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LEKA v. PORTUONDO

November 30, 1999

SAMI LEKA, PETITIONER,
v.
LEONARDO PORTUONDO, SUPERINTENDENT SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Trager, District Judge.

  REVISED MEMORANDUM AND ORDER

Petitioner Sami Leka is currently in the custody of New York State prison officials pursuant to a 1990 conviction on second degree murder and weapons charges. Asserting actual innocence, Leka petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that the police investigation and state court proceedings leading to his conviction violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. First, Leka argues that he was convicted partly as a result of impermissibly suggestive police identification procedures. Second, he alleges that the prosecution suppressed material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Lastly, petitioner alleges that he was denied his Sixth Amendment right to the effective assistance of trial counsel.

Background

(1)

On the evening of February 12, 1988, at approximately 6:00 p.m., Rahman Ferati was shot eight times in the legs, chest, hand, and back as he stood in front of 1954 Ocean Avenue, between Avenues N and O, in Brooklyn, New York. Although an ambulance reached the scene within ten minutes of the shooting, efforts to save Ferati were unsuccessful, and he was pronounced dead at Coney Island Hospital at 6:43 p.m. Officers of the New York Police Department responded to the scene and, as part of their investigation, identified witnesses to the shooting. The witnesses included two passers-by, Elfren Torres ("Torres") and his then-girlfriend (now-wife) Carolyn Modica Torres ("Modica"). Torres told Sergeant Thomas Mahony that he had seen two men and a light-colored car. Modica told Sergeant Mahony that she had seen someone in a car prior to the shooting and would be able to recognize him if she saw him again. Modica then gave the officer their names and address, and the couple returned to their nearby home.

That evening, Modica and Torres discussed what they had seen with one another. Around midnight, two detectives came to the Torres' home and asked them to come to the 70th Precinct station. Torres and Modica asked whether they could come in the morning, but when they were told that the matter was urgent, agreed to accompany the detectives.

Once at the precinct house, the police separated Modica and Torres. Modica provided detectives with a description and a drawing of the man she had seen in the light-colored car, and gave a tape-recorded statement to an assistant district attorney.*fn1 At around 4:45 a.m., Detective Pedro Vergara showed Modica two photo arrays. Each array consisted of six photographs arranged in two horizontal rows of three photographs each. The first array included a photograph of Zeni Cira, a man who would later be tried along with petitioner for the murder of Ferati and acquitted, but who, after his acquittal, would confess to the murder. Each of the men included in the first array, including Zeni Cira, was pictured without a mustache. Modica did not identify anyone from that photo array. The second photo array included a photograph of Leka, and each of the men in the second array, including Leka, was pictured wearing a mustache. From this array, Modica identified Leka as the man she had seen in a car at the crime scene. Modica remarked to the detective that petitioner had appeared fifteen pounds heavier at the scene, but explained that petitioner had been wearing a bulky black leather jacket that made him appear bigger.

At about 1:30 a.m., Torres gave a statement to a Detective Lee (first name unknown). Torres explained that he and Modica had walked by a light-colored car and, after passing it, heard two shots. Torres turned and saw a hand holding a gun extended out of the passenger-side window of the car. Torres ducked down but quickly looked up again and saw a man outside the car shooting in a downward direction at a man in the street. At some point thereafter, Torres and Modica ran into a building. Torres stated that he did not see the car leave. Torres described the man he had seen shooting as five feet, nine inches tall, medium build, in his late twenties or early thirties, dark hair, mustached, wearing a dark leather coat, and firing a black revolver with a brown handle.

At 5:10 a.m., Detective Vergara showed Torres the same two photo arrays that had been shown to Modica. Torres did not select anyone out of the first photo array but selected petitioner from the second photo array. The police then drove Modica and Torres home.

In any event, the police followed up on the identification of petitioner by Torres and Modica. Detective Vergara and Detective James Sanseverino went to petitioner's apartment around 6:15 a.m. on February 13th. A woman answered the door and told the police that petitioner was not there. Detective Sanseverino spoke to petitioner later that same day when petitioner voluntarily came to the precinct. Petitioner explained that he had been home when the detectives had come to his apartment, but that he had been asleep. He also told Detective Sanseverino that around 6:30 p.m. or 7:00 p.m. of the preceding evening he had gone out with his sister-in-law Naze Alijaj to rent a videotape and that he had bought snacks while his sister-in-law rented the videotape.*fn3 Petitioner could not remember the name of the movie. In addition, petitioner claimed that he had borrowed his brother's Camaro and had driven around Manhattan for three hours between 11:00 p.m. on the 12th and 2:00 a.m. on the 13th.*fn4

On March 8, 1988, the police again brought Torres and Modica to the 70th Precinct house and had them separately view a line up which included petitioner. Again, both Modica and Torres independently identified petitioner as the man they had seen on the night of the shooting. Following the identification, petitioner was arrested.

