United States District Court, Southern District of New York
September 27, 1999
ROBERT BOND, PETITIONER,
HANS G. WALKER, RESPONDENT.
The opinion of the court was delivered by: McKENNA, District Judge.
MEMORANDUM AND ORDER
By Report and Recommendation dated August 16, 1999 (the
"Report"), Magistrate Judge Peck recommended that the above
petition for a writ of habeas corpus be denied. By order dated
August 25, 1999, this Court extended petitioner's time to file
objections to the Report to September 7, 1999. No objections
having been filed, and upon consideration of the Report, this
Court accepts the recommendation of the Magistrate Judge.
The writ is denied and the petition is dismissed.
REPORT AND RECOMMENDATION
Petitioner Robert Bond seeks a writ of habeas corpus from his
conviction for first degree robbery, for which he was sentenced
to twenty years to life imprisonment. (Pet. ¶¶ 3, 4.) Bond's
habeas corpus petition raises three grounds: (1) the incourt
identification by the victim's mother was done under highly
suggestive circumstances (Pet. ¶ 12(A); Bond Br. at 17-20); (2)
the line-up at which Bond was identified by the victim was
impermissibly suggestive and tainted her in-court
identification (Pet. ¶ 12(B); Bond Br. at 12-16); and (3)
Bond's guilt was not proved beyond a reasonable doubt (Pet. ¶
12(C); Bond Br. at 7-11).
Bond never presented his second (victim's identification) and
third (sufficiency of the evidence) habeas grounds to any state
court. He is procedurally barred from raising those claims now
in state court, so they are deemed exhausted, and his
procedural default also bars federal habeas review of these
claims. The remaining claim, concerning the victim's mother's
in-court identification, lacks merit. Accordingly, for the
reasons set forth below, the Court should deny Bond's petition.
On January 1, 1983, Robert Bond attacked Cynthia Noble and
robbed her of a gold chain at knife point. (E.g., Trial
Transcript ["Tr."] 39-44, 102-08.)
The Trial Evidence of the Robbery
On December 31, 1982, Cynthia Noble ("Cynthia") left her young
son with her mother, Marby Noble ("Mary"), and attended a New
Year's Eve party in Mary's building.*fn1 (Tr.32, 161-62.)
After the party, Cynthia briefly went back to Mary's apartment,
and then left, alone, for her apartment at "around 6:30" in the
morning of January 1, 1983. (Tr. 33-34, 38, 104, 162.) Cynthia
entered the lobby of her building, heard somebody follow her
in, "spun around" to see who it was, and saw "a man standing up
against the wall." (Tr. 38-39, 54, 102.) Cynthia tried to leave
the building when the man suddenly "knocked [her] from behind
and just started choking [her]." (Tr.39-40, 102.) He held a
knife to her neck and said "`[a]ll I want is your money.'" (Tr.
40.) He pushed her out of the building at knifepoint, and tried
to push her into the next building. (Tr. 41.) Cynthia refused
to continue, and "just collapsed on him," that is, "just fell
flat down." (Tr.42.)
The man pulled Cynthia by her hair and collar, causing a gold
chain around her neck to snap and fall. (Tr. 42-43.) The
attacker pocketed the chain, and threatened to "cut [her] open
[and] hurt [her]. It doesn't make any difference to me."
(Tr.43.) When the attacker bent down to pick up the chain,
Cynthia "did get a look at him." (Tr.44, 107-08.) Cynthia
identified Bond as the attacker. (Tr.44.)
Bond forced Cynthia at knife point to walk down the block;
Cynthia struggled and slipped, and they both "tumbled down into
[a] basement." (Tr.46.) Bond pulled her up and he "slammed
[her] up against the wall." (Tr. 46, 47.) He dragged Cynthia
down the street, holding her by the hair, with a knife held to
her side and throat. (Tr. 48-49.) Bond tried forcing her into
her own building's basement, but she resisted. (Tr. 49-50.)
At this point, Cynthia's sister and the sister's boyfriend
approached them, causing the attacker to run away. (Tr. 50.)
Cynthia again got a clear look at him: "[h]e was right in [her]
face . . . . maybe seven, eight inches [away]." (Tr. 51-52,
105-07.) Cynthia also described the jacket that her attacker
was wearing: "[t]he jacket was like a cream-colored beige knit
cuff and waistband." (Tr. 52, 87.)
A short while after Cynthia left Mary's apartment, another of
Mary's daughters telephoned from Cynthia's apartment and said
that Cynthia had not arrived. (Tr. 163-64.) Mary grew
"concerned," and looked out her window for Cynthia. (Tr.
164-65.) Mary observed the crime and the attacker's identity
from the window:
I saw this guy with his arm sort of around [Cynthia's] head and
her head was kind of bent over and he was bent over her . . . .
[W]hen she got closer. I noticed that she seemed to be trying
to come off the curb and this person was holding her . . . and
then he yanked her.
So, when he yanked her like hat, I knew he really wasn't a
friend of hers . . . . So then I got out on the fire
escape . . . I got out to get closer to try to see who he
He was trying to push her toward the basement, their basement.
Q Who was trying to push her towards the basement?
A This guy over here.
Q Do you recognize this as the same man that you saw?
A He doesn't have the hair but his face is the same.
He shoved Cynthia down the stairs into the basement and in
shoving Cynthia, he fell. So, the two of them tumbled down.
. . . [A]nd then he pushed up with his hands and when he was
laying there, that's when I saw what he looked like.
Q Can you tell whether you see in court today the person you
have been describing?
A Yes. He is sitting over there.
[PROSECUTOR]: Indicating for the record, the defendant.
THE WITNESS: His hair is not the same, but his face is the
Mary's description of the perpetrator's jacket was consistent
with Cynthia's: "beige, sort of a beige — I thought at the time
it was a little creamy beige and it — the cuffs, knitted cuffs
and the waist was knitted and also in the front it had like
this knit, same knit, but it was like darker." (Tr.172.)
A neighbor, Frank Drew, found a jacket in the building's lobby
on the morning of the robbery. (Tr. 229-35.) He gave it to
Mary, who recognized it as "identical to the jacket that we had
seen the guy wearing." (Tr. 179, 233-34.) Cynthia also
identified the jacket as belonging to her attacker. (Tr.
85-86.) Mary, Cynthia, and Drew testified that they found
Bond's social security card and other papers bearing Bond's
name in the jacket's pocket. (Tr. 87-90, 180-82, 233.) Cynthia
called the police and gave them the jacket. (Tr. 70-91.) A
police detective testified at trial that the number on the card
was identical to the social security number that Bond gave the
police when he was arrested. (Tr. 210-11, 215-16.)
On January 13, 1983, twelve days after the crime, Cynthia
identified Bond as her attacker from a police lineup of six
men, despite the fact that he had changed his hairstyle from
"an uncombed Afro" to "corn braids." (Tr. 92, 95, 106, 111-13.)
Mary Noble's Trial Identification of Bonds
In anticipation of the prosecution' calling Mary Noble, defense
counsel argued, on the first day of trial, that any in-court
identifications would occur under highly suggestive
circumstances. (Tr. 118-31.) Bond's counsel noted that Mary had
not seen the attacker for the ten months between the crime and
trial, and seeing someone in the defendant's seat obviously
would be suggestive. (E.g., Tr. 118-19, 123.) Defense counsel
analogized to a one-person showup by the police in which the
police said, "`We arrested this guy and charged him with the
crime, is this the guy who committed the crime?,'" which would
be a tainted identification. (Tr. 119.) Bond's counsel
suggested that a lineup be held:
THE COURT: It is your position that the law is that for every
witness to a crime, that witness must first view a line-up
before he could be permitted to testify at trial?
