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.
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.
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.
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.
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).
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.
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.
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.
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.
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 ...