The final important pre-trial event for purposes of this petition was a Wade hearing*fn5 held on February 20th and 21th, 1990, before Justice Philip E. Lagana of the New York Supreme Court, Kings County. The prosecution called three witnesses, Modica, Torres and Detective Vergara, to rebut charges that the police engaged in suggestive conduct that resulted in Modica and Torres' identifications of petitioner. The defense called no witnesses of its own, but it did assemble an in-court line up consisting of petitioner, Zeni Cira's brother Luftim (who would testify at trial that he and another brother, Osman, murdered Ferati in self-defense), and six other Albanians, including relatives of both Zeni Cira and petitioner.*fn6 The prosecutor asked Modica and Torres each to identify the individual they had seen at the crime scene from the line up assembled by the defense, and without hesitation both selected the petitioner. Petitioner's trial counsel, Joseph Benfante, cross-examined the three witnesses extensively in an unsuccessful effort to show that the police had engaged in some form of misconduct or had pressured Torres and Modica to identify petitioner.

(2)

Petitioner's trial began with jury selection on February 26, 1990. The prosecution's case detailed the intra- and inter-family feud which allegedly provided the motive for the shooting. The victim, Rahman Ferati, was related to the Ciras through the marriage of his son Veli to Zeni Cira's sister Lydia, and through the marriage of his daughter Julie to Zeni Cira's brother Luftim. After Veli's death in an automobile accident in 1978, Ferati took custody of Veli and Lydia's children. In 1986, Ferati moved from New York to Houston, Texas, taking the grandchildren with him. In 1987, during a period in which Ferati was incarcerated, the Cira family regained custody of the children and brought them back to Brooklyn. Losing custody of his grandchildren angered Ferati greatly. Around New Year's, 1988, Ferati returned to New York and took up residence with his daughter Julie, her husband, Luftim Cira, and their children. Soon thereafter, tension developed between Ferati and his son-in-law. On February 11, 1988, matters came to a head when Ferati forced his daughter and her children to leave their home and held them against their will in his brother Sali's apartment at 1947 Ocean Avenue. Ferati supposedly took this action as a quid pro quo against the Ciras for taking Veli's children. The very next day, Rahman Ferati was shot to death across the street from Sali's apartment. Petitioner was nominally an ally of the Ciras in their feud with the Feratis because his sister was married to his co-defendant, Zeni Cira. No additional explanation was offered as to what motive petitioner had to murder Ferati.

The prosecution's direct case against petitioner consisted almost entirely of the eyewitness identification testimony of Torres and Modica. Torres testified to essentially the same account of the shooting that he had given to Detective Lee on the night of the shooting, and he also made an in-court identification of the petitioner.

Modica testified that around 6:00 p.m. on February 12, 1988, she and Torres had been walking along Ocean Avenue in the direction of Avenue N when she noticed two men sitting in a light-colored car that was double-parked in front of a psychoanalyst's office at 1954 Ocean Avenue. As Modica passed the car, it seemed to her that the man in the passenger seat was looking toward her and whispering something to his companion about her. Modica, whose nose was bandaged due plastic surgery she had just had a week earlier, believed the two men were mocking her, and she therefore stared back as she walked past the car.

Modica testified that, in all, she stared at the man in the passenger seat for "[m]aybe about four seconds, five seconds."*fn7 Although Modica testified that she was not able to see the driver's face, she was able to describe the passenger:

  He had like a medium olive complexion, but it didn't
  have any sort of a yellowish cast to it or anything.
  And he had very dark brown or black hair. And it was
  like that D.A. disco type of style that he had. And
  he had on a black leather jacket. And it had padding,
  you know,

  like one of those bulky business black leather
  jackets.*fn8

Modica added that the man in the passenger seat had a full, thick mustache. Modica then identified the petitioner as the man she had seen in the passenger seat of the light-colored car. Modica concluded her account of the shooting by testifying that, after she and Torres passed the car, they continued walking for what she estimated to be "about five car lengths" when she heard gunshots.*fn9 Modica then ducked down behind a parked car and some garbage cans until the shooting stopped and Torres told her that the car was leaving.