[DEFENSE COUNSEL]: Absolutely.
(Tr. 120.) The prosecutor responded that "it is daily routine
to have witnesses take the stand who haven't been subject to a
pre-trial identification procedure and then to ask them whether
they see the defendant in Court," and any suggestiveness
arguments are for the jury to determine. (Tr. 123-24.) The
trial judge raised the
possibility of seating Bond in the spectator section of the
courtroom (Tr. 125-26), but the prosecutor and Bond himself
objected. (Tr. 127-28, 133.) The trial judge took the issue
under advisement, and gave the parties a day off to brief it.
When counsel returned to court, defense counsel argued that
even if Bond were allowed to sit in the spectator section, he
would be alone and so the in-court identification would be
unfairly suggestive. (Tr. 135-37.) The prosecutor again
responded that in-court identifications happen every day in New
York courts. (Tr. 137.) The prosecutor also informed the court
that he had instructed Cynthia not to talk to the other
witnesses, and he had cautioned the other witnesses about the
need to be certain of any identification. (Tr. 138-39.)
The trial court ruled that "there is no such right to have a
procedure of this type [i.e., a lineup type procedure] at a
trial stage." (Tr. 144.) The trial court further held that it
would not be improper to have the defendant sit in the
spectator section, "but it is certainly not required," and
since there were no other spectators, such a procedure would be
"academic" and serve no useful purpose. (Tr. 144.) The trial
judge held that defense counsel would "have an opportunity now
to cross-examine [the] witness, to be able to show ability or
lack of ability to make a proper identification, and [defense]
Counsel will have a further opportunity in summation to argue
to the jury," but that "there is no additional steps that need
be taken by this Court to assure the fairness to this
Defendant." (Tr. 145.) Bond's counsel excepted to the ruling.
Mary Noble's testimony identifying Bond as the attacker is
described at pages 289-90 above.
Bond's Conviction and Sentencing
On October 31, 1983, the jury convicted Bond of first degree
robbery. (Tr. 544-45.) On November 21, 1983, the trial court
sentenced Bond to twenty years to life imprisonment. (11/21/83
Sentencing Tr. 29.)
Bond's Direct Appeal
Bond appealed to the First Department, arguing that the trial
court violated his Fifth Amendment rights by allowing "an
in-court identification by a witness who had negligeable [sic]
opportunity to observe the perpetrator of the crime."
(Affidavit of ADA Efrem Z. Fischer, dated 12/10/98, Ex. A: Bond
1st Dep't Br. at 6.) As part of this argument, Bond claimed
that it was "error to have allowed [Mary Noble] to identify
[Bond] in the suggestive show-up situation of the trial."
(Id. at 7.)
On April 11, 1985, the First Department affirmed Bond's
conviction without opinion. People v. Bonds, 110 A.D.2d 1090,
488 N.Y.S.2d 529 (1st Dep't 1985) (table). The First Department
adhered to its original determination on reargument. People v.
Bonds, 114 A.D.2d 303, 493 N.Y.S.2d 757 (1st Dep't 1985). On
April 30, 1985, Bond filed a motion in the New York Court of
Appeals, pursuant to CPL § 460.20, claiming ineffective
assistance of trial and appellate counsel in connection with
the victim's lineup and in-court identifications. (Bond 5/21/99
Aff. & attached 4/30/85 CPL § 460.20 Motion papers at 2-3.) On
December 12, 1985, the New York Court of Appeals denied Bond's
application for leave to appeal (and, presumably, his CPL §
460.20 application). People v. Bonds, 66 N.Y.2d 1038, 499
N YS.2d 1035, 489 N.E.2d 1307 (1985). The U.S. Supreme Court
denied certiorari in March 1986. (Pet. ¶ 9(F).) Bond v. New
York, 475 U.S. 1097, 106 S.Ct. 1497, 89 L.Ed.2d 897
Bond's Present Federal Habeas Corpus Petition and Federal
Bond's habeas corpus petition is dated April 14, 1997 and was
received by the Court's pro se office on April 22, 1997. (Pet.
at pp. 2, 7.) Bond's petition alleges three grounds: (1) the
in-court identification by the victim's mother was done under
highly suggestive circumstances (Pet. ¶ 12(A); Bond Br. at
17-20); (2) the lineup at which Bond was identified by the
victim was impermissibly suggestive and tainted her in-court
identification of Bond (Pet.¶ 12(B); Bond Br. at 12-16); and
(3) Bond's guilt was not proved beyond a reasonable doubt
(Pet.¶ 12(C); Bond Br. at 7-11).
By Opinion and Order dated May 7, 1998, Judge McKenna dismissed
Bond's petition for failure to comply with the statute of
limitations set by the Antiterrorism and Effective Death
Penalty Act ("AEDPA"), as then interpreted by the Second
Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.
1997). Bond v. Walker, 97 Civ. 3026, 1998 WL 229505 at *1
(S.D.N.Y. May 7, 1998).
The Second Circuit appointed counsel to represent Bond on
appeal. (See Bond Br. at 3.) In light of the Second Circuit's
decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), that a
petitioner whose conviction became final before the AEDPA's
enactment has until April 24, 1997 to bring a federal habeas
petition, the Second Circuit remanded to this Court. (Dkt. No.
12: 2d Cir. Mandate.)
Bond's appellate counsel filed a brief in support of Bond's
petition. (Dkt. No. 14: Bond 10/27/98 Br.) Judge McKenna
directed the State to respond to the petition (Dkt. No. 13:
10/26/98 Order), which the State did on December 10, 1998 (Dkt.
On March 19, 1999, Bond filed a pro se motion to hold his
habeas petition in abeyance to allow him to exhaust claims of
ineffective assistance of appellate counsel in state court.
(Dkt. No. 18: Bond 3/19/99 Stay Motion Papers.) Bond claimed
that appellate counsel was ineffective for not reising on
direct appeal a claim that Cynthia Noble's pretrial lineup and
identification of him was unduly suggestive and tainted her
trial identification. (Id).
This Court denied Bond's motion, holding:
By motion dated March 19, 1999, petitioner Robert Bond seeks
to have the Court hold his pending federal habeas corpus
petition in abeyance to allow him to present unexhausted
claims in his petition in state court. For the reasons set
forth below, the motion is DENIED.
As this Court previously stated, "the Court will not allow
the AEDPA's statute of limitations to be circumvented by
permitting a petitioner to file a habeas petition containing
. . . unexhausted claims, and then holding that petition in
suspense until the petitioner exhausts state remedies."
Cowans v. Artuz, 14 F. Supp.2d 503, 508 (S.D.N.Y. 1998)
(Preska, D.J. & Peck, M.J.); see also, e.g., Espinal v.
Walker, 97 Civ. 3187, 1998 WL 151273 at *4 & n. 6 (S.D.N Y
March 27, 1998) (Patterson, D.J. & Peck, M.J.) ("if
[petitioner's] present habeas petition were timely . . . and
he had a pending state application for collateral review (as
opposed to one he merely planned to file), that would appear
to stay (i.e., extend) the AEDPA's one-year statute of
limitations period, so that there would be no need to file an
unexhausted petition in federal court and keep it on suspense
until decision of the state petition").
