Opinion
99-CV-361E.
May 21, 2004.
REPORT, RECOMMENDATION AND ORDER
Petitioner, Carlos Ocasio ("Ocasio" or "petitioner"), acting pro se, commenced this action seeking habeas corpus relief under 28 U.S.C. § 2254. This matter was referred to the undersigned by the Honorable John T. Elfvin, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and is presently before the undersigned for a report and recommendation. Dkt. #6; Dkt. #8.
BACKGROUND
Ocasio is an inmate at Clinton Correctional Facility. In October of 1994, he was convicted of Burglary in the Second Degree and Petit Larceny. He contends that his convictions were imposed in violation of his constitutional rights and should be vacated for the following four reasons: (1) his conviction was based upon unduly suggestive showup identifications; (2) the trial court's jury charge regarding the showup identifications was unbalanced and prejudicial; (3) the trial court erred by failing to admit exculpatory evidence; and (4) petitioner was denied effective assistance of counsel during his trial. Dkt. #1.
FACTS
The following factual summary is derived from the petition for habeas corpus, Dkt. #1, answer, Dkt. #4, and the record of proceedings in state court. Dkt. #4, exhibits.
Shortly before 8:30 p.m. on November 23, 1993, Rochester Police Department Officer Robert O'Shaughnessy and Recruit Officer Frank Tarantello were dispatched to the scene of a reported burglary-in-progress at 522 North Winton Road in Rochester. (T. 7/19/94-7/20/94 at 23). Upon arriving at the scene, Officer O'Shaughnessy observed a blond white male, later identified as co-defendant Richard Rosa ("Rosa"), at the front door of the subject residence. Rosa retreated back into the residence, apparently in response to the police cruiser, and closed the door behind him. ( Id. at 24). Officer O'Shaughnessy and Recruit Officer Tarantello ran to the back of the residence to apprehend the burglar. ( Id. at 25).
The name of this officer is spelled inconsistently in the state court records. For the purpose of this Report, Recommendation and Order, the Court will refer to the officer as "O'Shaughnessy."
"T." refers to the transcript of the proceedings in state court, submitted by respondent as exhibits to its answer. Dkt. #4.
When the officers reached the back of the house, Officer O'Shaughnessy observed two males running out of the back door of the residence. He observed the men's faces in profile from approximately 10 to 15 feet away. ( Id. at 53). Despite Officer O'Shaughnessy's orders to stop, the suspects fled. (T. 7/19/94-7/20/94 at 27). Officer O'Shaughnessy chased both suspects, who jumped the neighbor's fence, then ran in separate directions. Ultimately, Officer O'Shaughnessy apprehended Rosa, who possessed jewelry stolen from the burgled home. ( Id. at 26-28).
Officer Tarantello testified that he also had an opportunity to view the faces of both suspects as they fled the burgled home. (T. 7/29/94 8/11/94 at 66).
Recruit Officer Tarantello attempted unsuccessfully to apprehend the other suspect. (T. 7/19/94-7/20/94 at 28). Officer O'Shaughnessy broadcast a call regarding the escaped suspect, describing him as "male black or Hispanic, wearing a winter cap, a bright yellow jacket and dark jeans, last scene [sic] eastbound through the backyards onto Ramsey." ( Id. at 29).
Approximately forty-five to sixty minutes after the broadcast, responding Officer Sandra Adams observed Ocasio, a Hispanic man, walking alone approximately one and one-half miles from the crime scene. He was wearing a yellow jacket, jeans and a knit cap. (T. 7/29/94 8/11/94 at 23, 81). Officer Adams stopped Ocasio, who responded vaguely to her inquiries about where he was going and why he was dirty. Ocasio claimed that he was going to his girlfriend's house, but could not or would not provide Officer Adams with his girlfriend's address. ( Id. at 25). Officer Adams transported Ocasio to the crime scene where Officers O'Shaughnessy and Tarantello positively identified him as the suspect who fled from the burgled home. ( Id. at 67-68). After a Wade hearing, the state court found evidence of the officers' out-of-court identifications to be admissible.
See United States v. Wade, 388 U.S. 218 (1967) (holding that the due process clause precludes states from obtaining evidence through unduly suggestive identification procedures).
On April 8, 1994, a Monroe County grand jury issued Indictment Number 214/94, which charged Ocasio with two violations of the New York Penal Law; specifically, Burglary in the Second Degree and Petit Larceny. N.Y. PENAL LAW §§ 140.25 155.25. Ocasio was arraigned before the Honorable David D. Egan, County Court Judge, on April 27, 1994. At the arraignment, Ocasio's attorney entered a plea of not guilty on his behalf. (T. 4/27/94 at 4).