In its case against petitioner's co-defendant, Zeni Cira, the prosecution introduced into evidence a dying declaration Rahman Ferati made to his brother Sali. In response to Sali asking who had shot him, Rahman replied, "Zeni, Zeni, Zeni," while moving his hand in a manner that Sali believed was meant to indicate Zeni Cira was driving the car. Rahman Ferati was apparently unable to recognize anyone else in the car, although the Ferati family had known petitioner for many years.

The prosecution also introduced ballistics evidence showing that a gun recovered from a sewer located near petitioner's apartment was the gun that had fired the bullets that had killed Rahman Ferati.*fn10 In addition, Assistant Medical Examiner Dr. Marie Macajoux, who performed Ferati's autopsy, testified that some of the bullet wounds were consistent with the victim lying on his back, and someone standing four to six feet away, shooting downward.

Neither petitioner nor his co-defendant testified at trial.*fn11 Instead, petitioner's defense consisted of attacks on Torres and Modica's identifications, buttressed by meteorological evidence which suggested the lighting conditions at the crime scene were poor*fn12 and by witnesses who testified that petitioner had never worn a mustache or at least had not worn a mustache since 1978.*fn13

Petitioner also presented an alternate account of the murder, namely that Luftim Cira shot Ferati in self-defense while attempting to get his family back from Ferati. Luftim Cira testified that he had seen his brother, Osman, by chance and had Osman drive him to Sali Ferati's apartment. As they drove up, they spotted Rahman Ferati on the side of the street. When, on Luftim's instruction, Osman stopped the car beside Rahman, Rahman allegedly began cursing Luftim and pulled out a gun. Luftim drew his own weapon and exchanged fire with Ferati through the passenger side window of the car.*fn14 Luftim testified that he never left the car*fn15 and that, after the shooting, he and Osman sped away. Subsequently, Luftim and Osman split up, and Luftim proceeded on foot. While walking towards his older sister's house, he threw his gun in the sewer where detectives later recovered it. In support of the self-defense aspect of Luftim's account, various defense witnesses testified that Rahman Ferati was known to be a violent and dangerous man who regularly carried a gun.

The final component of petitioner's trial defense consisted of calling petitioner's friend and two neighbors/in-laws to testify that petitioner was essentially incapacitated by arthritis at the time of the murder. Petitioner also introduced medical records from Coney Island Hospital, which indicated that Leka had visited its outpatient clinic on February 2nd and February 10th of 1988, complaining of swollen fingers and pain in the back, shoulder, and left knee. The records further showed that Leka had reported a six- to seven-year history of arthritis.*fn16 Through this evidence, petitioner sought to create the inference that he was physically incapable of committing the murder.

On rebuttal, Detective Vergara was asked to indicate on a map the relative locations of the murder scene, 1954 Ocean Avenue, the sewer where the murder weapon was found, 1657 Ocean Parkway, and Leka's apartment, 209 Avenue P. The prosecution apparently sought to suggest that, since the sewer was only about one block away from Leka's apartment, it was more likely that Leka had dropped the gun there than had Luftim Cira. Based on his review of police log books, Detective Vergara also testified that no police officers or detectives visited Leka's apartment building on the night of February 12th and that two sets of detectives left the precinct house at 3:10 a.m. and 4:10 a.m. on February 13th, respectively, to obtain a photograph of Leka. This testimony contradicted testimony given by Leka's two neighbors/in-laws that the police had come to their apartment at 9:30 p.m. on the 12th and showed them a picture of Leka with a mustache. Finally, Detective Sanseverino recounted the alibi petitioner had given to the police, viz., that he had been out renting a movie and buying snacks at the time of the murder, which contradicted the testimony of the neighbors and friend that petitioner was too sick on the day of the murder to leave the house or get out of bed.

