Opinion
01 Civ. 4668 (GBD) (DF)
July 16, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
Pro se petitioner Michael Pendergrass ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a jury verdict, Petitioner was found guilty of second-degree murder, and was then sentenced to a term of 18 years to life. He is currently incarcerated at Attica Correctional Facility.
Petitioner challenges his conviction on the following grounds:
(1) that the prosecution failed to prove Petitioner's guilt beyond a reasonable doubt because the testimony at trial was unreliable, inconsistent, and confused, or, in the alternative, that the verdict was against the weight of the evidence; and (2) that Petitioner's due process rights were violated by the trial court's allegedly erroneous ruling permitting a trial witness to identify Petitioner in court.
(See Pet. at ¶ 12, and attached pages.)
"Pet." refers to Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, dated February 16, 2001.
Respondent argues that the petition should be dismissed on the grounds that Petitioner's claims are unexhausted, procedurally barred, and/or without merit. (See Resp. Mem. at 7-10.) For the reasons stated below, I recommend that the petition be dismissed.
"Resp. Mem." refers to Respondent's Answer Opposing Petitioner's Petition, dated October 26, 2001.
I. FACTUAL BACKGROUND
According to the testimony at trial, in the early part of the summer of 1995, Alexandria Holmes ("Mrs. Holmes") shared her apartment with her three children, Tammy Holmes ("Tammy"), Anthony Holmes ("Anthony"), and Petitioner. (Tr. at 468-69.)
"Tr." refers to the transcript of Petitioner's trial, which took place from September 9, 1996, through October 8, 1996. "Pre-Trial Tr." refers to the transcript of the combined Wade/Huntley/Dunaway hearing held on September 9-12 and 17-19, 1996. "Sentencing Tr." refers to the transcript of Petitioner's sentencing hearing held on October 22, 1996.
Also living in the apartment at that time was Tammy's boyfriend, Rudolph Turner ("Turner"). (Id. at 468.) According to Mrs. Holmes, at some point during that summer, she noticed and told her children that approximately $725.00, which she had set aside for rent and food, was missing. (Id. at 469-70.) Petitioner and his siblings may have suspected that Turner stole this money from their mother. (Id.)
Turner was known by several different names, and was referred to as "Akeem" or "Nakim" throughout the transcript.
On June 25, 1995, Turner was visiting a group of friends at a park in the vicinity of West 46th Street, between 9th and 10th Avenues, in Manhattan. (Id. at 91, 101, 102, 124, 160, 243, 339.) Shortly before midnight, Turner was confronted by Petitioner and his siblings. (Id. at 161, 251a, 263, 341.) Petitioner and his brother Anthony chased Turner, beat him, and struck his head with a milk crate. (Id. at 28, 33, 163, 168, 252, 346-48.) Petitioner then produced a large kitchen knife (id. at 163, 347), and stabbed Turner in the chest (id. at 164, 347-48), causing a wound approximately five inches deep that extended to Turner's pulmonary artery (id. at 287-88), and that resulted in his death (id. at 295). The fatal stabbing was witnessed by a number of bystanders, including two of Turner's friends, Shawn Myers ("Myers"), and Stephanie Tamiar ("Tamiar"). (Id. at 127-142, 164, 347-48.) Immediately after the stabbing, Petitioner and his siblings fled. (Id. at 142, 175, 240, 347, 406-07.) Later that evening, Myers and Tamiar spoke with police at the crime scene and at the precinct. (Id. at 196, 366.)
On or about June 28, 1995, after Tammy and Anthony had been arrested, Petitioner telephoned the police station and spoke to investigating detective Michael Bachety ("Bachety"). (Id. at 320-21; Pre-Trial Tr. at 35.) Bachety testified that, after identifying himself on that call, Petitioner said that "he was scared and that he didn't mean for what had happened to have happened; that [Turner] got in his face, and it just happened." (Id. at 322; see also id. at 36-37, 62.) When Bachety asked Petitioner to come to the police station, Petitioner replied that he first wanted to speak to his family and hire an attorney, and that he would then call back. (Id. at 322-23; see also id. at 37, 62.) Bachety received a call later in the day from Petitioner, saying that he would call again at 4:00 p.m. that same day. (Tr. at 323.) Petitioner, however, did not call again. (Id.; see also Pre-Trial Tr. at 63.)
There is a discrepancy as to the exact date of this telephone call, but it appears to have occurred either on June 27 or June 28, 1995. (Tr. at 320; Pre-Trial Tr. at 35.)
About six weeks later, Mrs. Holmes saw Petitioner for the first time since the night of the crime. (Id. at 487.) Petitioner admitted to Mrs. Holmes that he had killed Turner, ostensibly because "[Turner] stole 750 or 725 [dollars]" and because Turner had tried to kill or hurt Anthony. (Id. at 488.)
On February 26, 1996, Petitioner was taken into custody at Mrs. Holmes apartment. (Id. at 112-13; see also Pre-Trial Tr. at 38, 54.) On March 29, 1996, Myers identified Petitioner from a lineup as the man who had stabbed Turner. (Id. at 310-13, 357-58, 386-87.) Petitioner was then charged with murder in the second degree and conspiracy in the second degree.
II. PROCEDURAL BACKGROUND A. Pre-Trial Proceedings
Beginning on September 9, 1996, a pre-trial combined Wade/Huntley/Dunaway hearing was held before the trial court judge, the Honorable Mary McGowan David, in the Supreme Court of New York, New York County. Bachety testified at the hearing, along with Detectives Anthony Burti, Reginald Britt, Robert Bava, and Police Officer James Lai ("Lai").
This hearing was held pursuant to: (1) United States v. Wade, 388 U.S. 218 (1967), to determine whether Petitioner's pretrial identification was the result of impermissibly suggestive procedures; (2) People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), to determine whether any statements made by Petitioner should be suppressed; and (3) Dunaway v. New York, 442 U.S. 200 (1979), to determine whether there was probable cause for Petitioner's arrest.
At the hearing, Petitioner moved to suppress Myers' lineup identification as tainted, and also moved to suppress statements made by Petitioner to Bachety, over the telephone, on or about June 28, 1995. (Pre-Trial Tr. at 2-3; see also Tr. at 370-73.) Petitioner further argued that his arrest had been made without probable cause, and thus that all information obtained as a result of that arrest should have been excluded. (See id. at 512.) The court found probable cause for Petitioner's arrest, and denied Petitioner's motion to suppress in its entirety. (Id. at 400-25, 527.)
There was also some question about statements made by Petitioner to Bachety subsequent to his arrest on February 26, 1996. (Pre-Trial Tr. at 43.) The court clarified that there was no challenge to the voluntariness of those statements, and, in any event, that the prosecution would not seek to introduce them. (Id. at 43-44.) Therefore, those additional statements were not at issue for the purposes of the Huntley hearing.
None of the issues addressed during the pre-trial hearing are relevant to this habeas proceeding.
B. Trial
Petitioner was tried by a jury from September 24, 1996, through October 8, 1996. At trial, the prosecution's witnesses were Mrs. Holmes, Turner's friends Myers and Tamiar, Detectives Bachety and Diane Giuliano, Police Officers Lai, Sean Maher, Michael Heptuk, Vernon Ensminger and William Kelly, David Laborda ("Laborda") (who witnessed the crime while driving his cab), Bekim Cobaj ("Cobaj") (a volunteer with the auxiliary police who witnessed the crime while driving with his girlfriend), Dr. Thomas Glison (a medical examiner), Bishop Donal Yarbough (who ran a soup kitchen at which Turner volunteered, and who identified the body), and Dr. Floyd Carneal (Mrs. Holmes' treating psychiatrist). Petitioner's sole witness was Detective Michael Humphreys, who testified to an interview with Tamiar on the night of the murder. (Tr. at 730-41.) Petitioner did not testify on his own behalf.
It was brought out at trial that Mrs. Holmes had been diagnosed as schizophrenic, a condition for which she received ongoing treatment with injectable and oral medications. (Id. at 580, 582-84.)
On the second day of the trial, and several hours before her testimony, Tamiar was brought into the courtroom in order to keep her separate from the jurors, who were congregating in the hallway. (Id. at 116.) When Tamiar entered the courtroom, she viewed Petitioner who, unbeknownst to the officer in charge of Tamiar, was sitting at the defense table. (Id. at 116-17.)
Tamiar was in custody at the time of her testimony. (Tr. at 116.)
Petitioner then moved to exclude any in-court identification by Tamiar. (Id. at 117.) In the alternative, Petitioner requested an "independent source" hearing. (Id.) The court agreed to conduct an independent source hearing immediately, outside the presence of the jury, and Petitioner expressly waived his right to be present for Tamiar's testimony at that hearing. (Id. at 118-19.)
Such a hearing would enable the court to determine whether, despite the fact that Petitioner's presence at the defense table might have unduly suggested to Tamiar that Petitioner was the perpetrator, Tamiar had sufficient knowledge of Petitioner from an "independent source" to make her identification of Petitioner reliable. (See discussion infra at 19-22.)
After the hearing, the court denied Petitioner's motion to suppress any prospective in-court identification by Tamiar. In describing its assessment of Tamiar as a witness, the court stated that it found Tamiar's answers "very detailed and very straightforward." (Id. at 153.) The court also noted that Tamiar appeared to have a "good recall" of the events of Turner's murder, and was able to describe the event with "great particularity." (Id. at 150.) The court noted that Tamiar had indicated that, at the time of the incident, the lighting conditions were good and that, at times, she had been as close as two feet from the fight. (Id. at 123, 151.) Further, she was able to "describe in some detail" the person whom she saw stab Turner. (Id. at 151.) In conclusion, the court found that Tamiar's "inadvertent" courtroom viewing of Petition was a "suggestive encounter" (id. at 152-53), but that any in-court identification of Petitioner would be admissible because it was "based on [Tamiar's] ability to recall an[d] recollect the events of the night in question, and not simply on her brief viewing of the petitioner . . . in the courtroom" (id. at 153).
On October 8, 1996, the jury acquitted Petitioner of the conspiracy charge, but found him guilty of second-degree murder. (Id. at 908.) On October 22, 1996, Petitioner was sentenced to a term of 18 years to life on the murder count. (Sentencing Tr. at 11.)
C. Direct Appeal
Petitioner appealed his conviction to the Appellate Division, First Department. On appeal, he raised the following two claims, both of which are asserted here: (1) that the evidence against him was legally insufficient, or, in the alternative, that the jury's verdict was against the weight of the evidence; and (2) that the court's ruling at the independent source hearing was erroneous. (See Resp. Mem. at Ex. A.) On May 18, 2000, the Appellate Division affirmed Petitioner's conviction. See People v. Pendergrass, 272 A.D.2d 195, 708 N.Y.S.2d 19 (1st Dep't 2000). In its decision, the Appellate Division concluded that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. People v. Pendergrass 272 A.D.2d 195, 196, 708 N.Y.S.2d 19, 20.
Additionally, the Appellate Division affirmed the trial court's "independent source" determination:
The court properly found that the People established by clear and convincing evidence that there was an independent source for [Tamiar's] identification of [Petitioner] at trial. Although [Tamiar] observed [Petitoner] in the court room only a few hours before her trial testimony, and the court found this identification procedure to be unduly suggestive, there was clear and convincing evidence that she had an independent source for her identification. [Tamiar] had an extensive, close-range opportunity to observe [Petitioner], was able to provide a detailed description of the perpetrator to the police and indicated at the time of the crime that she would be able to identify the perpetrator. The record supports the court's credibility determinations made in connection with its finding of independent source.
Id. at 19.
Petitioner sought leave to appeal the affirmance of his conviction to the New York Court of Appeals. (See Letter from Susan Gliner, Esq. to the Court dated April 8, 2003 ("Gliner Ltr.").) In his letter seeking leave to appeal, however, Petitioner raised only his claim regarding the alleged impropriety of the trial court's independent source determination. (See Kornfeind Ltr.) On June 22, 2000, Petitioner's leave to appeal was denied. See People v. Pendergrass, 95 N.Y.2d 837, 713 N.Y.S.2d 144 (2000).
Apparently, the original letter requesting leave to appeal to the Court of Appeals was not in the case file that was available to the District Attorney's office. Susan Gliner, Esq., the Assistant District Attorney who submitted the response to Petitioner's petition, therefore contacted Svetlana M. Kornfeind, Esq., the attorney at The Legal Aid Society who prepared and submitted Petitioner's original letter to the Court of Appeals. Ms. Kornfeind sent a copy of the letter she submitted on Petitioner's behalf, and confirmed that it was "a copy of the substantive letter requesting leave to appeal to the court of appeals" for Petitioner's case. (See Letter to Keenan Lorenz, Esq. from Svetlana M. Kornfeind, Esq., dated April 2, 2003 ("Kornfeind Ltr."), attached to Gliner Ltr.)
Petitioner then filed the instant petition.
III. DISCUSSION A. Standard of Review
Where the state court has reached the merits of a claim, this Court must apply a deferential standard in reviewing that claim in a habeas proceeding. Specifically, this Court must adhere to the standard of review set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the relevant portion of which provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). In addition, under AEDPA, where not manifestly unreasonable, a state court's factual findings are presumed correct, and can only be overcome by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court clarified the meaning of the "contrary to" and "unreasonable application" clauses of AEDPA Section 2254(d)(1). A state court decision is "contrary to" clearly established federal law where the state court either applies a rule that "contradicts the governing law" set forth in Supreme Court precedent, id. at 405, or "confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision" and arrives at a different result, id. at 406. An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to the particular facts before it. Id. at 413. The Supreme Court has explained that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Thus, the writ may not issue simply because the state court decision is erroneous or incorrect; rather, the application must also be unreasonable. Id. at 411.
AEDPA Section 2254(d), however, only applies to the review of claims that have been "adjudicated on the merits" by the state court. 28 U.S.C. § 2254(d). The Second Circuit has held that the phrase "adjudicated on the merits" means "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Where the state court has rejected a claim on procedural grounds or has otherwise not reached the merits of the claim, this Court must review that claim de novo. See Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001).
B. Exhaustion
A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "opportunity to pass upon and correct alleged violations of . . . [a] prisoner's federal rights." Picard, 404 U.S. at 275 (citation omitted).
The standards for presenting federal constitutional claims to state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (citation omitted). However, the state courts must be "apprised of 'both the factual and the legal premises of the claim [the petitioner] asserts in federal court.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by presenting their claims in a fashion demonstrating either (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye, 696 F.2d at 194; accord Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984).
Once the state courts are apprised of the constitutional nature of a petitioner's claims, the exhaustion requirement is generally fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citation omitted).
C. Petitioner's Claims 1. Sufficiency Of The Evidence a. The Claim Is Unexhausted But Should Be Deemed Exhausted.
Petitioner's claim that the evidence at trial was legally insufficient to prove his guilt is unexhausted. Although he raised that claim on his direct appeal to the Appellate Division (which adjudicated the claim on the merits), Petitioner never raised the claim in his letter seeking leave to appeal to the New York Court of Appeals (see supra at 7-8), a step required to satisfy the exhaustion requirement. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (claims not explicitly mentioned in a letter application for leave to appeal to the Court of Appeals are not fairly presented to that court); see also Howard v. Lacy, 58 F. Supp.2d 157, 162-63 n. 4 (S.D.N.Y. 1999) (claims procedurally barred where raised before Appellate Division, but not in application for leave to appeal); Cruz v. Greiner, No. 98 Civ. 7939 (AJP), 1999 WL 1043961, at *23 (S.D.N.Y. Nov. 17, 1999) (sentencing claim unexhausted where not raised in letter seeking leave to appeal Appellate Division's affirmance of conviction).
Petitioner, however, no longer has the option of returning to the state courts to exhaust the claim. New York law only affords a defendant a single opportunity to seek leave to appeal to the Court of Appeals from a decision of the Appellate Division. See N.Y. Court Rules § 500.10(a) (permitting only one application for leave to appeal); see also N.Y. Crim. Proc. §§ 450.10; 450.15 (allowing a petitioner only one chance to appeal). Further, because Petitioner could have fully litigated his sufficiency of the evidence claim on direct appeal, he is now foreclosed from raising the claim collaterally in a Section 440.10 motion. See N.Y. Crim. Proc. § 440.10(2)(c) (barring collateral review of claims that could have been raised on direct appeal).
Petitioner also cannot seek review of this claim pursuant to either a writ of error coram nobis, see People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992) (coram nobis relief only available for claims of ineffective assistance of appellate counsel) (citation omitted), or a state writ of habeas corpus, see People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d 331 (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal) (citations omitted).
Where, as here, a petitioner has no further procedural recourse to the state courts to advance an unexhausted claim, this Court may "deem" that claim exhausted for purposes of habeas review. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).
b. The Claim Is Procedurally Barred, and Petitioner Cannot Overcome the Procedural Bar.
When a claim is deemed exhausted because of a procedural bar to further review in the state courts, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim." Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001). The only ways that Petitioner can overcome the procedural bar to review in this Court are to show (1) both "cause" for failing properly to raise the claim in state court and "prejudice" resulting from the alleged constitutional error, or (2) that the failure to address the claim on habeas would result in a "fundamental miscarriage of justice." See Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this case, Petitioner cannot satisfy either standard, with respect to his unexhausted legal insufficiency claim.
"Cause" for a procedural default is established when "some objective factor external to the defense" impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N.Y. Mar. 7, 2001). Cause for a default exists where a petitioner can show that (1) "the factual or legal basis for a claim was not reasonably available to counsel," (2) "'some interference by state officials' made compliance [with the procedural rule] impracticable," or (3) "the procedural default is the result of ineffective assistance of counsel." Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citation omitted). "Prejudice" requires Petitioner to demonstrate that the alleged constitutional error worked to Petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Here, Petitioner cannot demonstrate any "cause" for his procedural default. He has not shown, and cannot show, that the factual or legal bases for his defaulted claim were not reasonably available at the time of his letter seeking leave to appeal to the New York Court of Appeals. Nor has Petitioner alleged, and there is no evidence suggesting, that his failure to raise the claim in that letter resulted from either interference by state officials or ineffective assistance of appellate counsel. As Petitioner cannot show cause for his procedural default, this Court need not reach the question of whether Petitioner can show prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice.").
The Court may also excuse a procedural default where the petitioner "can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750). This exception, however, is quite narrow; it is "concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Thus, to meet this standard, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496. "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). In this case, Petitioner has offered no evidence, scientific or otherwise, showing his actual innocence. Therefore, Petitioner has not made an adequate showing to satisfy the fundamental miscarriage of justice exception. Accordingly, Petitioner's sufficiency of the evidence claim should be dismissed as procedurally barred.
c. The Claim Is, in Any Event, Without Merit.
Even if Petitioner's sufficiency of the evidence claim were not procedurally barred, it would fail on the merits under a de novo standard of review. See Joyner v. Miller, No. 01 Civ. 2157(WHP)(DF), 2002 WL 1023141, at *6 (S.D.N.Y. Jan. 7, 2002) (applying de novo standard of review where claim had been procedurally defaulted); see also Kirby v. Senkowski, 141 F. Supp.2d 383 (S.D.N.Y. 2001) (apparently applying de novo standard to claims that had not been raised to the New York Court of Appeals).
As discussed above, where a claim has been "adjudicated on the merits" by the state court, this Court generally applies a deferential standard of review to that determination, under AEDPA. (See supra at 8-9.) Here, the Appellate Division plainly adjudicated Petitioner's sufficiency of the evidence claim on the merits, but, because the claim was never raised before the Court of Appeals, the Appellate Division's opinion may not be entitled to AEDPA deference. To the extent there is any question, however, as to which standard of review should apply in these circumstances, the Court notes that it need not resolve that question, because Petitioner's claim would fail even under a de novo standard of review, and therefore would necessarily fail under the AEDPA standard. See Schriver, 255 F.3d at 55 (declining to resolve a question of which standard of review applied under Section 2254(d), where claim failed even under a de novo standard).
"In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden." United States v. Giraldo, 80 F.3d 667, 673 (2d Cir. 1996), abrogated on other grounds by Muscarello v. United States, 524 U.S. 125 (1998). "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). Such an inquiry "does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt,'" rather "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 318-19 (emphasis in original) (citations omitted); see also United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (a court must determine "whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt . . . view[ing] the evidence in the light most favorable to the government, and constru[ing] all permissible inferences in its favor") (internal citations omitted).
In making this determination, "pieces of evidence must be viewed in conjunction, not in isolation." United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994) (citation omitted).
Furthermore, the jury retains "exclusive responsib[ility] for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (citation omitted). "The role of this Court is clear: '[f]ederal habeas courts are not free to reassess the facts specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'" Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (quoting Anderson v. Senkowski, No. 92 Civ. 1007 (CPS), 1992 WL 225576, at *3 (E.D.N.Y. Sept. 3, 1992), aff'd, 992 F.2d 320 (Table) (2d Cir. 1993).
Here, Petitioner claims that there was insufficient evidence to support the verdict because of the "unreliable, confused, and inconsistent" testimony of the witnesses (Pet. at ¶ 12, and attached pages), but, as noted above, this Court may not reassess the jury's credibility determinations. See Vera, 928 F. Supp. at 284. Further, as this Court may not weigh conflicting testimony, see id., the mere fact that trial testimony was inconsistent is not enough to sustain a claim for insufficiency of the evidence, see, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 534 U.S. 1148 (2002); Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981) (insufficiency claim rejected because jury was entitled to believe prosecution witnesses despite inconsistent testimony). Indeed, "[t]he testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt even if that witness's testimony is less than entirely consistent." Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) (internal citations omitted).
In this case, there were four eye-witnesses who testified to Petitioner's role in Turner's murder:
Myers and Tamiar, who were friends of Turner's, and Laborda and Cobaj, who were bystanders with no previous knowledge of either Turner or Petitioner. This provided more than sufficient evidence to support the jury's verdict, and I recommend that Petitioner's sufficiency of the evidence claim be dismissed as without merit.
2. Weight of the Evidence.
Petitioner has also asserted that the verdict was against the weight of the evidence. (Pet. at ¶ 12(a), and attached pages.) The decision of the Appellate Division on a "weight of the evidence" claim is not reviewable by the New York Court of Appeals. See People v. Rayam, 94 N.Y.2d 557, 560, 708 N.Y.S.2d 37, 39 (2000) ("A determination of whether a judgment of conviction is 'against the weight of the evidence' is deemed to be on the facts and is the exclusive province of an intermediate appellate court. ") (internal citations omitted). Therefore, despite the fact the Petitioner failed to raise this claim to the Court of Appeals, it should be considered exhausted. As discussed below, however, a "weight of the evidence" claim is a state law claim, which is not cognizable on habeas review.A "weight of the evidence" claim originates from New York Criminal Procedure Law § 470.15(5), which permits an appellate court to reverse or modify a conviction where it determines "that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." In People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987), the New York Court of Appeals noted that attacks on a verdict based on the weight of the evidence are different from those based on the legal sufficiency of the evidence. Most importantly for this Court's purposes, while a legal sufficiency claim is based on federal due process principles, a "weight of the evidence" claim is grounded purely in state law. Id., 69 N.Y.2d at 495, 515 N.Y.S.2d at 763.
In contrast to a determination of whether evidence "satisf[ies] the proof and burden requirements for every element of the crime charged," Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (internal citations omitted), to determine whether a verdict is supported by the weight of the evidence . . . the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict. Id. (internal quotations and citations omitted).
Federal habeas review is not available where there is simply an error of state law. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (citations omitted). Because Petitioner's "weight of the evidence" claim is not a cognizable federal claim, it should be dismissed. See, e.g., Kearse v. Artuz, No. 99 Civ. 2428 (TPG), 2000 WL 1253205, at *1 (S.D.N.Y. Sept. 5, 2000) (summarily dismissing challenge to verdict as against the weight of the evidence on the ground that "[d]isagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief").
3. Independent Source Hearing a. The Claim Is Exhausted and Should Be Reviewed Under AEDPA.
Petitioner argues that Tamiar's in-court identification of Petitioner was tainted by the "corrupting effect" of Tamiar having seen Petitioner in the courtroom in the hours before she was supposed to testify. (See Pet. at ¶ 12, and attached pages.) Petitioner claims that he was denied due process when the court allowed the use, at trial, of this allegedly tainted identification. Petitioner raised this claim both to the Appellate Division and in his letter seeking leave to appeal to the New York Court of Appeals (see supra at 7-8), and it is thus exhausted. Further, as set forth in detail above (see supra at 7), the Appellate Division rejected this claim on the merits, and thus AEDPA's deferential standard of review applies.
b. The Claim Is Without Merit.
A witness's inadvertent viewing of a suspect in custody, prior to that witness's requested identification of the suspect, may be unduly suggestive. See Decan v. Edwards, No. 97 Civ. 1003 (JG), 1999 WL 458158, at *3-4 (E.D.N.Y. June 30, 1999) (inadvertent viewing of defendant in the police station was considered a suggestive procedure requiring an independent source for witness's subsequent in-court identification); U.S. v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (witness's accidental viewing of defendant, as he was leaving the courtroom with a group of people, required the court to consider whether the accidental viewing tainted a subsequent in-court identification). The requested identification may nonetheless be allowed, however, if the government can establish, by clear and convincing evidence, that the witness's identification was based on an independent source, which was not itself tainted. U.S. v. Wade, 388 U.S. 218, 240 (1967); Manson v. Brathwaite, 432 U.S. 98, 114-115 (1977); People v. Paul, 222 A.D.2d 706, 707, 636 N.Y.S.2d 80 (2d Dep't 1995). In this case, the trial court held that, although Tamiar's viewing of Petitioner prior to her testimony was unduly suggestive, the prosecution then demonstrated, by clear and convincing evidence, that there was an adequate independent source for Tamiar's identification of Petitioner.
At the independent source hearing, Tamiar testified that the only time she had seen Petitioner, prior to the accidental in-court viewing, was on the night of the murder. (Tr. at 122, 135.) She stated that, on that night, she had seen the person who stabbed Turner, and that she was able to view that person for approximately 10 minutes, from several feet away, by the light from street lamps and a nearby store. (Id. at 123, 131, 142.)
Tamiar testified that she initially saw the stabber when he got off a bicycle he was riding and began to fight with Turner. (Id. at 124, 133.) At that point, according to Tamiar, she was approximately four feet away from the two men. (Id. at 124, 128, 130.) She then followed the two men down the block and observed their continuing fight in front of a restaurant. (Id. at 124, 131.) Although Tamiar initially watched the fight from across the street, she later crossed over, so that she was only a couple of feet from them. (Id. at 124-25.) She watched the fight from that vantage point for approximately four to five minutes, and it was from that position that she witnessed the stabbing. (Id. at 124-25, 140-41.)
Tamiar further testified that she was able to see the stabber's face for "a short period of time," and that she was able to see his clothing. (Id. at 135.) She described him as a man of medium build; five feet, five inches tall; without facial hair or scars; who was wearing a loosely-fitting horizontally-striped shirt, baggy black jeans, and high-top sneakers. (Id. at 136-37.) She also described the stabber as wearing his hair in short dreadlocks and as being substantially shorter than Turner. (Id. at 138.)
Overall, Tamiar's testimony supports the Appellate Division's determination upholding the trial court's finding that Tamiar had a sufficient independent source for her identification of Petitioner. (See supra at 6; see also, e.g., People v. Jenkins, 184 A.D.2d 731, 732, 585 N.Y.S.2d 73, 74 (2d Dep't 1992) (finding independent source for identification where witness first viewed defendant in a well-lighted area, from a distance of three or four feet, while the defendant argued with one of the witness's friends, and later that same evening viewed defendant again under the same lighting conditions, from a distance of 25 feet); People v. Hyatt, 557 N.Y.S.2d 415 (2d Dep't 1990) (independent source found where the complaining witness saw the defendant for approximately three to five seconds, from 10 to 15 feet away, under good lighting conditions, while he was entering her bedroom through a window); People v. Clarke, 265 A.D.2d 170, 697 N.Y.S.2d 247, 247-48 (1st Dep't 1999) (independent source found where the witness was able to provide a detailed description of the robber, including face, clothing and hair, after observing the robber in good lighting conditions "once, from an unobstructed view of four feet as he aided in the robbery; again from across the street as defendant entered the van; and again, only two to three minutes later when she saw him for 30 seconds after the police apprehended him and ordered him out of the van"); In re Leonardo C., 240 A.D.2d 273, 659 N.Y.S.2d 739 (Mem) (1st Dep't 1997) (independent source found where complainant viewed perpetrator for two to five minutes during daylight, and was able to provide a detailed description).)
Therefore, under AEDPA, there is no reason for this Court to disturb the Appellate Division's ruling that, although the accidental in-court viewing was unduly suggestive, there was clear and convincing evidence that Tamiar had an independent source for her identification of Petitioner. On the record presented, that ruling was neither contrary to, nor involved an unreasonable application of federal law, see 28 U.S.C. § 2254(d), and I therefore recommend that Petitioner's claim challenging that ruling be dismissed.
CONCLUSION
For the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, United States Courthouse, 40 Foley Square, Room 410, New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).