County Court Judge Nancy Smith presided over Ocasio's trial. The jury found Ocasio guilty of Burglary in the Second Degree and Petit Larceny on October 25, 1994. (T. 10/18/94-10/21/94 10/25/94 at 459-60). Judge Smith sentenced him to an indeterminate term of imprisonment of seven and one-half to fifteen years for Burglary in the Second Degree and a concurrent one year term for Petit Larceny. (T. 1/09/95 at 24-25).
Ocasio appealed his conviction to the Appellate Division of the New York State Supreme Court, Fourth Department ("Appellate Division"). Through his attorney, Ocasio raised the following issues: (1) his arrest was not based on probable cause; (2) his identifications were the fruits of an unlawful arrest, which the Court should have suppressed; (3) the showup identifications were unduly suggestive; and (4) the jury charge regarding the showup identifications was "fatally unbalanced." Dkt. #4, p. 57. In a decision issued on July 3, 1997, the Appellate Division unanimously affirmed petitioner's conviction. People v. Ocasio, 241 A.D.2d 933 (4th Dep't 1997). Specifically, the court concluded that: (1) the police officer had probable cause to arrest Ocasio based on the detailed description of the suspect; (2) the subsequent showup identifications were not the fruits of an unlawful arrest; (3) the showup identifications were not unduly suggestive because they were conducted close in time and place to the arrest; and (4) Ocasio failed to object to the trial court's jury charge regarding the identifications, and thereby failed to preserve the issue for appellate review. With respect to the suggestiveness of the showup identifications, the Appellate Division stated that "there was little danger of misidentification because the identifications were `made by police officers who are trained to be objective.'" Id. at 934 (internal citations omitted).
Ocasio appealed to the New York State Court of Appeals ("Court of Appeals"), raising the same issues and challenging the Appellate Division's conclusion that the jury charge issue was not preserved for review. Dkt. #4, p. 64. On August 12, 1997, the Court of Appeals denied Ocasio leave to appeal the decision. People v. Ocasio, 90 N.Y.2d 908 (1997). Thereafter, Ocasio sought vacatur of his conviction pursuant to N.Y.C.P.L. § 440.10(1)(h) on the grounds that the trial court erroneously denied Ocasio the opportunity to present exculpatory evidence, and that he was denied effective assistance of counsel. Dkt. #4, p. 85. The Monroe County Court ("County Court") denied Ocasio's Section 440.10 motion, reasoning that Ocasio's claims were matters of record which could have been, but were not, raised on appeal. Moreover, the County Court adopted the People's argument that the decision not to present specific exculpatory testimony "was clearly a matter of strategy entrusted to counsel." Dkt. #4; p. 162-63. Thereafter, the Appellate Division denied petitioner leave to appeal the County Court's decision. Dkt. #4; p. 207.
The County Court denied Ocasio's N.Y.C.P.L. § 440.10 motion "for the reasons set forth in the People's response." Dkt. #4, p. 162-63.
DISCUSSION
Ocasio commenced this action on May 26, 1999, by filing a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. #1. Review of federal habeas corpus petitions ("habeas petitions") filed by state prisoners on or after April 24, 1996 is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254.A. Timeliness of the Petition
AEDPA provides a one-year statute of limitations for the filing of habeas petitions. 28 U.S.C. § 2244(d)(1). Where a petitioner is in custody pursuant to the judgment of a state court, the limitations period runs from the latest of four dates. 28 U.S.C. § 2244 (d)(1) (A-D). In this case, the latest of the four available dates is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001). The one-year period of limitations is tolled for periods of time during which a properly filed application for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2); Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999). The Court will not toll the statute of limitations upon the "filing of creative, unrecognized motions for leave to appeal." Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000).
Although AEDPA does not define what constitutes a "properly filed" motion for state post-conviction, or other collateral review for purposes of 28 U.S.C. § 2244(d)(2), the Second Circuit has interpreted it to mean "an application for state post-conviction relief recognized as such under governing state procedures." Bennett, 199 F.3d at 123. As such, a legitimate motion for state post-conviction relief is pending, and therefore tolled, from the time it is first filed "until finally disposed of and further appellate review is unavailable under the particular state's procedures." Benett, 199 F.2d at 120 (emphasis added).