(3)

(4)

After the verdict, petitioner retained new counsel and began a series of state court proceedings aimed at overturning the jury's verdict. Less than eight weeks after the verdict, on May 18, 1990, petitioner filed a motion under N.Y.C.P.L. § 330.30 for an order setting aside the verdict due to newly discovered evidence and ineffective assistance of counsel. The newly discovered evidence consisted mainly of Zeni Cira's videotaped confession that he shot Rahman Ferati and that his brother Luftim drove the car. Petitioner alleged ineffective assistance of counsel due to a conflict of interest stemming from Zeni Cira's payment of petitioner's legal fees.*fn17 On May 31, 1990, the state trial court denied petitioner's motion without a hearing*fn18 and sentenced Leka to concurrent, indeterminate terms of imprisonment of twenty years to life on his conviction for Murder in the Second Degree, five to fifteen years on his conviction for Criminal Possession of a Weapon in the Second Degree, and two and one-third to seven years on his conviction for Criminal Possession of a Weapon in the Third Degree. On June 18, 1990, petitioner filed a notice of appeal from the denial of the § 330.30 motion. Leka subsequently appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department (the "Appellate Division").

On February 8, 1991, petitioner moved the trial court for an order vacating the judgment of conviction under N.Y.C.P.L. § 440.10. Petition repeated the same claims he advanced in his § 330.30 motion, but he submitted additional newly discovered evidence, including the evidence at the heart of the petition now before this court — affidavits in which Torres recants, and both he and Modica cast doubt on, their trial testimony.

In his affidavit, Torres claimed that he was pressured to identify petitioner as the shooter and that detectives led him to believe that petitioner was in fact the shooter. See Elfren Torres Aff. of 1/2/91, ¶ 5, Pet.'s Mem., Ex. 7 [hereinafter Torres 1991 Aff.]. Torres recanted his trial testimony, alleging that he had only seen shots fired from the car and that the only person he had seen outside the car was Rahman Ferati. See id. ¶ 6.

In contrast, Modica did not actually recant her identification of petitioner. In her affidavit, Modica stated that, based on information supplied to her by petitioner's then-counsel Stephen G. Murphy, it was "possible" that the double-parked car she had seen drove off after she passed by:

    3. . . . Mr. Murphy explained to me that the car I
  saw (in which I identified MR. LEKA as a passenger)
  had already pulled out and that the car the murderer
  was in was seen pulling up double parked and shooting
  by a bus driver.

Carolyn Modica Torres Aff. ¶¶ 3-4, Pet.'s Mem., Ex. 8 [hereinafter Modica Aff.]. In a handwritten addendum to the affidavit, Modica clarified that her "recantation" was predicated on Murphy's factual representations and indicated that she nonetheless continued to believe that the man she had seen resembled Leka:

  In conclusion after obtaining the other information
  given to me by Mr. Murphy & [Murphy's investigator]
  and after my discussion of the events on the day in
  question, I cannot honestly say I am positive that
  Mr. Leka was the man in the car I passed — Its [sic]
  possible to have been someone who had his style of
  hair (DA) and coloring with brown eyes.

Id. ¶ 7.

With his § 440.10 motion, petitioner also presented affidavits from three other witnesses to the murder, as well as grand jury testimony from one of those witnesses and a police interview report from another.*fn19 This evidence, he argued, showed that no one got out of the car during the shooting. Although this evidence would not directly exculpate petitioner, since none of these three witnesses could conclusively state that petitioner was not in the car or at the scene, petitioner argued that it impeached Torres' testimony and cast doubt upon the time line, position of the car, and sequence of events to which Torres and Modica testified.

In a written opinion, the state trial court concluded that the evidence offered by petitioner did not meet the state law criteria for granting a new trial and denied petitioner's motion to set aside the judgment. See People v. Leka, Indict. 2520/1988 (N.Y. Sup.Ct., Kings County, Dec. 6, 1991) (corrected order denying § 440.10 motion at 8) [hereinafter Section 440.10 Opinion].

On November 6, 1991, petitioner requested leave to appeal the denial of his § 440.10 motion and to consolidate that appeal with his direct appeal and his appeal from the trial court's denial of his § 330.30 motion. On February 18, 1992, the Appellate Division granted petitioner's motion and consolidated all three appeals. Petitioner, represented by yet another lawyer, raised three claims on the consolidated appeal. First, he argued that the verdict was against the weight of the evidence. See Pet.'s App. Mem. at 30-36. Second, the trial court erred in denying petitioner's pre-trial motion to suppress the identification testimony because the photo array shown to Torres and Modica on the morning after the shooting was impermissibly suggestive. See id. at 37-42. Lastly, petitioner challenged the denial without a hearing of his § 330.30 and § 440.10 motions, essentially repeating the arguments he had made to the trial court. See id. at 43-79.

