United States District Court, Southern District of New York
January 6, 2000
JUAN ROLDAN, PETITIONER,
CHRISTOPHER ARTUZ, SUPERINTENDENT, RESPONDENT.
The opinion of the court was delivered by: Batts, District Judge.
On July 22, 1999, Magistrate Judge Andrew J. Peck issued a Report and
Recommendation. The Petitioner filed an objection on July 29, 1999.
Magistrate Judge Peck denied Petitioner's habeas corpus petition on the
The Court has reviewed the Plaintiff's objection, which disputes no
specific proposed finding or recommendation. The Court finds Petitioner's
objection to be without merit. Having reviewed the Report and
Recommendation and finding no clear error on the face of the record, the
recommendations of Magistrate Judge Peck are hereby accepted and the
Report and Recommendation dated July 22, 1999, is hereby adopted in its
entirety. See Local Civil Rule 72, 28 U.S.C. § 636.
Pursuant to 28 U.S.C. § 1915(a), any appeal from this Order would
not be taken in good faith. See Coppedge v. United States, 369 U.S. 438,
444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)
REPORT AND RECOMMENDATION
PECK, United States Magistrate Judge.
Petitioner Juan Roldan was convicted of second degree murder in
connection with the shooting of cab driver Roscoe Cummings. Roldan's
habeas petition asserts three grounds for relief: (1) his guilt was not
proven beyond a reasonable doubt (Pet. ¶ 12(A)), (2) his line-up
identification was impermissibly suggestive (Pet. ¶ 12(B)), and (3)
the trial court improperly admitted uncharged crimes evidence (Pet.
For the reasons set forth below, I recommend that Roldan's habeas
petition be denied on the merits.
Trial Evidence: Prosecution Case
On the morning of July 6, 1985, cab driver Roscoe Cummings was shot and
killed in the Bronx during a robbery.
At approximately 7:30 p.m. on July 5, 1985, David Gonzalez Rodriguez
told George Rivera that he was going to have cab drivers pick him up in
Manhattan and take him to the Bronx, or vice versa, and rob them. (Trial
Transcript ["Tr."] 171-72.) Rodriguez told Rivera to leave the door to
626 Cypress Avenue in the Bronx open so that Rodriguez could enter the
building quickly after the robberies. (Tr. 171-72.) Rodriguez showed
Rivera a small black handgun that he planned to use in the robberies.
(Tr. 172-73; People's Ex. 8.)
At approximately 12:45 a.m. on July 6, 1985, Sean Bruce and Marilyn
Rivera (George Rivera's sister) witnessed three men run from a yellow
medallion cab that stopped near 140th Street and Cypress Avenue in the
Bronx into a vacant lot adjacent to the apartment building at 626 Cypress
Avenue. (Tr. 98-99, 103-04, 138-39, 141-48.) When the cab stopped, Bruce
heard two to three gunshots and saw three people run from the cab. (Tr.
141-42.) Ms. Rivera heard two of the men yell "David, hurry up," then
heard a door slam and saw a light go on in Rodriguez's apartment. (Tr.
The yellow cab crashed into a fence at 142nd Street and Jackson
Avenue, approximately three blocks from David Rodriguez's building. (Tr.
72, 76-77, 90-93.) The driver, Roscoe Cummings, told the police that he
had been robbed and shot at 140th Street and Cypress Avenue by three male
Hispanics in their twenties. (Tr. 78-80, 91.) Cummings told the police
that one of the men, wearing a yellow T-shirt and tan pants, was carrying
a small, black, automatic gun. (Tr. 80.) Cummings told the police that he
had picked up his assailants in Manhattan and driven them to the Bronx.
(Tr. 80.) The police took Cummings to the hospital, where he died from a
single gunshot wound to his back. (Tr. 81, 92, 193-95.)
Police officers recovered a .25 caliber automatic bullet from the back
seat of the cab and an additional .25 caliber round of ammunition on the
ground below the cab. (Tr. 81-83, 93-94.)
At 3:45 a.m., approximately two hours after Cummings was shot and
robbed, a cab driver, Danyo Syoum, observed Roldan with a small Beretta
handgun, People's Exhibit 8. (Tr. 152, 162.) Approximately one hour after
Cummings was shot and robbed, Sergo Abelard saw Roldan with a small,
black, automatic pistol. (Tr. 226-32.)
The police arrested Roldan at approximately 3:45 a.m. and upon
searching him, recovered a gun, People's Exhibit 8. (Tr. 114-15, 119-20.)
At the time of his arrest, Roldan was with David Rodriguez. (Tr.
Trial Evidence: Defense Case
Roldan's wife, Irma Roldan, testified that her husband regularly
carried the gun, People's Exhibit 8, and that on the afternoon before
Cummings was killed, she witnessed Roldan give the gun to Rodriguez.
(Tr. 352-54, 357-58, 385-86, 389-91, 393-94.)
