Opinion
98 Civ. 8663 (MBM)
April 3, 2002
Nathan McBride, Sing Sing Correctional Facility, Ossining, NY, Petitioner, Pro Se.
Eliot Spitzer, Esq., Attorney General of the State of New York, Dian Kerr McCullough, Esq., Assistant Attorney General, New York, NY, for Respondent.
OPINION AND ORDER
Nathan McBride petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. V 1999), challenging his New York state court conviction for robbery in the first degree. Magistrate Judge Theodore H. Katz recommended in a Report and Recommendation dated June 27, 2000 (the "Report"), that the petition be dismissed on the merits. Petitioner has filed objections to the Report and in addition, has moved to withdraw his petition in order to exhaust a new claim in state court. For the reasons set forth below, the motion to withdraw is denied, the Report is adopted, and McBride's petition is dismissed.
I.
The relevant facts are set forth in the Report and are summarized here as follows. Petitioner and his brother were charged with the knife-point robbery of Mamad Toura, a New York City taxicab driver. (Report at 1-2) The testimony at trial established the following account. As Toura was leaving his taxicab on the morning of July 14, 1994, he was grabbed from behind in a choke hold by one man, while another grabbed his legs. (Id. at 2) The two men carried him into a building where they threatened him with a knife and took his money. (Id. at 2-3) One of the assailants took the keys to Toura's cab and went out to the car while his accomplice made further demands for Toura's possessions and threatened to kill him if he called the police. (Id. at 3) The two assailants then escaped in Toura's taxicab. (Id.)
Toura reported the robbery to his dispatcher, who called the police. (Id.) Toura described his two assailants to Officer Serge Ruggio as young, African-American males, one slightly taller than he, and the other shorter. Toura told the police that the shorter man had been wearing maroon-colored jogging pants, and that the taller man had been wearing long shorts; both had more facial hair than he did. (Id.) Toura also assured the police that he would be able to recognize his assailants because he saw them clearly in the lobby. (Id. at 3-4) Toura further testified at trial that he had a direct and clear view of the assailant at his feet as he was being carried into the building. (Id. at 3)
After locating the stolen cab a few blocks away from the scene of the crime, Officer Rugglo directed a stake-out of the empty vehicle. (Id. at 4-5) After two individuals matching Toura's description — petitioner and his brother — and a Hispanic male approached and entered the car, the three were detained by the police. (Id. at 5) Approximately two hours after the robbery occurred, Toura was brought to this location and asked by Ruggio whether he recognized anyone. (Id. at 4, 5) Toura identified petitioner and his brother as his assailants. (Id.) The jury heard somewhat inconsistent accounts of the circumstances surrounding this identification: Toura testified that the suspects were standing when he arrived whereas Officer Ruggio testified that they were sitting on the curb. (Id.) Further, Ruggio testified that Toura appeared shaken at the show-up, so Ruggio asked the driver of the car Toura was in to move the car away from the suspects, briefly got into the car and assured Toura no one would hurt him, and had to ask Toura three times if he recognized the individuals. (Id. at 5) Toura did not recount, in his narrative of events, that Ruggio ordered the car moved, entered the car, or asked him more than once. (Id. at 4) After the identification, petitioner and his brother were placed under arrest. (Id. at 5-6)
On March 3, 1995, a pre-trial hearing was held to determine the admissibility of a statement petitioner made to the police and of evidence relating to Toura's show-up identification of petitioner on the date of the robbery. (Id. at 2) At the hearing, Officer Ruggio testified that petitioner and his brother matched the description given by Toura of his assailants, and that they were detained after approaching Toura's stolen vehicle. (Id. at 18) Ruggio then contacted Toura's dispatcher to request that Toura, who was en route to the stolen cab after retrieving spare keys, be brought to their location. (Id.) According to Ruggio's testimony, when Toura arrived, petitioner, his brother, and a Hispanic man were surrounded by several police officers, but were neither handcuffed nor physically restrained. (Id.) Ruggio approached Toura and asked him if he recognized anyone in the vicinity. (Id.) Ruggio testified that Toura was staring at petitioner and his brother and was visibly shaken. Ruggio thus directed the car to move 15 to 20 feet away from petitioner and his brother, got into the car, and asked Toura three more times whether he recognized anyone. Toura answered, "Those are the guys that beat and robbed me." (Id. at 19) This identification took place approximately two hours after the robbery, within two blocks of the scene of the crime. (Id. at 19) The trial court ruled that both the statement and the identification testimony would be admissible at trial, noting that the show-up identification had occurred "within a short period of time" after the robbery and in "an area approximate to the location where the robbery allegedly occurred," and was therefore not unduly suggestive. (H. 115-18) At a trial in Supreme Court, New York County, the jury thus heard the show-up identification testimony, in addition to Toura's in-court identification of petitioner. Petitioner was convicted of robbery in the first degree on March 14, 1995 and was sentenced on April 12, 1995 to an indeterminate prison term of 20 years to life. (Report at 6; Resp. Aff. Ex. B at 4)
On June 17, 1995, petitioner moved in Supreme Court to vacate the judgment of his conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, claiming that the evidence at trial was insufficient to establish first degree robbery and that the court erred by failing to impose a sanction against the prosecution at the suppression hearing for their loss of Rosario material. (Resp. Aff. Ex. B at 1, 4) On November 22, 1995, the trial court summarily denied that motion pursuant to New York C.P.L. § 440.10(2)(b), noting that sufficient facts appeared on the record to permit review of those claims on direct appeal. (Id.) On May 14, 1996, the Appellate Division, First Department, granted petitioner leave to appeal that decision and permitted petitioner to consolidate that appeal with his direct appeal. (Id.)
