Opinion
02 Civ. 3334 (BSJ) (JCF)
December 2, 2003
REPORT AND RECOMMENDATION
Robert Lee brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for robbery following a jury trial in New York State Supreme Court, New York County. In hispro se petition, Mr. Lee asserts that: (1) the evidence at trial was legally insufficient and the verdict was contrary to the weight of evidence; (2) he was deprived of due process by the trial court's restriction of his cross-examination of the complainant; and (3) he was denied effective assistance of counsel.
For the reasons that follow, I recommend that the petition be denied.
Background
On June 1, 1996, at around 4:30 a.m., Herbert Harris hailed a livery cab near the intersection of 161st Street and Morris Avenue in the Bronx. (Tr. at 55-58, 179, 213, 231, 233, 234, 236). The driver of the cab, Alpha Omar Sysavne, had been working since 2 p.m. the previous day and kept all the money from fares, more than one hundred dollars, in his pants pocket. (Tr. at 56-57, 179, 214).
"Tr." refers to the transcript of the petitioner's trial that commenced on September 8, 1997.
When Mr. Sysavne stopped, Mr. Harris entered the cab through the right rear door and called to Robert Lee, the petitioner. (Tr. at 58-59, 79, 81, 85-91, 249-50). Mr. Lee walked over and entered through the driver's side rear door. (Tr. at 59, 79-81, 89-91, 242).
Mr. Lee and Mr. Harris told Mr. Sysavne to go to 148th Street and Seventh Avenue, but once they reached that destination, the passengers asked to go to 147th Street between Seventh and Eighth Avenues. (Tr. at 59, 92, 99, 173-76). When Mr. Sysavne stopped the cab at that location, Mr. Harris exited first and stood in front of the cab. (Tr. at 60-61, 102-09, 126-28). After agreeing on a fare of three dollars, Mr. Lee asked Mr. Sysavne whether he had any change for a twenty-dollar bill. (Tr. at 61, 107-09, 124). The driver responded that he did not but would take whatever change the petitioner had. (Tr. at 61, 107-09).
The petitioner then pulled a black gun from his pocket or waist area, put it to Mr. Sysavne's neck, and threatened, "Give me all [your] money, mother fucking African, I'll kill you right now." (Tr. at 61-62, 109-13, 126, 272). Mr. Sysavne raised his hands in the air, and the petitioner leaned over the seat and took the money from the driver's pants pocket. (Tr. at 63, 111-13, 124, 296-302). Mr. Lee then exited the cab and ran in the direction of a building on 147th Street. (Tr. at 63, 128-29, 133, 158, 177, 304-07). At this time, Mr. Harris was standing about thirty feet in front of the cab, and Mr. Sysavne proceeded to drive his cab toward Mr. Harris. (Tr. at 63, 134, 177-78, 306-07). While moving out of the way, Mr. Harris threw a rock at the cab, shattering the windshield. (Tr. at 63-64, 132-34, 177-78, 304, 306-07). Mr. Harris then followed the petitioner into the building on 147th Street. (Tr. at 63, 128-29, 304-05, 307-08).
Mr. Sysavne went to 142nd Street and Eighth Avenue looking for a housing police officer, but since no one was there, he went to the police precinct on 135th Street between Seventh and Eighth Avenues. (Tr. at 124, 134, 138, 144-45, 315). Mr. Sysavne reported the robbery to Officer Jose Burgos, who was outside the police station at that time. (Tr. at 138, 141, 329, 334, 337). Officer Burgos and his partner, Officer Terence Flowers, followed Mr. Sysavne's cab toward the scene of the crime in their patrol car. (Tr. at 139-40, 145, 182, 318, 330, 338-41, 385-86, 439).
Before they arrived at the scene, Mr. Sysavne stopped at 148th Street and Seventh Avenue when he saw Mr. Lee and Mr. Harris walking on Seventh Avenue, about thirty feet away. (Tr. 140-43, 147-49, 157, 180-81, 316, 338, 342-44, 440). Mr. Sysavne pointed out Mr. Lee and Mr. Harris and told the officers that these were the men who had robbed him. (Tr. at 140-41, 143, 157, 181-84, 344-45, 396-406, 412, 440-41, 443, 459). This identification occurred approximately ten minutes after the robbery, and it was fully light outside by that time. (Tr. at 146, 180, 184, 339, 348, 366, 442). Mr. Lee and Mr. Harris continued to walk toward the officers and Mr. Sysavne until Officer Burgos stopped them. (Tr. at 349, 386-88). Officer Burgos then frisked Mr. Harris and Mr. Lee and arrested them. (Tr. at 330-32, 349, 363, 388). Officer Burgos later searched the area around the robbery but did not find a gun or any money. (Tr. at 365-67, 376, 389-93).