Irma Roldan also testified that she and Roldan were at his mother's
house on the lower east side of Manhattan from 1:00 p.m. in the afternoon
of July 5, 1985, until approximately 1:00 a.m. on July 6, 1985, fifteen
minutes after Roscoe Cummings was shot. (Tr. 358-60, 364, 367, 369-70,
373-74, 395, 400.) Digna Arteaga, Roldan's mother, testified that at
"[a]bout one o'clock" in the morning, Roldan woke her up to tell her that
he was leaving her home. (Tr. 262, 264, 292-93, 295-96.) Willis Cruz
testified that he left Arteaga's house with Roldan at 1:00 a.m. (Tr.
306-07, 326, 334, 337-39.) Arteaga, Cruz and Irma Roldan testified that
Roldan was wearing a light blue shirt on July 5, 1985; Arteaga testified
that Roldan did not own a yellow shirt. (Tr. 290, 339, 393, 397.)
The Pretrial Wade Hearing
On May 19, 1986, a pretrial Wade hearing was conducted to determine
whether the pretrial identification procedures were impermissibly
suggestive. (See generally 5/19/86 Wade Tr.)*fn1
At approximately 8:00 a.m. on Saturday July 6, 1985, some four hours
after Roldan's arrest, Officer Thomas Wray contacted cab driver Sergo
Abelard and asked him to come to the station house to view a lineup.
(Wade Tr. 4-5, 7.) After he saw what Roldan and Rodriguez looked like,
Officer Wray went "on a canvass of the neighborhood, attempting to get
ten fillers for these . . . line-ups." (Wade Tr. 8, 15.) Officer Wray
testified that it was very difficult to find fillers on a Saturday
morning and that he spent "quite a bit of time in the street." (Wade Tr.
8, 24-26.) Officer Wray selected the fillers on the basis of "necessity."
(Wade Tr. 15.)
Roldan was in a separate lineup with four fillers. (Wade Tr. 8, 12,
15-16.) The men were seated during the lineup. (Wade Tr. 8, 16; see also
6/30/97 Affidavit of ADA Jennifer Correale, Ex. 13: Lineup Sheet.) Two of
the fillers were 34 and 35 years old, while Roldan was 22; two other
fillers were 22 and 25. (Wade Tr. 15-16; Correale Aff. Ex. 13.) Two of
the fillers were 5'4" and 5'2", while Roldan is 6 feet tall, but Officer
Wray considered them proper fillers under the circumstances since the
lineup was conducted in a seated position; also, the other two fillers
were 5'10" and 5'11". (Wade Tr. 16; Correale Aff. Ex. 13.) Roldan's skin
color was lighter than three of the four other fillers, and he had a
different hair style than two of the others. (Wade Tr. 59; Correale Aff.
Ex. 13.) Roldan weighed 200 pounds, while two of the fillers weighed 150
and 154 pounds, and two other fillers weighed 180 and 192 pounds.
(Correale Aff. Ex. 13.)
Abelard identified Roldan in the lineup. (Wade Tr. 10, 16.)
At the Wade hearing, the defense alleged that the lineup was "unduly
suggestive and that any in-court identification would therefore be
tainted by the alleged prejudicial identification." (See 7/11/86 Opinion
of Justice Fried on the Wade issues, at 1.) The trial court held that the
lineup was not suggestive:
Here, viewing the totality of the circumstances, it
is clear that the police did not act in an
impermissibly prejudicial manner. . . .
With regard to the actual composition of the
lineup, Roldan's physical appearance was not so
distinguishable from that of the others in the lineup
as to make the lineup unduly suggestive. . . .
Although the heights of the five men varied, this was
not discernible from the sitting position in which
they were viewed. The weights of two of the fillers
were close to that of Roldan. In addition to Roldan,
two of the fillers had short, dark hair, while all the
men had dark hair. Everybody in the lineup had a
moustache. Roldan was not the only [H]ispanic in the
lineup, nor was he the only one with a light
complexion. Nobody was required to don any particular
clothing, nor was anybody asked to speak during the
lineup identification. While the physical appearance
of the fillers could have been closer, they were not
so dissimilar as to be unduly suggestive.
Accordingly, the motion to suppress the subway
platform identification of both defendants and the
pre-arraignment lineup identification of defendant
Roldan are denied.*fn2 Also denied is the
motion to suppress any in-court identifications.
(7/11/86 Wade Opinion of Justice Fried, at 6-8, emphasis added.)
The Molineux Hearing
On September 2, 1986, a pretrial Molineux hearing was held to determine
the admissibility of evidence concerning Roldan's robberies of cab
drivers Abelard and Syoum. The State sought to introduce evidence of the
robberies on two separate theories: to establish Roldan's identity, and
to show a common scheme or plan. (9/3/86 Molineux Tr. 9-10, 12-13.)*fn3
The trial court held that the prior robberies were not admissible under
Molineux unless the defense opened the door, but that Abelard and Syoum
could testify that they saw Roldan with the murder weapon:
[T]he Court finds there is no common scheme or plan
within the acception [sic] to the judicially created
rule, [which] does not permit evidence of uncharged
crimes to be admitted unless it fits within one of the
so-called exceptions enunciated in People v.
Molineux, 168 N.Y. 264, 61 N.E. 286 and progeny, such
as People v. [Fiore], 34 N.Y.2d [81, 356 N.Y.S.2d 38,
312 N.E.2d 174].
With respect to the identification or identity
exception enunciated in Molineux and progeny, the
Court feels evidence of the two alleged robberies in
Manhattan will not be admissible since there was
nothing unique about those other crimes, nor was there
any distinctive modus operandi or other fact to set
this defendant's crimes apart from the ordinary.