Significantly, "AEDPA's tolling provision does not allow the one-year period to run anew each time a post-conviction motion is ruled upon." Evans v. Senkowski, 228 F. Supp. 2d 254, 260 (E.D.N.Y. 2002). The provision merely excludes from the calculation of the one-year period any time during which post-conviction relief is pending. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
Based upon the foregoing, the Court finds that the petition is untimely. Ocasio's conviction became final on November 10, 1997, ninety days after the Court of Appeals denied Ocasio leave to appeal — the time within which petitioner was required to seek direct review by filing a petition for a writ of certiorari with the United States Supreme Court. On September 4, 1998, approximately 298 days after his conviction became final, Ocasio made a timely motion to vacate his conviction pursuant to N.Y.C.P.L. § 440.10. Dkt. #4, p. 163. Ocasio's post-conviction relief was thus pending, and therefore tolled, between September 4, 1998 and February 19, 1999, when the Appellate Division denied his motion for leave to appeal the County Court's denial of his Section 440.10 motion. Approximately 96 days later, on May 26, 1999, well after AEDPA's one-year filing period had elapsed, Ocasio filed his federal habeas petition with this Court.
The Court notes that Ocasio erroneously filed, pursuant to N.Y.C.P.L. § 460.20., for permission to appeal the Appellate Division's February 19, 1999 denial of his leave to appeal. Because the Appellate Division's order is not appealable under New York law, petitioner's motion does not constitute "an application for post-conviction relief recognized as such under governing state procedures." Bennett, 199 F.3d at 123; N.Y.C.P.L. § 450.90(1). Accordingly, the one-year statute of limitations was not tolled while this motion was pending.
While "the district court has the authority to raise a petitioner's apparent failure to comply with AEDPA statute of limitation on its own motion[,] . . . the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). Recognizing Ocasio's pro se status at the time of the erroneous filing, in the interest of judicial economy, this Court declines to dismiss the petition on the ground that it is untimely.
B. Exhaustion
Before a federal court may review a state prisoner's habeas petition, the prisoner must exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971). In order to satisfy the exhaustion requirement, a habeas petitioner "must fairly present his federal claims to the highest state court from which a decision can be had, informing the court of the factual and legal bases for the claim asserted." Diaz v. Mantello, 115 F. Supp. 2d 411, 416 (S.D.N.Y. 2000) (citing Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)). "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).
Pursuant to AEDPA, a district court may exercise its discretion to deny on the merits a habeas petition containing exhausted and unexhausted claims, referred to as a "mixed petition." See Mobley v. Senkowski, 2003 WL 22952846, *2 (E.D.N.Y. Nov. 12, 2003); 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").
If a state prisoner has not exhausted his state remedies with respect to a claim but no longer has remedies available in a state forum, a federal habeas court may deem the claim exhausted. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). For instance, a state prisoner's "failure to raise issues before the Court of Appeals precludes further consideration in the New York courts because [the prisoner] has already made the one request for leave to appeal to which he is entitled." Id. at 829. Because it would be fruitless to require a federal habeas petitioner to reassert defaulted claims in the New York courts, a federal habeas court may deem the claim exhausted; however, the procedural default in the state court prevents that federal habeas court from reaching the merits of the claim. Id.
As previously noted, Ocasio contends that his conviction should be vacated on four separate grounds. Supra, at p. 1-2. Based upon the state court records, this Court finds that Ocasio failed to satisfy the exhaustion requirement with respect to two of the grounds asserted in his habeas petition. Specifically, Ocasio did not raise his claim relating to the trial court's alleged exclusion of exculpatory testimony (ground three) or his claim of ineffective assistance of counsel (ground four) to either the Appellate Division or the Court of Appeals. Although Ocasio raised these issues in his Section 440.10 motion, in denying this motion, the County Court adopted the People's reasoning that his claims were matters of record, which could have been, but were not, raised on appeal. Supra, at 5 n. 6. Because Ocasio did not raise these claims and has already made the one request for leave to appeal to which he is entitled, the Court deems grounds three and four of Ocasio's petition exhausted. Moreover, Ocasio's procedural default in state court prevents this Court from reaching the merits of these particular claims. See Bossett, 41 F.3d at 828-29.
C. Independent and Adequate State Law Bar
A federal habeas court also may not review a state prisoner's federal claim if that claim was decided by a state court and the state court rests its decision on state law that is independent of a federal question and is adequate to support the judgment. Coleman, 501 U.S. at 729; Jordan v. Bennett, 968 F. Supp. 118, 120-21 (W.D.N.Y. 1997); see also Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (holding that a federal habeas court may not review a claim if a state court decision contains a plain statement that the claim is procedurally barred, even if the state court also reaches the merits of the claim in an alternative holding). "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred 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.