Bond v. Walker, 97 Civ. 3026, 1999 WL 228398 at *1 (S.D.N Y
April 19, 1999) (Peck, M.J.). The Court gave Bond several
options, including (a) dismissing his petition without
prejudice, (b) withdrawing his unexhausted claims, or (c)
having the Court consider the petition as is Id.
Bond's response asked the Court to rule on all three of the
claims raised in his petition. (Bond 5/21/99 Aff. at p. 4.)
Bond claimed that the victim's lineup identification
issue was raised in the New York Court of Appeals through his
pro se motion pursuant to CPL § 460.20. (Bond 5/21/99 Aff. at
p. 4 & attached 4/30/85 CPL § 460.20 Motion Papers at pp. 2-3.)
I. BOND'S SECOND (VICTIM'S LINE-UP IDENTIFICATION) AND THIRD
(SUFFICIENCY OF THE EVIDENCE) HABEAS CLAIMS SHOULD BE DENIED
AS PROCEDURALLY BARRED BECAUSE OF BOND'S FAILURE TO ADEQUATELY
PRESENT THEM TO STATE COURT
A. Applicable Legal Standards
Section 2254 codifies the exhaustion requirement, providing
that "[a]n 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 unless it appears that — (A) the applicant
has exhausted the remedies available in the courts of the
State; . . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g.,
O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731.
144 L.Ed.2d 1 (1999); Rose v. Lundy, 455 U.S. 509, 515-16,
102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982) ("The exhaustion
doctrine existed long before its codification by Congress in
1948 . . . in 28 U.S.C. § 2254."); Picard v. Connor,
404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Bossett v.
Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied,
514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995); Pesina v.
Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney
General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert.
denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984);
Orraca v. Walker, 98 Civ. 4459, 1999 WL 427992 at *5-6
(S.D.N.Y. June 18, 1999) (McKenna, D.J. & Peck, M.J.); Otero
v. Stinson, 97 Civ. 2794, 1999 WL 412865 at *4-5 (S.D.N Y
April 27, 1999) (Baer, D.J. & Peck, M.J.); Jordan v. Lefevre,
22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. & Peck,
M.J.). As the Supreme Court has made clear, "[t]he exhaustion
doctrine is principally designed to protect the state court's
role in the enforcement of federal law and prevent disruption
of state judicial proceedings." Rose v. Lundy, 455 U.S. at
518, 102 S.Ct. at 1203, accord, e.g., O'Sullivan v. Boerckel,
119 S.Ct. at 1732; Jordan v. Lefevre, 22 F. Supp.2d at 266.
The Second Circuit determines whether a claim has been
exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an
appropriate state court the same federal constitutional claim
that he now urges upon the federal courts . . . . Second,
having presented his federal constitutional claim to an
appropriate state court, and having been denied relief, the
petitioner must have utilized all available mechanisms to
secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N Y
June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (quoting Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g.,
O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34; Jordan v.
Lefevre, 22 F. Supp.2d at 266; Boyd v. Hawk, 94 Civ. 712,
1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. &
Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293
(S.D.N.Y. 1996) (Mukasey, D.J. & Peck, M.J.).
"The exhaustion requirement is not satisfied unless the federal
claim has been `fairly presented' to the state courts." Daye
v. Attorney General, 696 F.2d at 191; accord, e.g.,
O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Picard v. Connor,
404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco,
126 F.3d 408, 413 (2d Cir. 1997); Diaz v. Coombe, 1997 WL 529608 at
*3. The Second Circuit has held that a federal habeas
petitioner must have alerted the state appellate court that a
federal constitutional claim is at issue. E.g., Jones v.
Vacco, 126 F.3d at 413-14 (2d Cir. 1997); Grady v. LeFevre,
846 F.2d 862, 864 (2d Cir. 1988);
Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984);
Daye v. Attorney General, 696 F.2d at 191; Diaz v. Coombe,
1997 WL 529608 at *3.
In Daye, the Second Circuit en banc stated:
[T]he ways in which a state defendant may fairly present to the
state courts the constitutional nature of his claim, even
without citing chapter and verse of the Constitution, include
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases employing
constitutional analysis in like fact situations, (c) assertion
of the claim in terms so particular as to call to mind a
specific right protected by the Constitution, and (d)
allegation of a pattern of facts that is well within the
mainstream of constitutional litigation.
Daye v. Attorney General, 696 F.2d at 194; accord, e.g.,
Levine v. Commissioner of Correctional Servs., 44 F.3d 121
124 (2d Cir. 1995); Grady v. LeFevre, 846 F.2d at 864;
Garofolo v. Coomb, 804 F.2d 201
, 206 (2d Cir. 1986); Jordan
v. Lefevre, 22 F. Supp.2d at 266; Diaz v. Coombe, 1997 WL
529608 at *3; Washington v. Superintendent, Otisville
Correctional Facility, 96 Civ. 2729, 1997 WL 178616 at *3-4
(S.D.N.Y. April 11, 1997); Boyd v. Hawk, 1996 WL 406680 at
"`For exhaustion purposes, "a federal habeas court need not
require that a federal claim be presented to a state court if
it is clear that the state court would hold the claim
procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d
Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.
1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109
S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989))); accord, e.g.,
Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059,
103 L.Ed.2d 380 (1989) ("It would be inconsistent with [§
2254(b) ], as well as with underlying principles of comity, to
mandate recourse to state collateral review whose results have
effectively been predetermined."); Bossett v. Walker, 41 F.3d
at 828 ("if the petitioner no longer has `remedies available'
in the state courts under 28 U.S.C. § 2254(b), we deem the
claims exhausted"); Jordan v. Lefevre, 22 F. Supp.2d at 269;
Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at * 3
(S.D.N.Y. Oct.7, 1998); Benitez v. Senkowski, 97 Civ. 7819,
1998 WL 668079 at *8 n. 7 (S.D.N.Y. Sept.17, 1998) (Cote, D.J.
& Peck, M.J.); Chisolm v. Costello, 94 Civ. 3201, 1998 WL
167332 at *3 (S.D.N.Y. Apr.8, 1998); Underwood v. Artuz, 95
Civ. 7866, 1996 WL 734898 at *2 (S.D.N.Y. Dec.24, 1996). "In
such a case, a petitioner no longer has `remedies available in
the courts of the State' within the meaning of 28 U.S.C. § 2254(b)."
Grey v. Hoke, 933 F.2d at 120. Consequently, such
procedurally barred claims are "deemed exhausted" by the
federal courts. Reyes v. Keane, 118 F.3d at 139; see also,
e.g., Bossett v. Walker, 41 F.3d at 828; Washington v.
James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied,
510 U.S. 1078, 114 S.Ct. 895, 127 L.Ed.2d 87 (1994); Grey v.
Hoke, 933 F.2d at 120-21; Jordan v. Lefevre, 22 F. Supp.2d at
269; Redd v. Quinones, 1998 WL 702334 at *3.
B. Bond's Sufficiency of the Evidence Claim Was Not
Bond's federal habeas petition alleges that his guilt was not
proved beyond a reasonable doubt, i.e., that the evidence was
insufficient to convict him. (Pet. ¶ 12(C); Bond Br. at 7-11.)