People v. Kennedy, 27 N.Y.2d 551, 313 N.Y.S.2d 123,
261 N.E.2d 264; People v. Allweiss, 48 N.Y.2d 40,
421 N.Y.S.2d 341, 396 N.E.2d 735; People v. Beam, 57
N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093 (1982).
Accordingly, the People will not be allow[ed] to
introduce on their direct case evidence concerning the
two Manhattan robberies, unless the defendant opens
The Court will allow the People to show, if the
witnesses can so testify, that the driver [who] was
allegedly robbed at approximately 1:45, saw the gun in
Mr. Roldan's possession. He could testify that is the
gun or looks like the gun that he saw Mr. Roldan
possessing at that time.
The Court will also allow the People to elicit
evidence from the second cab driver that Mr. Roldan
was in possession of the gun when caught. When the
Court refers to "the gun," I am talking about the gun
ultimately recovered from Mr. Roldan at approximately
3:34 A.M. on July 6, 1985 at the subway station on
Allen Street in which the People have told the Court
ballistic evidence will establish it to be the very
same gun which killed Mr. Cummings.
Again, no evidence will be admitted concerning the
fact of the robbery, but these two witnesses can
testify that they were cab drivers and said they saw
the gun in Mr. Roldan's possession.
The police officers can testify they recovered the
gun from the pocket of a jacket which he saw Mr.
Roldan describe on the subway station at Houston and
Allen, approximately 3:45 in the afternoon — and
I will give the [jury] appropriate curative
instructions as to
how they may consider that evidence that is solely on
the issue of identity.
(9/4/86 Molineux Tr. 50-52, emphasis added.)
Roldan's Conviction and Sentencing
On September 16, 1986, the jury convicted Roldan of second degree
murder. (9/16/96 Verdict Tr. 3-5; Pet. ¶¶ 1-4.) On October 7, 1986,
the trial court sentenced Roldan to twenty-five years to life
imprisonment. (10/7/86 Sentence Tr. 7; Pet. ¶¶ 1-4; see also Correale
Aff. ¶ 5.)
Roldan's Direct State Appeal
The First Department affirmed Roldan's conviction without opinion on
November 29, 1988. People v. Roldan, 144 A.D.2d 1043, 535 N.Y.S.2d 509
(1st Dep't 1988) (table). (See Pet. ¶ 9(a) — (d); see also
Correale Aff. ¶¶ 6-8 & Ex. 3.) The New York Court of Appeals denied
leave to appeal on February 2, 1989. People v. Roldan, 73 N.Y.2d 926,
539 N.Y.S.2d 310, 536 N.E.2d 639 (1989) (table). (See Pet. ¶ 9(e);
see also Correale Aff. ¶ 9 & Ex. 4.)
Roldan's State Collateral Attacks
On May 27, 1991, Roldan filed a pro se CPL § 440.10 motion alleging
ineffective assistance of trial counsel. (Pet. ¶ 11(a); Correale
Aff. ¶ 10 & Ex. 5.) On July 25, 1991, the trial court denied the
motion without opinion. (Pet. ¶ 11(a); Correale Aff. ¶ 12 &
Ex. 7.) On January 23, 1992, the First Department denied leave to
appeal. (Correale Aff. ¶ 13 & Ex. 8.)
On December 18, 1992, Roldan filed a second pro se CPL § 440.10
motion, based on allegedly newly discovered exculpatory evidence.
(Correale Aff. ¶ 14 & Ex. 9; Pet. ¶ 11(b).) The trial court
denied the motion on February 16, 1993. (Correale Aff. ¶ 16 & Ex.
11; Pet. ¶ 11(b).) On April 22, 1993, the First Department denied
leave to appeal. (Correale Aff. ¶ 17 & Ex. 12.)
Roldan's Federal Habeas Petition and Federal Court Proceedings
Roldan's federal habeas petition, dated March 18, 1997 and received by
the Court's Pro Se Office on March 27, 1997, alleged four grounds: (1)
his guilt was not proven beyond a reasonable doubt (Pet. ¶ 12(A));
(2) the line-up during which he was identified was impermissibly
suggestive (Pet. ¶ 12(B)); (3) the court improperly admitted
uncharged crimes evidence (Pet. ¶ 12(C)); and (4) the state court's
denial of his newly discovered exculpatory evidence motion violated due
process (Pet. ¶ 12(D)).
The State argued that Roldan's petition was untimely under the
Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year
statute of limitations (State Br. at 5-8) and that the petition was
"mixed" because Roldan's fourth habeas ground had not been raised in
state court (State Br. at 9-11). In response to the government's
arguments, Roldan dropped his fourth habeas ground. (Stip. & Order dated
7/22/97.) See Roldan v. Artuz, 976 F. Supp. 251, 252 (S.D.N.Y. 1997)
(Batts, D.J. & Peck, M.J.).
On September 4, 1997, this Court dismissed Roldan's petition as
untimely under the AEDPA statute of limitations, as then-interpreted by
the Second Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.
