Petitioner was indicted primarily for the first degree robbery of a livery cab driver who was shot in the neck and robbed of his wallet by two of his passengers. The evidence against petitioner at trial included the testimony of the driver, Vincent Adams, Briefly stated, Adams testified that petitioner and an accomplice were passengers in the car, that the accomplice, who was seated in the back, fired a bullet that passed through his neck, and that petitioner, who was sitting in the front seat, took control of the car and drove off. They drove to what appeared to be a parking garage. Afterward one of the men drove Adams to another location and left him with the livery cab, Adams eventually made his way to a hospital and spoke with a police officer and told him that he did not believe he would be able to identify his assailants. At trial, however, Adams testified that he was in the car with the assailants for at least an hour, had continuously noticed the man in the front seat for twelve minutes, and that he could identify petitioner as the roan in the front seat, Adams picked petitioner out of a lineup almost two years after the incident, He testified that he had been told that detectives had matched a fingerprint recovered from his cab with one of the participants in the lineup. This fingerprint evidence was the only other evidence against petitioner presented to the jury.

The defense called one witness, who testified that petitioner had long had a prominent scar on the side of his face,

Petitioner was convicted of robbery in the second degree and criminal possession of a weapon in the second degree, He was sentenced as a second felony offender to a total of 20 years in prison. This sentence was later vacated by the trial court because it was based upon a statutory pro vision not in effect at the time of the commission of petitioner's crime, He was resentenced to 12-1/2 to 25 years in prison.

A motion to vacate judgment before the trial court was denied, Leave to appeal to the Appellate Division was denied.

Petitioner's conviction was then affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied,

Petitioner then filed a federal application for a writ of habeas corpus, but moved to withdraw the application to allow him to exhaust state remedies. The motion was granted and petitioner filed a second motion to vacate judgment before the trial court. The motion to vacate judgment was denied, as was leave to appeal the denial to the Appellate Division.

Petitioner then filed the instant, timely habeas application in which he claims that (1) the trial court erroneously denied his motion to suppress identification testimony, denying him due process; (2) the evidence presented at trial was legally insufficient to establish his guilt and the verdict was against the weight of the evidence; and (3) his sentence was excessive,

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuklman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, I, concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly, Rather, that application roust also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment, need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 111 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright — line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug, 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1),

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is, grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Days v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An 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."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV, 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

IV. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate 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, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at * 15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.

V. Certificate of Appealability

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right, Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July IB, 2003).

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit, See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

VI. Analysis of Claims

Each of petitioner's claims is exhausted.

A

Petitioner first claims that the hearing court erroneously denied his motion to suppress identification testimony, arguing in particular that the lineup was suggestive because the five "fillers" did not resemble him and because the complainant was informed before viewing the lineup that a fingerprint had been matched to one of the men in the lineup. Petitioner also contends that the trial court erred by not allowing petitioner to call Adams to testify at the pretrial hearing. The Appellate Division rejected petitioner's claim, stating, "The hearing court correctly concluded that the lineup was not unduly suggestive." People v. Mitchell, 724 N.Y.S.2d 898, 898 (App.Div. 2001). Review proceeds under the deferential standards of AEDPA.

In United States v. Wade, the Supreme Court recognized that there is a "grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial," 388 U.S. 218, 236 (1966), and that to protect defendant's Sixth Amendment rights the trial court must ascertain prior to trial whether a witness's identification testimony is tainted by an improperly made identification,

The Court has set forth a two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures, "requiring a determination of whether the identification process was impermissibly suggestive and, if so, whether it was so suggestive as to raise `a very substantial likelihood of irreparable misidentification,'" Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978) (quoting Neil v. Bigers, 409 U.S. 188, 198 (1972) (citing Simmons v. United States, 390 U.S. 377, 384 (1968))). "If pretrial procedures have been unduly suggestive, a court may nonetheless admit in-court identification testimony if the court determines it to be independently reliable." United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Jerrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986).

In Manson, Court stated that "reliability is the linchpin in determining the admissibility of identification testimony," and that the factors to be considered in determining reliability include "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself," 432 U.S. at 114,

Petitioner's first contention is that the lineup was suggestive because the five "fillers" did not resemble him. The hearing court made a factual determination, which must be accorded presumption of correctness, that the fillers were similar in appearance to and had "the same complexion and the same look" as petitioner, Tr. of Proceeding at 50. The photocopied photographs of the lineup in the record before this court bear out that conclusion. Petitioner is not noticeably heavier, "broader" in the shoulders, or older or younger than the fillers.

