner did not receive an evidentiary hearing on this point because he never satisfied the state procedural requirements for such a hearing. The pertinent statute requires the filing of a suppression motion with specific factual allegations that would put in question the constitutional validity of a challenged search or seizure. See N.Y. Crim. Proc. L. § 710.60(1). Moreover, although such a motion is ordinarily required to be filed within forty-five days after arraignment, N.Y. Crim. Proc. § 255.20, the New York courts have an obligation to address such a motion even if made during the trial, if the grounds stated "could not, with due diligence, have been previously [known]" by the defendant, or for other "good cause". N.Y. Crim. Proc. L. § 255.20(3). See N.Y. Crim. Proc. L. § 710.40(2). Moreover, the motion may be made orally during trial. N.Y. Crim. Proc. L. § 710.60(5). See generally Feuerstein v. People of New York. 515 F. Supp. 573, 576 (E.D.N.Y. 1981).
In this case petitioner's attorney offered no facts to support a claim of violation of his client's Fourth Amendment rights. Indeed, all he said was, "There may be a substantial Fourth Amendment issue as to whether the police had a right to be in the apartment to be arresting these people without a warrant based on a prior complaint, especially where this apartment is alleged to be the residence of both these individuals." (Tr. 511). Since the prosecutor specifically represented that the police had knocked on the door and obtained consent from the occupants to enter, and since defense counsel offered no response to this representation, there was no basis for the court to conduct a hearing. See, e.g., People v. Mendoza, 82 N.Y.2d 415, 427, 604 N.Y.S.2d 922, 927 (1993); People v. Reynolds, 71 N.Y.2d 552, 558, 528 N.Y.S.2d 15, 17-18 (1988).
This sequence of events does not demonstrate any violation of petitioner's constitutional rights. The failure to conduct a hearing because of petitioner's failure to comply with facially reasonable and neutrally applied procedural requirements is plainly not an "unconscionable breakdown" of otherwise adequate state suppression. procedures. It also does not constitute a denial of due process, since the states are free to impose reasonable procedural predicates to the conducting of evidentiary suppression hearings. See, e.g., United States ex rel. Fein v. Deegan, 410 F.2d 13, 21-22 (2d Cir.), cert. denied, 395 U.S. 935 (1969). See also Pulver v. Cunningham, 562 F.2d 198, 200-01 (2d Cir. 1977).
D. The Prosecutor's Summation
Petitioner's fourth claim challenges four remarks of the prosecutor during the course of her summation that, he claims, were not based on trial evidence. This claim is procedurally barred and in any event meritless.
Defense counsel did not object to three of these comments at trial, and accordingly the Appellate Division squarely held that the objections were not preserved for appellate review. See Lin, 281 A.D.2d at 321, 722 N.Y.S.2d at 155. The court further observed that, if it had chosen to address the merits, it would have found that the four statements constituted "fair comment on the evidence and reasonable inferences that could be drawn therefrom, and were responsive to the defense summation."Id.
The explicit reliance by the Appellate Division on the absence of a contemporaneous objection by Lin at trial represents an independent and adequate state-law ground for the state court to have refused to address the merits of petitioner's claim. See, e.g., Aparicio, 269 F.3d at 93. Moreover, the fact that the appellate court then proceeded to note, in the alternative, that the claim was meritless does not undercut this conclusion. See, e.g., Epps v. Commissioner of Correctional Services, 13 F.3d 615, 618 (2d Cir. 1994). It necessarily follows that the claim is procedurally barred unless the petitioner demonstrates cause for the procedural default in state court and resultant prejudice, or else establishes that a refusal to address the issue at this stage would constitute a fundamental miscarriage of justice. See, e.g., Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Washington v. James, 996 F.2d 1442, 1446-49 (2d Cir. 1993), cert. denied, 510 U.S. 1078 (1994).
Petitioner does not even attempt to explain or justify the failure of his attorney to object at trial to the assertedly improper comments of the prosecutor; indeed, the obvious explanation is that his counsel did not view the remarks as improper. Accordingly, Lin does not demonstrate cause, and we therefore need not address the question of prejudice, although, as we note below, the claim is plainly meritless. Lin also does not remotely suggest that deeming the claim to be procedurally barred would constitute a fundamental miscarriage of justice. Petitioner cannot show either that he is in fact innocent or that his conviction was attributable to the remarks in question.
Even if we were to ignore the procedural-bar analysis, the result would be the same. Petitioner fails to show that the statements he highlights denied him a fundamentally fair trial.
For a petitioner to obtain habeas relief on the basis of a prosecutor's summation comments, it is not sufficient that the "remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, the trial must have become "so infected with unfairness as to make the resulting conviction a denial of due process." Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Accord Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (standard of habeas review for prosecutorial misconduct is "the narrow one of due process, and not the broad exercise of supervisory power"). Judged by this standard, none of the remarks in question threatened the fairness of the trial.