Bond's insufficiency of the evidence claim could have been
raised on direct appeal, but was not, and therefore cannot be
raised in a collateral attack pursuant to CPL § 440.10.*fn3
That claim, therefore, is
unexhausted and procedurally defaulted. The Second Circuit has
While New York provides a mechanism for collaterally attacking
a judgment that is in violation of constitutional rights, see
N.Y.Crim.Proc.Law § 440.10(1)(h) (McKinney 1994), any attempt
by [the petitioner] to bring such a [§ 440.10] motion would be
futile. Section 440.10(2)(c) of New York's Criminal Procedure
Law mandates that the state court deny any 440.10 motion where
the defendant unjustifiably failed to argue such constitutional
violation on direct appeal despite a sufficient record. See
Levine v. Commissioner of Correctional Servs., 44 F.3d 121,
126 (2d Cir. 1995) (refusing to conduct federal habeas review
where New York's appellate court found claim to be procedurally
barred under § 440.10(2)(c)); People v. Santillana, 145
Misc.2d 567, 547 N.Y.S.2d 981, 982 (Sup.Ct. 1989) (barring
claims pursuant to § 440.10(2)(c) that were not raised on
direct appeal despite sufficient facts in record to allow
defendant to do so.) . . . [The petitioner] is therefore deemed
to have exhausted his state remedies for the ineffective
assistance claim by his procedural default on that issue.
Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997); accord,
e.g., Monroig v. Mann, No. 95-2368, 101 F.3d 107 (table), 1996
WL 107289 at *2 (2d Cir. 1996) ("we hold that [petitioner] is
procedurally barred from raising this claim because he failed
to raise the issue on direct appeal. See N.Y.Crim.Proc.Law §
440.10(2)(c) (foreclosing litigation of an issue on collateral
review that could have been raised on direct appeal)"); Levine
v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d
Cir. 1995); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir.
1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131
L.Ed.2d 316 (1995); Avincola v. Stinson, 97 Civ. 1132, 1999
WL 557965 at *16 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. &
Peck, M.J.); Haywood v. Senkowski, 96 Civ.2099, 1998 WL
214878 at *2 (S.D.N.Y. April 28, 1998) ("A federal court . . .
`need not require that a federal claim be presented to a state
court if it is clear that the state court would hold the claim
procedurally barred.' . . . It is clear that New York courts
would hold [petitioner's] claim procedurally barred as it was
not raised in his direct appeal and there was a sufficient
record upon which he could have raised the claim."); Chisolm
v. Costello, 94 Civ. 3201, 1998 WL 167332 *3 (S.D.N.Y. April
8, 1998); Simmons v. Ross, 965 F. Supp. 473, 477-78 (S.D.N Y
1997); Loving v. O'Keefe, 960 F. Supp. 46, 48 (S.D.N.Y. 1997);
Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at *2
(S.D.N.Y. May 7, 1997).
The insufficiency of the evidence claim thus is procedurally
barred and deemed exhausted.
C. Bond's Challenge to Cynthia Noble's Identification Was
Bond's petition also challenges victim Cynthia Noble's line-up
identification and trial identification of him as tainted.
(Pet. ¶ 12(B); Bond Br. at 12-16.) That claim was not raised in
Bond's direct appeal to the First Department; it was
raised only in Bond's pro se CPL § 460.20 application for leave
to appeal to the New York Court of Appeals, and raised only in
the form of an ineffective assistance of appellate counsel
claim. (See pages 7-8 above.) The claim, therefore, is not
The line-up identification issue could have been raised on
direct appeal, since the facts necessary for review of the
claim were contained in the record. Thus, because the claim
could have been but was not raised on direct appeal, it is
deemed exhausted and procedurally defaulted. See discussion
and citations in Point I.B, above.
Bond's CPL § 460.20 application to the New York Court of
Appeals does not change the result, for two reasons. First,
Bond did not directly raise the pretrial identification claim
in his CPL § 460.20 motion. Rather, he raised an ineffective
assistance of appellate counsel claim (premised on an
underlying substantive claim involving Cynthia's pretrial
identification). An ineffective assistance claim is separate
and distinct from the substantive claim incorporated in the
ineffective assistance claim, such that exhaustion of the
ineffective assistance claim is not exhaustion of the
underlying substantive claim.
Second, even if exhaustion of the ineffective assistance claim
could exhaust the underlying substantive claim, Bond did not
"fairly present" the ineffective assistance claim in state
court, since he raised his ineffective assistance claim by an
improper means and in the wrong court. The New York Court of
Appeals has explained that:
[A] common-law coram nobis proceeding brought in the proper
appellate court is the only available and appropriate procedure
and forum to review a claim of ineffective assistance of
appellate counsel until such time as the Legislature enacts a
particular and comprehensive remedy. The absence of a codified
form of relief and the long-standing recognition of coram nobis
flexibility help lead us to the conclusion that challenges to
an intermediate appellate court determination, based upon a
claim of ineffective assistance of appellate counsel, whether
appointed or retained, should be initiated by writ of error
coram nobis before that very court.
People v. Bachert, 69 N.Y.2d 593, 595-96, 516 N.Y.S.2d 623,
624-25, 509 N.E.2d 318 (1987); accord, e.g., Garcia v.
Scully, 907 F. Supp. 700
, 703, 706-07 (S.D.N.Y. 1995) ("The
issue of whether appellate counsel was ineffective, . . .
pursuant to New York law, . . . must be presented to the
Appellate Division. The only procedure in New York for doing so
is an application for a writ of error coram nobis to the
Appellate Division department that confirmed the conviction.");
Gil v. Kelly. No. CV-90-0603, 1992 WL 151901 at *3 (E.D.N Y
June 16, 1992) (" `a common law coram nobis proceeding brought
in the proper appellate court is the only available and
appropriate procedure and forum to review a claim of
ineffective assistance of appellate counsel.' . . . Petitioner
has never availed himself of a state coram nobis proceeding.
Under these circumstances, the state courts have not had a fair
opportunity to pass on this claim."); Bentley v. Scully, 91
Civ. 1868, 1991 WL 183357 at *5 (S.D.N.Y. Sept. 11, 1991)
("although [petitioner] raised the ineffective assistance of
appellate counsel claims in two of his CPL § 440.10 motions
before the trial court, that court was without jurisdiction to
entertain these claims under Bachert"); Blount v. Keane,
No. CV-89-2449, 1990 WL 3569 at *1 (E.D.N.Y. Jan. 8, 1990).
"There is no authority for initiating a writ of error coram
nobis in the Court of Appeals." People v. Claudio, 77 N.Y.2d 988,
988, 571 N.Y.S.2d 899, 899, 575 N.E.2d 385 (1991);
accord, e.g., Garcia v. Keane, 973 F. Supp. 364, 370-71 & n. 6
(S.D.N.Y. 1997) (even where ineffective assistance of appellate
counsel allegedly occurred in Court of Appeals, it is
"eminently clear" that writ of error coram nobis
cannot be initiated in the Court of Appeals and must be filed
in the Appellate Division).
Here, Bond raised his ineffective assistance of appellate
counsel claim in a CPL § 460.20 application to the Court of
Appeals. However, the proper way to raise that claim is a
petition for a writ of error coram nobis to the First
Department.*fn4 Thus, Bond did not properly present his
claim of ineffective assistance of appellate counsel to the
Accordingly, Bond's claim that Cynthia Noble's pretrial and
in-court identifications of him were improper is deemed
D. Bond's Sufficiency of Evidence and Cynthia Noble's
Identification Claims Are Procedurally Barred
"While petitioner's failure to `fairly present' his claim in
state court leads to a determination that the claim is [deemed]
exhausted, at the same time this failure results in a
procedural default of the claim." Redd v. Quinones, 98 Civ.