Mr. Lee and Mr. Harris were each indicted on June 7, 1996, on one count of Robbery in the First Degree in violation of New York Penal Law § 160.15(4) and one count of Robbery in the Second Degree in violation of Penal Law § 160.10(1). On August 1, 1996, the petitioner's counsel filed an omnibus motion seeking aDunaway/Huntley/Wade hearing. Thereafter, New York Supreme Court Justice Budd Goodman denied the requests for a Dunaway hearing, stating that Mr. Lee did not submit a sworn statement of facts, and a Wade hearing, finding that the police did not arrange the identification. Justice Goodman did grant a Huntley hearing, but limited it to the issue of voluntariness.
At a Dunaway hearing, the court determines whether a statement was the product of an arrest without probable cause.Dunaway v. New York, 442 U.S. 200 (1979). A Huntley hearing is held to ascertain whether a defendant's confession was voluntary. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965). In a Wade hearing, the court decides whether an identification resulted from an impermissibly suggestive lineup.United States v. Wade, 388 U.S. 218 (1967).
Mr. Lee and Mr. Harris first went to trial before Justice Dorothy Cropper and a jury in May 1997. At this trial, Mr. Sysavne was unable to identify Mr. Lee. (Tr. at 263-64). While Mr. Harris' counsel was cross-examining Mr. Sysavne, the petitioner's attorney, Steven Sindos, objected to Mr. Sysavne's lengthy answers, and began to complain, "Why do we have to deal with his. . . ." (Tr.(1) at 86). The judge interrupted and told Mr. Sindos to sit down. (Tr. (1) at 86). During a side bar, Mr. Sindos asked, "What theory allows [the complainant] to say whatever he wants to say? How does he just testify how ever he wants to?" (Tr. (1) at 92). In response to Mr. Sindos' comments, the judge told him to lower his voice. (Tr. (1) at 92). When Mr. Harris' counsel questioned Mr. Sysavne about his immigration status, the witness responded that he could not answer this question. Mr. Sindos interjected, "Yes you can." (Tr.(1) at 99). The prosecution then objected, and Mr. Sindos asked that Mr. Sysavne "be directed to answer that question." (Tr.(1) at 99).
"Tr. (1)" refers to the petitioner' s first trial, which began on May 20, 1997.
Following this exchange, the judge instructed the jury to ignore counsel's statement, excused the jury, and conducted a colloquy. (Tr. (1) at 99). After the lunch recess, Mr. Sindos' supervisor from Legal Aid appeared on behalf of Mr. Lee and requested a mistrial, stating that Mr. Sindos was too ill to continue with the case. (Tr. (1) at 100). Mr. Harris' attorney joined in the application for a mistrial, referring to the behavior of Mr. Sindos as the cause for this request and stating, "I'll leave it at that as the record is clear as to what his behavior was like." (Tr. (1) at 103). The court granted the motion "based upon the Court's observations this morning." (Tr. (1) at 100-01).
The colloquy was stenographically recorded but not included in the trial transcript. The record was sealed. (Tr.(1) at 99).
On September 8, 1997, a second trial commenced before Justice Arlene Silverman and a jury. The petitioner was represented by new counsel. (Tr. at 1). Mr. Sysavne and Officers Burgos and Flowers testified concerning the incident and the arrest of the petitioner and Mr. Harris.
During the direct examination of Mr. Sysavne, he identified Mr. Harris as the person who hailed his cab. (Tr. at 70). Initially, he identified Mr. Lee as someone who resembled the second perpetrator. (Tr. at 68-70). Then, during cross-examination, Mr. Sysavne identified Mr. Lee as the gunman. (Tr. at 250-51). He described the gunman as taller, older, and darker in complexion than Mr. Harris and taller, older, and lighter in complexion than himself. (Tr. at 65-67, 166-69, 170-71, 251). He also stated that at the time of the crime, the petitioner had some gray hair and red, burnt lips, "like someone who drinks alcohol," and since the date of the incident, the petitioner had gained weight and his lips had become less red. (Tr. at 65-71, 171, 254). Mr. Sysavne stated that Mr. Lee had not changed in appearance between May 1997 and September 1997; rather the difference was between the way he looked in June 1996, the date of the crime, and September 1997. (Tr. at 251-57, 259-60, 263-64). During the cross-examination, counsel asked Mr. Sysavne why he now recognized the petitioner, while in May 1997 he did not. (Tr. at 264). He replied, "Because May to today, that is just four months." (Tr. at 266). Officer Burgos also testified that the petitioner's appearance had changed since the arrest. He stated that Mr. Lee had gained weight and his lips were less "chapped." (Tr. at 330-32).