The first statement cited by Lin was a characterization of the testimony of Mr. and Mrs. Cheng, to the effect that they would "never, ever" forget Lin's face, that it was "emblazoned" in their memories, and that they had both determined to remember the robbers' faces when the incident began. (Tr. 653-54). Lin's theory seems to be that the prosecutor could not use these words because they were not quotes from the witnesses' testimony. (See Taylor Decl., Ex. B at pp. 37-38).
The fact is, however, that both Mr. and Mrs. Cheng testified that they had paid close attention to Lin's face during the robbery because they wanted to be able to recall it in the future. (Tr. 312, 325, 455-56, 470). Thus, the prosecutor was fairly characterizing testimony in the record, albeit in colorful language, which is a permissible rhetorical and argumentative device. See, e.g., United States v, Smith, 778 F.2d 925, 929 (2d Cir. 1985). Moreover, these comments were certainly proper rebuttal to the defense attorney's prior argument to the jurors that the Chengs had not had an adequate opportunity to observe Lin during the robbery. (Tr. 632-49). See, e.g., United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994) (quoting United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1979)).
The second challenged prosecutorial statement was that Mrs. Cheng had not remained in the basement throughout the robbery and could have been mistaken in testifying that her husband was facing the wall during the robbery. (Tr. 661-62). The prosecutor made this comment in response to defense counsel's argument that since Mrs. Cheng had described her husband as facing the wall, Mr. Cheng must have lied in saying that he had observed Lin during the events in question. (Tr. 647-48). The basic facts — that the Chengs were marched to the basement, that Mrs. Cheng was then led back upstairs while her husband remained with Lin in the basement, and that Mr. Cheng testified that he had observed Lin's face — are part of the trial record. Since defense counsel questioned Cheng's ability to have seen Lin, it was certainly permissible for the prosecutor to invite the jury to make the obvious inferences that she was suggesting. See, e.g. United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996); Smith, 778 F.2d at 929.
The third comment that petitioner attacks concerned Mr. Cheng's conceded failure to give the police a detailed physical description of the robbers when they first interviewed him. In seeking to explain why Mr. Cheng was able to describe Lin in more detail at trial, the prosecutor suggested the possibility that, as a recent immigrant at the time of the robbery, Cheng may have been more handicapped by English language difficulties than he was three years later, during the trial. (Tr. 663-64). This proposed inference, which responded to defense counsel's attack on Mr. Cheng's failure to offer a detailed physical description of the second robber on the day of the robbery (Tr. 646-49), had at least some support in the record, since the officer who had questioned the Chengs shortly I after the robbery testified that he had faced a language barrier
with them that made communication difficult. (Tr. 544-4, 549). In. any event, regardless of whether the inference was a reasonable one, the suggestion by the prosecutor, when viewed in the context of her complete summation and the entire proceeding, obviously did not deprive Lin of a fundamentally fair trial.
Petitioner's last challenge to the prosecutor's summation charged that the prosecutor is guilty of misconduct in remarking that the police detective who had conducted the lineup knew that Mr. Cheng's lineup identification of petitioner was "trustworthy." (Taylor Decl., Ex. B at p. 19; See Tr. 684-88). The cited passage responded to an argument by defense counsel that the line-up identification by Cheng had been unreliable because Cheng had hesitated before selecting Lin. (Tr. 642-45). The testimony by the detective was that he had seen Cheng scan the lineup and stop at petitioner, and then begin to breathe heavily, from which the detective inferred that Cheng had recognized Lin and was afraid to identify him. (Tr. 416-17). Moreover, Cheng himself testified that he had hesitated in identifying Lin because of fear for his family. (Tr. 348-49, 371-73).
On summation, the prosecutor simply recalled the officers corroborating testimony for the jury and suggested, quite reasonably, that if the detective had not noted such fear, he would likely have said to the witness, in the face of hesitation, "[i]f you don't recognize anybody, say so, that's ok", instead of simply waiting silently for the witness to gather his courage. (Tr. 687). Again, this argument was grounded in the evidence and hence entirely proper.
E. The Sentencing Claim
Lin's remaining complaint is that, when first sentenced, he requested an adjournment, which the trial court denied. (See Taylor Decl., Ex. B at pp. 42-44). Whatever the potential constitutional status of such a claim, Lin's claim is moot since the Appellate Division upheld his objection on appeal and remanded for re-sentencing. Since there is no dispute that Lin then received a sentencing hearing, there is no current case or controversy sparked by the asserted error of the trial court at the original sentencing.
CONCLUSION
For the reasons noted, we recommend that the writ be denied and the petition dismissed with prejudice.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the Honorable Victor Marrero, Room 414, 40 Centre Street, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See, Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).