2604, 1998 WL 702334 at *3 (S.D.N.Y. Oct.7, 1998) (citing
Bossett v. Walker, 41 F.3d at 829, & Grey v. Hoke,
933 F.2d 117, 121) (2d Cir. 1991)), accord. e.g., Avincola v. Stinson,
97 Civ. 1132, 1999 WL 557965 at *16 (S.D.N.Y. July 9, 1999)
(Scheindlin, D.J. & Peck, M.J.); Jordan v. Lefevre,
22 F. Supp.2d 259, 269 (S.D.N.Y. 1998) (Mukasey, D.J. & Peck.
M.J.). A federal court may not reach the merits of a
procedurally defaulted claim "unless the habeas petitioner can
show `cause' for the default and `prejudice attributable
thereto,' or demonstrate that failure to consider the federal
claim will result in a fundamental miscarriage of justice,'"
i.e., a showing of "actual innocence." Harris v. Reed,
489 U.S. 255 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 303 (1989)
(citations omitted); accord, e.g., Schlup v. Delo,
513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67, 130 L.Ed.2d 808 (1995);
Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557,
115 L.Ed.2d 640 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d
Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.
1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137
L.Ed.2d 317 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d
Bond has not shown cause and prejudice or a fundamental
miscarriage of justice/actual innocence. Reading Bond's pro se
papers liberally (as the Court is required to do), Bond alleges
that ineffective assistance of appellate counsel was the
"cause" for his default as to the Cynthia Noble lineup
identification claim. (See Dkt. No. 18: Bond 3/19/99 Stay
Motion papers; Bond 5/21/99 Aff. at p. 4 & attached 4/30/85 CPL
§ 460.20 Motion Papers.)
Ineffective assistance of counsel can represent cause for a
procedural default. See, e.g., Murray v. Carrier,
477 U.S. 478, 488, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986)
("Ineffective assistance of counsel, then, is cause for a
procedural default."); Reyes v. Keane, 118 F.3d 136, 139 (2d
Cir. 1997); Avincola v. Stinson, 1999 WL 557965 at
*10; Simmons v. Ross, 965 F. Supp. 473, 478 (S.D.N.Y. 1997);
Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N Y
Sept. 17, 1997). "However, . . . the exhaustion doctrine . . .
generally requires that a claim of ineffective assistance be
presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default."
Murray v. Carrier, 477 U.S. at 489, 106 S.Ct. at 2646; Reyes
v. Keane, 118 F.3d at 139-40; Avincola v. Stinson, 1999 WL
557965 at *10; Redd v. Quinones, 1998 WL 702334 at *3;
Taylor v. Mitchell, 939 F. Supp. 249, 255 (S.D.N.Y. 1996);
Gaiter v. Lord, 917 F. Supp. 145, 149 (E.D.N.Y. 1996).
Bond has not presented an ineffective assistance claim in his
present habeas petition. Indeed, his motion to hold this
petition in abeyance recognized that his ineffective assistance
claim has not been exhausted in state court and still may be
brought in state court. (See Dkt. No. 18: Bond 3/15/99 Stay
Motion papers.) See, e.g., Blount v. Keane, No. CV-89-2449,
1990 WL 3569 at *1 (E.D.N.Y. Jan. 8, 1990).
Thus, Bound's ineffective assistance claim cannot be used to
establish cause for any procedural default, since it has not
been presented to the state courts as an independent claim.
Accordingly, the Court should dismiss Bond's second (victim
Cynthia Noble identification) and third (Sufficiency of the
evidence) claims as unexhausted but deemed exhausted and
II. BOND'S IN-COURT IDENTIFICATION CLAIM LACKS MERIT
Bond's remaining hebeas ground — that the in-court
identification by Mary Noble, the victim's mother, was unduly
suggestive — was raised by Bond before the First Department
(Fischer Aff.Ex.A: Bond 1st Dep't Br. at 6-7), and the State
concedes that this claim was exhausted. (State Br. at 14-15.)
Thus, the Court addresses the merits of this claim.
Few cases directly have addressed whether circumstances
surrounding an incourt identification can be considered
impermissibly suggestive. See, e.g., Even J. Mandery, "Legal
Development: Due Process Considerations of In-Court
Identifications." 60 Alb.L.Rev. 389, 389 (1996) ("Yet, while
the constitutional issues surrounding pre-trial identifications
have been widely litigated and explored by scholars, little
attention has been paid to the issues raised by in-court
identifications. The lack of appellate case law on the subject
may be partially explained by the fact that few defendants ever
object to the suggestiveness of in-court identifications. The
near complete absence of law review articles on the subject is
somewhat understandable . . ."). The second Circuit, however,
has addressed the issue, but only in review of a federal
criminal prosecution, and limited its ruling to situation where
the defendant has requested relief before trial.
A. The Second Circuit's Archibald Decision
In United States v. Archibald, 734 F.2d 938 (2d Cir. 1984),
the defendant was concerned about the potential suggestiveness
of the standard in-court identification and requested before
trial that the district court allow him to sit away from the
defense table and be "seated with five or six other black men
who looked reasonably like him, to ensure that he would not be
obviously signed out by an educated witness." Id. at 941.
When the district court did not act upon this request, the
defendant renewed the request at trail. Id. The district
court denied the request, stating that it was "`just absolutely
inappropriate.'" Id. at 941, 943. At trial, three
eyewitnesses, including a bank teller, identified defendant as
the bank robber; defendant, "was seated at the defense table."
and "was the only black person in the courtroom, except for one
day when a black United States Marshal was present." Id. at
The Second Circuit found that the incourt identifications
occurred under impermissibly suggestive circumstances, but held
that the error was harmless in light of other strong evidence
of Archibald's guilt. Id. at 942-43. The Second Circuit began
by observing that the traditional seating of a defendant next
to defense counsel makes in-court identification "obviously
The in-court identifications present us with a different
problem. As is generally the case, the defendant here was
seated next to defense counsel during the trial, a
circumstance obviously suggestive to witnesses asked to make
in-court identifications. Any witness, especially one who
has watched trials on television, can determine which of the
individuals in the courtroom is the defendant, which is the
defense lawyer, and which is the prosecutor. In most cases,
however, no objection is made to the fact that an
identification occurs while the defendant is seated with
defense counsel, probably because this arrangement is
Id. at 941 (emphasis added). The Second Circuit stated that
its "concern with suggestive in-court identification procedures
has been noted in a number of cases,"*fn6
and felt that the district judge "did not fully appreciate the
concern that this court had shown with in-court identification
procedures." United States v. Archibald, 734 F.2d at 941.
The Second Circuit "agree[d] with the [district] court that
there was no obligation to stage a lineup, but there was,
however, an obligation to ensure that the in-court procedure
here did not simply `amount to  to a "show-up."'" Id. The
Second Circuit continued:
[Defendant's] request should not have been dismissed so quickly
or so absolutely by the trial court. A fairly short delay of
proceedings was all that would have been required to rearrange
the seating in the courtroom and to secure the presence of some
people of the defendant's approximate age and skin color. While
it was not necessary for the court to conduct a true
Wade-type of lineup, these relative minor steps were required
to ensure that the identification procedure utilized here was
so clearly suggestive as to be impermissible, however
traditional it may be.
