Opinion
20-CV-718 (JLR) (OTW)
05-13-2024
MARTIN WASHINGTON, Petitioner, v. E. BELL, Respondent.
REPORT AND RECOMMENDATION TO THE HONORABLE JENNIFER L. ROCHON
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Proceeding pro se, Petitioner Martin Washington (“Petitioner”) brings this habeas corpus proceeding, in accordance with 28 U.S.C. § 2254, seeking to challenge his conviction of first-degree robbery and his determinate sentence of twelve years incarceration plus five years of post-release supervision. (ECF 1 at 2). Petitioner raises two claims in his petition: (1) that the trial court erred in failing to hold a Rodriguez or Wade hearing before concluding that an out-ofcourt identification was merely confirmatory; and (2) that his sentence was excessive. Id. For the reasons below, I respectfully recommend that Petitioner's habeas petition be DENIED.
II. BACKGROUND
The following facts are drawn from Petitioner's submission for Writ of Habeas Corpus (ECF 1), Respondent's submission in Opposition to Petition for a Writ of Habeas Corpus (ECF 18), and the State Court Record (ECF 19).1Given Petitioner's conviction by guilty plea, the facts are either undisputed or set forth in the light most favorable to Respondent. See, e.g., Diaz v. Bell, No. 21-CV-5452 (LGS) (JLC), 2022 WL 1260176, at *1 (S.D.N.Y. Apr. 28, 2022) (citing Jacks v. Lempke, No. 09-CV-8768 (DAB) (FM), 2012 WL 3099069, at *1 (S.D.N.Y. July 24, 2012), adopted by 2012 WL 3930098 (S.D.N.Y. Sept. 10, 2012)).
On January 19, 2016, at around 7:50 p.m., Petitioner and an unnamed masked individual entered Hi-End Electronics, an electronics store located at 3649 Broadway in Manhattan. (ECF Nos. 1 at 15; 18 at 1). Petitioner used a gun to strike a store employee in the head and dragged the store owner and two employees to the back of the store with the help of the masked individual. (ECF 18 at 1). Petitioner and the masked individual stole $38,000 from the store's safe, along with 17 iPads, 38 iPhones, 8 Samsung Galaxy Phones, and 5 Samsung Notes. Id.
B. Petitioner's Arrest and Identification
The robbery was captured on surveillance video. (ECF 18 at 1). On January 20, 2016, following the robbery, the store owner went to the 30th Precinct and identified Petitioner as one of the perpetrators in a single-photo showup. (ECF 18 at 5; ECF 1 at 15-16). The store owner had known Petitioner for over five years because Petitioner had been going to Hi-End Electronics “for years” to pay his cell phone bill. (ECF 18 at 2). The store owner knew Petitioner by his street name “Quan.” Id. “Quan” was listed as an alias on Petitioner's rap sheet. Id.
In a brief included in the State Court Record (ECF 19), Petitioner contended that the rap sheet was not part of the trial record and that although the pre-sentence report listed Petitioner's middle name, LaQuann, that name is not the same as “Quan.” Id. at 139.
Petitioner was arrested on April 8, 2016. (ECF 1 at 15).
C. Pretrial Proceedings
After Petitioner's arrest, the prosecution gave notice of their intent to offer at trial testimony of the confirmatory identification made by “a witness [the store owner] who had a prior relationship with [P]etitioner.” (ECF 18 at 2). Petitioner moved to suppress the singlephoto show-up identification and requested a Wade or Rodriguez hearing.(ECF 1 at 16). The prosecution opposed Petitioner's motion, arguing that the prior relationship between
Under New York law, a defendant who challenges the admissibility of a witness' identification is presumptively entitled to a Wade hearing. See People v. Rodriguez, 79 N.Y.2d 445, 453 (N.Y. 1992). The purpose of a Wade hearing is to determine whether the pretrial identification procedure was so improperly suggestive as to taint an in-court identification. See Twitty v. Smith, 614 F.2d 325, 333 (2d Cir. 1979) (citing United States v. Wade, 388 U.S. 218, 242 (1967)). However, a Rodriguez hearing may be held instead of a Wade hearing when the prosecution shows that the defendant and identifying witness are known to one another, or where there is not a mutual relationship, that the witness knows the defendant so well as to be “impervious to police suggestion.” Rodriguez, 70 N.Y.2d at 452. The purpose of a Rodriguez hearing is to determine whether the identification is confirmatory, that is, whether the identifying witness had “sufficient familiarity with the defendant to eliminate the issue of police suggestiveness in the identification process.” Allan v. Conway, 2012 WL 70839, at *23 (E.D.N.Y. Jan. 10, 2012) (first citing Hankins v. Smith, No. 03-CV-5404 (WHP) (KNF), 2008 WL 4601000, at *2 (S.D.N.Y. Oct. 15, 2008); and then citing Rodriguez, 79 N.Y.2d at 449, n.*).
Petitioner and the store owner meant that there was no possibility that the identification was tainted by police conduct. (ECF 18 at 2). On July 13, 2016, the trial court denied Petitioner's motion, finding that the prosecution “established that as a matter of law the witness is so familiar with the [Petitioner] that there is little or no risk that police suggestion could lead to a misidentification.” Id. at 2-3; (ECF 19 at 41). In that same order, the trial court granted Petitioner's motion to inspect the Grand Jury minutes and indicated it would do so as soon as the prosecution submitted the minutes to the court. (ECF 19 at 41).
On October 26, 2016, Petitioner appeared with counsel and pleaded guilty to first-degree robbery in exchange for a recommended sentence of 12 years incarceration, followed by five years of post-release supervision. (ECF 18 at 3). Before his guilty plea, the court confirmed that Petitioner understood the rights he would give up by pleading guilty. Id. Petitioner affirmed that his guilty plea was voluntary and that no further promises had been made in exchange for his guilty plea. Id. Petitioner was sentenced on November 9, 2016 in accordance with the prosecution's recommendation of 12 years incarceration, followed by five years of post-release supervision. Id. at 4.
Following his guilty plea, Petitioner appealed to the Appellate Division, First Department. On direct appeal Petitioner argued that (1) his suppression motion should not have been denied without a hearing to determine whether the out-of-court identification was confirmatory; and (2) his sentence was excessive. (ECF 18 at 4). On January 8, 2019, the Appellate Division unanimously affirmed Petitioner's conviction and sentence. (ECF 19 at 144). As to Petitioner's first claim, the Appellate Division held that the trial court properly denied Petitioner's motion without granting a Rodriguez hearing. Specifically, the Appellate Division found that there was no factual issue requiring a hearing after the prosecution set forth detailed factual assertions about the relationship between Petitioner and the identifying witness (the store owner) and Petitioner failed to controvert the allegation. Id. at 144-45. As to Petitioner's second claim, the Appellate Division summarily held that there was no perceived basis for reducing the sentence. Id. at 145. The New York Court of Appeals denied leave to appeal on March 26, 2019. Id. at 147.
Petitioner filed the instant habeas petition on January 24, 2020. (ECF 1).
For the reasons below, I respectfully recommend that the petition be DENIED.
III. LEGAL STANDARD
Federal courts have statutory authority to issue habeas corpus relief for persons in state custody under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1995 (“AEDPA”). See Harrington v. Richter, 562 U.S. 86, 97 (2011). The court must first determine whether the petitioner has met the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. The procedural and substantive standards applicable to habeas review are summarized below.
AEDPA imposes a one-year statute of limitations for habeas petitions. 28 U.S.C. § 2244(d)(1). The one-year period may begin running from “the date on which the judgment became final by the conclusion of direct review.” Id. Here, Petitioner filed the instant petition within the one-year period after the denial of review from the Court of Appeals. (ECF 1). Accordingly, Petitioner satisfied the timeliness requirement.
A. Exhaustion Requirement
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In New York, the petitioner must have presented each of his claims to the Appellate Division and then sought leave to appeal on the same grounds to the Court of Appeals. See id. at 74 (holding that “one complete round” of New York's appellate review process involves appeal to Appellate Division and then application to Court of Appeals for certificate granting leave to appeal).
Respondent does not dispute that Petitioner has exhausted his state remedies.
B. Standard of Review
Where the state court has reached the merits of a claim, a federal court must apply a “highly deferential” standard in reviewing such claim on a habeas petition. See Eldridge v. Superintendent of Greenhaven Corr. Facility, No. 19-CV-7763 (ALC) (SLC), 2022 WL 18542149, at *5 (S.D.N.Y. Feb. 25, 2022) (first citing 28 U.S.C. § 2254(d); then citing Renico v. Lett, 559 U.S. 766, 773 (2010); and then citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000)), adopted by 2023 WL 1438726 (S.D.N.Y. Feb. 1, 2023). A claim has been “adjudicated on the merits” when the state court ruled on the substance of the claim itself, rather than on a procedural ground or another ground. See Eldridge, 2022 WL 18542149, at *5; Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007).
Under AEDPA, a federal court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the 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)(1)-(2).
Under § 2254(d)(1), a 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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision involves an “unreasonable application” of federal law if (1) the “state court identifies the correct governing legal rule from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular state prisoner's case” or (2) “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000).
Under § 2254(d)(2), the factual findings of state courts are presumed to be correct unless the state court did not adequately develop the material facts, or the federal court finds that the record does not support the factual determinations. See Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). Even if the standard under § 2254(d)(2) is met, the petitioner “still bears the ultimate burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” See Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013).
Federal habeas relief is limited to a petitioner who is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus, a petitioner seeking habeas relief must show that his constitutional rights have been violated. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Because Petitioner is proceeding pro se, the Court construes his submissions “liberally” and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
IV. ANALYSIS
As a threshold matter, a petitioner who pleaded guilty in their underlying state proceeding “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). This is because a guilty plea “conclusively resolves” questions of factual guilt, “thereby rendering any antecedent constitutional violation bearing on factual guilt a non-issue.” United States v. Gregg, 463 F.3d 160, 164 (2d Cir. 2006). When a petitioner has pleaded guilty to an offense in state court, the “general rule” is that the petitioner “ ‘may only attack the voluntary and intelligent character of [a] guilty plea....” Padilla v. Brady, No. 13-CV-7908 (JPO), 2015 WL 394090, at *2 (S.D.N.Y. Jan. 29, 2015) (quoting Tollett, 411 U.S. at 267). This general rule is subject to the limited exception set forth in Menna v. New York, 423 U.S. 61, 62 (1975) that “[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” Petitioner's claims do not fall within this exception as they are both premised entirely on alleged violations that occurred after he was charged. Nor does Petitioner argue that his plea was not voluntary or intelligent.
Accordingly, Petitioner's claims are not cognizable on habeas review and should be DENIED. For the sake of completeness, however, I analyze Petitioner's claims on the merits as set forth below.
A. The Failure to Hold a Rodriguez or Wade Hearing Is Not Cognizable on Habeas Review
Petitioner first argues that the trial court should have held a Rodriguez or Wade hearing. (ECF 1 at 19). As discussed, see supra note 3, under New York law, a defendant who challenges the admissibility of a witness's identification is presumptively entitled to a Wade hearing, the purpose of which is to determine whether police suggestion tainted the identification. See Rodriguez, 79 N.Y.2d at 453. However, where the witness knows the defendant so well as to be “impervious to police suggestion,” the trial court may hold a Rodriguez hearing instead of a Wade hearing. Id. at 452. A Rodriguez hearing serves to determine whether the identifying witness had “sufficient familiarity with the defendant” and thus was impervious to police suggestion. See Allan, 2012 WL 70839, at *23 (first citing Hankins, 2008 WL 4601000, at *2; and then citing Rodriguez, 79 N.Y.2d at 449, n.*).
To prevail on federal habeas relief, Petitioner must demonstrate that he “is in custody in violation of the Constitution or laws or treaties of the United States.” Garner v. Lee, 908 F.3d 845, 860 (2d Cir. 2018) (quoting 28 U.S.C. § 2255(a)) (emphasis added). That is, Petitioner must demonstrate that the trial court's refusal to hold a Rodriguez or Wade hearing violated his federal Constitutional rights. The Supreme Court has held that there is no federal Constitutional right to a hearing whenever a defendant challenges a witness's identification of him as improper. See Watkins v. Sowders, 449 U.S. 341, 349 (1981); Alvarez v. Fischer, 170 F.Supp.2d 379, 384 (S.D.N.Y. 2001); see also Goico v. David, No. 04-CV-1090, 2008 WL 163594, at *5 (N.D.N.Y. Jan. 16, 2008); Ramos v. Colvin, No. 17-CV-6363, 2020 WL 7332626, at *8 (W.D.N.Y. Dec. 14, 2020).
Because the Supreme Court has explicitly held that there is no federal right to such a hearing, the trial court's refusal to hold a Rodriguez or Wade hearing could not have been “contrary to,” nor an “unreasonable application” of “clearly established Federal law,” as required for habeas relief under 28 U.S.C. § 2254(d)(1). See Alvarez, 170 F.Supp.2d at 384. The trial court's decision not to grant a Rodriguez or Wade hearing was solely a matter concerning state law, and “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Petitioner has not articulated how there is any federal dimension to his claim. See Alvarez, 170 F.Supp.2d at 384. As such, Petitioner's first claim is not cognizable under federal habeas review.
Nor can the Court conclude that the state court's determination not to hold a Rodriguez or Wade hearing was objectively unreasonable in light of the facts before it. The reliability of an identification is “a fact-specific determination that depends on the totality of the circumstances surrounding the identification.” Maldonado v. Burge, 697 F.Supp.2d 516, 530 (S.D.N.Y. 2010). Here, the trial court found that, based on the prior relationship between Petitioner and the store owner, there was no possibility that the identification was tainted by police conduct. (ECF 18 at 2). (ECF 19 at 144). On direct appeal, the Appellate Division found that there was no factual issue requiring a hearing after the prosecution set forth detailed factual assertions about the relationship between Petitioner and the store owner and Petitioner failed to controvert the allegation. (ECF 19 at 144-45). Regardless of whether or not the Appellate Division's determination was correct - and there is no basis to conclude that it was not - the Court cannot conclude that this determination was objectively unreasonable. See Maldonado, 697 F.Supp.2d at 531; Williams v. Taylor, 529 U.S. 362, 409 (2000).
Finally, as discussed above, Petitioner's first claim is barred from habeas review because it arose prior to the entry of his guilty plea. See Tollett, 411 U.S. at 267. Petitioner's guilty plea rendered the denial of a Rodriguez or Wade hearing, which would bear on factual guilt, a “nonissue.” See Gregg, 463 F.3d at 164.
Accordingly, I respectfully recommend that Petitioner's request for habeas relief with respect to his first claim be DENIED.
B. A Sentence that Falls Within the Prescribed Statutory Range is Not Cognizable on Habeas Review
Petitioner next argues that his sentence of twelve years incarceration is excessive. (ECF 1 at 27). Petitioner requests that the Court reduce his sentence to the minimum of ten years in the interest of justice. Id. at 28. Citing only to state law cases discussing the Appellate Division's interest-of-justice jurisdiction, Petitioner argues his sentence was excessive, especially because Petitioner has a young son who was about 4 months old at the time of Petitioner's arrest. Id. at 29. Petitioner does not contend that his sentence violated the Eighth Amendment or any other rights protected by the U.S. Constitution.
As discussed, see supra Part III.B., Petitioner must show that his sentence violates his federal Constitutional rights. Courts in this Circuit have recognized that although the Appellate Division has the power to reduce a sentence in the interest of justice, a claim that a sentence should be reduced in the interest of justice does not allege a violation of a federally protected right. See Geron v. Graham, No. 18-CV-00168 (GHW) (VF), 2022 WL 4581864, at *11 (S.D.N.Y. Sept. 14, 2022), adopted by 2022 WL 4586082 (S.D.N.Y. Sept. 29, 2022); Bonilla v. Lee, 35 F.Supp.3d 551, 572 (S.D.N.Y. 2014); Baide-Ferrero v. Ercole, No. 06-CV-6961, 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010); Edwards v. Marshall, 589 F.Supp.2d 276, 290 (S.D.N.Y. 2008) (“[Petitioner] claims that his sentence should be reduced in the interest of justice. To the extent that this claim relies on state-law principles, it is not cognizable on federal habeas review.”).
Petitioner's excessive sentence claim is also not cognizable on habeas review because it does not violate the Eighth Amendment. In contrast to state law, the Eighth Amendment only forbids sentences that are “grossly disproportionate” to the crime. United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008) (quoting Harmelin v. Michigan, 501 U.S. 957, 960 (1991) (Kennedy, J., concurring)). A sentence does not violate the Eighth Amendment if the term of the sentence falls within the permissible state statutory range. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”); McCall v. Rivera, 965 F.Supp.2d 311, 335 (S.D.N.Y. 2013); Goico, 2008 WL 163594, at *6.
Petitioner was sentenced as a second violent felony offender to a determinate term of twelve years incarceration for his conviction of Robbery in the First Degree (a class B felony) under New York Penal Law § 160.15(4). (ECF 19 at 18-19). New York Penal Law § 70.04)(3)(a) requires that a court impose a determinate sentence of at least ten years and not more than twenty-five years for a conviction of a Class B felony by a second violent felony offender. As such, Petitioner's twelve year determinate sentence was within the mandatory state statutory range. Thus, Petitioner's sentence was not “grossly disproportionate” under the Eighth Amendment.
Petitioner has failed to show that his sentence raises a federal constitutional issue. Accordingly, I respectfully recommend that Petitioner's request for habeas relief with respect to his second claim be DENIED.
V. CONCLUSION
For the foregoing reasons, I respectfully recommend that Petitioner's habeas petition be DENIED. Furthermore, because Petitioner has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
VI. OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake Unit, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Rochon.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Petitioner.
Respectfully submitted,