Mr. Sysavne was also questioned about his immigration history. On direct examination, he testified that he was a Guinean who had entered the United States in 1993, that he did not have green card or work permit, and that he was licensed to drive a taxi. (Tr. at 50, 52, 220-21, 225-26, 249). On cross-examination by Mr. Harris' attorney, he confirmed that he did not have a green card or a work permit. (Tr. at 185-86). He also stated that he had never paid taxes or filed a tax return because of his undocumented status. (Tr. at 185-86). During cross-examination by the petitioner's attorney, Mr. Sysavne stated that he entered the country in 1993 on a business visa, but he did not know when that visa expired. (Tr. at 187-92). During a bench conference addressing whether the complainant could be asked further questions about the type of visa he used to enter the country and about whether he had lied to the immigration authorities and the taxi commission, the court ruled that counsel could only ask a few more questions about the type of visa because these issues were collateral and had been explored. (Tr. at 193-205). The petitioner's counsel proceeded to ask Mr. Sysavne what type of work he was permitted to do when he entered the United States, and he responded that he was not asked "what kind of job [he] would be doing." (Tr. at 206-07). Mr. Sysavne also stated that he was not asked his immigration status when applying for the taxi license. (Tr. at 209-10). When asked again when his visa expired, he responded that he did not know. (Tr. at 208). The court then sustained objections to questions about whether Mr. Sysavne knew he was committing a crime by illegally remaining in the country, whether his documents had been forged, and whether he had discussed changing his immigration status with a lawyer. (Tr. at 210-12).
Counsel also questioned Mr. Sysavne concerning the manner in which Mr. Lee and Mr. Harris entered the cab. On direct examination, Mr. Sysavne stated that on the morning of the crime he "took those passengers and they got into my car and they broke into my car." (Tr. at 57). He further explained how Mr. Harris entered the cab and called to Mr. Lee, who then joined him. (Tr. 58-59, 78-83, 86-91). Later, Mr. Sysavne detailed how Mr. Harris threw a rock and broke the windshield of his cab. (Tr. at 63-64, 132-34).
On cross-examination by Mr. Harris' attorney, Mr. Sysavne reiterated that the two men "got into the car," and that Mr. Harris threw a rock at the cab, which broke the windshield. (Tr. at 173, 175, 178). The petitioner' s counsel asked whether Mr. Sysavne had told the prosecutor that "you took two passengers and they broke into your car." (Tr. at 267). Mr. Sysavne responded that he did not understand the question. (Tr. at 267). Counsel then asked him if he had said that "these two passengers broke into your cab." (Tr. at 267). Mr. Sysavne replied, "[y]ou can look at the pictures, the front windshield is broken. The pictures show that." (Tr. at 267). Next, the petitioner's counsel read the prosecutor's question and the complainant's response that the petitioner and Mr. Harris broke into his car, and asked, "You weren't referring to 4:30 in the morning you were referring to sometime later after you had dropped them off, is that your testimony." (Tr. 267-68). Mr. Sysavne responded that the question was too long. (Tr. at 269). The court agreed and requested that counsel specify what question he was attempting to ask. (Tr. at 269). Counsel stated that he wanted to ask what he "was referring to when he said the two passengers broke into his car." (Tr. at 269). The court did not permit the question at that time because it was irrelevant, but stated that after reviewing the transcript, further questioning would be permitted. (Tr. at 269). When cross-examination resumed the next day, the petitioner's counsel did not revisit this issue.
Another area of inquiry was the color of Mr. Lee' s hair at the time of the crime. On direct examination, Mr. Sysavne described the gunman as older than his companion and stated that "I saw some kind of gray hair on his head." (Tr. at 68). During cross-examination by Mr. Harris' attorney, Mr. Sysavne again stated that the gunman was older with "some gray hair." (Tr. at 70-71). The petitioner's attorney asked whether, when he pointed the defendants out to police, Mr. Sysavne noticed that the taller man with the darker complexion was gray. (Tr. at 320). After an objection was sustained, counsel rephrased the question, asking whether the taller, darker man had "some gray hair" when he was arrested. (Tr. at 320). Mr. Sysavne's response concerned whether he had seen the defendants in the grand jury. (Tr. at 321). After this answer, the court asked counsel if he had anything further to ask and counsel responded, "I didn't get an answer to my question. I have nothing else to ask." (Tr. at 321). After a recess, Mr. Harris' attorney requested permission to reopen cross-examination of Mr. Sysavne. The judge denied this request because the prosecution had not conducted any re-direct. (Tr. at 322-25). Mr. Lee's counsel requested permission to make a mistrial motion but did not seek to examine Mr. Sysavne further. (Tr. at 325).