Id. at 942-13. In support of its finding that the
circumstances were "obviously suggestive," the court noted that
"[o]ne of the three witnesses who identified [defendant] stated
on cross-examination that she `had the feeling that he would be
sitting next to' the defense lawyer in the courtroom." Id. at
On rehearing, the Second Circuit clarified:
We wish to make it clear that in respect to that portion of our
opinion relating to in-court procedures for identification that
special procedures are necessary only where (1) identification
is a contested issue; (2) the defendant has moved in a timely
manner prior to trial for a lineup, and (3) despite that
request, the witness has not had an opportunity to view a fair
out-of-court lineup prior to his trial testimony . . . .
United States v. Archibald, 756 F.2d 223, 223 (2d Cir. 1984)
B. Because Bond Did Not Request A Line-Up Pretrial, He
Would Not Be Entitled to Relief Under Archibald
Even if Archibald was considered to establish constitutional
standards applicable on habeas corpus review of a state
conviction, which we address below, Bond would not be entitled
to habeas relief. Archibald made clear that its holding only
applied if "the defendant has moved in a timely manner prior
to trial for a lineup." United States v. Archibald, 756 F.2d
at 223; see also United States v. Brown, 699 F.2d at 594;
United States v. Campbell, 581 F.2d at 28. Here, based on the
record before the Court, Bond did not request a lineup for Mary
Noble until trial had already commenced. Thus, Bond did not
satisfy the Archibald requirement of a pretrial motion for a
C. Archibald Is Not Good Law, Particularly On Habeas
Review of A State Conviction
The Court notes that Archibold (and the earlier Second
Circuit decision in Brown) involved federal criminal
Based on a "Westcheck," in the
fifteen years since Archibald, Archibald has not been applied
by the Second Circuit, any district court in this Circuit, or
any other federal court, on a habeas corpus review of a state
trial identification by a witness who had not made a pretrial
identification. It seems likely, therefore, that the Second
Circuit's decision in Archibald was based not on any
constitutional requirement but on the Second Circuit's
supervisory authority over federal criminal trials.
The Court further believes that the fifteen year old
Archibald decision may no longer be good law, in light of
subsequent Supreme Court and Second Circuit developments in the
law applicable to pretrial and in-court identifications.
First, as the Second Circuit noted in Archibald, in-court
identification, despite its suggestiveness, is "traditional."
United States v. Archibald, 734 F.2d at 941. While the
parties here have not presented any statistics to the Court as
to how often an in-court identification is not preceded by a
pretrial identification procedure, the Court believes that such
a situation is not uncommon. While stating in one breadth that
a pretrial lineup is not required, id. at 942-43, the Second
Circuit's Archibald decision effectively would require there
to be a lineup before an initial in-court identification if the
defendant requests one before trial, despite the tradition of
in-court identification.*fn8 United States v. Archibald,
756 F.2d at 223.
Moreover, the language, and logic, of Archibald would seem to
extend to the situation where a "suggestive" pretrial
identification procedure has occurred. Archibald held that
"special procedures" are required where requested by defendant
before trial and "the witness has not had an opportunity to
view a fair out-of-court lineup prior to his trial
testimony." United States v. Archibald, 756 F.2d at 223
(emphasis added). If "special procedures" are necessary to
avoid suggestive in-court identifications for a witness who has
not seen the defendant since the crime, they would seem to be
just as necessary, if not more so, where the witness has seen
the defendant in an impermissibly suggestive pretrial
identification procedure. Thus, the logical extension of
Archibald is to require there to be a new and "fair" lineup
(or some other "special procedure")*fn9 where a pretrial
identification has been found to be the result of impermissibly
suggestive procedures. Supreme Court and Second Circuit case
law, however, does not so require; rather, if there was an
impermissibly suggestive pretrial identification procedure,
in-court identification will be permitted (without a new and
fair lineup) if found to be "independently reliable."
Thus, in order to evaluate the constitutional permissibility of
in-court identification testimony based on out-of-court
identification procedures, the Second Circuit has adopted a
two-step inquiry based on applicable Supreme Court precedents:
The Supreme Court has established a two-step inquiry for
evaluating the constitutional permissibility of in-court
identification testimony based on out-of-court identification
procedures. [Step 1:] That inquiry "requires a determination
of whether the identification process was impermissibly
suggestive and, if so. whether it was so suggestive as to
`a very substantial likelihood of irreparable
[Step 2:] If pretrial procedures have been unduly suggestive,
a court may nonetheless admit in-court identification
testimony if the court determines it to be independently
reliable. The court should consider the reliability of the
identification in light of the opportunity of the witness to
view the criminal at the time of the crime, the witness'
degree of attention, the accuracy of [the witness'] prior
description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and the confrontation. Against these factors is to be
weighed the corrupting effect of the suggestive
identification itself. For both pretrial and incourt
identifications, the linchpin of admissibility is
reliability. However, if impermissibly suggestive procedures
are not employed, "independent reliability is not a
constitutionally required condition of admissibility, and the
reliability of the identification is simply a question for
United States v. Wong, 40 F.3d 1347
, 1359 (2d Cir. 1994)
(emphasis added & citations omitted; citing, inter alia,
Manson v. Brathwaite, 432 U.S. 98
, 114, 97 S.Ct. 2243
53 L.Ed.2d 140 (1977), & Neil v. Biggers, 409 U.S. 188
199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972)), cert.
denied, 514 U.S. 1113, 115 S.Ct. 1968, 131 L.Ed.2d 858 (1995):
accord, e.g., Dunnigan v. Keane, 137 F.3d 117
, 128 (2d Cir.),
cert. denied, ___ U.S. ___, 119 S.Ct. 101, 142 L.Ed.2d 81
(1998); Yearwood v. Keane, No. 95-2404, 101 F.3d 685 (table),
1996 WL 282134 at *1 (2d Cir. May 29, 1996); United States v.
Eltayib, 88 F.3d 157, 167 (2d Cir), cert. denied,
519 U.S. 1045, 117 S.Ct. 619, 136 L.Ed.2d 543 (1996); United States v.
Thai, 29 F.3d 785
, 807-08 (2d Cir.), cert. denied,
513 U.S. 977, 115 S.Ct. 456, 130 L.Ed.2d 364 (1994); United States v.
Butler, 970 F.2d 1017
, 1021 (2d Cir.), cert. denied,
506 U.S. 980, 113 S.Ct. 480
, 121 L.Ed.2d 386 (1992).*fn10
As the Second Circuit emphasized in United States v.
Matthews, "where the circumstances of either a pretrial or an
at-trial identification are suggestive, reliability is the
linchpin for determining admissibility . . . . Even an
identification at trial under circumstances that are tantamount
to a showup is `not per se inadmissible, but rather depend[s]
upon the "totality of the circumstances."'" United States v.
Matthews, 20 F.3d at 547 (quoting United States v.
Archibald, 734 F.2d at 942); see also, e.g., United States v.
Kaylor, 491 F.2d at 1131. The Second Circuit's Matthews
opinion indicates to this Court that, at least as to state
habeas petitions, even if Bond had triggered Archibald with a
pretrial as opposed to attrial request for "special procedures"
for Mary Noble's at-trial identification testimony (and there
is no evidence before the Court that Bond made any such
pretrial request), Archibald would not require the Court to
grant the petition; rather, the Court would be required to
weigh the corrupting effect of the in-court identification
procedures with the identification reliability factors set out
by the court in Wong and similar cases. See United States v.