1997). See Roldan v. Artuz, 976 F. Supp. at 253-54. On December 17,
1998, Second Circuit remanded in light of its decision in Ross v. Artuz,
150 F.3d 97, 103 (2d Cir. 1998), that a state prisoner whose conviction
became final before the AEDPA's April 24, 1996 effective date had until
April 24, 1997 to file a habeas petition. See Roldan v. Artuz, No.
97-2936, slip op. (2d Cir. Dec. 17, 1998).
Because Roldan's petition is timely under Ross, the Court now addresses
the merits of his petition.
I. THE CIRCUMSTANTIAL EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT FOR
THE JURY TO FIND ROLDAN GUILTY BEYOND A REASONABLE DOUBT
"[T]he Due Process Clause of the Fourteenth Amendment protects a
defendant in a criminal case against conviction `except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.'" Jackson v. Virginia, 443 U.S. 307
, 315, 99 S.Ct.
2781, 2787, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358
364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)). However, "a properly
instructed jury may occasionally convict even when it can be said that no
rational trier of fact could find guilt beyond a reasonable doubt. . . ."
Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in
a challenge to a state criminal conviction brought under
28 U.S.C. § 2254 — if the settled procedural prerequisites for
such a claim have otherwise been satisfied — the applicant is
entitled to habeas corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
at 324, 99 S.Ct. at 2791-92; accord, e.g., Franza v. Stinson, 98 Civ.
5484, 1999 WL 495902 at *11 (S.D.N.Y. July 1, 1999) (Kaplan, D.J. &
Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4
(S.D.N.Y. Nov. 19, 1998) (Preska, D.J. & Peck, M.J.); Fernandez v.
Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. & Peck,
M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N Y
April 20, 1998) (Baer, D.J. & Peck, M.J.); Robinson v. Warden of James A.
Thomas Ctr., 984 F. Supp. 801
, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. &
Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925
, 935 (S.D.N.Y. 1996)
(Mukasey, D.J. & Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278
(S.D.N.Y. 1996) (Jones, D.J. & Peck, M.J.).
Petitioner Roldan bears a "very heavy burden":
[T]he standard for appellate review of an
insufficiency claim placed a "very heavy burden" on
the appellant. Our inquiry is whether the jury,
drawing reasonable inferences from the evidence, may
fairly and logically have concluded that the defendant
was guilty beyond a reasonable doubt. In making this
determination, we must view the evidence in the light
most favorable to the government, and construe all
permissible inferences in its favor.
United States v. Carson, 702 F.2d 351
, 361 (2d Cir. 1983) (citations
omitted), cert. denied, 462 U.S. 1108
, 103 S.Ct. 2456
, 77 L.Ed.2d 1335
(1983); accord, e.g., United States v. Russo, 74 F.3d 1383, 1395 (2d
Cir.) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d
Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545, 133 L.Ed.2d 448
(1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293, 136 L.Ed.2d 213
(1996); United States v. Rosa, 11 F.3d 315
, 337 (2d Cir. 1993)
("[D]efendant who makes a sufficiency challenge bears a heavy burden."),
cert. denied, 511 U.S. 1042
, 114 S.Ct. 1565
, 128 L.Ed.2d 211 (1994);
United States v. Strauss, 999 F.2d 692
, 696 (2d Cir. 1993) (burden on
defendant claiming insufficiency is "`very heavy'" and all inferences
must be drawn in the government's favor); Franza v. Stinson, 1999 WL
495902 at *11; Carromero v. Strack, 1998 WL 849321 at *4; Fernandez v.
Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *5;
Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp.
at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
The Court's review of the jury's findings is limited:
[T]his inquiry does not require a court to `ask
itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.'
Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. This familiar standard gives full
play to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic
facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (quotations and
citations omitted); accord, e.g., United States v. Russo, 74 F.3d at 1395
(quoting United States v. Martinez, 54 F.3d at 1042-43); Franza v.
Stinson, 1999 WL 495902 at *11; Mallette v. Scully, 752 F.2d 26
, 31 (2d
Cir. 1984); Carromero v. Strack, 1998 WL 849321 at *5; Williams v.
Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806;
Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp.
at 284. "Moreover, the jury's verdict may be based entirely on
circumstantial evidence." United States v. Russo, 74 F.3d at 1395 (citing
United States v. Martinez, 54 F.3d at 1042-43).
Roldan argues that the People's case was "wholly circumstantial."
(Pet. ¶ 12(A).) Roldan emphasizes that evidence showed that he gave
Rodriguez the gun on the day Cummings was shot (Tr. 352-54, 357-58,
385-86, 389-91, 393-94), to avoid bringing the weapon into his mother's
apartment. (Pet. ¶ 12(A).) Roldan's petition claims that when he met
up with Rodriguez later in the evening and took the gun back, he was
unaware that Rodriguez had used it in the Cummings shooting. (Pet.
The problem with Roldan's argument is that it relies only on the
defense case, viewed in the light most favorable to Roldan, and ignores
the prosecution's evidence. Abelard and Syoum both stated that they saw
Roldan with the gun within three hours of Cummings's murder. (Tr.
