The opinion of the court was delivered by: McKENNA, District Judge.
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.
He was trying to push her toward the basement, their basement.
Q Who was trying to push her towards the basement?
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.
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 ...