Matthews, 20 F.3d at 547; United States v. Estremera, 531
F.2d at 1111-12 (cited in Archibald, 734 F.2d at 943 n. 2)
(whether trial court abused discretion in denying lineup before
trial identification "requires us to consider all relevant
circumstances"); Chapman v. Meachum, 790 F. Supp. 63, 66-67 &
n. 4 (D.Conn.) (Cabranes, D.J.) (applies Biggers factor to
initial in-court identification), aff'd mem., 979 F.2d 846
(2d Cir. 1992).
Decisions in other circuits explicitly hold that admissibility
of an initial in-court identification (i.e., not following a
prior pretrial identification) is to be based on the totality
of the circumstances, including the five Neil v. Biggers
reliability factors. See, e.g., United States v. Rogers,
126 F.3d 655, 658 (5th Cir. 1997) (applies five Neil v. Biggers
factors to suggestive initial in-court identification); United
States v. Murray, 65 F.3d 1161, 1168-69 & n. 6 (4th Cir. 1995)
("Based on the totality of the circumstances, we agree that
although the Government allowed the witnesses to see
[defendant] seated at the defense table prior to their
testimony, it did not create a substantial likelihood of
irreparable misidentification . . . . [Defendant] presents no
evidence of a likelihood of misidentification other than the
fact that both witnesses saw him seated at the defense table
prior to testifying."); United States v. Hill, 967 F.2d 226,
230-32 (6th Cir.) ("We hold that the Biggers analysis applies
to such [initial] in-court, identifications for the same
reasons that the analysis applies to impermissibly suggestive
pretrial identifications."), cert. denied, 506 U.S. 964, 113
S.Ct. 438, 121 L.Ed.2d 357 (1992); United States v. Rundell,
858 F.2d 425 (8th Cir. 1988) (applies Biggers factors to
initial incourt identifications); code v. Montgomery,
725 F.2d 1316, 1319-20 (11th Cir. 1984) (applies Neil v. Biggers
factors to in-court identification where there was no pretrial
identification; while it "is unfortunate that no pretrial
identification procedures were undertaken, . . . failure to hold
a pretrial lineup does not violate due process.").*fn11
The Ninth Circuit's standard is even more prosecution-friendly,
holding "that a district court's denial of a request for an
in-court line-up is reviewed for an abuse of discretion" which
"occurs only if the resulting in-court identification
procedures are so `"unnecessarily suggestive and conducive to
irreparable misidentification" as to amount to a denial of due
process of law . . . ."'" United States v. Domina,
784 F.2d 1361, 1369 (9th Cir. 1986), cert. denied, 479 U.S. 1038, 107
S.Ct. 893, 93 L.Ed.2d 845 (1987). The Ninth Circuit emphasized
that "[t]here is no constitutional entitlement to an in-court
lineup or other particular method of lessening the
suggestiveness of in-court identification, such as seating the
defendant elsewhere in the room. These are matters within the
discretion of the [trial] court." Id. The Ninth Circuit
explained the difference between an in-court identification
based on a suggestive pretrial identification and an initial
in-court identification in the jury's presence:
The concern with in-court identification, where there has
been suggestive pretrial identification, is that the witness
later identifies the person in court, not from his or her
recollection of observations the time of the crime charged,
from the suggestive pretrial identification . . . . Because
the jurors are not present to observe the pretrial
identification, they are not able to observe the witness
making that initial identification. The certainty or
hesitation of the witness when making the identification, the
witness's facial expressions, voice inflection, body
language, and the other normal observations one makes in
everyday life when judging the reliability of a person's
statements, are not available to the jury during this
pretrial proceeding. There is a danger that the
identification in court may only be a confirmation of the
earlier identification, with much greater certainty expressed
in court than initially.
When the initial identification is in The jury can observe
the witness during the identification process and is able to
evaluate the reliability of the initial identification.
Id. at 1368. "`Counsel can both cross-examine the
identification witnesses and argue in summation as to factors
causing doubts as to the accuracy of the identification —
including reference to both any suggestibility in the
identification procedure and any countervailing testimony
. . . .'" Id. at 1369.*fn12
Domina's approach has been followed
by other courts. See, e.g., United States v. Ramirez-Pinon,
No. 97-2374, 153 F.3d 729
(table), 1998 WL 458576 at *4-5 (10th
Cir. Aug. 4, 1998); United States v. Davis, 103 F.3d 660, 670
(8th Cir. 1996) ("We agree with the Ninth Circuit's assessment
that `[t]here is no constitutional entitlement to an in-court
line-up or other particular methods of lessening the
suggestiveness of in-court identification . . . . These are
matters within the discretion of the court.'") (quoting Domina)
cert. denied, 520 U.S. 1258, 11, S.Ct. 2424, 138 L.Ed.2d 187
(1997); United States v. Robertson, 19 F.3d 1318
, 1323 (10th
Cir.) (where other evidence against defendant is strong, "[i]n
such circumstances, as the Domina court noted, we are less
likely to find abuse of discretion in permitting the in-court
identification . . . . This principle has also been applied by
courts in the traditional Biggers-Brathwaite setting."),
cert. denied, 513 U.S. 906, 115 S.Ct. 271
, 130 L.Ed.2d 189
(1994); State v. Clausell, 121 N.J. 298
, 580 A.2d 221
D. Applying the Neil v. Biggers Factors to the
In-Court Identification, Bond Is Not Entitled to Habeas
The Court need not decide if the Second Circuit today would
follow the Ninth Circuit's Domina abuse of discretion
standard, which is the most generous
to the prosecution, because even under the Neil v. Biggers
reliability factors, the state trial court's admission of Mary
Noble's trial identification of Bond did not constitute
First, Mary explained how she saw Bond during commission of the
crime. (Tr.164-71.) Mary testified that she "got out on the
fire escape . . . to get closer." (Tr. 166.) Her distance from
the attacker was only "about twenty-two feet." (Tr. 177.) Mary
was able to observe Bond's identity clearly when "he fell . . .
on his back, so he was looking straight up." (Tr.170.) Mary
also observed and described Bond's jacket in detail. (Tr. 172)
Mary testified about other details of her observation of Bond
during the crime:
His hair is not the same, but his face is the same . . . . He
had more hair. He had like — it was more like — it looks like
an uncombed afro . . . . [H]e seemed to be very frightened. His
eyes looked like — he looked like they were about to explode.
They were so wide. His mouth was open.