Petitioner also contends that the lineup was unduly suggestive because the complainant was informed before viewing the lineup that a fingerprint had been matched to one of the men in the lineup — an argument that petitioner did not make before the hearing court. While it would undoubtedly be preferable for a witness viewing a lineup to be left uninformed that physical evidence links one of the lineup participants to the crime, it cannot be said that the procedure was rendered unconstitutionally suggestive under the instant circumstances. Two years after the perpetration of a crime, any witness who was called to a station house to view a lineup would necessarily assume that they were being asked to do so because the police felt they had apprehended the perpetrator. While in the instant case Adams may have felt some additional pressure to identify someone from the lineup as the perpetrator — a predicament that would be better avoided — his positive identification of petitioner from among the fillers cannot be explained solely that basis.

Even assuming that the procedure was somewhat suggestive, the circumstances surrounding the identification in the instant case indicate that the identification was sufficiently reliable. Adams testified at trial that ha viewed petitioner more-or-less constantly for twelve minutes and that he was in the presence of petitioner for about an hour and was certain of his identification. Although the two-year period between the incident and the initial identification weighs somewhat against the reliability of the identification, as does the fact that petitioner was suffering from a gunshot wound during much of the time he was in his assailants' presence, all in all his identification of petitioner was sufficiently reliable for presentation to the jury, which also heard arguments from defense counsel that the identification was mistaken,

Petitioner also contends that the trial court erred by not allowing the defense to call Adams to testify at the pretrial hearing, apparently because Adams first identified petitioner as the shooter and then, correcting himself, identified petitioner as the non-shooter. He also suggests that there may have been some unidentified impropriety of a suggestive nature at the lineup. Although the hearing court has discretion to call a complainant at a Wade hearing, petitioner acknowledges that a defendant does not have an absolute right to have such a witness produced. The hearing court determined that Adams's testimony would have no bearing on the question of the suggestive nature of the identification procedure. That conclusion was reasonable and did not deny petitioner a fair hearing or a fair trial.

Habeas corpus relief premised on petitioner's claim that the identification procedures were unduly suggestive is not warranted,

B

Petitioner next claims that the evidence presented at trial was legally insufficient to establish his guilt and the verdict was against the weight of the evidence. The claim was deemed by the Appellate Division to be procedurally defaulted because unpreserved for appellate review. It is unnecessary for this court to decide whether this state procedural ground was adequate under the instant circumstances because the Appellate Division's alternative holding that the claim is meritless was reasonable. Review proceeds under the deferential standards of AEDPA.

To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.

Construing the evidence in the light most favorable to the prosecution, a reasonable factfinder could conclude, based on the fingerprint evidence and the complainant's identification testimony, that petitioner's guilt of all the elements of first degree robbery and the weapons possession charge were proven beyond a reasonable doubt. Habeas corpus relief on this claim is not warranted.

C

Finally, petitioner claims that his sentence was excessive. The claim was denied on the merits by the Appellate Division. Review proceeds under the deferential standards of AEDPA.

The assertion that a sentencing judge abused his or her discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)). A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Federal courts have traditionally deferred to state legislature with respect to sentencing matters. See Ewing v. California 123 S.Ct. 1179 (2003) (sentence of 25 years to life in prison for stealing three golf clubs by a recidivist not cruel and unusual); Lockyer v. Andrade, 123 S.Ct. 1166 (2003) (sentence of 25 years to life in prison for stealing $150 — worth of videotapes not cruel and unusual),

Petitioner's sentence was within the statutory range prescribed by the state legislature, His sentence was not cruel and unusual. Habeas corpus relief on this claim is not warranted,

VII. Conclusion

The petition for a writ of habeas corpus is denied.

No certificate of appeal ability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right,

SO ORDERED

Mitchell v. Fischer

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Opinion

MEMORANDUM, JUDGMENT ORDER

A

B

C

Mitchell v. Fischer

Mitchell v. Fischer

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Mitchell v. Fischer

Summary

Opinion

MEMORANDUM, JUDGMENT ORDER

A

B

C

Mitchell v. Fischer

Mitchell v. Fischer

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