149-52, 162, 226-32.) Officers Candelaria and Torres recovered the gun
from Roldan's possession on the same morning. (Tr. 114-15, 119-20.) When
he was arrested, Roldan was with David Rodriguez. (Tr. 116-17.) In
addition, the robbery and shooting was committed in accordance with
Rodriguez's plan, announced by Rodriguez earlier in the day to George
Rivera, to rob taxi drivers at gunpoint while they drove from Manhattan
to the Bronx. (See Tr. 171-72.)
A reasonable jury could believe such testimony and find it sufficient
to connect Roldan to the robbery and shooting of cab driver Roscoe
Cummings. See, e.g., Maldonado v. Scully, 86 F.3d 32, 36 (2d Cir. 1996)
(rejecting petitioner's § 2254 claim that his conviction was invalid
because no direct evidence established that he was an accessory to second
degree murder, because "[v]iewed in its totality, the circumstantial
evidence" was sufficient for a jury to find him guilty and "[g]uilt may
. . . be proved entirely by circumstantial evidence . . . and a lack of
direct evidence does not preclude a conviction on circumstantial
evidence"); United States v. Russo, 74 F.3d at 1395 ("ample"
circumstantial evidence established the defendants' participation in and
knowledge of the planning and execution of securities violations);
Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (rejecting
petitioner's § 2254 claim that the evidence was insufficient since no
physical evidence tied them to the murder, because "`a conviction may be
based upon circumstantial evidence and inferences based upon the
evidence, and the jury is exclusively responsible for determining a
witness' credibility'"), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131
L.Ed.2d 316 (1995); Panaro v. Kelly, 32 F. Supp.2d 105, 109 (W.D.N Y
1998) (circumstantial evidence was sufficient to establish that
petitioner was guilty of murder in the second degree beyond a reasonable
doubt); Franza v. Stinson, 1999 WL 495902 at *12 (circumstantial evidence
including petitioner's handwriting on flower box left at crime scene
sufficient to prove guilt beyond a reasonable doubt); Fernandez v.
Dufrain, 11 F. Supp.2d at 417-18 ("the circumstantial evidence was
sufficient for a jury to properly conclude that [petitioner] intended to
kill [the deceased]").
The jury chose not to credit Arteaga's, Cruz' and Irma Roldan's
testimony that Roldan was at his mother's apartment at the time the
Cummings' shooting took place, despite the State's inability to account
for Roldan's whereabouts at all times. The "jury is exclusively
responsible for determining a witness' credibility." United States v.
Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71
(2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026
(1989)); accord, e.g., United States v. Rosa, 11 F.3d at 337; Franza v.
Stinson, 1999 WL 495902 at *12; Carromero v. Strack, 1998 WL 849321 at
*5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998
WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v.
Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
This Court may not reassess the jury's finding of credibility:
"`[f]ederal habeas courts are not free to reassess the fact specific
credibility judgments by juries or to weigh conflicting testimony. On
collateral review this Court must presume that the jury resolved any
questions of credibility in favor of the prosecution.'" Vera v.
Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No.
CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. 1992), aff'd, 992 F.2d 320 (2d
Cir. 1993)); accord, e.g., Franza v. Stinson, 58 F. Supp.2d 124, 138;
Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F.
Supp.2d at 416-17; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v.
Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; see
also, e.g., United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir. 1971)
(where inconsistency in testimony was minor and "`all that was involved
was faulty memory on a comparatively insignificant point," inconsistency
was a jury question that does not create a "reasonable doubt as to
defendant's guilt as a matter of law."), cert. denied, 404 U.S. 1025, 92
S.Ct. 675, 30 L.Ed.2d 675 (1972); Fagon v. Bara, 717 F. Supp. 976, 979
(E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments
about the testimony presented at petitioner's trial or to weigh
Here, as in prior cases, "the jury's decision was largely a matter of
choosing whether to believe [the defense witnesses's] version of the
events or to believe the version offered by the State. The jury chose to
believe the State's witnesses, despite the inconsistencies in the
evidence. . . . We cannot say that no rational jury could have found
guilt beyond a reasonable doubt on all the evidence." Gruttola v.
Hammock, 639 F.2d 922, 928 (2d Cir. 1981); accord, e.g., Franza v.
Stinson, 1999 WL 495902 at *13; Carromero v. Strack, 1998 WL 849321 at
*6; Williams v. Bennet, 1998 WL 236222 at *5. Robinson v. Warden, 984 F.
Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v.
Hanslmaier, 928 F. Supp. at 284. The jury here obviously resolved the
conflicting versions of events and disbelieved the defense's version.