The attorneys also questioned Mr. Sysavne about the perpetrators' complexion. On direct examination, Mr. Sysavne stated that the man who hailed the cab had a lighter complexion than his companion. (Tr. at 57, 60, 62-66). Mr. Harris' attorney then cross-examined the complainant about the descriptions of the two men, including skin tone. (Tr. at 170). Mr. Sysavne again responded that the man who hailed the cab had lighter skin. (Tr. at 170). Mr. Lee's attorney then asked him whether the person who hailed the cab had a lighter complexion, and he again said that was the case. (Tr. at 232). The third time counsel asked whether one of the men at the scene of the crime had a lighter complexion, Mr. Sysavne responded, "I did see them, that's all I know and maybe you can find out who is lighter and who is darker." (Tr. at 320). At this point, the judge asked counsel to move onto another subject, and counsel did not object. (Tr. at 320).
On September 15, 1997, Mr. Lee and Mr. Harris were each found guilty of first and second degree robbery. Mr. Harris then moved to set aside the verdict against him on the basis that there was insufficient evidence that he had acted in concert with the petitioner. On October 8, 1997, Justice Silverman set aside the entire verdict against Mr. Harris. (Transcript of Defendant Harris' Motion to Overturn Verdict dated Oct. 8, 1997 at 6-8). Justice Silverman also set aside Mr. Lee's conviction for second degree robbery and sentenced the petitioner as a second felony offender to fourteen years imprisonment for the first degree robbery conviction. (S. Tr. at 12).
"S. Tr." refers to the transcript of Mr. Lee's sentencing on October 8, 1997.
In December 1998, assigned counsel for the petitioner filed a brief in the Appellate Division, First Department, claiming that: (1) because Mr. Sysavne's in-court identification of Mr. Lee was based on his recollection from the first trial rather than his memory of the crime, there was insufficient evidence identifying the petitioner as one of the robbers, and the verdict was against the weight of evidence; and (2) the trial court violated the petitioner' s due process rights by restricting cross-examination. (Brief for Defendant-Appellant-Respondent Robert Lee, submitted to the Appellate Division, First Department ("Pet. App. Br."), attached as Exhibit A to the Declaration of Jennifer K. Danburg dated Jan. 29, 2003 ("Danburg Decl.")).
On April 11, 2000, the Appellate Division unanimously reversed the order setting aside the jury verdict convicting Harris of first and second degree robbery and the petitioner of second degree robbery.People v. Harris, 2000 N.Y. Slip Op. 03654, 706 N.Y.S.2d 392, 393-94 (1st Dep't 2000). The court reinstated the verdicts on those counts and remanded the matter for further proceedings. Id., 706 N.Y.S.2d at 394. The court also unanimously affirmed the petitioner's conviction for first degree robbery. Id., 706 N.Y.S.2d at 394.
The court noted that while it was arguable that the in-court identification relied on Mr. Sysavne's recollection of the petitioner at a previous proceeding rather than at the scene of the crime, "the issue was fully explored during cross-examination." Id., 706 N.Y.S.2d at 394. Additionally, the court stated that Mr. Sysavne's identification of the petitioner ten minutes after the crime and his accurate description of the petitioner at the time provided sufficient evidence that Mr. Lee was one of the robbers. Id., 706 N.Y.S.2d at 394. The court then stated that the petitioner's other challenges to the reliability of the complainant's testimony only went to the weight of the identification evidence, that the jury usually resolved these issues, and that jury determinations of reliability must be given great weight on appeal. Id., 706 N.Y.S.2d at 394-95.
As to the claim of improper limitation of cross-examination, the court found that the trial court "properly exercised its discretion in controlling the nature and extent of the cross-examination," and only limited the two-day cross-examination when it "became confusing, redundant or irrelevant." Id., 706 N.Y.S.2d at 395. Finally, the court found the petitioner's "remaining protestations of error and assertions of a failure of proof" without merit. Id., 706 N.Y.S.2d at 395.