In January 1996, petitioner appealed his conviction to the Appellate Division, First Department, arguing that: (1) his conviction was against the weight of the evidence because the victim's description of the perpetrator differed substantially from petitioner's actual appearance, and the victim's identification testimony was not credible; and (2) the show-up identification procedure was unduly suggestive because petitioner was surrounded by the police, who urged the victim to identify him, and the time period between the robbery and the show-up was too long. (Report at 7) Petitioner abandoned his Rosario claim in his direct appeal. (Id.) On September 23, 1997, the Appellate Division unanimously affirmed the judgment of conviction, holding that (1) the verdict was based on legally sufficient evidence, and "[i]ssues relating to the credibility and the reliability of identification testimony were properly presented to the jury," and (2) the motion to suppress the identification testimony was properly denied because the two-hour time lapse and the circumstances surrounding the show-up were insufficient to compel a conclusion that the identification procedure was improper. People v. McBride, 242 A.D.2d 482, 662 N.Y.S.2d 470 (1st Dep't 1997). The New York Court of Appeals denied leave to appeal on December 3, 1997. People v. McBride, 91 N.Y.2d 876, 668 N.Y.S.2d 575 (1997).
On November 5, 1998, petitioner filed the current petition in this court, raising the same two issues presented in his direct appeal.
Petitioner filed an amended petition on January 21, 1999.
II.
In a letter to the court dated November 6, 2000, petitioner moves to withdraw his petition without prejudice, with permission to renew, so that he may exhaust a new claim in state court. Petitioner explains that he has recently obtained through a Freedom of Information Act ("FOIA") request certification that his Miranda Warning Form could not be found. He maintains that the form never existed, and that Officer Ruggio perjured himself at the suppression hearing in testifying that the warnings had been administered from this form. He would thus like to return to state court to raise a constitutional challenge to his conviction under Miranda v. Arizona, 384 U.S. 436 (1966). From the record, it is apparent that petitioner has already contested the admissibility of his statements to the police at the pretrial suppression hearing, raised the issue of the lost form in his § 440.10 motion (albeit misdesignated as a Rosario issue), and appealed that motion in conjunction with his direct appeal. However, as previously noted, the issue was abandoned on appeal.
Petitioner is correct in asserting that he must first exhaust in the state courts any constitutional claim he seeks to present in federal court. See 28 U.S.C. § 2254 (b)(1); Daye v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982). However, I decline to grant petitioner permission to withdraw his petition to exhaust this claim. To simplify this case, I will put aside the analytically prior issues of whether the claim would be procedurally barred, or forfeited, in the state courts and whether any subsequent federal petition containing this claim would be timely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Even though those procedural issues are likely determinative, see New York C.P.L. § 440.10(2)(c); AEDPA, 28 U.S.C. § 2244 (d)(1)(A), the most obvious ground for denying petitioner's request is that there is absolutely no hope of its success.See Jones v. Senkowski, ___ F.3d ___, No. 00 Civ. 2145, 2002 WL 246451 (2d Cir. Feb. 21, 2002) Petitioner's own submissions to this court make clear that there was no Miranda violation because his statements were not used at trial. See Miranda v. Arizona, 384 U.S. 436 (1966); Mincey v. Arizona, 437 U.S. 385, 397 n. 12 (1976). Petitioner's putative Miranda claim amounts to nothing more than an allegation that Officer Ruggio and the Assistant District Attorney perjured themselves at the suppression hearing regarding the existence of a Miranda Warning Form, and a complaint that the prosecution was never sanctioned for the alleged loss of the form. (See Letter from McBride to the court of 03/26/01 at 2; Letter from McBride to Danielle R. Cooper, Esq. of 11/15/96 at 1-2) Because petitioner's statements were not admitted at his trial, there is no basis for habeas relief, and that alone puts the matter to rest on the merits notwithstanding petitioner's expressed hope of exhausting this claim in the state courts. For this reason, I decline to grant petitioner's motion to withdraw his petition, and turn now to the claims raised in that petition.
