Opinion
99-CV-6621 (JBW), 03-MISC-0066 (JBW)
October 21, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary.
This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was arrested after being identified by two witnesses as one of the perpetrators of an armed burglary in a home in Suffolk County, New York, Witnesses testified that two men forcibly entered the home brandishing firearms. The two men, who used a walkie-talkie to communicate with another person outside the house, stole $1500 to $2000 from the homeowners. One of the men sexually assaulted one of the homeowners, Nichole, binding her hands and feet with duct tape.
Nichole viewed a number of photographic slides in carousels at the police department. She identified one person, petitioner's brother Ronald Wallace, stating that "This guy looks really, really good." She was unsure about his hair because the perpetrator had been wearing a hat. She was later shown more carousels of slides in which a more recent photograph of petitioner had been inserted. She identified the photograph as being of the man who attacked her. Nichole identified petitioner later in a lineup. Four other witnesses to the burglary also chose Ronald Wallace from the lineup.
At another lineup, two of the witnesses identified petitioner as another of the perpetrators. Identifications of petitioner and his brother were made at trial, where both men were tried as co-defendants.
After being arrested, Ronald Wallace was overheard stating to his girlfriend on the telephone, "1 don't know how they found me," A motion to suppress his statement was denied.
An acquaintance testified in Ronald Wallace's defense that he was with him on a Long Island Rail Road train at the time of the incident. Petitioner's girlfriend — with whom he lived and the mother of his two children — testified that petitioner was home during the incident.
Petitioner's brother was convicted of first degree burglary and first degree sexual abuse. Petitioner was convicted of first degree burglary. He was sentenced as a prior felony offender to 12-1/2 to 25 years in prison.
His conviction was affirmed on appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied. No state collateral motions were filed.
In his application for a writ of habeas corpus, petitioner claims that (1) the photographic array and line-up that resulted in his identification was unconstitutional; and (2) his right to a fair trial was abridged by his being tried in a joint trial with his brother.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly, Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted),
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(J).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Ross v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722,731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the Slate, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at * 10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255,264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions ate either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not other-wise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at * 15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required", Id.
V. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claims
Petitioner's claims are all exhausted, All were denied on the merits by the Appellate Division, Review proceeds under the deferential standards of AEDPA.
A
Petitioner claims that the court erred in refusing to suppress the in-court identification of petitioner as being unduly suggestive. The Supreme Court has stated that "reliability is the linchpin in determining the admissibility of identification testimony," and that the factors to be considered in determining reliability include "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself," Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
Petitioner contends that the line-up identification procedure was unconstitutionally suggestive because, among other things, (1) he weighed only 150 pounds while several `fillers" weighed in excess of 200 pounds; (2) the one filler who also weighed about 150 pounds was about 17 years younger than petitioner; (3) the line-up was conducted only three days after witnesses viewed the photo spread, creating a likelihood that the identifications were made based upon memory from the spread rather than from the incident; (4) petitioner was wearing a dark hooded sweatshirt in his photograph in the array, and the perpetrator was described as wearing a dark hooded sweatshirt the night of the incident. He also complains that the police use of a photographic array was improper.
The identification procedures used by police in the instant case were not unduly suggestive. Differences in height and weight between petitioner and the fillers was minimized by the fact that all were seated during the line-up, As the hearing court stated.
The lineup was ultimately composed of five dark-skinned black males, all seated, all with short cropped hair, all with facial hair and all with similar facial structure. Two of the lineup participants were noticeably heavier than the Defendant, The Defendant, WILLIAM WALLACE, and one other participant wore a dark hooded sweatshirt, which was purportedly worn by the assailant in a description previously given the police by witnesses to the crime. The other three participants were dissimilarly dressed. Contrary to the contention of the Defendant, WILLIAM WALLACE, any age differences were not readily apparent,
June 81, 1996 Decision at 4-5. The court also noted that the two witnesses who viewed the lineup were kept separate and apart, were not shown photographs immediately prior to the viewing, and received no improper suggestions from officers. The court concluded that both the photo array shown to one of the witnesses and the lineups were not unduly suggestive, and that the four lineup fillers were reasonably similar in appearance to petitioner notwithstanding the weight differences between petitioner and some of the fillers. The witnesses had ample opportunity to observe petitioner at the time of the incident. That they were unable to describe his features precisely at the time does not make their identification of him in the photo array or at the lineup incredible or demonstrate that the identifications were the product of undue suggestion.
The trial court's conclusions were reasonable. The court did not abuse its discretion in allowing the in-court identification. Habeas relief on this claim is not warranted,
B
Petitioner nest claims that his right to a fair trial was abridged by his being tried in a joint trial with his brother. Joinder rules are a matter of state law and federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGurie, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict."' Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
Under New York law, `Two or more defendants may be jointly charged in a single indictment provided that; . . . (b) all the offenses charged are based upon a common scheme or plan; or (c) all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10. . . ." N.Y. Crim. Pro. Law § 200.40(1). A "criminal transaction" is defined as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture." Id. § 40-10(2).
Joinder of the trials of petitioner and his brother was proper here, where the two were being tried for the same criminal conduct. That petitioner's brother was also tried for a sexual assault with which petitioner was not charged did not, under the circumstances of this case, deny him a fair trial. The jury would have had no difficulty distinguishing between the conduct of petitioner and his brother with respect to the sexual assault charge. The jury instructions were clear. The trial court did not abuse its discretion in joining the trials. Petitioner was not denied a fair trial. Habeas corpus relief on this claim is not warranted.
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.