Opinion
02 Civ. 0842 (JSR) (GWG)
March 4, 2003
REPORT AND RECOMMENDATION
Keith Givens, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Supreme Court, New York County, Givens was convicted of one count of Burglary in the First Degree and one count of Attempted Sodomy in the First Degree. As a persistent violent offender, Givens was sentenced to two concurrent indeterminate sentences of 25 years to life in prison. Givens is currently incarcerated in the Auburn Correctional Facility in Auburn, New York.
I. INTRODUCTION
Givens' conviction arose from the attempted sexual assault of a 16-year old girl named Jennifer Reid on June 6, 1995. Reid was attacked in the hallway of her apartment building by a man previously unknown to her. During the police investigation, Reid initially selected a photograph of another individual as resembling her attacker. In September 1995, however, Reid identified Givens' photograph from an array of photos shown to her by the police and in October 1995 selected Givens as the attacker from a lineup. Givens was indicted in July 1996.
A. Pre-trial Proceedings
After his indictment, both Givens and the prosecution made a number of pre-trial motions. On November 14, 1996, the trial judge held a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), to determine the admissibility of Reid's in-court identification testimony. Detective Kimberely Slimak, a detective with the Special Victims Unit of the New York Police Department, was the only witness to testify at the hearing.
Slimak testified that five days after the incident, on June 11, 1995, she had Reid review a box of approximately 100 pictures at the Special Victims Unit to determine whether she recognized any of the men as her attacker. (Slimak: Tr. 7, 9-10). Reid picked out one picture that she thought looked like the person who had attacked her. Id. at 14-15. Reid qualified her selection by stating that the man in the photograph had hair while her attacker was bald and that she could not be sure of the identification until she saw the man's teeth. Id. The person picked out by Reid was a man named Ulysses Hutchinson. Id. at 21-22. Slimak attempted to contact Hutchinson but was unable to locate him. Id. at 21-23. On September 15, 1995, approximately three months after the attack, Slimak visited Reid and asked her how sure she was that Hutchinson was her attacker. Id. at 23-24. Reid reiterated that Hutchinson looked like her attacker, but she could not be sure. Id. at 24.
"Tr." refers to the transcript of Givens' trial and pre-trial proceedings.
On that same day, Reid's mother told Slimak that her church group had heard of an individual fitting the description of the attacker who lived at 1990 Lexington Avenue. Id. at 24, 26. Slimak testified that Reid then called her on September 22 to tell her that this individual was named Givens and provided an apartment number. Id. After investigating where Givens lived and his criminal history, Slimak had Reid examine more photographs. Id. at 30-33. Reid was shown at least 50 photographs with Givens' picture somewhere in the middle of the stack. Id. at 31-33. Reid selected Givens' photograph upon seeing it for the first time. Id. at 33. At the hearing, the prosecution placed into evidence a reproduction of the picture of Givens that Reid had selected. Id. at 35-36.
Slimak also testified about the lineup that occurred on October 23, 1995. Givens was initially identified as number three at his own choosing, but changed his mind and was identified as number one. Id. at 39, 42. Slimak located four fillers for the lineup from a local homeless shelter and attempted to pick fillers who matched Givens' physical characteristics. Id. at 123-24. The lineup occurred in the presence of Givens' lawyer, Neville Ross, who voiced no objection or complaint as to the circumstances of the lineup. Id. at 39-42. When Reid entered the viewing room, Slimak, Ross, Lieutenant Caniglia, and Assistant District Attorney Lazado were present. Id. at 43. Slimak told Reid she would be viewing a lineup and should tell Slimak if she recognized anyone. Id. After a shade was lifted, allowing Reid to see the persons in the lineup, Slimak asked Reid if she recognized anyone. Id. at 44. Reid stated she recognized number one, Givens, as her attacker. Id. Reid made the identification within seconds. Id. Slimak testified that Reid never saw the teeth of the persons in the lineup, id. at 45, 49, and Reid never saw Givens outside of the lineup that day. Id. at 38, 45. Photographs of the lineup were admitted at the hearing. Tr. 46-47.
Following the hearing, the trial judge denied the defense motion to suppress Reid's 3 identification. See Decision and Order, dated November 22, 1996 ("November 22 Order") (reproduced in Affidavit in Opposition to Petition for a Writ of Habeas Corpus, dated July 19, 2002 ("Taylor Aff.") Ex. A). The trial judge considered Givens' arguments that the photo selection and the lineup were suggestive. See November 22 Order at 7-9. With respect to the photo identification, the court found that Reid selected Givens' photograph from a selection of approximately 50 photographs. Id. at 5. The court found the police did not prompt Reid in any way, id. at 8, and thus concluded that the photographic selection was not suggestive. Id. at 7. As for the lineup, the court found that the lineup participants did not reveal their teeth, id. at 6; that all were seated during the viewing, id. at 6, 8; that the lineup consisted of persons with similar appearance, id. at 8; and that Reid selected Givens without any prompting or suggestion by the police. Id. at 9. The court found the lineup was not suggestive. Id.
B. Evidence Presented at Trial
Givens' trial commenced on November 18, 1996. The prosecution called Reid and Slimak as witnesses. Givens presented no evidence in his defense.
The trial testimony reflected that at the time of the attack, Jennifer Reid was a student at Norman Thomas High School. (Reid: Tr. 454-455). On June 6, 1995, she took the subway home from school in the afternoon. Id. She exited the subway at 125th Street and Lexington Avenue in Manhattan and began walking to her apartment at 1980 Lexington Avenue, which is located at 121st Street. Id. at 455, 458. As Reid passed a nearby building — 1990 Lexington Avenue — she heard someone making noises in an attempt to "pick [her] up." Id. at 459. Reid looked at the person making the noises and then resumed walking. Id. Upon reaching her apartment building, Reid entered into a vestibule and then entered the building using her key. Id. at 461. As she 4 passed through the second door in the lobby, Reid noticed that the person who had previously called out to her was following her into the building. Id. at 461, 463. The person behind Reid attempted to speak to her, but she ignored him and continued to walk down the hallway. Id. at 461-63. Reid walked down the hallway to an elevator where a woman was already waiting for the elevator. Id. at 463-64, 473. While waiting for the elevator, Reid looked at the person who had followed her — a person whom she later identified as Givens. Id. at 471, 481-82, 519.
Reid, the unidentified woman, and Givens entered the elevator and continued to ride to the sixth floor, where Reid lived. Id. at 464, 470. Givens stood a few feet from Reid and talked to her as if she "knew him." Id. at 465, 469. Upon reaching the sixth floor, all three persons left the elevator. Id. at 470-74. As Reid was exiting the elevator Givens reached out and touched one of her breasts. Id. at 472. Reid pushed Givens' hand away, after which he touched her buttocks. Id. Reid followed the woman down the hall, hoping the woman would admit Reid to her apartment so she could get away from Givens. Id. at 473. Givens followed Reid. Id. at 474. The woman, however, said to both Reid and Givens "don't follow me." Id. Givens then told Reid "not to get her involved in our business." Id. at 474-75. Reid turned around and faced Givens. Id. at 475.
Givens produced a razor blade, held it up so that Reid could see it and grabbed Reid by the arm as she attempted to walk away. Id. at 475-76. Reid began to scream for her mother and attempted to press her doorbell, but Givens pushed her hand away. Id. at 476-77. Givens told Reid "he wasn't going to hurt me, that all he wanted me to do was [to] suck his dick." Id. at 477. At that point, another man appeared at the end of the hallway and Givens fled. Id. at 478. Reid then entered her apartment and proceeded to contact her sisters, one of whom subsequently 5 arrived at the apartment and contacted the police. Id. at 478-80. When the police arrived, Reid described her attacker and the events that occurred. Id. at 480. Reid described her attacker as bald and missing some of his teeth. Id. at 513. In addition, Reid stated that her attacker had dark eyes and provided the police with an approximate height and weight. Id. at 512, 520.
On June 11, 1995, Reid met with Detective Kimberly Slimak of the Special Victims Unit of the New York Police Department. Id. at 496, 529. The testimony at trial regarding Reid's selection of Hutchinson's photograph from the first three boxes and of Givens' photograph from the second photographic identification was consistent with the testimony at the Wade hearing. Id. at 529-31, 538-40. Reid stated at trial that, at the first identification, she had picked out the picture that she thought "was like the closest that I could get to someone that looked like [the attacker]." Id. at 497.
In Reid's recounting of the circumstances of the lineup, Slimak called Reid and asked her to come to a lineup identification at the 26th Precinct to "pick out the person that attacked [her]." Id. at 542. Slimak had noticed that Givens was missing a tooth and, according to Reid, said something to Reid about the suspect's "rotten" teeth. Id. at 543-44. Slimak, however, testified she did not say anything to Reid about Givens' teeth. (Slimak: Tr. 612). Reid was told that the people in the lineup would not be able to see her and that the suspect's lawyer would be present in the viewing room. (Reid: Tr. 500-01, 527). Reid selected Givens after seeing his face. Id. at 502, 546. Reid never saw any of the men's teeth during the lineup. (Reid: Tr. 546; Slimak: Tr. 568).
After he was picked out of the lineup, Givens was arrested and questioned. (Slimak: Tr. 566). Givens admitted that he lived at 1990 Lexington Avenue. Id.
Reid testified that she was "one hundred percent sure" that Givens was her attacker. (Reid: Tr. 500). She stated that her attacker was bald, between 5'6" and 5'7" and appeared to be missing his front teeth. Id. at 459, 464. In response to a question from Givens' defense counsel, Reid indicated that she had expected to see her attacker in the lineup. (Reid: Tr. 527-28). On re-direct, Reid testified that the reason she expected to see Givens in the lineup was because she had previously picked out his photograph. Id. at 539-40.
The jury found Givens guilty of Burglary in the First Degree and Attempted Sodomy in the First Degree. (Tr. 766-67). On December 13, 1996, the trial judge sentenced Givens to two concurrent sentences of 25 years to life. Transcript of Sentencing Hearing before Hon. Ronald Zweibel, dated December 13, 1996, at 26-27.
C. Petitioner's Direct Appeal
Givens appealed his conviction to the Appellate Division, First Department on December 6, 1999, raising the following points in his appeal brief:
[I.] Where the trial court erroneously admitted extensive evidence of an out-of-court photographic identification, including testimony and a photograph of Keith Givens from the "Rogues' Gallery," and where the photographic identification was the single most damaging piece of evidence against Mr. Givens, Mr. Givens was denied his fundamental right to a fair trial.
* * *
[II.] Where the only evidence connecting Keith Givens to the attack of Jennifer Reid was an inherently unreliable identification, the Jury's verdict was against the weight of the evidence.
* * *
[III.] The trial court abused its discretion when it impermissibly prevented defense counsel from thoroughly questioning prospective jurors about their attitudes and biases toward police officers.
See Brief for Defendant-Appellant, dated December 6, 1999 (reproduced in Taylor Aff. Ex. B), at 9, 17, 20. On April 27, 2000, the Appellate Division, First Department upheld the conviction. See People v. Givens, 271 A.D.2d 372 (1st Dep't 2000). The court found (1) the verdict was not against the weight of the evidence, (2) the photographic identification testimony was proper because Givens' counsel had opened the door to such testimony, and (3) the trial court had properly exercised its discretion in limiting defense counsel's voir dire questions about the credibility of police officers. See id.
Givens requested leave to appeal to the New York Court of Appeals on May 25, 2000. By letter to Chief Judge Judith Kaye, Givens raised the issues concerning the photograph identification and the limitation on defense counsel's voir dire. See Letter to Chief Judge Judith S. Kaye from Lara Adamsons, dated May 25, 2000 ("May 25 Letter") (reproduced in Taylor Aff. Ex. E), at 1-4. Givens did not re-assert his claim regarding the weight of the evidence. The Court of Appeals denied leave to appeal on August 21, 2000. See People v. Givens, 95 N.Y.2d 865 (2000).
D. Givens' Habeas Petition
Givens submitted his petition to the Pro Se Clerk of this Court on November 5, 2001, a date prior to the expiration of the one-year and 90 day limitation period for the filing of habeas corpus petitions. See 28 U.S.C. § 2244(d)(1); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.), cert. denied, 534 U.S. 924 (2001). The petition raises the same three grounds Givens raised before the Appellate Division. See Addendum (annexed to Petition for a Writ of Habeas Corpus, filed February 4, 2002) at 1-4.
II. APPLICABLE LAW ON HABEAS REVIEW
A. Legal Standards for Habeas
Review Under 28 U.S.C. § 2254(a), federal habeas review is available for a State prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.
Habeas corpus relief may not be granted unless a state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or (2) 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). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent 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 different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 413. The federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 409.
B. The Exhaustion Requirement
Before a federal court may examine the merits of a habeas corpus claim, a petitioner must first exhaust all available state court remedies. See 28 U.S.C. § 2254(b)(1)(A); Daye v. Attorney General, 696 F.2d 186, 190 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust state remedies, a petitioner must have presented any claim raised on habeas review to each level of the state courts to which the right to appeal lies. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971); Daye, 696 F.2d at 191. The constitutional nature of a petitioner's claim must have been fairly presented to the state courts. See Daye, 696 F.2d at 191. A petitioner "fairly present[s]" a federal claim in state court if "'the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.'" Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002) (quoting Daye, 692 F.2d at 192), cert. denied, 71 U.S.L.W. 3430 (Feb. 24, 2003).
III. DISCUSSION
Givens raises three grounds in his petition: (1) that the trial court erroneously admitted evidence of Reid's prior photo identification; (2) that the verdict was against the weight of the evidence; and (3) that he was denied his right to a fair trial by the curtailment of defense counsel's questioning of jurors about biases toward police officers.
A. Givens' Identification
1. Exhaustion
Givens exhausted his claim regarding the admission of evidence of Reid's prior photographic identification because the claim was presented in his brief to the Appellate Division and in his letter to the New York Court of Appeals seeking leave to appeal.
2. Merits of the Claim
Three issues appear to underlie this claim. First, Givens argues that Reid should not have been permitted to testify in court about her prior photographic identification. See Memorandum of Law, dated September 30, 2002 ("Pet. Mem."), at 18-20. Second, he challenges the circumstances of the lineup. Id. at 20, 25-26. Finally, he challenges the circumstances of the photographic identification. Id. at 20-25. Each issue is discussed separately.
a. Admission of Reid's Testimony. Givens argues that Reid should not have been permitted to testify at all about the prior identification she made of him through photographs. While New York law generally prohibits in-court testimony regarding a prior photographic identification, see People v. Griffin, 29 N.Y.2d 91, 93 (1971), there is no constitutional or federal statutory rule barring such testimony. See Anderson v. Maggio, 555 F.2d 447, 450 (5th Cir. 1977) ("questioning at trial about a witness' pre-trial [photographic] identification . . . is not only constitutional, but also would have comported with federal standards had the trial been held in federal court") (citing Fed.R.Evid. 801(d)(1)(C) and cases). Courts routinely deny habeas relief based on the alleged improper admission of such testimony because such an argument derives entirely from New York state law. See, e.g., Smith v. Johnson, 1999 WL 1007348, at *3 (E.D.N.Y. Sept. 30, 1999); Watson v. Kelly, 1996 WL 409198, at *3 (S.D.N.Y. July 22, 1996); Green v. Kuhlman, 1990 WL 264771, at *3 (E.D.N.Y. Dec. 13, 1990); Williams v. Henderson, 1990 WL 27158, at *5 (E.D.N.Y. Mar. 6, 1990); United States ex rel. Bryant v. Vincent, 373 F. Supp. 1180, 1184 (S.D.N.Y. 1974).
Notably, Reid's testimony did not even violate New York State law because, as the Appellate Division concluded, Givens, 271 A.D.2d at 372, Reid's counsel opened the door to such testimony when he asked her if she expected to see her attacker in the lineup. Tr. 528; see, e.g., People v. Cuiman, 229 A.D.2d 280, 282 (1st Dep't) (the "prohibition is lifted . . . where the defense mentions the photo identification during cross-examination . . . or the defense creates an unfair 'misimpression' about the witness's identification which can be cured by testimony about the photo identification . . . or the witness's identification is alleged to be a fabrication.") (citations omitted), leave to appeal denied, 90 N.Y.2d 903 (1997).
For these reasons, the claim regarding Reid's testimony is not cognizable on habeas review.
b. The Lineup. Givens also alleges that the lineup in which he was identified was unduly suggestive because the other persons in the lineup were dissimilar to him in part because he alone met the distinctive characteristics of Reid's attacker — i.e., a bald man, 5'8", 180 pounds with rotten or missing teeth. See Pet. Mem. at 25-26.
Respondent argues that any claim regarding the suggestiveness of the lineup is unexhausted. See Respondent's Second Memorandum of Law on the Issue of the Admissibility of Petitioner's Lineup Identification, dated December 20, 2002 ("Resp. Mem. II"), at 1-2. It appears that the Respondent is correct inasmuch as this particular aspect of Givens' identification claim was never raised in the letter seeking leave to appeal to the Court of Appeals. See May 25 Letter. Because the claim fails on its merits, however, whether he has exhausted this claim vel non need not be reached.
The Second Circuit has enunciated a two step inquiry to evaluate whether an out-of-court identification procedure violates due process:
[A] sequential inquiry is required in order to determine whether either the prior identification or an in-court identification of the defendant at trial is admissible. The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. . . . If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility . . . [and] no further inquiry by the court is required . . . If the court finds, however, that the procedures were suggestive, it must then determine whether the identification was nonetheless independently reliable. . . . In sum, the identification evidence will be admissible if (a) the procedures were not suggestive or (b) the identification has independent reliability.
Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001), cert. denied, 534 U.S. 1118 (2002) (citations omitted). "A lineup is unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness and the other lineup participants plainly do not." Id. at 134.
The ultimate determination whether a pre-trial identification was suggestive is a mixed question of law and fact. See Sumner v. Mata, 455 U.S. 591, 597 (1982) (per curiam). However, pure determinations of fact — for example, whether a person in a lineup was sitting or standing — are entitled to the statutory presumption of correctness under 28 U.S.C. § 2254(e)(1). See id. at 597. This presumption may only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Unless rebutted, this Court must accept the facts found by the state court as true and apply them to determine whether Givens' due process rights were violated by his lineup. See Overton v. Newton, 295 F.3d 270, 277 (2d Cir. 2002) ("On federal habeas review, mixed questions of law and fact translate to 'mixed constitutional questions (i.e., application of constitutional law to fact.'") (quoting Williams, 529 U.S. at 400 (O'Connor, J., concurring)); see also Alvarez v. Keane, 92 F. Supp.2d 137, 152 (E.D.N.Y. 2000) ("a state court's finding on the 13 overall constitutionality of challenged identification testimony is not entitled to the presumption of correctness . . . However, the findings of historical fact which underlie the state court's conclusion on this question are entitled to the statutory presumption of correctness by the reviewing federal habeas court.") (citing cases).
The lineup took place on October 23, 1995, at the 26th precinct and consisted of five persons, including Givens. November 22 Order at 6. At his request, Givens was identified as number one. Id. Givens had a lawyer present at the lineup who made no objection to the arrangement or the placement of the fillers in the lineup. Id. at 6, 9. The lineup participants were instructed not to show their teeth during the lineup. Id. at 6. Reid never saw Givens that day other than in the lineup and identified him very shortly after all of the participants in the lineup were brought in. Id. at 6-7. The trial judge determined the lineup to be admissible because the men were of similar appearance, were all seated at the time, and none of them was so distinctive as to cause Reid to identify Givens. See id. at 8. No evidence exists that any of the lineup participants showed their teeth during the lineup. Indeed, Reid and Slimak testified to precisely the contrary. (Reid: Tr. 546; Slimak: Tr: 568).
Givens has not presented any evidence that would rebut the factual findings made by the trial judge — let alone "clear and convincing" evidence. 28 U.S.C. § 2254(e)(1). Instead, Givens has made allegations concerning differences in size and appearance of the fillers. However, "'[p]olice stations are not theatrical casting offices; a reasonable effort to harmonize the line-up is normally all that is required.'" Roldan v. Artuz, 78 F. Supp.2d 260, 271 (S.D.N.Y. 2000) (quoting Gossett v. Henderson, 1991 WL 135601, at *2 (S.D.N.Y. July 18, 1991)). Similarly, "there is no requirement that . . . in line-ups the accused must be surrounded by persons nearly 14 identical in appearance, however desirable that may be." United States v. Reid, 517 F.2d 953, 965 n. 15 (2d Cir. 1975).
While it was not necessary to do so, this Court directed the Respondent to submit the photograph of the lineup as introduced during the Wade hearing. See People's Exhibits 2A, 2B (annexed to Resp. Mem. II). After examining this evidence, the Court finds that Givens has not demonstrated that the trial court "unreasonably" determined that the lineup was not suggestive. As reflected in the pictures, all of the five men have generally similar appearances and appear to be approximately the same age. At least four of the five men, including Givens, have facial hair. At least one of the other men is bald and all have closely cropped hair. In addition, all of the participants are seated, making any difference in height negligible. See Douglas v. Portuondo, 232 F. Supp.2d 106, 113 n. 2 (S.D.N.Y. 2002); Tavarez v. LeFevre, 649 F. Supp. 526, 530 (S.D.N.Y. 1986). All of the men are dressed in casual clothing, four of whom, including Givens, are wearing colored shirts (one filler appears to be wearing a white tee-shirt). While some of the people appear to be different weights and skin tones, the difference is not so substantial as to raise an inference of undue suggestion.
In some cases a distinctive characteristic of the perpetrator was highlighted during a lineup, thereby causing it to become suggestive. See, e.g., Raheem, 257 F.3d at 135-36 (defendant appeared in a black leather coat); Frazier v. New York, 187 F. Supp.2d 102, 111 (S.D.N.Y. 2002) (defendant was the only person in a lineup with long, alternating dreadlocks). However, no such problem occurred here. The distinctive characteristic in this case, the perpetrator's teeth, was never shown to Reid during the identification. (Reid: Tr. 546; Slimak: Tr: 568). Thus, there was no danger that Reid made her identification of Givens based on this 15 distinctive feature.
Reid testified that Slimak had mentioned that there was a suspect in the lineup with rotten teeth (Reid: Tr. 543), a contention that Slimak denied. (Slimak: Tr. 612). But even if Slimak mentioned to Reid that one of the members of the lineup had bad or rotten teeth, this would not have caused the lineup to have been suggestive given that Reid did not see the teeth of any of the participants.
Because Givens has not demonstrated that the State courts unreasonably concluded that his lineup was not suggestive, there is no need to evaluate whether the identification was independently reliable under Raheem.
c. The Photographic Identification.
Givens also argues that Reid's photographic identification of him was suggestive. See Pet. Mem. at 20-25. Following the Wade hearing, the trial judge found that Reid identified Givens from a stack of approximately 50 photographs. November 22 Order at 5. Givens' picture was placed somewhere in the middle of the stack. Id. Reid selected Givens' photograph when she came across it in the pile. Id. The trial court concluded that the photographic identification was not suggestive. Id. at 7. Givens' only challenge to Reid's selection of his photograph turns on his contention that her testimony was not sufficiently reliable. See Pet. Mem. at 20-25. The need to evaluate the reliability of the in-court identification, however, only arises if the out-of-court procedure was suggestive. See Raheem, 257 F.3d at 133. Givens has not challenged Justice Zweibel's conclusion that the photographic identification was not suggestive. Accordingly, Givens' challenge on this point must fail.
B. Weight of the Evidence
Givens argues that the verdict was against the weight of the evidence. The Respondent counters that this claim is unreviewable because (1) Givens failed to appeal this issue to the New York Court of Appeals and it is therefore unexhausted, see Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated July 22, 2002, at 28-30, and (2) a claim regarding weight of the evidence is a state law question and not cognizable on habeas review. See id. at 27-28. This Court need not reach the first contention because it is clear that a "weight of the evidence" claim is solely one of state law and thus unreviewable by this Court. See Estelle, 502 U.S. at 67-68 ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
Givens' "weight of the evidence claim" is based on a New York State statute permitting an intermediate appellate court to reverse a verdict that "was, in whole or in part, against the weight of the evidence." N.Y. C.P.L. § 470.15(5). Thus, a New York State appellate court may examine the factual record to determine if the weight of the evidence permitted a conviction. See People v. Bleakley, 69 N.Y.2d 490, 495 (1987). No federal constitutional rule permits a similar weighing of the evidence. Thus, federal courts on habeas review have routinely recognized that weight of the evidence claims are not subject to habeas review. See, e.g., Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001) ("the Court is precluded from considering" a weight of the evidence claim); Kearse v. Artuz, 2000 WL 1253205, at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Rodriguez v. O'Keefe, 1996 WL 428164, at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas 17 review.") (citing cases) (emphasis in original), aff'd, 122 F.3d 1057 (2d Cir. 1997), cert. denied, 522 U.S. 1123 (1998); accord Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("[a] federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence . . ."), cert. denied, 476 U.S. 1123 (1986).
Accordingly, this ground of the petition must be denied.
C. Curtailment of Voir Dire Questioning
1. Exhaustion
Givens raised his claim regarding voir dire to both the Appellate Division and the Court of Appeals. In his brief to the Appellate Division and letters to the Court of Appeals, Givens made reference to the Sixth and the Fourteenth Amendments of the United States Constitution.
Accordingly, Givens has properly exhausted this claim for habeas review.
2. Discussion
Givens argues that his right to a fair trial under the Sixth and Fourteenth Amendments was violated because the trial judge limited his trial counsel's questioning of potential jurors during voir dire. See Pet. Mem. at 27-32. His claim centers upon a few instances where the trial judge refused to permit Givens' counsel to ask jurors detailed questions about their feelings towards police officers and the criminal justice system. Some examples follow:
MR. ALTCHILER: . . . [Juror], can you explain to me how a person who [has] done absolutely nothing wrong could get arrested?
THE COURT: Sustained.
MR. ALTCHILER: Do you think that a person who has done absolutely nothing wrong could be arrested?
A JUROR: Yes.
MR. ALTCHILER: How do you think that could happen?
A JUROR: Misidentification.
MR. ALTCHILER: Now, you talk about misidentification, what do you mean?
THE COURT: Sustained.
MR. ALTCHILER: [Juror], you heard [another juror] say that a person who has done nothing wrong could still get arrested because of misidentification. Do you agree with her?
A JUROR: Yes.
MR. ALTCHILER: What kind of things, would you look at — withdrawn — [juror] what kinds of things would you want to know about a young woman looking at someone who was attacking —
THE COURT: I won't allow this line of questioning, counsel.
MR. ALTCHILER: I would like to go in the back, I think this is entirely proper.
THE COURT: Continue, I will not allow the question. Don't tell me what is proper or improper. I set the rules in this court counsel.
MR. ALTCHILER: [Juror], let me ask you a question in case you happen to have the unfortunate luck to be selected and be sequestered, I don't know what will happen but, you heard what [another juror] said, that a person who has done nothing wrong could be wrongfully arrested because he had been misidentified. You heard [another juror] say that he thinks that could happen, do you think that could happen?
A JUROR: Yes.
MR. ALTCHILER: Do you think that that would be unusual?
MR. DOOLEY: Objection.
THE COURT: Sustained.
(Voir Dire: Tr. 249-51). Givens' attorney also attempted to ask a number of questions about whether the jurors would credit the testimony of police officers over other witnesses:
MR. ALTCHILER: [Juror], do you think, you are going to hear testimony from a police officer witness in this case, you think that the police always tell the truth?
A JUROR: No.
MR. ALTCHILER: Can you explain to me why a police officer might fudge or might even make a mistake?
MR. DOOLEY: Objection.
THE COURT: Sustained.
THE COURT: Don't answer that question.
* * *
MR. ALTCHILER: [Juror], do you think that a person who is involved in law enforcement unit might become biased toward victims?
A JUROR: I don't . . . know possibly.
MR. ALTCHILER: Do you think that that could affect the way they do their job?
A JUROR: Possibly.
MR. ALTCHILER: How do you think it could affect the way they do their job?
MR. DOOLEY: Objection.
THE COURT: Sustained.
(Voir Dire: Tr. 259, 262-63).
Givens argues that the trial court, in limiting his counsel's questioning on voir dire, caused him to be tried before an unfair and partial jury. See Pet. Mem. at 31. Givens further claims the curtailment harmed his defense because he was unable to determine whether the jurors would "weigh the testimony of police officer [sic] as they would any other witness." Id.
A federal habeas court's review of voir dire questioning "is limited to enforcing the commands of the United States Constitution." Mu'Min v. Virginia, 500 U.S. 415, 422 (1991) (citations omitted); accord Mitchell v. Herbert, 1998 WL 186766, at *2 (S.D.N.Y. Apr. 20, 1998). Under the Constitution, the purpose of voir dire is to ensure that jurors will be able to render a fair and impartial verdict in the case before them. See generally Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) ("Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.") (plurality op.). "A trial court's findings of juror impartiality may 'be overturned only for 'manifest error.''" Mu'Min, 500 U.S. at 428 (quoting Patton v. Yount, 467 U.S. 1025, 1031 (1984) in turn quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)).
On the issue of potential prejudices of jurors, the Supreme Court has noted that the Constitution does not always entitle a defendant to have questions posed during Voir dire specifically directed to matters that conceivably might prejudice veniremen against him. . . . [T]he State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant.
Ristaino v. Ross, 424 U.S. 589, 594-95 (1976) (citations omitted); see also Gardner v. Barnett, 199 F.3d 915, 920-21 (7th Cir. 1999) (en banc) ("The conduct of voir dire is left to the trial 20 court's sound discretion . . . [and] litigants do not have a right to have a particular question asked.") (citations omitted), cert. denied, 529 U.S. 1079 (2000); Hamling v. United States, 418 U.S. 87, 140 (1974) ("the trial judge made a general inquiry into the jurors' general views concerning obscenity. Failure to ask specific questions as to the possible effect of educational, political, and religious biases did not reach the level of a constitutional violation.") (internal quotation marks and citation omitted).
Case law has recognized that where a black defendant is charged with a violent crime against a white person, the Constitution requires voir dire questioning on racial prejudice. See Mu'Min, 500 U.S. at 424. The Court is aware of no case law, however, that has required voir dire questioning in other circumstances as a matter of federal constitutional law. Instead, the rule is that trial courts enjoy "wide discretion . . . in conducting voir dire in . . . areas of inquiry that might tend to show juror bias." Id. at 427; accord Dennis v. Mitchell, 68 F. Supp.2d 863, 890 (N.D.Ohio. 1999) ("There is no constitutional duty to ask potential jurors questions of mitigating evidence."); Goins v. Angelone, 52 F. Supp.2d 638, 671 (E.D.Va. 1999) ("it was proper for the trial court to disallow various cumulative questions . . . when the subject had been adequately covered by other questions."), appeal dismissed, 226 F.3d 312 (4th Cir.), cert. denied, 531 U.S. 1046 (2000). Even on direct review, where there is "more latitude in setting standards for voir dire in federal courts . . . [than] in interpreting the provisions of the Fourteenth Amendment," Mu'Min, 500 U.S. at 424, the Second Circuit has "never . . . reversed a conviction for the failure to ask a particular question on the voir dire of prospective jurors." United States v. Lawes, 292 F.3d 123, 129 (2d Cir. 2002).
Here, the questioning by defense counsel went far beyond the bounds necessary to 21 explore potential juror bias and prejudice. Counsel was permitted to ask whether the jurors believed that a person who had done nothing wrong could be arrested; whether police officers always tell the truth; and whether police might favor victims. The jurors' responses uniformly favored the defense. That counsel was not permitted follow-up questions into precisely why these favorable beliefs were held does not amount to a violation of the Constitution.
Conclusion
For the foregoing reasons, Givens' petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).