On November 28, 1994, a unanimous panel of the Appellate Division affirmed petitioner's conviction. See People v. Leka, 209 A.D.2d 723, 619 N.Y.S.2d 144 (2d Dep't 1994) (per curiam). The Appellate Division concluded that the photo array was not suggestive because all the subjects were sufficiently similar in appearance to petitioner. The Appellate Division further held that the trial court had properly denied Leka's post-trial motions.*fn20

On March 14, 1995, the New York Court of Appeals denied petitioner leave to appeal. See People v. Leka, 85 N.Y.2d 911, 627 N.Y.S.2d 334, 650 N.E.2d 1336 (1995).

(5)

On April 21, 1997, petitioner, acting pro se, filed this petition for a writ of habeas corpus. The State of New York moved to dismiss the petition on the grounds that it fell outside the one-year statute of limitations prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1) (Supp. 1999) ("AEDPA"). This court denied the motion. See Leka v. Portuondo, No. CV-97-2061 (DGT) (E.D.N.Y. Sept. 26, 1997) (order denying motion to dismiss). On February 6, 1998, the petitioner's motion for appointment of counsel was granted, but the court was notified shortly thereafter that the firm of McDermott, Will & Emery would represent petitioner.

Discussion

Petitioner raises three claims in support of this petition. First, he attacks the police identification procedures as impermissibly suggestive. Second, he alleges that the prosecution concealed and/or delayed disclosure of Brady material. Finally, petitioner argues that he received ineffective assistance of counsel at trial.

(1)

Petitioner's claim that the police used impermissibly suggestive identification procedures raises two distinct issues: first, whether the composition of the photo array was inherently suggestive, and, second, whether police pressured Torres to pick Leka from the photo array. As discussed below, petitioner cannot be granted a writ with respect to either theory of tainted identification.

a. The Photo Array

Petitioner argues that the photo array that included petitioner's photograph was inherently suggestive because he was the only Albanian pictured in the array, while the rest of the photographs were of Hispanics. Petitioner further contends that Modica and Torres's subsequent in-person identifications of the petitioner at the precinct house line up, at the Wade hearing, and at trial, were all irreparably tainted by the suggestive photo array, and should have been excluded from evidence.

Whether a pre-trial identification procedure, such as a photo array, is so suggestive that it denies a defendant due process is a mixed question of law and fact. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam). Because petitioner's argument was fairly presented to the state courts and adjudicated on the merits, both by the trial court, see W. 205, 210-11, and by the Appellate Division, see Leka, 209 A.D.2d at 724, 619 N.Y.S.2d at 145-46, the state courts' rejection of petitioner's claim can be overturned on federal habeas review only if the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (Supp. 1999).*fn21

The Supreme Court has established a two-part inquiry for evaluating in-court identification testimony based on pre-trial identification procedures. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The inquiry "requires [1] a determination of whether the identification process was impermissibly suggestive, and if so, [2] whether it was so suggestive as to raise a `very substantial likelihood of irreparable misidentification.'" Id. at 196, 93 S.Ct. at 380 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)); accord Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977).

In light of the Appellate Division's opinion and the evidence on the record, the state court's decision was not contrary to, nor did it involve an unreasonable application of, federal law as determined in the Neil decision. The Appellate Division treated petitioner's claim at length, offering the following explanation for its ultimate rejection of the claim:

  The hearing court properly declined to suppress the
  proposed identification testimony of the
  eyewitnesses.
    Contrary to the defendant's claim, the photographic
  array was not suggestive and did not draw the
  viewer's attention to the defendant's photograph.
  Even if the other men depicted in the photographic
  array were of Hispanic origin, they were similar in
  appearance to the defendant, who is Albanian, insofar
  as each had dark hair and eyes, a mustache, some
  facial hair on their chins, and a prominent nose.
  Further, all but one of the men in the photographic
  array had a dark skin tone similar to the defendant's
  skin tone. As conceded by the defendant, there is no
  requirement that a defendant be surrounded by
  individuals nearly identical in appearance during
  identification procedures.

Leka, 209 A.D.2d at 724, 619 N.Y.S.2d at 145-46 (citations omitted).