To demonstrate "cause" for a procedural default, a petitioner must identify "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); Jordan, 968 F. Supp. at 121. A petitioner must also demonstrate "prejudice" by showing that the errors worked to the petitioner's " actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982). Alternatively, a habeas petitioner may "bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); Murray, 477 U.S. at 496; Schlup v. Delo, 513 U.S. 298, 321 (1995).
This Court finds that the state courts decided Ocasio's claim relating to the improper jury charge (ground two) on state law independent of a federal question and adequate to support state courts' judgment. See Coleman, 501 U.S. at 750. Specifically, the Appellate Division denied this claim based on Ocasio's failure to preserve the issue by raising the question of law in a manner recognized by N.Y.C.P.L. § 470.05. Ocasio, 241 A.D.2d at 934. Ocasio has failed to demonstrate, or even allege, "cause" or "prejudice," or show that failure to consider his claims would result in a fundamental miscarriage of justice. No credible evidence in the record suggests that Ocasio is actually innocent of the crimes for which he has been convicted. Accordingly, this Court cannot review Ocasio's improper jury charge claim.
The Court finds that Ocasio exhausted his claim relating to the suggestiveness of the showup identification (ground one). Based on the record, there is no procedural bar precluding federal habeas review of the merits of remaining claim. See Coleman, 501 U.S. at 750.
D. Federal Habeas Corpus Standard of Review
Pursuant to 28 U.S.C. § 2254, as amended by AEDPA, a federal court must give substantial deference to a state court determination that has adjudicated the federal constitutional claim "on the merits." 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001). Specifically, AEDPA requires that where a state court has adjudicated the merits of a petitioner's federal claim, habeas corpus relief may not be granted unless the state court's adjudication:
(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).
In Williams v. Taylor, 529 U.S. 362, 413 (2000), the Supreme Court held that a state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Id. A state court employs "an unreasonable application" of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id.
While both AEDPA and its predecessor statute recognize that a presumption of correctness shall apply to state court findings of fact, Whitaker v. Meachum, 123 F.3d 714, 715 n. 1 (2d Cir. 1997), AEDPA also requires a petitioner to rebut that presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002). A presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001); Whitaker, 123 F.3d at 715 n. 1.
If, however, the federal court cannot determine whether the state court has adjudicated a petitioner's federal constitutional claims on the merits, the federal constitutional claims are considered as not having been determined on the merits; as such, the federal court applies the pre-AEDPA de novo review standard in such cases, even where the petition was filed after the effective date of the statute. See Sellan, 261 F.3d at 313-14; Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir. 2001).
A federal claim is adjudicated on the merits when the state court "(1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment." Sellan, 261 F.3d at 312. In other words, in order to invoke the deferential standard of 28 U.S.C. § 2254(d)(1), "the state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (citing Sellan, 261 F.3d at 312). If there is no indication that the federal claim has been decided on procedural grounds, the federal claim will be deemed to have been adjudicated on the merits. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002).
Here, the Court concludes that the Appellate Division decided petitioner's claim on the merits when it unanimously affirmed his conviction. Ocasio, 241 A.D.2d 933. The court specifically addressed the petitioner's remaining claim when it explicitly stated "[w]e reject the . . . contention . . . that the showup was unduly suggestive. The showup was conducted close in time and place to the crime. Further, there was little danger of misidentification because the identifications were made by police officers who are trained to be objective." Id. (internal citations omitted). E. Undue Suggestiveness of the Showup Identification
It is possible that the Court was attempting to articulate that police officers are trained to be observant.
Petitioner argues that his conviction was obtained through the use of unduly suggestive showup identification procedures. Dkt. #1, ¶ 12. "A defendant's right to due process includes the right not to be the object of suggestive police identification procedures that create `a very substantial likelihood of . . . misidentification.'" United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Mason v. Brathwaite, 423 U.S. 98, 106 n. 9 (1977). This principle applies to showup identification procedures, pursuant to which police officers present a single suspect to an eyewitnesses for the purpose of identification. See, e.g., Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978).
While recognizing that suggestive confrontations increase the likelihood of misidentification, the Supreme Court has held that "the admission of evidence of a showup without more does not violate due process." Neil v. Biggers, 409 U.S. 188, 198 (1972). In determining whether due process dictates against the admission of an out-of-court identification obtained through suggestive identification procedures, the Supreme Court has employed a "totality of the circumstances" test to determine "whether . . . the identification was reliable even though the confrontation procedure was suggestive." Id. at 199. "[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Id. at 199-200.
Consistent with the Supreme Court's "totality of the circumstances" test, the Second Circuit has articulated the following standard governing the admission of out-of-court showup identification evidence:
We will exclude a pre-trial identification only if the procedure that produced the identification is so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law. That is, we will exclude a pre-trial identification only if it was both produced through an unnecessarily suggestive procedure and unreliable. Even if the procedure was unnecessarily (or impermissibly) suggestive, therefore, a district court may still admit the evidence if, when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability.United States v. Bautista, 23 F.3d 726, 729-30 (2d Cir. 1994) (citations omitted), cert. denied, 513 U.S. 862 (1994).
The Second Circuit Court of Appeals and its district courts have consistently upheld showup identifications as not "unnecessarily" suggestive where a suspect is likely a perpetrator of a recent crime. See, e.g., United States ex rel. Cummings v. Zelker, 455 F.2d 714, 716 (2d Cir. 1972) (reasoning that "prudent police work necessitated [an] on-the-spot identification in order to resolve any possible doubts the police may have had when they first took the petitioner into custody"); see also Bautista, 23 F.3d at 730 (holding that the showup identification of a handcuffed suspect by a confidential informant was not "unneccessarily suggestive," but facilitated the identification of perpetrators and the release of innocent persons). Under circumstances where a showup confrontation takes place in close temporal or geographic proximity to the crime, Second Circuit courts have routinely held the identification to be constitutionally permissible. See, e.g., United States v. Butler, 970 F.2d 1017, 1021 (2d Cir. 1992) (holding that the showup identification was proper where, less than thirty minutes after the robbery, suspects were brought to the victim who was sitting in a police car); United States v. Sanchez, 422 F.2d 1198, 1199-2000 (2d Cir. 1970) (holding that the "prompt, on-the-scene confrontation" in which the police drove the suspects by witnesses on the street thirty minutes after a robbery was "consistent with good police work," and was not unduly suggestive); United States v. Nelson, 931 F. Supp. 194, 199-200 (W.D.N.Y. 1996) (holding that the showup identification, during which a single handcuffed suspect was taken to eyewitnesses after a hot pursuit, was not unduly suggestive), aff'd mem., 131 F.3d 132 (2d Cir. 1997); Jones v. Strack, 1999 WL 983871 at *11-12 (S.D.N.Y. Oct. 29, 1999) (holding that a showup identification after a street crime was not unduly suggestive where defendant was "surrounded by police, with lights flashing, within a few blocks of the incident"). Moreover, where the eyewitness is a police officer "with training and experience in identifying suspects," the likelihood of misidentification is substantially reduced, and the identification more reliable. See, e.g., United States v. Gonzalez, 864 F. Supp. 375, 386 (S.D.N.Y. 1994) (holding that a showup identification at the point of arrest by an off-duty officer who had witnessed defendant's conduct one-half hour earlier was proper).
After examining the circumstances under which the officers identified Ocasio, the Court finds that the showup procedure was not so suggestive as to violate Ocasio's right to due process, and finds that the identifications were reliable. As noted, Officer O'Shaughnessy had an opportunity to view Ocasio's face from approximately 10 feet away as he fled from the burgled home. During the pursuit, both officers engaged their full attention on the fleeing perpetrators. Officer O'Shaughnessy broadcast an accurate description of Ocasio, which focused primarily on Ocasio's unique clothing. The record reflects that both Officers positively identified Ocasio in separate showup procedures. There was close proximity in time and location between the crime and the showup confrontation. The fact that the eyewitnesses were police officers, at least one of which was trained and experienced in powers of observation and identifying suspects, is an additional indication of reliability.
The Court finds that the trial court's admission of the identification evidence was proper under the circumstances, and that the Appellate Court did not employ a "contrary" or "unreasonable application" of federal law when it held that the showup procedures were not duly suggestive and that the identifications were reliable. Accordingly, petitioner's claim for habeas relief should be DENIED.
CONCLUSION
Based on the foregoing, this petition for habeas corpus relief under 28 U.S.C. § 2254 should be DISMISSED. Further, as the Court finds that there is no substantial question presented for appellate review, a certificate of appealability should not issue. 28 U.S.C. § 2253(c)(2) (1996).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report. Recommendation and Order be filed with the Clerk of the Court and that the Clerk send a copy of this Report, Recommendation and Order to Petitioner and to counsel for the Respondent.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as W.D.N.Y. Local Rule 72(a)(3). Failure to file objections to this Report, Recommendation and Order within the specified time, or to request an extension of time to file objections, waives the right to appeal any subsequent order by the District Judge adopting the recommendations contained herein. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566 (2d Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and W.D.N.Y. Local Rule 72(a)(3).
Please also note that the District Judge, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Judge's refusal to consider the objection.
SO ORDERED.