(Tr. 171-72.) These facts all show that Mary had an excellent
opportunity to see the perpetrator's face. See, e.g., Yearwood
v. Keane, No. 95-2404, 101 F.3d 685 (table), 1996 WL 282134 at
*1 (2d Cir. May 29, 1996) ("During the assault and robbery, the
victim . . . looked his assailant in the face for up to six
seconds," which was among the factors that "favored the finding
of independent reliability"); United States v. Wong, 40 F.3d
at 1360 (looking at defendant's face for 2-3 seconds "was
sufficient for identification"); United States v. Mohammed,
27 F.3d 815
, 821-22 (2d Cir.) (observation "for approximately
thirty seconds" was "ample opportunity" to make a reliable
identification), cert. denied, 513 U.S. 975, 115 S.Ct. 451,
130 L.Ed.2d 360 (1994); United States v. Butler,
970 F.2d 1017
, 1020, 1021 (2d Cir.) (identification upheld where witness
viewed perpetrator for less than three minutes), cert.
denied, 506 U.S. 980, 113 S.Ct. 480
, 121 L.Ed.2d 386 (1992);
United States v. Jacobowitz, 877 F.2d 162
, 168 (2d Cir.) (the
fact that the witness "had been in [the defendant's] presence
for approximately five minutes in good lighting . . . and saw
him again briefly when she [made a delivery] to his room" was
among the factors that led to the court's conclusion that the
witness "had had a sufficient opportunity to observe [the
defendant] and sufficient reason to remember him"), cert.
denied, 493 U.S. 866
, 110 S.Ct. 186
, 107 L.Ed.2d 141 (1989);
Meadows v: Kuhlmann, 812 F.2d 72
, 76 (2d Cir.) (witnesses'
identifications were independently liable based in part on the
fact that their view was "unobstructed, at close range for a
period of time ranging from two to five minutes during the
commission of the respective crimes"), cert. denied,
482 U.S. 915
, 107 S.Ct. 3188
, 96 L.Ed.2d 676 (1987); United States v.
Yanishefsky, 500 F.2d 1327
, 1330 (2d Cir. 1974) ("While it is
true that [the witness] said that he identified appellant
`through a side face as she was going out,' there is no
evidence in the record indicating that his view of her was
inadequate for him to formulate a clear visual and mental
impression of her."); United States ex rel. Cummings v.
Zelker, 455 F.2d 714
, 715, 717 (2d Cir.) (witness'
identification reliable where "she stared directly at his face
for 15 seconds"), cert. denied, 406 U.S. 927
, 92 S.Ct. 1800
32 L.Ed.2d 128 (1972); United States ex rel. Phipps v.
Follette, 428 F.2d 912
, 916 (2d Cir.) ("His 20 to 30 second
observation was much more than a fleeting glance, as anyone who
watches the second hand of a clock sweep by for that period can
attest."), cert. denied, 400 U.S. 908
, 91 S.Ct. 151
L.Ed.2d 146 (1970).
Second, Mary was paying close attention, because she was
concerned about her daughter's safety. (E.g., Tr. 164-65.)
See, e.g., Yearwood v. Keane, 1996 WL 282134 at *1 ("As a
robbery victim, [witness] had an interest in the event and
reason to pay attention to his attacker."); United States v.
Wong, 40 F.3d at 1360 (finding witness's degree of attention
to be "very high" while she feared for her own and her
safety); United States v. Concepcion, 983 F.2d 369, 378 (2d
Cir. 1992) ("nature of events" in struggle and shooting "was
such as to attract and hold [the witnesses'] attention").
dert. denied, 510 U.S. 856, 114 S.Ct. 163, 126 L.Ed.2d 124
(1993); Gonzalez v. Hammock, 639 F.2d 844, 847 (2d Cir. 1980)
("Although [the witness] was not a trained observer of people,
such as a police officer, there is little doubt that his
attention would be riveted on a man who was pulling a shotgun
from a bag."), cert. denied, 449 U.S. 1088, 101 S.Ct. 880, 66
L.Ed.2d 815 (1981).
Third, the police never asked Mary to describe the attacker
before trial (Tr. 187-89), so that factor is neutral, or
perhaps slightly in Bond's favor. See, e.g., United States v.
Mohammed, 27 F.3d 815, 822 (2d Cir.) ("The only factor that
cuts in [defendant's] favor is that [the witness] failed to
give the police a detailed description of his assailant prior
to the identification"), cert. denied, 513 U.S. 975, 115
S.Ct. 451, 130 L.Ed.2d 360 (1994).
Fourth, Mary's trial testimony showed no hesitation and a high
degree of certainty as to her identification of Bond. (Tr.
165-71, quoted at length at pages 3-4 above.) See, e.g.,
United States v. Hill, 967 F.2d 226, 233 (6th Cir.), cert.
denied, 506 U.S. 964, 113 S.Ct. 438, 121 L.Ed.2d 357 (1992).
Fifth, although the fact that ten months had elapsed between
the crime and trial (e.g., Tr. 31, 134, 160), favors Bond,
that is outweighed by the other factors. E.g., United States
v. Wong, 40 F.3d at 1360 (ten months between crime and
identification, "while a factor militating against reliability,
may be outweighed"); United States v. Maldonado-Rivera,
922 F.2d 934, 976 (2d Cir. 1990) ("And though [the defendant]
argues that the interval of nearly a year between [the
witness'] last meeting with [the defendant] and her
identification of his photograph makes that identification
suspect, the length of that interval is outweighed by" other
factors that indicated her identification was reliable), cert.
denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991);
United States v. Rundell, 858 F.2d 425, 427 (8th Cir. 1988)
(eight month delay is negative factor but "this factor alone
does not ren der the [initial] in-court identifications so
unreliable as to be inadmissible . . . . Rather, the passage of
time was a proper item for cross-examination and closing,
argument, . . . and a circumstance for the jury to consider in
assessing the weight to be given the identification
testimony."); see also, e.g., Neil v. Biggers, 409 U.S. at
201, 93 S.Ct. at 383 ("a lapse of seven months between the
[crime] and the confrontation . . . would be a seriously
negative factor in most cases"); United States v. Jacobowitz,
877 F.2d 162, 168 (2d Cir.) (ten month gap was a "longer delay
than is desirable"), cert. denied, 493 U.S. 866, 110 S.Ct.
186, 107 L.Ed.2d 141 (1989); cf. United States v. Eltayib,
88 F.3d 157, 167 (2d Cir.) ("The fact that the identification took
place ten days after [the witness] first saw [defendant]
(factor 5) does not seem probative one way or the other."),
cert. denied, 519 U.S. 1045, 117 S.Ct. 619, 136 L.Ed.2d 543
Considering all the factors, the Court finds Mary Noble's trial
identification of Bond to be reliable, despite the inherent
suggestiveness of the traditional in-court identification. The
weight to be given her identification of Bond, therefore, was
for the jury. See, e.g., Dunnigan v. Keane, 137 F.3d 117, 128
(2d Cir.) (`Short of th[e] point' at which the court must
conclude, after considering these [Biggers] factors, that
`under all the circumstances of th[e] case, there is a very
substantial likelihood of irreparable misidentification,' the
presence of some element of untrustworthiness goes only to the
identification's weight, not to its admissibility."), cert.
denied, ___ U.S. ___, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998);
United States v. Butler, 970 F.2d 1017, 1021 (2d Cir.) ("Any
flaws in these identifications went to their weight rather than
their admissibility," upon application of all the Biggers
cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 386
(1992); United States v. Hill, 967 F.2d at 233
("consideration of all of these [Biggers] factors taken
together leads us to conclude that the identification in this
case . . . was reliable enough to be admissible.").
Therefore, Bond's only exhausted and not defaulted claim,
regarding Mary Noble's in-court identification, lacks merit.
For the reasons set forth above, the Court should deny Bond's
habeas corpus petition.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(B)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties 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 the Court, with
courtesy copies delivered to the chambers of the Honorable
Lawrence M. McKenna, 500 Pearl Street, Room 1640, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to
Judge McKenna. Failure to file objections will result in a
waiver of those objections for purposes of appeal. Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE
AFL — CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.
1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d
38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992);
Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16
(2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59
(2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d
Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).