Examination of the photo array that included petitioner's photograph, as well as the relevant case law, reveals that the Appellate Division's decision was entirely reasonable. While there is no evidence in the record regarding the actual ethnicities of the fill-ins, at least one of the fill-ins, viz., number three, could clearly pass for an Eastern European, and another of the fill-ins, viz., number one, looks as though he could be of European descent. In any case, whatever the racial or ethnic backgrounds of the other subjects in the photo array, they are indeed not so dissimilar from petitioner so as to impermissibly suggest that he was the perpetrator.*fn22 Moreover, other courts applying the Neil standard have agreed that due process does not require line up or photo array fill-ins to share the defendant's exact characteristics, ethnic or otherwise.*fn23

Petitioner attempts to shore up his tainted identification claim with respect to Torres through additional allegations — which, as discussed below, were expressly rejected by the state trial court*fn24 — that the police pressured him to choose Leka. Modica, however, even in her "recanting" post-trial affidavit makes no such allegations that police misconduct influenced her choice of petitioner.*fn25 Thus, distilled to its essence, petitioner's claim with respect to Modica's identification is that she picked Leka solely because his photograph was the only one that she saw of a non-Hispanic with a mustache. At trial, however, Modica disagreed when petitioner's trial counsel suggested that all of the other men pictured in the Leka photo array were Hispanic. In response to questioning intended to elicit such testimony, Modica stated only that she believed the three fill-ins on the bottom row of the photo array "look[ed] Spanish." T. 517. Furthermore, when asked whether numbers one and three also looked "Spanish," Modica testified: "I can't guess by looking at them." T. 518. Notably, trial counsel also asked Torres whether he and Modica had discussed "the fact that you saw a photographic array that had five Hispanics and one Caucasian-looking person," and Torres answered, "No." T. 725-26. Thus, considering the record as a whole, there does not appear to be any evidence that would support petitioner's theory that the photo array was inherently suggestive.

Because the Appellate Division reasonably found the photo array was not impermissibly suggestive, there was no need for it to proceed to the second stage of the Neil inquiry, viz., whether the in-court identifications were independently reliable. The state appeals court decision rejecting petitioner's claim, therefore, was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law. Accordingly, no writ can be granted with respect to Leka's claim that the composition of the photo array was inherently suggestive.

b. Post-Trial Recantations

Petitioner bases a second attack on the photo array and subsequent identifications on Torres' 1991 affidavit, as well as a new, more elaborate affidavit prepared for this petition, Elfren Torres Aff. of 4/10/98, Pet.'s Supp. Mem., Ex. 3 [hereinafter Torres 1998 Aff.], in which Torres alleges — in direct contradiction of his Wade hearing and trial testimony — that the police coerced him to pick Leka from the photo array.

i. Exhaustion

On behalf of respondent, Kings County District Attorney Charles J. Hynes (the "District Attorney") argues that petitioner has failed to exhaust available state court remedies for this aspect of his suggestive identification claim. As the District Attorney observes, examination of petitioner's brief to the Appellate Division reveals that his arguments regarding the photo array identification focused exclusively on the composition of the photo array; petitioner made absolutely no argument regarding police coercion. Moreover, although petitioner did submit Torres' 1991 affidavit to both the trial court and the Appellate Division, he did so only in connection with his argument for a new trial in light of newly discovered evidence. Specifically, petitioner presented the 1991 affidavit as newly discovered evidence supporting his theory that Rahman Ferati was the individual Torres had seen outside the car, not Leka. Finally, Torres' 1998 affidavit, which was prepared in conjunction with this petition, has never been presented to the state courts for any purpose.

Nonetheless, under the standard delineated in Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), petitioner's presentment claim, tenuous though it may be, has merit. In Daye, the Second Circuit held that to satisfy the exhaustion requirement a petitioner must have informed the state court of both the factual premises of his claim and "essentially the same legal doctrine he asserts in his federal petition." Id. at 191-92 (citations omitted). The court clarified that "[b]y the same legal `basis' or `doctrine,' we do not mean that there can be no substantial difference in the legal theory advanced to explain an alleged deviation from constitutional precepts." Id. at 192 n. 4. As an example, the court stated that the exhaustion requirement would be met in a case where a state defendant made an involuntary confession claim in the state courts based on physical coercion, but argued in federal court that coercion was shown by the totality of the circumstances including psychological coercion. See id. (citing United States ex rel. Kemp v. Pate, 359 F.2d 749 ...


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