Finally, the Court notes that the AEDPA has further limited this
Court's role in determining sufficiency of the evidence habeas
petitions. The AEDPA amended 28 U.S.C. § 2254(d) to provide that:
(d) An 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 with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
28 U.S.C. § 2254(d). For the reasons stated above, this Court cannot
say that the First Department's decision that the evidence was sufficient
to convict Roldan of murder was contrary to established federal law or
was based on an unreasonable determination of the facts. See, e.g. Van
Straten v. Schwartz, 38 F. Supp.2d 1038, 1041 (E.D.Wis. 1999) ("[F]acts
found by a state court are presumed to be correct unless the petitioner
rebuts this presumption with clear and convincing evidence."); Carromero
v. Strack, 1998 WL 849321 at *7; Fernandez v. Dufrain, 11 F. Supp.2d at
418 (in view of the AEDPA, "a habeas petition may be granted for evidence
insufficiency only where the state courts have unreasonably applied the
standard set forth in Jackson" v. Virginia) (quoting-Mobley v. Stinson,
94 Civ. 5911, 1997 WL 80587 at *2 (S.D.N.Y. Feb. 26, 1997)); Williams v.
Bennet, 1998 WL 236222 at *5-6; see also, e.g., Jackson v. Johnson,
150 F.3d 520, 524 (5th Cir. 1998) ("State court factual determinations
shall be presumed correct unless rebutted by `clear and convincing
evidence.' 28 U.S.C. § 2254(e)(1). Furthermore, when a petitioner
challenges the application of law to fact, AEDPA permits federal court
relief "only when it can be said that reasonable jurists considering the
question would be of one view that the state court ruling was
incorrect.'") (citation omitted), cert. denied, ___ U.S. ___, 119 S.Ct.
1339, 143 L.Ed.2d 503 (1999); Gomez v. Acevedo, 106 F.3d 192, 199 (7th
Cir. 1997) ("Because Jackson [v. Virginia sufficiency of the evidence]
claims are mixed questions of law and fact, we are compelled to hold that
a writ of habeas corpus may be issued for evidence insufficiency only if
the state courts have unreasonably applied the Jackson standard. Federal
review of these claims therefore now turns on whether the state court
provided fair process and engaged in reasoned, good-faith decisionmaking
when applying Jackson's `no rational trier of fact' test."), vacated &
remanded on other grounds, 522 U.S. 801, 118 S.Ct. 37, 139 L.Ed.2d 6
(1997); Smith v. Vaughn, No. Civ. A. 96-8482, 1997 WL 338851 at *7
(E.D.Pa. June 17, 1997) (same).*fn5
II. ROLDAN'S LINEUP WAS NOT UNDULY SUGGESTIVE
A. Legal Standards
A defendant's right to due process includes the right not to be the
object of pretrial identification procedures that are "so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification." Simmons v. United States, 390 U.S. 377,
384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); accord, e.g., Neil v.
Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401
(1972); Manson v. Brathwaite, 432 U.S. 98, 106 n. 9, 114, 97 S.Ct. 2243,
2249 n. 9, 2253, 53 L.Ed.2d 140 (1977); United States v. Smith, No.
97-1273, 152 F.3d 921 (table), 1998 WL 398813 at *1 (2d Cir. June 5,
1998); United States v. Eltayib, 88 F.3d 157, 166-67 (2d Cir.), cert.
denied, 519 U.S. 1045, 117 S.Ct. 619, 136 L.Ed.2d 543 (1996); Yearwood
v. Keane, No. 95-2404, 101 F.3d 685 (table), 1996 WL 282134 at *1 (2d
Cir. May 29, 1996); United States v. Thai, 29 F.3d 785, 807 (2d Cir.),
cert. denied, 513 U.S. 977, 115 S.Ct. 456, 130 L.Ed.2d 364 (1994); United
States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993); United States v.
Concepcion, 983 F.2d 369, 377 (2d Cir. 1992), cert. denied, 510 U.S. 856,
114 S.Ct. 163, 126 L.Ed.2d 124 (1993); Sales v. Harris, 675 F.2d 532,
537-38 (2d Cir.), cert. denied, 459 U.S. 876, 103 S.Ct. 170, 74 L.Ed.2d
In determining whether a lineup (or show-up or photo identification) is
unduly suggestive, the reviewing court must consider the totality of the
circumstances. See, e.g., Manson v. Brathwaite, 432 U.S. at 113-14, 97
S.Ct. at 2252-53; Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382;
Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199
(1967); United States v. Eltayib, 88 F.3d at 167; United States v.
Concepcion, 983 F.2d at 377; United States ex rel. Pella v. Reid,
527 F.2d 380, 384 (2d Cir. 1975); United States v. Williams, 999 F.
Supp. at 414; Hodge v. Henderson, 761 F. Supp. at 1007; United States v.
Porter, 430 F. Supp. 208, 211 (W.D.N.Y. 1977). "`Police stations are not
theatrical casting offices; a reasonable effort to harmonize the line-up
is normally all that is required.'" Gossett v. Henderson, 87 Civ. 5878,
1991 WL 135601 at *2 (S.D.N.Y. July, 18 1991), aff'd, 978 F.2d 705 (2d
Cir. 1992), cert. denied, 510 U.S. 997, 114 S.Ct. 564, 126 L.Ed.2d 463
(1993). "There is no requirement that a suspect in a lineup be surrounded
by people identical in appearance." Tavarez v. Lefevre, 649 F. Supp. 526,
530 (S.D.N.Y. 1986); accord, e.g., Taylor v. Kuhlmann, 36 F. Supp.2d 534,
551 (E.D.N.Y. 1999); Morillo v. Crinder, 97 Civ. 3194, 1997 WL 724656 at
*5 (S.D.N.Y. Nov. 18, 1997); Meatley v. Artuz, 886 F. Supp. 1009, 1016
(E.D.N.Y. 1995); Connolly v. Artuz, No. 93-CV-4470, 1995 WL 561343 at *5
(E.D.N.Y. Sept. 15, 1995); United States v. Padilla, 94 Cr. 313, 1994 WL
681812 at *6 (S.D.N.Y. Dec. 5, 1994); Gossett v. Henderson, 1991 WL
135601 at *2; United States v. Porter, 430 F. Supp. at 211 ("as Judge
Friendly has recognized, there is no requirement that a defendant in a
lineup must be surrounded by people nearly identical in appearance,
however desirable that may be.").