III.
As previously noted, McBride presses two claims in the instant petition: (1) that his conviction was against the weight of the evidence; and (2) that the show-up identification procedure was unduly suggestive. Because McBride has filed objections to Magistrate Katz's report on both of these grounds, I review them de novo. See 28 U.S.C. § 636 (b)(1) (1994); Fed.R.Civ.P. 72(b).
McBride's appeal to the Appellate Division and request for leave to appeal to the New York Court of Appeals fairly presented these claims to the state's highest court; therefore, he has exhausted his state court remedies, see Daye, 696 F.2d at 191, and is entitled to consideration of the merits of his claims.
Pursuant to § 2254(d) of the AEDPA, habeas relief cannot be granted unless the state court's adjudication of these claims:
(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). With respect to the latter subsection, a factual determination is presumed correct unless the petitioner rebuts the presumption by "clear and convincing evidence." § 2254(e)(1).
A. Sufficiency of the Evidence
Petitioner first claims that there was insufficient evidence to support his conviction for first degree robbery. A habeas corpus petitioner bears a "very heavy burden" in challenging his conviction on this ground. See Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995). The standard the Supreme Court has set for federal review 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). This standard recognizes the jury's responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from [the] facts," and presumes that the jury has resolved such issues in favor of the prosecution. Id.
As Magistrate Judge Katz notes, petitioner actually argues that the verdict was against the weight of the evidence, but because this claim is not cognizable on habeas review, see Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); Rodriguez v. O'Keefe, No. 96 Civ. 2094, 1996 WL 428164, at *4 (S.D.N.Y. July 31, 1996), the court will liberally construe his claim to be the related claim of insufficiency of the evidence, which may be considered, see id.
Petitioner argues that there was insufficient evidence linking him to the robbery because Toura, the victim, did not include in his description of the perpetrator to the police petitioner's "most striking characteristic" — his bald head — and there was no corroborating physical evidence. (Petition at 1) He further contends that Toura was not credible because of a number of inconsistencies between Toura's and Officer Ruggio's accounts of the show-up identification. (Petition at 5-8)
At trial, Toura identified petitioner as one of his assailants. (Report at 4) As to evidence of identification, "[t]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979);see also Tibbs v. Florida, 457 U.S. 31, 45 n. 21 (1982) (noting that the due process requirements of Jackson are clearly met where the prosecution presents eyewitness testimony about the crime). In addition to the identification, the jury heard Toura's initial description of the perpetrators, which included their sex, race, age-group, height, facial hair, and clothing, and which was a reasonably accurate description of petitioner and his brother; it also heard that Toura had identified petitioner at a show-up identification shortly after the robbery. (Id. at 3-4) Toura further testified that he had had a direct and clear view of petitioner as he was carried into the building, and that he was able to view the perpetrators within the building. (Id.) There was thus ample evidence introduced at trial to connect petitioner to the crime beyond a reasonable doubt. Toura's failure to mention that one of the perpetrators was bald does not make the description inconsistent with petitioner's appearance or with the victim's identification of petitioner. It was therefore entirely rational for the jury to conclude that petitioner robbed Toura. Cf., e.g., Davis v. Miller, No. 99 Civ. 2423, 1999 WL 1125055, at *4 (S.D.N.Y. Dec. 8, 1999); Morillo v. Crinder, No. 97 Civ. 3194, 1997 WL 724656, at *34 (S.D.N.Y. Nov. 18, 1997); Walker v. Scully, No. 90 Civ. 3328, 1992 WL 220002, at *5 (E.D.N.Y. Aug. 25, 1992).