On May 12, 2000, the petitioner sought leave to appeal to the New York Court of Appeals. (Letter of Alan Katz dated May 12, 2000, attached to Danburg Decl. as Exhibit D). Mr. Lee asked for review of his claim that the evidence was legally insufficient to sustain the verdict and that the court improperly restricted cross-examination. The Court of Appeals denied leave to appeal on July 21, 2000. People v. Lee, 95 N.Y.2d 854, 714 N.Y.S.2d 6 (2000).
On remand, Justice Silverman sentenced Mr. Lee to a seven year term of imprisonment on the second degree robbery charge to run concurrently with the fourteen year term imposed for the first degree robbery conviction. (S. Tr. (2) at 5).
"S. Tr. (2)" refers to the sentencing hearing on May 18, 2000.
In February 2001, counsel for Mr. Lee appealed to the Appellate Division, First Department, claiming that the conviction for second degree robbery should be dismissed in the interest of justice. (Danburg Decl., Exh. G). The Appellate Division unanimously rejected this argument and affirmed the conviction. People v. Lee, 2001 N.Y. Slip Op. 07755, 731 N.Y.S.2d 362 (1st Dep't 2001).
On October 29, 2001, the petitioner requested leave to appeal to the New York Court of Appeals. (Letter of Carol A. Zeldin, dated Oct. 29, 2001, attached to Danburg Decl. as Exh. J). This application was denied on December 28, 2001. People v. Lee, 97 N.Y.2d 684, 738 N.Y.S.2d 299 (2001).
Meanwhile, in March 2001, the petitioner, proceeding pro se, moved to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Mr. Lee claimed that he was denied effective assistance of counsel because: (1) his attorney in the first trial, Mr. Sindos, failed to renew his application for a Dunaway hearing; (2) without the petitioner's consent, Mr. Sindos' supervisor requested a mistrial; and (3) his attorney at the second trial failed to renew theDunaway hearing application, failed to object to the complainant's in-court identification of the petitioner, and failed to object to testimony about the pre-trial identification of the petitioner. (Danburg Decl., Exh. L).
On July 1, 2001, Justice Silverman denied the CPL § 440.10 motion without a hearing. First, the court noted that the petitioner did not establish that the failure to renew a Dunaway application constituted an error by counsel. In the alternative, the court found that this claim was procedurally barred under CPL § 440.10(2)(c) because the record contained sufficient facts to raise this claim on direct appeal. The court found the petitioner's claim of ineffective assistance of counsel based on the mistrial to be without merit because the decision to seek to a mistrial was for the lawyer, not for the client. The court further held that the petitioner's motion was, "in all respects, denied." (Danburg Decl., Exh. N).
On August 6, 2001, the petitioner filed a motion with the Appellate Division, requesting leave to appeal the denial of his motion to vacate. (Danburg Decl., Exh. 0). This application was denied in an order dated October 30, 2001. (Danburg Decl., Exh. Q).
Mr. Lee then submitted the instant petition, which was received by the Court on December 4, 2001. The petition is timely, and Mr. Lee has fully exhausted his state remedies with respect to each claim.
The statute of limitations was tolled from March 2001 until October 30, 2001, while a motion to vacate the judgment of conviction was pending in the state courts.
Prior to passage of the Antiterrorism and Effective Death Penalty Act (the "ADEPA"), factual findings made by a state court after an evidentiary hearing were presumed correct in a federal habeas proceeding, but federal courts were not required to defer to state court determinations of law or of mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, a writ of habeas corpus may not issue "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication . . . 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." 28 U.S.C. § 2254(d)(1).
A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. [Williams v. Taylor, 529 U.S. 362,] 405-06 (2000). An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Id. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Id. at 409. Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 n. 2 (2d Cir. 2002). The "increment of incorrectness beyond error . . . 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, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002).
The AEDPA standard applies to the case since Mr. Lee filed his petition after the Act's effective date. See Brown, 283 F.3d at 498 n. 2. Nevertheless, since each of Mr. Lee's claims fails under the less deferential pre-AEDPA standard, there is need to conduct the AEDPA's more intricate analysis. Cf. Kruelski v. Connecticut Superior Court for the Judicial District of Danbury, 316 F.3d 103, 106-07 (2d Cir. 2003) (suggesting, in post-AEDPA cases, that habeas courts assess first whether the state court's ruling was erroneous under "correct interpretation" of federal law at issue, then, if not, whether ruling was unreasonable).
A. Sufficiency of the Evidence
Initially, Mr. Lee claimed in the alternative that his conviction was against the weight of the evidence. (Pet. at 5). However, Mr. Lee concedes that such a claim is an inappropriate basis for habeas relief. (Traverse in Opposition of Answer Opposing Petition for a Writ of Habeas Corpus at 11 ("Pet. Memo."). See Douglas v. Portuondo, 232 F.2d 106, 116 (S.D.N.Y. 2002) (weight of evidence claim is "an error of state law, for which habeas review is not available"); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001) (court is precluded from reviewing weight of the evidence claim because it is "pure state law claim"); Ventura v. Artuz, No. 99 Civ. 12025, 2000 WL 995497, at *8 n. 12 (S.D.N.Y. July 19, 2000); Rodriguez v. O'Keefe, No. 96 Civ. 2094, 1996 WL 428164, at *4 (S.D.N.Y. July 31, 1996),aff'd, 122 F.3d 1057 (2d Cir. 1997).
Mr. Lee asserts that there was insufficient evidence to support his conviction because the complainant' s in-court identification improperly relied on his recollection of Mr. Lee from the previous trial. (Petition at 5). This claim is without merit.
There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal quotations and citation omitted). To succeed, the petitioner must demonstrate that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also Ouartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999); Knapp, 46 F.3d at 178.
A federal habeas court reviewing a sufficiency of the evidence claim does not make an independent determination as to whether the evidence demonstrates guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Rather, the court must construe the evidence in the light most favorable to the prosecution. Id. at 319; see also Herrera v. Collins, 506 U.S. 390, 402 (1993) (stating that theJackson inquiry asks only whether decision to convict was rational, not whether it was correct). Additionally, "insofar as identification evidence is concerned, it is well within the province of the jury to determine the reliability of a witness' memory and observational powers." Davis v. Miller, No. 99 Civ. 2423, 1999 WL 1125055, at *3 (S.D.N.Y. Dec. 8, 1999); see also United States v. Brewer, 36 F.3d 266, 269 (2d Cir. 1994); United States v. Maldonado-Rivera, 992 F.2d 934, 973 (S.D.N.Y. 1990). A federal court does not review de novo "the persuasiveness of testimony it has not itself heard, or evidence it has not itself considered in the first instance." Davis, 1999 WL 1125055, at *3; see also Marshall v. Lonbercrer, 459 U.S. 422, 432 (1983); Jovner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *6 (S.D.N.Y. Aug. 12, 1999).
In this case, the identity of Mr. Lee as one of the robbers was sufficiently established, such that a rational fact finder could have found the petitioner guilty beyond a reasonable doubt. As the Appellate Division noted, although Mr. Sysavne's in-court identification may have been influenced by his recollection of Mr. Lee from the first trial, this possibility was fully tested by cross-examination. See Harris, 2000 N.Y. Slip Op. 03654, 706 N.Y.S.2d at 394. Additional evidence, such as the complainant's identification of Mr. Lee approximately ten minutes after the crime, supported the verdict. See id., 706 N.Y.S.2d at 394. During the cab ride and subsequent robbery, Mr. Sysavne had time to observe Mr. Lee, and the cab was well lit. The initial identification was made during daylight hours and was not suggestive because Mr. Sysavne led the police to the scene of the crime and identified Mr. Lee and Mr. Harris without the assistance of the officers.
Additionally, the complainant described the assailants and indicated how the petitioner's appearance had changed since the robbery. The jurors could determine for themselves whether the petitioner and Mr. Harris matched these descriptions.
In light of these considerations, there is sufficient evidence to support the verdict, and the petitioner's claim must fail.
B. Limitation of Cross-Examination
The petitioner next alleges that the trial court violated his rights under the Confrontation Clause by limiting his attorney's cross-examination of Mr. Sysavne regarding: (1) his immigration status; (2) the gunman's hair color; (3) how the defendants entered the cab; and (4) the complexion of the defendants.
A defendant has the right to confront his accusers, but the right to present relevant testimony is not absolute and may be limited to "accommodate other legitimate interests in the criminal trial process."Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). "`[T] rial judges retain wide latitude' to limit reasonably a criminal defendant's right to cross-examine a witness Abased on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also Taylor v. Illinois, 484 U.S. 400, 410-13 (1988) (stating that right to cross-examination is not absolute).
The petitioner's first argument concerns the limitations on the cross-examination of the complainant regarding his immigration status, which the petitioner asserts was relevant to the jury's determination of his credibility. (Pet. Memo, at 22). This claim is unavailing, however, as the jury received ample information concerning Mr. Sysavne's immigration status as it was pertinent to his veracity, and, as the Appellate Division found, the trial court only limited testimony that was confusing and irrelevant. Harris, 2000 N.Y. Slip Op. 03654, 706 N.Y.S.2d at 395,
The jury was informed that Mr. Sysavne was in the United States on an expired visa, that he had not paid taxes, and that he was working without a visa. See United States v. Singh, 628 F.2d 758, 763 (2d Cir. 1980) ("In determining whether a trial judge has abused his discretion in the curtailment of cross-examination of government witnesses, the test is whether the jury was already in possession of sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely in favor of the government"). Since the jury had sufficient information on this issue, the limitations on cross-examination concerning Mr. Sysavne's immigration status were proper.
The second matter concerns the manner in which Mr. Lee and Mr. Harris entered the cab. Again, the court acted within its discretion in restricting this line of questioning. Although the complainant stated on direct examination that the passengers "got into my car and they broke into my car," he subsequently clarified this statement by describing how the passengers entered the car and how the windshield of the car was later broken. (Tr. at 58-59, 63-64, 78-83, 86-91, 132-34, 173, 175, 178). The court allowed cross-examination on this subject until the questioning became irrelevant. (Tr. at 269). Additionally, the judge indicated that he might allow further cross-examination the next day after he had reviewed the transcript, but the petitioner's counsel did not pursue the issue further. (Tr. at 269).
Mr. Lee also contends that the limitation of questioning about the gunman's gray hair was improper. During both direct and cross-examination, Mr. Sysavne stated that the gunman had some gray hair. (Tr. at 68, 170-71). As indicated by the trial transcript, the court did not limit cross-examination related to the color of the gunman's hair but rather declined to re-open cross-examination in the absence of any re-direct. Additionally, members of the jury could observe whether Mr. Lee had any gray hair and determine whether it matched the complainant's description. Thus, the court did not improperly limit cross-examination. The petitioner's last contention — that the court improperly constrained cross-examination regarding the complexion of the defendants — is also without merit. During both direct and cross-examination, the complainant stated that the man who hailed the cab had a lighter complexion than his companion. (Tr. at 57, 60, 62-66, 170, 232). Once more, the trial court acted within its discretion, moving the case forward by limiting the questioning when it became redundant, and the petitioner's counsel did not object when asked to change subjects. The jury had sufficient information and could decide for themselves whether Mr. Harris had a lighter complexion than Mr. Lee. Thus, the claim of improper limitation on cross-examination is without merit.
C. Ineffective Assistance of Counsel
The petitioner claims that his attorneys provided him with ineffective assistance of counsel because: (1) counsel failed to renew the motion for a Dunaway hearing; (2) the attorney in the first trial requested a mistrial without the petitioner's consent; and (3) counsel in the second trial failed to object to the in-court identification of the petitioner and the testimony about the complainant' s identification of petitioner ten minutes after the crime.
Mr. Lee's first claim concerning the failure to renew the motion for aDunaway hearing is not reviewable. Under New York state law, review of an issue on a motion to vacate judgment is procedurally barred when all the necessary facts for review of that issue were on the record for direct appeal. See C.P.L. § 440.10(2)(c). Here, Justice Silverman found that because the factual predicate for each of Mr. Lee's claims of ineffective assistance was evident on the face of the trial record, his failure to raise them on direct appeal was fatal. A state court judgment based on an adequate and independent state ground will foreclose federal habeas corpus review. Harris v. Reed, 489 U.S. 255, 261-62 (1989). The state court procedural default rule must be "firmly established and regularly followed" to qualify as an independent and adequate state ground. See James v. Kentucky, 466 U.S. 341, 348 (1984). The court's finding in this casse that Mr. Lee was procedurally barred from bringing this claim forecloses federal habeas corpus review because the bar to collateral review of a claim that was available for direct appeal is "firmly established and regularly followed," and thus constitutes an adequate and independent state ground.See CPL § 440.10(2)(c); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 127 (2d Cir. 1995).
An alternative holding on the merits of a federal claim does not invalidate an independent and adequate state ground as long as a "state court explicitly invokes a state procedural bar rule as a separate basis for decision." Harris, 489 U.S. at 264 n. 10; see also Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). Accordingly, Justice Silverman's alternative finding that Mr. Lee's claim of ineffective assistance had no merit because he presented no case law demonstrating that failure to renew a Dunaway hearing constituted error does not invalidate the state procedural bar as an adequate and independent ground.
If a petitioner's claim is procedurally defaulted, it may only be reviewed if the petitioner is able to "either: (1) show cause for the default and actual prejudice as a result of the constitutional violation, or (2) demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice, . . . or, in other words, an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000) (internal quotations and citations omitted). The petitioner has not suggested any cause for failing to assert this claim on appeal, and he has not shown that manifest injustice will result if this claim is not considered. Thus, the claim of ineffective counsel based on the failure to renew the Dunaway hearing motion is barred from habeas corpus review.
Neither of the petitioner's remaining claims of ineffective assistance of counsel establish any error on the part of his attorneys. To obtain habeas relief due to ineffective assistance of counsel, Mr. Lee must demonstrate that counsel's performance was deficient, and that the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). In assessing whether the attorney's performance was deficient, a reviewing court must determine whether his conduct "fell below an objective standard of reasonableness" given the facts and circumstances of a particular case.Strickland, 466 U.S. at 688. A habeas corpus court must be "highly deferential" and indulge a strong presumption that the counsel's conduct falls withing the wide range of reasonable professional assistance." Id. at 689. The prejudice prong of theStrickland test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that "but for" the claimed errors of counsel, the trial result would have been different. Id. at 687, 694.
As the trial court found, Mr. Lee's claim that the first attorney provided ineffective assistance of counsel by moving for a mistrial without consulting Mr. Lee does not constitute ineffective assistance of counsel. Although the "defendant has ultimate authority to make fundamental decisions in his case," the Supreme Court has not identified the determination of whether to request a mistrial as such a fundamental decision. See United States v. Burke, 257 F.3d 1321, 1323 (11th Cir. 2001), cert. denied, 537 U.S. 940 (2002) (citing Jones v. Barnes, 463 U.S. 745 (1983) (suggesting that "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal" are fundamental decisions)). Several circuits have declined to include a request for mistrial in the list of fundamental decisions reserved for a defendant because this decision concerns trial strategy. See Burke, 257 F.3d at 1323; United States v. Washington, 198 F.3d 721, 723 (8th Cir. 1999) (stating that the decisions to request or not to request a mistrial are both strategic decisions for a defense attorney and do not require consultation with the defendant); Watkins v. Kassulke, 90 F.3d 138, 141-43 (6th Cir. 1996); Galowski v. Murphy, 891 F.2d 629, 639 (7th Cir. 1989);People v. Ferguson, 67 N.Y.2d 383, 389-90, 502 N.Y.S.2d 972, 976-77 (1986).
Additionally, Mr. Lee has not shown that the decision to request a mistrial constituted unreasonable assistance by his counsel or that this decision affected the outcome of his case. The first attorney's supervisor requested a mistrial because of the attorney's illness, and trial court granted the motion on the basis of the court's observations. (Tr.(1) at 100-01). The illness of the attorney could have delayed the case or required a substitution with an attorney unfamiliar with the issues. For these reasons, the request for a mistrial was reasonable and did not unduly prejudice Mr. Lee's case.
Finally, Mr. Lee's contention that his attorney provided ineffective assistance of counsel by failing to object to Officer Burgos' testimony about the pre-trial identification by Mr. Sysavne and his in-court identification of Mr. Lee is without merit. The pre-trial identification of Mr. Lee was not subject to suppression because it was not a procedure arranged by the police, as Justice Goodman determined when he denied the petitioner' s request for a Wade hearing. Mr. Sysavne led the police, who were in a separate car, to the crime scene and identified Mr. Lee and Mr. Harris as the perpetrators without any police involvement.
Similarly, counsel's failure to object to the in-court identification did not constitute error. Although, it was possible that the in-court identification relied on the complainant' s recollection of the petitioner at a previous proceeding rather than at the scene of the crime, "the issue was fully explored during cross-examination of the complainant." Harris, 2000 N.Y. Slip Op. 03654, 706 N.Y.S.2d at 394.
In any event, the petitioner has failed to demonstrate ineffective assistance of counsel because the alleged errors did not prejudice his case. First, Mr. Lee cannot demonstrate that but for the mistrial in the first proceeding, the result of the second trial would have been different. Likewise, the failure of the attorney in the second trial to object to certain testimony did not affect the outcome of the case because the attorney's objections would not have been successful.
In sum, none of the petitioner' s claims of ineffective counsel are availing because his counsel did not err, and even if the actions were considered errors, Mr. Lee was not prejudiced.
Conclusion
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) 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, with extra copies delivered to the chambers of the Honorable Barbara S. Jones, Room 2103, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.