Opinion
05 Civ. 0441 (DLC).
June 26, 2007
For Pro Se Petitioner: Johnson Edwards, Green Haven Correctional Facility, Stormville, New York.
For Respondent: Robert T. Johnson, Joseph N. Ferdenzi, Nancy D. Killian, Office of the District Attorney, Bronx County, Bronx, New York.
OPINION ORDER
Johnson Edwards brings this timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"), challenging his 1996 jury conviction for murder and attempted murder in the second degree. Edwards was sentenced to consecutive terms of 25 years to life, and seven to 21 years.
Edwards challenges his conviction on four grounds, three of which arise from an ex parte Darden hearing conducted in 2001 by the trial court on remittal from the New York Court of Appeals. Edwards claims the trial court erred by: (1) refusing to allow him to partake fully in the hearing and protecting the identity of a confidential informant; (2) denying his request for disclosure of the informant's Rosario material prior to the hearing; and (3) finding, in light of the hearing, that there had been probable cause to arrest him. In his fourth habeas claim, Edwards asserts that the trial court erred in the course of an earlier Wade hearing by denying him the opportunity to call additional police witnesses to address whether his lineup was unduly suggestive.
Under People v. Darden, 313 N.E.2d 49 (N.Y. 1974), rev'd on other grounds, People v. Belton, 407 N.E.2d 420 (N.Y. 1980), where a confidential informant has provided police with the only sufficient probable cause to arrest the defendant, and the issue of the informant's identity is raised by the defendant at a suppression hearing, the trial court may conduct an in camera interview of the informant. Neither the defendant nor defense counsel may attend the Darden hearing, but defense counsel may propose questions for the court to ask the informant. Id. at 51-52.
Under People v. Rosario, 173 N.E.2d 881 (N.Y. 1961), a defendant is entitled to examine any prior statement of a witness called by the prosecution, where the prior statement relates to the subject matter of the witness' testimony. Id. at 882-883.
Under United States v. Wade, 388 U.S. 218 (1968), a defendant may seek suppression of testimony regarding an allegedly improper pre-trial identification. Id. at 242.
This case was referred to Magistrate Judge Debra Freeman on February 1, 2005, who issued a careful analysis of Edwards' claims in a report and recommendation ("Report") on November 15, 2006. The Report recommends that the claims be denied in their entirety and the petition dismissed. Edwards has objected to the Report ("Objections"). For the reasons set forth below, the Objections are overruled, and this Opinion adopts the Report.
BACKGROUND
The facts relevant to the petition are set forth in the Report and summarized here. The parties have made no objections to the Magistrate Judge's factual findings.
On December 1, 1993, Edwards shot Chester Martin ("Martin") and Auxiliary Police Officer Milton Clarke ("Clarke") in the Bronx. Clarke died and Martin survived with severe injuries. While several witnesses saw the shooter, none of them initially knew his identity. Edwards became a suspect three months later, when a confidential informant came forward upon seeing a reward poster. The informant reported that a man he knew as "Tony" admitted to having killed an auxiliary police officer while attempting to kill a second man he had been hired to murder. The informant provided corroborating facts concerning the shooting, and his description of "Tony" was consistent with the descriptions of the shooter offered by witnesses from the scene and an anonymous caller. The informant stated that "Tony" had also confessed to shooting an individual named John Thomas in an unrelated incident in July 1993. John Thomas later informed the police that Edwards had shot him.
Edwards was arrested on April 28, 1994. The surviving victim, Martin, and two other witnesses to the December 1993 shootings, Carl Toone ("Toone") and Herbert Correa ("Correa"), identified Edwards among six subjects in a lineup as the shooter.
On October 9, 1996, the trial court held a Wade hearing on Edwards' motion to suppress identification testimony from the lineup. After Detective Joseph Neenan ("Neenan") testified as to the lineup procedure, the court denied Edwards' suppression motion. While Edwards also requested that the prosecutor provide the name of the informant or produce information for an in camera hearing to assess his credibility, the trial court found that there had been probable cause to arrest Edwards without further inquiry.
At trial, Martin, Toone, and Correa each testified about identifying Edwards as the shooter. Toone's testimony, however, revealed that he had harbored some initial uncertainty when presented with the lineup. He testified that he had first identified another subject in addition to Edwards as possibly being the shooter. After a closer look at the two men alone, Toone identified Edwards as the shooter.
Because Neenan did not describe at the Wade hearing either Toone's initial uncertainty or request for a closer examination of the subjects, the Wade hearing was reopened. The reopened hearing, however, failed to resolve all of the inconsistencies between Neenan's and Tooone's versions of the lineup procedures. The trial court denied Edwards' request to call additional police officers at the reopened hearing.
On November 7, 1996, the jury convicted Edwards of murder in the second degree and attempted murder in the second degree. The Appellate Division unanimously affirmed the conviction, holding that Edwards "failed to establish that the evidence adduced at the reopened suppression hearing raised an issue concerning the suggestiveness of the lineup sufficient to warrant permitting him to call additional witnesses at the hearing," People v. Edwards, 700 N.Y.S.2d 703, 704 (App.Div. 2000). On December 19, 2000, the New York Court of Appeals held that the trial court erred in relying on the information provided by the informant without examining him in camera. People v. Edwards, 741 N.E.2d 876, 879 (N.Y. 2000). The Court of Appeals remitted the case to the trial court with instructions to conduct an in camera examination of the confidential informant and to determine whether probable cause supported Edwards' arrest.
On July 13, 2001, the trial court conducted the Darden hearing and found that the informant's testimony regarding the conversation between Edwards and the informant about the December 1, 1993 shooting was consistent with Neenan's testimony at theWade hearing. Finding that Neenan had reasonably relied on the informant's statements, the trial court determined that the police did have probable cause to arrest Edwards.
On his second appeal to the Appellate Division in September 2003, Edwards challenged the trial court's findings from theDarden hearing. The Appellate Division affirmed, People v. Edwards, 767 N.Y.S.2d 583 (App.Div. 2003), holding that the record from the Darden hearing established a continuing need to keep the informant's identity confidential, and that the court properly concluded that the informant's statements established probable cause for Edwards' arrest. Edwards' application for leave to appeal to the Court of Appeals was denied. Edwards filed this timely habeas petition on November 30, 2004.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review Section 2254 petitions. Habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1), (d)(2).
The Report concludes that Edwards exhausted each of the claims presented in this petition, but that they must be denied on the merits. The claims related to the Darden hearing fail because (1) the need to maintain the confidentiality of the informant was neither contrary to, nor an unreasonable application of, clearly established federal law; (2) Edwards' claim of a Rosario violation does not implicate a federal right; and (3) his probable cause claim is unreviewable in a habeas proceeding because it raises a fully litigated Fourth Amendment challenge. The Report also concludes that Edwards' Wade hearing challenge fails because the Appellate Division's finding that the re-openedWade hearing was proper was neither contrary to, nor an unreasonable application of, clearly established federal law.
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. 28 U.S.C. § 636(b)(1); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In his Objections, Edwards takes issue with the Report's conclusion as to three of the four grounds for relief raised in the petition. Edwards concedes that the Rosario claim is not reviewable. Upon de novo review of the three claims, they are properly denied for the reasons stated in the Report.
A. Darden Hearing Claims 1. Informant Confidentiality
As the Report correctly describes, and Edwards appears to concede, the Constitution does not provide a criminal defendant with an absolute right to confront a confidential informant in person. Rather, the trial judge must "balanc[e] the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro v. United States, 353 U.S. 53, 62 (1957); see also United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). Neither the Fourteenth Amendment's Due Process Clause nor the Sixth Amendment's Confrontation Clause guarantee the defendant the right to learn an informant's identity. See, e.g., McCray v. Illinois, 386 U.S. 300, 312 (1967) (Fourteenth and Sixth Amendments do not always require a confidential informant's identity to be "disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search."); see also Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)) (the right to present a defense "is not absolute, and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.")
Edwards' Objection relies on Roviaro, 353 U.S. at 60-61, to assert that the disclosure of a confidential informant's identity is required when the informant is a material witness. UnlikeRoviaro, however, Edwards sought disclosure in connection with a pretrial suppression hearing on issues that do not bear on his guilt or innocence. He has not met his "heavy burden of showing that disclosure was essential to the defense." United States v. Flaherty, 295 F.3d 182, 202 (2d Cir. 2002). Edwards has not shown that the refusal to identify the informant to him was either contrary to, or an unreasonable application of, federal law. Edwards' first habeas claim is dismissed.
2. Probable Cause
Edwards alleges that the trial court erred by finding that probable cause existed for his arrest. A claim raising a Fourth Amendment challenge can only be heard in this proceeding, however, if the state failed to provide an opportunity for the "full and fair litigation" of the claim. Stone v. Powell, 428 U.S. 465, 494 (1976). Edwards was given such an opportunity fully and fairly to litigate his claim, including his challenge to the lineup, in both the initial pre-trial suppression hearing and theDarden hearing. Edwards has not shown that New York failed to provide corrective procedures to address the alleged Fourth Amendment violation, or that he experienced any "unconscionable breakdown" in the existing process. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Insofar as Edwards is asserting a Fourteenth Amendment challenge, he cannot use a Fourteenth Amendment claim to circumvent the standard laid out in Powell.
B. Wade Hearing
Edwards asserts that the trial court violated his due process rights by refusing to allow him to call additional witnesses at the reopened Wade hearing, notwithstanding the discrepancy between the testimony of Neenan and the eyewitness regarding the lineup. Even at a trial, courts may impose restrictions on the right to present relevant testimony, provided such restrictions are not "arbitrary or disproportionate to the purpose they are designed to serve." Rock v. Arkansas, 483 U.S. 44, 56 (1987). The trial court determined that the additional testimony regarding the nature of the lineup procedure was unnecessary because the discrepancy had no effect on the court's original conclusion that the lineup was not unduly suggestive. Moreover, the trial court did not restrict Edwards from developing the issue of suggestiveness on cross-examination at trial. Edwards has not shown that the Appellate Division's rejection of this claim was contrary to, or represented an unreasonable application of, federal law.
CONCLUSION
For the foregoing reasons, Edwards' petition for a writ of habeas corpus is denied. No certificate of appealability shall issue. Edwards has not made a substantial showing of denial of a constitutional right, and appellate review is therefore not warranted. 28 U.S.C. § 2253(c)(2); see also Jones v. Keane, 329 F.3d 290, 297 (2d Cir. 2003) (citation omitted). The Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case.
SO ORDERED: