Summary
rejecting the petitioner's claim that his lineup was unduly suggestive because only one other lineup filler wore a black shirt
Summary of this case from Pruitt v. KirkpatrickOpinion
98 Civ. 7960 (LAK)
August 23, 2001
ORDER
Petitioner was convicted in 1995 in New York Supreme Court, New York County, of robbery in the first degree and sentenced to an indeterminate term of imprisonment of nine to eighteen years. His conviction was affirmed by the Appellate Division. People v. Priester, 249 A.D.2d 247, 671 N.Y.S.2d 652 (1st Dept. 1998). He sought leave to appeal from the New York Court of Appeals on one issue, viz. whether the evidence of the lineup identification of petitioner should have been suppressed. Leave was denied. Petitioner then filed this federal habeas proceeding, seeking to raise a number of issues regarding his conviction and sentence.
In a report and recommendation dated May 18, 2001, Magistrate Judge Kevin Nathaniel Fox recommended dismissal of the petition. Despite having obtained an extension of time within which to file objections, petitioner has filed no objections.
The Court agrees with the report and recommendation as to exhaustion and as to claims two, three, four and five. It agrees also that claim one, the lineup claim, is without merit because the record establishes that Urra's identification of petitioner was reliable irrespective of any problem with the lineup in view of Urra's independent opportunities to observe petitioner and his having recognized petitioner as the perpetrator of the robbery while petitioner stood on the street in a group of men. It therefore is unnecessary to address the question whether the lineup was unduly suggestive.
Petition denied on the merits. No substantial constitutional issue having been raised, a certificate of appealability is denied. Any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915.
SO ORDERED.