Once again, it is the jury's role to assess the credibility of the witness and to weigh the evidence. It heard Toura's initial description of the perpetrators as well as the somewhat conflicting accounts of circumstances surrounding the show-up identification. Moreover, the jury heard arguments from defense counsel that Toura's identification of petitioner was inaccurate because Toura had failed to note petitioner's baldness and during its deliberations, requested both petitioner's arrest photo and the relevant testimony. (Report at 14) Thus, as the Appellate Division noted, "issues relating to credibility and the reliability of identification testimony were properly presented to the jury," McBride, 242 A.D.2d at 483, 662 N.Y.S.2d at 471, and these issues are not to be redetermined by a federal court in a habeas proceeding. See Maldonado, 86 F.3d at 35; Henry v. Scully, 918 F. Supp. 683, 708 (S.D.N.Y. 1995) and cases cited therein, aff'd on other grounds, 78 F.3d 51 (2d Cir. 1996). McBride's petition for habeas relief on the ground of insufficient evidence therefore must be denied.
B. Show-Up Identification
Petitioner next argues that the trial court erred in failing to suppress Toura's out-of-court and in-court identifications because the show-up procedure used on the day of the robbery was unduly suggestive. (Petition, Part B at 1)
It is clearly established that admitting identification testimony violates a defendant's right to due process only when, under the "totality of the circumstances," the pre-trial identification procedure gives rise to a "very substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 113, 116 (1977);Neil v. Biggers, 409 U.S. 188, 198-99 (1972). The Supreme Court has established a two-step inquiry to determine whether identification testimony is admissible. The court first asks whether the out-of-court identification process was unduly suggestive. If it was, the court may nonetheless admit the identification testimony if it determines the identification to be independently reliable. Manson, 432 U.S. at 110-14. The factors a court will consider in assessing reliability 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." Neil, 409 U.S. at 199-200.
Petitioner argues that the show-up was unduly suggestive because petitioner and his brother were surrounded by police officers, because Officer Ruggio pressured Toura to identify them, because the third person at the show-up, a Hispanic, clearly did not match Toura's description of his assailants, and because it occurred more than two hours after the robbery. (Petition)
Upon reviewing the record, I must concur with the Appellate Division that the show-up was not unduly suggestive. As that Court noted, "the show-up was conducted shortly after defendant's detention and in close proximity to the crime scene, the police never indicated to the victim that there was a suspect in custody, defendant was standing with his codefendant and another man not involved in the incident, and the police only asked the victim whether he recognized anyone." McBride, 242 A.D.2d at 482-83, 662 N.Y.S.2d at 471. While all show-ups are inherently suggestive, they are constitutionally permissible and courts have upheld show-ups conducted under similar circumstances to the facts here. See, e.g., Boles v. Senkowski, 878 F. Supp. 415, 421-22 (N.D.N.Y. 1995) and cases cited therein; Styles v. Van Zandt, No. 94 Civ. 1863, 1995 WL 326445, at *4 (S.D.N.Y. May 31, 1995).
Because the show-up procedure was not unduly suggestive, no further reliability inquiry is necessary in order to conclude that the identification testimony was properly admitted. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994). But even if the show-up were deemed unduly suggestive, Toura's identification of petitioner was sufficiently reliable to be admitted under the second prong of the Supreme Court's test. Toura testified at trial that he had a clear view of petitioner both when he was being carried into the building and once inside. He was able to give an accurate description of his assailants to the police, and while perhaps initially non-responsive, he gave a definite identification of petitioner just two hours after the crime occurred. Considering the totality of the circumstances, then, I conclude also that Toura's show-up identification was independently reliable. Cf. Dunnigan v. Keane, 137 F.3d 117, 129-30 (2d Cir. 1998); Wong, 40 F.3d at 1358-60; United States v. Concepcion 983 F.2d 369, 378 (2d Cir. 1992);Boles, 878 F. Supp. at 422-23. There is thus no basis for concluding that the state court erred in permitting the identification testimony, and petitioner's claim for relief on this ground must therefore be denied.
As noted, there was conflicting testimony as to whether Toura hesitated at all before making his identification. Officer Ruggio testified at the hearing and at trial that Toura did not respond at first because he was visibly shaken by the up-close viewing of the perpetrators.
* * *
For the reasons stated above, the Report is adopted, the writ is denied, and the petition is dismissed. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED