Opinion
1:21-cv-2993 (VEC) (KHP)
10-28-2021
RICHARD IFILL, Petitioner, v. AMY LAMANNA, Respondent.
FROM: THE HONORABLE KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
ORDER
TO: THE HONORABLE VALERIE E. CAPRONI, UNITED STATES DISTRICT JUDGE
On March 21, 2017, Petitioner Richard Ifill was convicted of robbery in the first degree, kidnapping in the second degree, and two counts of robbery in the second degree after a trial in the Supreme Court of the State of New York, New York County (the “trial court”) and sentenced to 25 years to life as a persistent violent felony offender. Petitioner appealed his conviction, but his appeal was denied by the Appellate Division. See People v. Ifill, 183 A.D.3d 539 (1st Dep't 2020). Petitioner then sought leave to appeal to the Court of Appeals, but this request was denied. See People v. Ifill, 35 N.Y.3d 1046 (2020). On April 7, 2021, Petitioner filed the instant Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1 (the “Petition”).) For the reasons set forth below, I recommend that the Petition be DENIED.
BACKGROUND
A. The Incident
Late at night on July 15, 2013, Abdoulaye Diallo was driving a cab in Harlem and picked up two men: an older man who wore a white suit and a hat and a younger man who wore a tee shirt. The older man directed Diallo to make a stop nearby, stating that he intended to pick up his daughter before continuing to their final destination. (ECF No. 2-1, at p. A-291 (confirming it was “a relatively short distance” from where he picked up the two perpetrators.)) After Diallo reached the first stop, the older man got out of the cab and walked to the passenger window. At that point the younger man reached around from the back seat and choked Diallo with his arms, while the older man threatened to “blow [his] head off” and lifted his jacket in a manner that suggested he had a concealed firearm. (Id. at A-295.) Diallo handed over his cash and wristwatch to the older man and pled “let me go on my way . . . I don't see you, you don't see me.” (Id. at A-298.) Instead, the older man instructed Diallo to start the car and then get on the floor of the front passenger seat. The older man then took control of the cab and drove it out of Manhattan towards the Bronx. (Id. at A-301-02.)
After reaching the Bronx, the older man instructed Diallo to get in the back seat and had the younger man bind Diallo's hands with the older man's tie. (Id. at A-302-03.) While they drove, the younger man held a black plastic bag in such a way that Diallo believed he held a concealed weapon. (Id. at A-304-05.) The older perpetrator eventually drove back into Manhattan, stopped the car, and instructed the younger man to handcuff Diallo to a street sign. (Id. at A-307.) The trip from Manhattan to the Bronx and back to Manhattan took at least twenty minutes. Before he was handcuffed, Diallo took a chance to escape and fled. (Id. at A-308.) Diallo tripped and fell as he ran, breaking his wrist and injuring his face. (Id. at A-309-10.) After a few blocks he encountered several police officers to whom he reported the crime and provided a general description of the older man. (Id. at A-312-13.) The record does not state exactly what Diallo said to the police the night of the incident; however Detective Delwyn Davis, who was assigned to the case and testified at trial, stated the description he received was for a fifty-five-year-old man weighing 165 pounds with dark skin tone. Diallo also described the clothing the older man was wearing and mentioned he was wearing a hat. (ECF No. 2-2, A-758.)
The timestamp in the cab's videotape showed Diallo picked up the two men at approximately 1:50 a.m. The video stopped at 2:11 a.m. and so Diallo was with the passengers for a minimum of twenty minutes. (Id. at 108.)
Diallo also gave a description of the younger perpetrator and apparently identified him exiting a deli later that night. (Id.) The police made an arrest, but the case against him was dropped because there was no corroborating DNA evidence from the cab. (Id.)
The police called in the incident at approximately 2:42 a.m. and located the cab nearby where it had been double parked and abandoned. (Id. at A-767.) After securing the cab, the police alerted Evidence Collection to have it scrubbed for fingerprints and DNA evidence. (Id. at 768.) At approximately 3:30 a.m., Officer Lynn Ruger of the Manhattan North Evidence Collection Unit arrived at the scene to collect evidence for testing. (Id.) From the interior of the car, Officer Ruger swabbed “the steering wheel . . ., the gear shift and the driver's side door handle” for DNA evidence. (ECF No. 2 at p. 8.) She recovered a bloodstained tie that was left on top of the trunk, and “a tan bamboo stick, a black plastic bag, black vinyl tape and a green hand towel” from the back seat of the cab. (Id. at 6.) She also collected several latent fingerprints from the cab's exterior. (ECF No. 2-2 at A-768.)
B. The Photo Array
Based on Diallo's description of the older assailant on the night of the crime, Detective Davis produced 471 photographs to Diallo on a computer at the precinct to see if any were of the older man. (ECF No. 2-2 at A-758.) Diallo did not recognize any of the individuals in the photos as the older perpetrator. (Id.) Detective Davis later confirmed that Petitioner's photo was not included in the group of 471 photos. (Id.)
In October 2013, Detective Davis received the DNA results from the cab. (Id.) DNA from the towel and tape found in the back of the cab matched the DNA profile of Petitioner Richard Ifill. (Id. at A-769.) DNA from the bloodstained tie and steering wheel that the assailants handled during the robbery did not have sufficient samplings for comparison. (Id.) Nonetheless, the Petitioner became a suspect based on the DNA match from the towel and tape.
Detective Davis compiled a new photo array that included Petitioner's photo alongside five other individuals with similar physical characteristics to Petitioner. The photo array was assembled systematically based on the parameters entered as part of petitioner's booking information and photo, rather than on the description given by the witness at the outset of the investigation. (ECF No. 2-2, A-759) Because the preexisting booking information for Petitioner described his hairstyle as bald, the randomly generated “filler” photographs were also of bald individuals. On November 30th, 2013, Detective Davis presented the photo array to Diallo who “immediately” and with “no hesitation” identified Petitioner as the older perpetrator. (Id.)
In January 2014, Petitioner was arrested and assembled for a lineup identification along with four fillers. Although none of the fillers were completely bald as Petitioner was, all either had short hair or were partially bald. Detective Davis testified that they were “the four that most closely fit [Ifill's] physical description.” (Id. at A-760.) Each individual wore a white tee shirt and was seated to minimize differences in height. Diallo again identified Petitioner as his assailant “immediately” by pointing to Petitioner and stating, “that's him.” (Id. at A-760-61.)
The Grand Jury of the County of New York indicted Petitioner on one count of robbery in the first degree (N.Y. Penal Law § 160.15(4)), one count of kidnapping in the second degree (N.Y. Penal Law § 135.20), two counts of robbery in the second degree (N.Y. Penal Law § 160.10(1), 160.10(2)(a)), and one count of assault (N.Y. Penal Law § 120.05(6)). The prosecutor dropped the assault charge prior to trial. (ECF No. 2-1, 120.)
C. The Wade Hearing
The Honorable Justice Mandelbaum held a Wade hearing before trial to decide the admissibility of the People's identification evidence. Detective Davis was the sole witness to testify at the hearing and was cross examined by Petitioner, who was acting pro se at the time. Petitioner argued that the police's lineup procedure was unduly suggestive because he was the only entirely bald individual in the lineup. While Diallo had never described his assailant as bald, Petitioner claimed that “a bald head sticks in his mind among any other head” because he had “[j]ust seen six bald heads” in the November photo array. (ECF No. 9-3, Transcript at p. 71.) In his view of the case, the photo array of six bald individuals had “tainted” the lineup procedure by priming Diallo to choose the bald individual from the in-person lineup. (Id.) Furthermore, while the assailant had been described as wearing a hat, the police did not give everyone in the lineup hats to minimize differences in hairstyle. (Id.)
The prosecution contended that Diallo had never described the older of the two assailants as bald and could not have noticed his hairstyle because of the hat he wore, and even so, the hairstyles of the other lineup fillers were close enough that Petitioner's baldness was not distinctive. (ECF No. 2 at A-29.)
Justice Mandelbaum made the following relevant findings of fact after the hearing: (a) that Petitioner first came to the police's attention because of the DNA match to the items found in the cab shortly after the crime; (b) that the photo array was conducted in accordance with appropriate procedures and comprised individuals who reasonably resembled Petitioner as he appeared in a police mug shot in the police database; (c) the police did not make any statements to the victim to influence his selection of Petitioner from the photo array; (d) the victim immediately identified Petitioner from the lineup; (e) the lineup was conducted about five weeks after the photo array in accordance with appropriate procedures and comprised of individuals who reasonably resembled Petitioner; (f) the police did not make any statements to the victim to influence his selection of Petitioner from the lineup; and (g) the victim identified Petitioner from the lineup without hesitation. Justice Mandelbaum concluded as a matter of law that the photo array was not subjective because the five filler photographs “reasonably match[ed] the look of the defendant as he appeared in the photograph of himself that was being included in the photo array.” (ECF No. 2-1 A1-3.) Additionally, Justice Mandelbaum found that the lineup was not unduly suggestive because Petitioner's baldness was not part of the description the victim provided, “the others had short hair,” there was nothing “unduly suggestive about the description in the hair,” the fact that the victim noted Petitioner was wearing a hat suggested he was not focused on and would not have noticed hair or lack of hair; and “the five people in the lineup all reasonably resemble[d] each other” with respect to “size, the complexion, the skin tone, [and] general characteristics.” (Id.) Justice Mandelbaum also found as a matter of law that the lineup procedure was fair in the way it was conducted during which no police officer made any statement to influence Diallo and Diallo was advised that the assailant may not be in the lineup. (Id.) Accordingly, Justice Mandelbaum denied Petitioner's motion to suppress. (Id.)
D. Petitioner's Trial in State Court
On March 13, 2017, the trial against Richard Ilfill began with the prosecution arguing that the DNA evidence and identification lineup proved the Petitioner's guilt beyond a reasonable doubt. (ECF No. 2-2 at 600.) However, the unclear video footage of the cab on the night of the crime and the lack of any DNA evidence on any items directly related to the crime led the prosecution to argue to the jury that the case “primarily comes down to [Mr. Diallo's] credibility and reliability.” (Id. at 601.) Notably, the photo array where Diallo initially identified the Petitioner was not presented at trial.
At the time of the trial and until July 1st, 2017 photo array evidence was not admissible at trial under New York law. As of July 1st, 2017, prosecutors are permitted to introduce evidence at trial that a defendant was identified from a photographic array. N.Y. Crim. Proc. Law § 60.30.
During Diallo's trial testimony, he did not identify Petitioner as the older perpetrator. (ECF No. 2-1, 323 (witness did not “think he would be able to recognize the older man” when asked at trial).) According to Detective Davis during direct examination, Petitioner “weigh[ed] considerably more than he did” at the time of the arrest, had grown facial hair, and was in a wheelchair. (Id. at 482-84.) The People argued that Diallo's hesitation to identify Petitioner was indicative that he would only make an identification if he were truly certain, like when he “immediately” identified Petitioner during the lineup in January 2014 and was confident in his selection and ability to identify the perpetrator. (Id. at 30.)
Petitioner was assisted by counsel at trial and pled not guilty, testifying at trial that he had never been in Diallo's cab and had never met Diallo. (ECF No. 2-2, 565.) He argued that there was insufficient DNA evidence to connect him to the scene of the crime beyond a reasonable doubt, as the only items with Petitioner's DNA could have found their way into the cab in a variety of ways. (ECF No. 2-1, 578.) Petitioner's DNA was not positively matched to DNA recovered from any of the surfaces handled by the perpetrators, such as the steering wheel, the door handles, or the tie used to bind his hands. (Id. at 381-83.)
Furthermore, Petitioner contended that the lineup identification was unduly suggestive and led to a misidentification. He was the only fully bald individual in the lineup, and he argued that the baldness highlighted his “big ears” which was a characteristic that Diallo had recalled during his trial testimony. (Id. at 288; see also ECF No. 2-2, 592.) Petitioner claimed that Diallo's failure to identify him as the older perpetrator during trial indicated that Diallo could not recall his assailant's face and had only made the prior identification because the procedure was suggestive. (ECF No. 2-2, 593.)
The jury found Petitioner guilty on all counts and he was sentenced in absentia as a persistent violent felony offender for 25 years to life. (Id. at 197-200.)
Justice Merchan sentenced Petitioner in absentia after multiple delays attributed to Petitioner's refusal to attend his sentencing; he was ultimately sentenced on July 27th, 2017. (ECF No 2-2, 207.)
PROCEDURAL HISTORY
Petitioner appealed his conviction to the New York Appellate Division, First Department (“Appellate Division”) on the grounds that: (1) the trial court failed to suppress an unduly suggestive lineup identification; (2) the court erred in permitting a detective's testimony that the victim said he would be able to identify the older of his two assailants because it was hearsay evidence; and (3) the court erred in sentencing Petitioner in absentia.
On May 28, 2020, the Appellate Division denied Petitioner's appeal, holding that the lineup was not unduly suggestive, that the trial court's decision to allow the detective's hearsay testimony was harmless error, and that Petitioner had waived his right to be present at his sentencing. See People v. Ifill, 183 A.D.3d 539 (1st Dep't 2020). The Court stated that “[t]he record supports the court's finding that, under all the relevant circumstances, the lineup was not unduly suggestive.” While acknowledging that the victim not mentioning baldness is not dispositive, citing People v. Perkins, the Court found the fact that the victim said the assailant was wearing a hat made it less likely he noticed baldness. 28 N.Y.3d 432 (2016). The Court of Appeals denied Petitioner's application for leave to appeal on July 29, 2020. See People v. Ifill, 35 N.Y.3d 1046 (2020). Petitioner did not seek a writ of certiorari from the United States Supreme Court.
Petitioner now pleads that he should either be released from custody or receive a new trial without the identification evidence because: (1) the lineup from which he was identified was unduly suggestive; (2) the identification by complainant was not independently reliable; and (3) any constitutional error was not harmless.
LEGAL STANDARDS FOR HABEAS REVIEW
A. Exhaustion and Procedural Default
Prior to seeking federal habeas review, a petitioner in state custody must exhaust all remedies available in state court. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). This means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Jackson, 763 F.3d at 133 (2d Cir. 2014) (explaining a “complete round” requires a petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it”) (internal citation omitted). In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division and then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal citation and quotation marks omitted).
Here, Petitioner has exhausted his due process claim on the identification procedure in the state courts as required by AEDPA. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). Prior to his trial, Petitioner opposed the introduction of the lineup evidence at the Wade hearing and the Court ruled on the merits. Thereafter, in his brief to the Appellate Division, Petitioner argued that the trial court erred in not suppressing the lineup identification because it was unduly suggestive. (ECF No. 2-2, 230.) The Appellate Division rejected the claim on its merits. See People v. Ifill, 183 A.D.3d 539 (1st Dep't 2020). Petitioner again raised his due process claim on his application for leave to appeal to the Court of Appeals, which was subsequently denied. (ECF No. 2-2, 339, 349.) Accordingly, Petitioner has exhausted all available remedies at state court and his claims were denied on their merits.
B. Standard for Habeas Review
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). A federal court may only grant habeas relief when a state prisoner shows that the state court's decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or that the decision was based on an unreasonable determination of the facts before the state court. 28 U.S.C. § 2254(d)(1)-(2).
For a state court's decision to be contrary to clearly established law, the court must have reached a conclusion “antithetical to a conclusion of law by the Supreme Court, or decide a case differently than the Supreme Court has when the two cases have ‘materially indistinguishable facts.'” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring)). In the AEDPA context, “clearly established” law refers to “only the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation marks and citation omitted). It is not enough that the facts of a case are “similar to” those at issue in the relevant Supreme Court case - the two cases must involve the same specific question. Id. at 317.
Once the clearly established Supreme Court holdings have been distilled, “an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 316 (internal quotation marks and citation omitted). To satisfy the high bar for habeas relief, a petitioner must establish that “the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “Whether the state court's application is ‘objectively unreasonable' depends, in part, on the specificity of the clearly established rule of law.” Jackson v. Conway, 763 F.3d 115, 135 (2d Cir. 2014) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The more general the rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations.” 541 U.S. at 664 (citing Wright v. West, 505 U.S. 277, 308-309 (1992) (Kennedy, J., concurring in judgment)).
ANALYSIS OF PETITIONER'S CLAIM THAT THE LINEUP WAS UNDULY SUGGESTIVE
A. Unduly Suggestive Lineups in Habeas Context
Eyewitness identification testimony must be reliable to be admissible. Manson v. Brathwaite, 432 U.S. 98, 112-114 (1977). Federal courts reviewing a state court ruling on the admissibility of pre-trial lineup identifications consider a two-step process to determine whether the identification violated Petitioner's right to due process: first, the court must determine whether the lineup procedure unduly suggested that petitioner was the perpetrator, and second, the court must determine whether the witness identification was nonetheless independently reliable. See Manson, 432 U.S. at 114 ; Neil v. Biggers, 409 U.S. 188, 199 (1972); see also Brisco v. Ercole, 565 F.3d 80, 88 (2d Cir. 2009) (citing Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001)).
An identification procedure is unduly suggestive when it is “all but inevitable that [the witness] would identify petitioner whether or not he was in fact [the perpetrator],” and “so undermine[s] the reliability of the eyewitness identification as to violate due process.” Foster v. California, 394 U.S. 440, 443 (1969). “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 obviously do not.” Raheem, 257 F.3d at 134 (holding a lineup to be suggestive where defendant was the only one in lineup wearing a black leather coat, and witness had described the criminal as wearing a similar coat). Established federal law does not require police to present a lineup of individuals who are identical in appearance. See, e.g., Velazquez v. Poole, 614 F.Supp.2d 284, 324 (E.D.N.Y. 2007) (listing cases that permitted identification despite moderate differences in physical appearance of lineup participants). Rather, the focus of the inquiry remains whether the lineup singles out a defendant for a physical trait in such a way that creates a “very substantial likelihood of irreparable misidentification.” Braithwaite, 432 U.S. at 98 (quoting Simmons v. United States, 390 U.S. 377, 383 (1968)).
“[W]hether an identification procedure violates due process is governed by an extraordinarily general standard that hews closely to the facts of a particular case and turns on a court's judgment in evaluating those facts.” Brisco, 565 F.3d at 90 (citing Simmons, 390 U.S. at 384). State courts applying the federal standard “are entitled to significant ‘leeway'” when their decisions are reviewed in federal habeas courts. Id. (citing Yarborough, 541 U.S. at 664).
B. State Court Made Reasonable Determination that Lineup was Not Suggestive
At Petitioner's Wade hearing, the Court concluded that the lineup was not unduly suggestive. Given the standard above, this conclusion is given “significant leeway” unless it is based on an unreasonable assessment of the facts. Brisco, 565 F.3d at 90.
Here, the record supports a finding that the state courts applied the federal standard reasonably in concluding that Petitioner was not singled out by the lineup procedure in a manner that would lead to “irreparable misidentification.” Manson, 432 U.S. at 116 (quoting Simmons, 390 U.S. at 383). Notably, baldness was never part of the description provided by Diallo and would not have been because the older perpetrator wore a hat. (See ECF No. 2-1, 106.) Even so, the state court, when evaluating other facts, found the lineup not to be suggestive. It noted that other individuals in the lineup had “very short hair” making it unlikely that Petitioner stood out in the group because of his baldness. (Id.) The state court found that based on “the size, the complexion, the skin tone, [and the] general characteristics . . . the five people in the lineup reasonably match[ed] each other.” (Id. at 107.) Furthermore, it also relied on the fairness of the overall process for the lineup. Nothing in the record suggests that the police made any indication to Diallo that they had a suspect or that he had correctly identified their suspect from the photo array or the lineup, either of which may have caused Diallo to “retain in his memory the image of the photograph rather than of the person actually seen.” Hart v. Garvin, 242 F.3d 365, 365 (2d Cir. 2000) (quoting Simmons, 390 U.S. at 383) (suggestive circumstances where photo of Petitioner was broadcasted on the news as the primary suspect in the investigation prior to identification). The Appellate Division affirmed the hearing court's conclusion based on all of the circumstances and also because “the victim described his assailant as wearing a hat, making it less likely that he noticed any baldness.” People v. Ifill, 183 A.D.3d 539 (1st Dep't 2020).
Petitioner relies on Hart in his Petition. However, the facts in this case are distinguishable. In Hart, the victim explained that a man with a knife grabbed her from behind, attempted to fondle her and slashed her neck. She described the attacker with some detail, but her initial description did not refer to any facial moles. Twenty-four hours after the attack, the victim selected petitioner's photo from a photo bank; and, the photo showed two facial moles. The victim then amended her description of the attacker to include that he had facial moles. A month later, the petitioner's photo was aired on television, which the victim saw. Five days after the television show, the victim picked petitioner out of a lineup. Petitioner's appearance in the lineup differed somewhat from the victim's original description, and the only immutable feature evident in the lineup were his facial moles. The state courts rejected petitioner's argument that the facial moles in the photo primed her to pick petitioner in the lineup. On habeas review, the District Court found that the lineup was unduly suggestive and not independently reliable. The Second Circuit found that although the initial photographic spread was not unduly suggestive, the victim's exposure to the photo on television five days before the lineup increased the chances she would select petitioner from the lineup. In this case, Diallo did not re-see the photo before the lineup, let alone on television where the suggestion was made that the photo depicted the assailant. Additionally, in this case, five weeks passed between seeing the photo and the lineup, such that the photo depiction of plaintiff was not as fresh in Diallo's mind. In this case, Diallo did not change his description of his abductor based on the photo or make any remarks about the allegedly distinctive feature of baldness; whereas the witness in Hart focused on the distinctive feature in the photo array and then possibly the lineup. Apart from the issue of suggestiveness, Hart is also different from this case insofar as in that case there was no physical evidence connecting petitioner to the crime and no connection of petitioner to the location of the attack; indeed, the petitioner had seven alibi witnesses who covered his movements throughout the day rendering it nearly impossible for him to have been at the location of the attack at the time of the attack. Accordingly, the Second Circuit found that admission of the lineup identification was prejudicial and not harmless error.
Because Petitioner's baldness was not included in any previous description, the question remains whether Petitioner was nonetheless so singled out that it would lead to a substantial likelihood of misidentification. See, e.g., Manson, 432 U.S. at 116. Petitioner maintains that the lineup procedure from which he was identified was unduly suggestive because he was the only fully bald individual in the lineup, and the witness had previously been shown a photo array containing photographs of bald men. (ECF No. 2, 21-23.) His argument is based on the theory that the photo array including only bald men created suggestive circumstances that “primed Diallo to identify a bald man” in the later lineup and was thus set up to enable a misidentification. (ECF No. 12, 8.) In further support he argues that even though baldness was never a part of the witness's description, “baldness is one of the most unique hairstyles since it is not subject to change” and that Diallo would only remember a bald man after viewing the photo array. (ECF No. 12, 6.) Lastly, Petitioner claims that the failure to put hats on each participant in the lineup contradicts standard police practice, but does not cite to any Supreme Court cases holding that a failure to place hats on participants to minimize differences in hairstyle amounts to a constitutional violation when there was nothing distinctive about the defendant's hairstyle.
No Supreme Court case has addressed a set of “materially indistinguishable facts” involving a lineup where Petitioner was singled out for a characteristic that was not part of the witness's earlier description but was a common characteristic in an earlier photo array. See Rosario, 601 F.3d at 118. Thus, Petitioner is unable to demonstrate that the state court's decision was “contrary to” clearly established federal law. 28 U.S.C. § 2254(d)(1); see also White v. Woodall, 572 U.S. 415, 419 (2014). Petitioner is also unable to demonstrate that the state courts made an “unreasonable” application of the law to the facts that is “beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. 86, 103 (2011); see also 28 U.S.C. § 2254(d)(1).
As stated above, and as determined in the Petitioner's Wade hearing, notwithstanding the all-bald photo array, the Court found that all individuals in the lineup looked reasonably similar, Petitioner's baldness did not make him stand out, and Diallo was unlikely to notice anything distinctive about the hairstyle because the older perpetrator had worn a hat during the crime. The Court also noted that nothing the police had said or about the procedure of the lineup was suggestive. The conclusion that all of these facts did not render the lineup suggestive was well within the contours of how courts have applied applicable Supreme Court case law and not unreasonable “beyond any possibility for fairminded disagreement.” The Appellate Division recognized this by indicating that “under all the relevant circumstances” the lineup was not suggestive. The cases on which Petitioner relies do not require a different outcome given the broad leeway afforded to state courts in matters concerning admission of pretrial identification testimony.
For example, in Frazier v. New York, a victim of a daytime attack provided police descriptions several times, always mentioning that her attacker had distinctive dreadlocks - described as alternating dreadlocks similar to that worn by the singer Tracy Chapman, the longest being about shoulder length and the shorter ones towards the top of his head. See Frazier, 187 F.Supp.2d 102, 106-107 (S.D.N.Y. 2002). The victim did not view a photo array. Nine days after the attack, the police nonetheless arrested the suspected perpetrator (Frazier) based on the victim's description and his presence at the same location as the attack. Ten days after the attack, the police arranged a lineup in which Frazier was the only one who had dreadlocks of any significant length. The others in the lineup, though described as having “locked” hair, in fact did not have hair that extended more than even a short distance from their heads. Id. at 107. The victim identified Frazier without hesitation. The District Court on habeas review noted that Frazier was the only participant in the lineup who had alternating-length dreadlocks and that this hairstyle “was the only consistent, distinctive feature” in the victim's “various descriptions.” Id. at 111. In looking at the photos, the District Court noted that the fillers in the lineup did not have hairstyles that resembled Frazier's and that all their styles were “very close to the head.” Id. It thus found the lineup suggestive. The Second Circuit affirmed this finding. 156 Fed.Appx. 423 (2d Cir. 2005). Both Courts found that the lineup identification was independently reliable.
Unlike in Frazier, baldness was not in Diallo's description of his abductor. Nor did he even have an opportunity to view his abductor's hair style since he was wearing a hat, making it unlikely that baldness was the feature(s) he relied on when positively identifying Petitioner in the lineup. Furthermore, this Court having viewed the lineup photograph, finds the other hairstyles of the fillers were not so different that it was inevitable that Diallo would have selected Petitioner. As the state courts recognized, and as the photo of the lineup confirms, other fillers reasonably resembled Petitioner and his lack of hair is not so distinct given that the others were partially bald or had very close cropped hair and had similar builds and skin tones, were all seated, and were all wearing white t-shirts. And unlike in Frazier, the purportedly distinctive feature of baldness was never part of a description provided by Diallo at any time. See also Raheem, 257 F.3d at 134. Also unlike in Frazier, in this case, Diallo confidently identified Petitioner in a prior photo array where it was clear that baldness was not the basis on which he made his identification since all of the people in the array were bald. The argument that the photo “primed” Diallo to select a bald person is undermined by the reasonable resemblance of Petitioner to the fillers in the lineup, the time between the photo array identification and the lineup identification, and the Police's compliance with applicable procedures (which included a statement that Diallo's abductor might not be in the lineup). (ECF No. 2-2 at p. 761.)
Similarly, the facts of this case are distinguishable from those in People v. Perkins, a case cited by the Appellate Division in ruling on Petitioner's appeal. 28 N.Y.3d 432 (2016); (Id. at p. 814.) In Perkins, just as in Frazier, the defendant was the only participant with long dreadlocks, a prominent feature of two victims' descriptions of their assailant but not mentioned by two other victims. All victims had identified the defendant in a photo array in which all of the photos were of men with dreadlocks. The lineup was conducted three weeks after the photo array identification. The lower court found that the lineup was suggestive as to the two witnesses who had described their assailant as having dreadlocks but not as to the other two who had not described the dreadlocks. The Court of Appeals found the lineup suggestive with respect to all four victims' identifications, holding that suggestiveness does not turn solely on whether a distinctive feature of the defendant figured prominently in the victim's prior description and that more was needed to explain why the lineup identification should be deemed reliable as to the two victims who had not described the assailant as having dreadlocks. Unlike in Perkins, baldness was not only not a feature noted by Diallo when providing a description, but it was not so prominent a feature in the lineup given that the fillers were partially bald or had very short hair and had other features causing them to reasonably resemble Petitioner. Unlike in Perkins, the state hearing court did not base its decision solely on the absence of baldness in Diallo's description of his abductor; rather, the state hearing court evaluated other facts, as described above, to explain why the lineup was not suggestive. While it is true that in Perkins the Court stated that the difference in hairstyles between Perkins and the fillers was prominent and “heightened because all four victims had viewed a photo array,” it does not hold that a photo array in which all suspects were bald necessarily would render a subsequent lineup suggestive when baldness was not a feature that stood out based on other similarities of the fillers, as was the case here.
For the foregoing reasons, petitioner's habeas petition should be denied because the state courts' finding that the lineup identification was not unduly suggestive was not an unreasonable application of clearly established federal law, as determined by the Supreme Court or an unreasonable determination of facts.
C. Whether Identification was Independently Reliable
Even if the lineup identification here was unduly suggestive, it would not have been an error to allow it into evidence if it was independently reliable. See Manson, 432 U.S. 98. “[R]eliability is the linchpin in determining the admissibility of identification testimony.” Id. at 114.
The Court in Neil v. Biggers established a five-factor test for determining reliability of pre-trial identifications: 1) the opportunity for the witness to view the criminal during the crime; 2) the witness' degree of attention during the crime; 3) the accuracy of the witness' description; 4) the witness' level of certainty during identification, and 5) the time between the crime and the confrontation. 409 U.S. 188, 199 (1972); see also Manson, 432 U.S. at 114. No single factor is dispositive in deciding whether a witness' identification of the defendant is reliable or not; rather, it is the “totality of the circumstances” which determines reliability. See, e.g., Raheem, 257 F.3d at 135. “'[S]tate courts, in a habeas context, [are] free to adopt any number of non-Biggers procedures designed to ensure the reliability of such testimony.'” Brisco, 565 F.3d at 94 (2d Cir. 2009) (quoting Kennaugh v. Miller, 289 F.3d 36, 47 (2d Cir. 2002) (discussing whether evidence that corroborates witness testimony strengthens reliability as a “sixth factor”)). While it may be inappropriate for a federal court to consider a “sixth factor” such as corroboration in determining independent reliability instead of in a harmless error inquiry, “under the AEDPA, a state court that used a ‘sixth factor' analysis would be applying the Manson requirements in a perfectly reasonable way.” Id. at 95 (quoting Kennaugh, 289 F.3d at 47-48). Where the state courts have not employed a “sixth factor analysis” in their review of the case, a federal court has “no occasion to pursue [the] issue further.” Id. at 95.
In reviewing the factors of reliability set out in Biggers, “[t]he ultimate conclusion as to whether the facts as found state a constitutional violation is a mixed question of law and fact.” See Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 204 (2d Cir. 2010) (citing Sumner v. Mata, 455 U.S. 591, 597 (1982) (internal quotations omitted)). Under the statutory provisions of the AEDPA, a state court's factual determinations are presumed to be correct unless they are “not fairly supported by the record.” Sumner, 455 U.S. at 597 (citing 28 U.S.C. § 2254(d)). Where the state court has performed fact finding but did not reach a conclusion on the legal question at hand, “no state ruling on that issue commands deference under the AEDPA.” Drake v. Portuondo, 321 F.3d 338, 347 (2d Cir. 2003).
1. Totality of the Circumstances Supports Reliability
The Appellate Division concluded that Petitioner's pretrial lineup was not unduly suggestive and did not reach the question of whether the identification was independently reliable. See People v. Ifill, 183 A.D.3d 539 (1st Dep't 2020). Thus, this court reviews the question of reliability de novo with deference to the trial court's factual findings and the evidence and testimony within the record. See, e.g., Frazier v. New York, 156 Fed.Appx. 423, 425 (2d Cir. 2005) (citing Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003)).
Addressing the first Biggers factor, the record suggests that Diallo had multiple opportunities to view the older man face-to-face. Diallo had a good look at the older man while he was being threatened and testified that he “was looking at his face” at the time. (ECF No. 21, 296.) Diallo would have had additional opportunities to view the perpetrator as he walked in front of the cab and entered the driver's side to take control. Then, Diallo was instructed to get on the floor of the front passenger's seat and would have been able to view the older man as he drove. Finally, Diallo may have seen the older man's face as he passed a pair of handcuffs to the younger accomplice shortly before Diallo fled. The crime took place on the city streets and the cab would have been illuminated at times by the streetlights and the headlights of passing cars. (Id. at 318, 321 (describing the lights of passing cars appearing in the video).) Additionally, the cab's interior lights turned on after the doors opened and remained on for “a few minutes.” (Id. at 290-91.)
Petitioner relies on Dickerson to argue that Diallo did not have a good opportunity to view the older man. In Dickerson, the victim had only one glancing opportunity to see the criminals as he walked away from the car, and his view was obscured by the car's rear window, the distance from the car, and the poor lighting conditions. See Dickerson v. Fogg, 692 F.2d 238, 245 (2d Cir. 1982). However, the facts in this case differ from those in Dickerson. Putting aside what the exact lighting conditions were as they drove through the city, the extended time Diallo spent with the perpetrators and the multiple opportunities he had to view the older man face-to-face weigh in favor of reliability.
Second, the record supports a finding that Diallo paid close attention to the older criminal. While Diallo paid little attention to the two men when he first picked them up and began driving them, Diallo had every incentive to pay close attention from the moment he was being choked. When he was threatened, Diallo testified that he was “looking at [the older man's] face” and had every reason to pay careful attention as the man threatened to shoot him and gave him instructions to hand over his money and watch. (ECF No. 2-1, 296.) Diallo was “no casual observer,” but the victim of a crime who had an incentive to pay close attention. Neil, 409 U.S. at 200. While Diallo was certainly agitated and frightened during the encounter, he had no trouble recalling the events of the crime, what was said to him, and even the route that his assailant drove through the Bronx and then back into Manhattan. The details of Diallo's testimony suggest that he was not so frightened that he could not carefully recall the details of that night. The second factor of the witness' attention therefore weighs in favor of reliability.
The third factor, the accuracy of the description given by the witness, weighs neither for nor against reliability. While a description that inaccurately describes the defendant would cut heavily against reliability, “the absence of a prior description does not carry the same weight.” Richardson, 621 F.3d at 205 (2d Cir. 2010) (citing Chavis v. Henderson, 638 F.2d 534, 537 (2d Cir. 1980)). Diallo's description of the older assailant to the police was somewhat general but was not inaccurate. See United States v. Reed, 570 Fed.Appx. 104, 110 (2d Cir. 2014). Further, he informed the police that he would be able to identify the older man and later did so when shown the photo array. Thus, the third factor does not weigh in favor of reliability, but neither does it detract from the reliability of witness's identification.
Fourth, Diallo's immediate identification of Petitioner at both the photo array and lineup, without any hesitation or prompting from the police, weighs heavily towards a finding of reliability. See, e.g., Reed, 570 Fed.Appx. at 110 (witness was reliable as his identification “was prompt and steadfast”); see also Fabers v. Lamanna, 2020 WL 1875288, at *8 (E.D.N.Y. 2020); Hylton v. Ercole, 2010 WL 2594744, at *12-13 (E.D.N.Y. 2010). Furthermore, his confidence in identifying Petitioner during the photo array and lineup should be contrasted to the fact that he did not identify anyone from the 471 photographs previously shown to him. His certainty in selecting Petitioner from the later photo array and lineup, but not from the previous photographs, is therefore a point in favor of reliability. See, e.g., Neil, 409 U.S. at 201 (holding a witness had a good record of reliability as she "previously resisted whatever suggestiveness inheres in a showup”).
Petitioner argues that because Diallo was unable to make an identification in court, his immediate selection during the earlier lineup was the product of a suggestive procedure and not his “bulletproof memory.” (ECF No. 2, 28.) However, the trial took place nearly four years after the crime. On two occasions much closer in time to the crime, Diallo identified Petitioner as the older perpetrator without any hesitation. It is not unreasonable for Diallo to lack the same level of certainty in identifying Petitioner four years after the crime when Petitioner's appearance had faded and when the record shows that Petitioner's appearance had changed--he “weigh[ed] considerably more than he did at the time [of his arrest],” had facial hair, and was in a wheelchair. (ECF No. 2-1, 482-84.) Thus, this argument is not persuasive.
Petitioner's reliance on United States v. Eltayib for the proposition that apparent certainty by a witness during a suggestive identification procedure cuts against reliability is misplaced, as that case is very different from this one. 88 F.3d 157, 167 (2d Cir. 1996). In Eltayib, the defendant was identified from a photo array presented to the government's informant. The photo array was held to be unduly suggestive. Id. at 166-67. Eltayib was a ship captain who was found to have trafficked drugs. The photo array contained individuals who looked nothing like Eltayib (including in skin tone) and the individual photos were cut in a manner to highlight the informant's description of Eltayib's afro-style hair, thus highlighting this distinctive feature. While the informant immediately picked out Eltayib, the Court noted that because of the suggestive nature of the array, this factor did not cut in favor of reliability. But, as discussed above, Petitioner's baldness was not so distinct and did not stand out so much from the fillers in the lineup. Further, in Eltayib, there was no independent basis for reliability of the identification because, in large part, the informant did not have a good opportunity to view Eltayib whereas in this case, Diallo had a good opportunity to view Petitioner at close range. Eltayib is also distinguishable from this case because Diallo identified Petitioner without hesitation on two separate occasions, the first time from a photo array which he does not argue was suggestive and was found by the hearing court to not be subjective. (ECF No. 2-1, A104.) Finally, unlike in Eltayib, the victim in this case never described nor focused on Petitioner's hair or lack thereof when describing Petitioner to the police. Even at trial, the additional features the victim mentioned were Petitioner's ears and baby face appearance. (ECF No. 2-2 at p. 816.) For all the above reasons, the fourth Biggers factor weighs in favor of reliability.
Fifth, Petitioner contends that the six months between the crime and identification in the lineup was too long to allow for a reliable identification. In Biggers the Court stated that “a lapse of seven months . . . would be a seriously negative factor in most cases” but would not be dispositive when weighed against other factors of reliability. Neil v. Biggers, 409 U.S. at 201 (1972); see also United States v. Diaz, 986 F.3d 202, 208 (2d Cir. 2021) (“an interval of several months between the event and the identification, though a negative factor, is not determinative if it is outweighed by other indicia of reliability”). Taken together, the first, second, and fourth factors weigh strongly in favor of reliability as the record suggests Diallo had ample opportunity to view the perpetrator, was attentive throughout the crime, and identified Petitioner twice “immediately” and “without hesitation.” While the length of time that passed between the crime and the lineup identification is a negative factor, it is outweighed by the other factors supporting Diallo's reliability as a witness.
2. Additional Factors
Petitioner requests that this Court consider three additional factors when weighing the independent reliability of the witness. First, petitioner asserts that Diallo's reliability “suffered a significant blow when he was unable to identify [Petitioner] in court.” (ECF No. 2, 29.) This argument was already raised as part of the fourth Biggers factor. (Id. at 28.) As already stated, Diallo's reluctance to try and identify his assailant at court is understandable given the lapse of four years since the crime occurred and Petitioner's change in appearance. Thus, Diallo's inability to make an identification at trial is not considered an additional factor against his reliability as a witness.
Second, Petitioner argues that that the trial court erred by allowing Detective Davis to bolster Diallo's lineup identification when he testified that Diallo stated he would be able to identify his abductor and that the jury was unable to make an informed assessment of whether the lineup identification was reliable because it did not know why baldness was important to the identification. That Diallo was confident that he could identify his abductor does not weigh against the reliability of the identification. And because baldness was not a feature that was ever mentioned by Diallo at trial or otherwise, there is no basis for suggesting the jury was confused. Although the photo array identification was not suggestive, it was inadmissible under New York law and thus could not have been introduced to provide context to the jury. This second argument is thus without merit and does not detract from a finding of independent reliability of the lineup identification.
Third, Petitioner claims that the DNA evidence connecting him to the crime is weak and cannot support reliability. Under Second Circuit law, “evidence of record that is unrelated to an identification but that is supportive of a finding of guilt is properly considered in harmless-error analysis, not in the due process inquiry of whether the identification has reliability.” Raheem, 257 F.3d at 141 (2d Cir. 2001). The weight of corroborating DNA evidence is therefore considered as part of the harmless error inquiry and does not cut for or against Diallo's reliability as a witness.
Under the totality of the circumstances, the Biggers factors weigh in favor of finding that the lineup identification was independently reliable. For this reason as well, the habeas petition should be denied.
D. Harmless Error Analysis
Because the state courts' finding that the lineup identification was not unduly suggestive was not an unreasonable application of clearly established federal law as determined by the Supreme Court and the lineup identification was independently reliable, I do not reach the harmless error argument.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied and dismissed in its entirety.
NOTICE
Petitioner shall have fourteen days, and Defendant shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Petitioner shall have fourteen days to serve and file any response. Defendant shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Judge Valerie E. Caproni at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).