In order to evaluate the constitutional permissibility of in-court
identification testimony based on out-of-court pretrial identification
procedures, the Second Circuit has adopted a two-step inquiry:
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 determination of whether the identification
process was impermissibly suggestive and, if so,
whether it was so suggestive as to raise `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 in-court
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 the jury."
United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citations
omitted), 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, 1996 WL 282134 at *1; United
States v. Eltayib, 88 F.3d at 167; United States v. Thai, 29 F.3d at
807-08; 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).*fn7
B. Application of the Legal Standards to Roldan's Lineup
1. Number of Lineup Fillers
Roldan argues that the pretrial lineup was unduly suggestive because
"although ten hours had passed since [his] arrest, the line-up [was]
composed of only four fillers rather than the customary five. . . .
Petitioner in the lineup appeared drastically different from all of the
fillers, he was either taller, and or lighter in complexion, heavier in
weight, younger than fillers and [his] hair style was totally different."
(Pet. ¶ 12(B).)*fn8
The fact that there were only four instead of five fillers does not
mean that the lineup was unduly suggestive. Roldan does not have a
constitutional right to be surrounded by a specific number of lineup
fillers. See, e.g., Taylor v. Kuhlmann, 36 F. Supp.2d 534, 551 (E.D.N Y
1999) (lineup with defendant and four fillers upheld); United States v.
Pena-Bonilla, 998 F. Supp. 121, 123 (D.P.R. 1998); People v. Bernier,
245 A.D.2d 137, 137-38, 666 N.Y.S.2d 161, 162 (1st Dep't 1997); People
v. Hernandez, 164 A.D.2d 920, 921, 559 N.Y.S.2d 754, 755 (2d Dep't 1990)
("there is no per se requirement regarding the numerical composition of
line-ups"); People v. Gallant, 150 A.D.2d 602, 603, 541 N.Y.S.2d 470, 471
(2d Dep't 1989) (four filler lineup upheld "[u]nder the totality of the
circumstances"); People v. Krel, 154 Misc.2d 820, 823, 588 N.Y.S.2d 513,
516 (Crim. Ct. Kings Co. 1991) ("[T]here is no requirement for the
numerical composition of a lineup").
2. Height Differences
As the trial court correctly held, the fact that Roldan was taller than
the other fillers was inconsequential because the lineup fillers was
conducted in a seated position. (See 7/11/86 J. Fried Wade Op. at 7;
Correale Aff. Ex. 13: Lineup Sheet.) See, e.g., United States ex rel.
Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975) ("The fact that
[defendant], a short man, was placed in a line-up with mostly taller
men, while certainly not the most desirable procedure, does not by itself
warrant a finding of unnecessary suggestiveness."); Tavarez v. LeFevre,
649 F. Supp. 526, 530 (S.D.N.Y. 1986) ("[S]ince all the lineup
participants were seated, any height difference was substantially
minimized"); Moreno v. Kelly, 95 Civ. 1546, 1997 WL 109526 at *9
(S.D.N.Y. March 11, 1997) ("There is also no merit to [petitioner's]
claim of suggestiveness due to the difference in his height from that of
the other men in the lineup. Any height difference was minimized because
all of the defendants were initially seated . . ."); Jackson v. Ross,
No. Civ. 89-0591, 1989 WL 88008 at *2 (E.D.N.Y. July 26, 1989) ("To the
extent that there may have been any discrepancy in the height and weight
of the participants,
much of the difference was eliminated by the fact that the subjects were
seated."); see also, e.g., Taylor v. Kuhlmann, 36 F. Supp.2d 534, 551
(E.D.N.Y. 1999) ("[A] disparity in the height of the lineup participants
will not by itself warrant a finding of unnecessary suggestiveness.");
Collins v. Scully, 878 F. Supp. 452, 457 n. 8 (E.D.N.Y. 1995) (lineup did
not violate due process where only one filler was shorter than
defendant); Wright v. Smith, 434 F. Supp. 339, 341-42 (W.D.N.Y. 1977)
(lineup not unduly suggestive where three of five fillers were taller
than defendant), rev'd on other grounds, 569 F.2d 1188 (2d Cir. 1978);
United States v. Porter, 430 F. Supp. 208, 211 (W.D.N.Y. 1977) (lineup
not invalid although only two fillers were defendant's height and two
others were over 6' tall); Taylor v. Swenson, 327 F. Supp. 1165, 1168
(W.D.Mo. 1971), aff'd, 458 F.2d 593 (8th Cir. 1972).*fn9
3. Weight Differences
In addition, because Roldan, who was 200 pounds, weighed approximately
the same as two of the fillers who were 192 and 180 pounds respectively
(Correale Aff. Ex. 13), the lineup was not unduly suggestive based on
disparate weights. See, e.g., United States v. Porter, 430 F. Supp. 208,
211 (W.D.N.Y. 1977) (lineup not invalid although defendant weighed 150
pounds and all fillers weighed over 190 pounds); Taylor v. Swenson,
327 F. Supp. 1165, 1168 (W.D.Mo. 1971) (weight difference did not make
lineup impermissibly suggestive), aff'd, 458 F.2d 593 (8th Cir. 1972);
People v. Poey, 260 A.D.2d 411, 689 N.Y.S.2d 509 (2d Dep't 1999)
("Despite certain age and weight disparities, the fillers were
sufficiently similar to the defendant in appearance so that he was not
singled out for identification."); People v. Cheung, 255 A.D.2d 102,
102, 683 N.Y.S.2d 470, 470 (1st Dep't 1998); People v. Cook, 254 A.D.2d 92,
92, 681 N.Y.S.2d 486, 486 (1st Dep't 1998); People v. Longshore,
249 A.D.2d 565, 566, 671 N.Y.S.2d 332, 333 (2d Dep't 1998); People v.
Folk, 233 A.D.2d 462, 462, 650 N.Y.S.2d 272, 272 (2d Dep't 1996); People
v. Lopez, 209 A.D.2d 442, 443, 618 N.Y.S.2d 114, 114 (2d Dep't 1994)
("the defendant's age and weight did not single him out for
4. Skin Tone
Although Roldan's skin color was lighter than the other fillers,
"Roldan was not the only Hispanic in the lineup, nor was he the only one
with a light complexion." (7/11/86 J. Fried Wade Op. at 7.) Differential
in skin color between lineup participants does not violate due process.
See, e.g., Agosto v. Kelly, No. 88-CV-1336, 1989 WL 79484 at *3
(E.D.N.Y. July 10, 1989) ("Slight variations in complexion tone, to the
extent they existed, did not create an unconstitutionally suggestive
pre-trial identification."); United States v. Castellano, 610 F. Supp. 1359,
1440 (S.D.N.Y. 1985) (lineup not unduly suggestive where defendant was
only participant with pock-marked complexion); People v. Ashby,
692 N.Y.S.2d 109, 1999 N.Y. slip op. 05709, 1999 WL 399053 at *1 (2d
Dep't June 14, 1999) ("While it is true that one of the fillers had a
skin tone lighter than that of the defendant, the lineup was otherwise
comprised of individuals with similar characteristics."); People v.
Stephens, 254 A.D.2d 105, 106, 679 N.Y.S.2d 109, 109 (1st Dep't 1998)
("The variation in skin tone among the various members of the lineup was
not significant. . . ."); People v. Pointer, 253 A.D.2d 500, 500,
677 N.Y.S.2d 582, 582 (2d Dep't 1998) ("Skin tone is only one of the
factors to be considered in deciding `reasonable similarity'. . . and
differences in skin tone alone will not render a lineup unduly
5. Age Differences
Additionally, Roldan, who was 22 at the time of the lineup, was close
in age to two of the fillers, who were 22 and 25 years old. (Correale
Aff. Ex. 13.) Even if all of the lineup fillers were older, however, this
is not enough to constitute an unduly suggestive lineup. See, e.g.,
Castaneda v. Artuz, No. 97 CV 2262, 1998 WL 938860 at *6 (E.D.N.Y. Nov.
18, 1998); Edmonds v. McGinnis, 11 F. Supp.2d 427, 431, 437 (S.D.N Y
1998); Hartley v. Senkowski, No. CV 90-0395, 1992 WL 58766 at *3-4
(E.D.N.Y. Mar. 18, 1992) (defendant's challenge to lineup on ground that
fillers "appeared to be several years older" rejected where "all
participants appear[ed] to be of approximately the same age, height,
weight and coloring"); People v. Poey, 260 A.D.2d 411, 689 N.Y.S.2d 509,
509, 1999 N.Y. slip op. 03191 (2d Dep't April 5, 1999) ("Despite certain
age and weight disparities, the fillers were sufficiently similar to the
defendant in appearance so that he was not singled out for
6. Hair Style Differences
Finally, Roldan had short, closely cropped, dark hair, and even if his
hairstyle was different than some of the lineup fillers, "two of the
fillers had short, dark hair, while all the men had dark hair." (7/11/86
J. Fried Wade Op. at 7; see Correale Aff. Ex. 13.) Differential in
hairstyles does not create an unduly suggestive lineup. See, e.g., United
States v. Jackson, 509 F.2d 499, 505 (D.C.Cir. 1974) ("[defendant's] bush
hairstyle was not "so unnecessarily suggestive and conducive to
irreparable mistaken identification' as to amount to a constitutional
violation," even though the fillers "haircuts diverged considerably");
Collins v. Scully, 878 F. Supp. 452, 457 n. 8 (E.D.N.Y. 1995) (lineup did
not violate due process although defendant was the only one with corn-row
hair); Wright v. Smith, 434 F. Supp. 339, 341-42 (W.D.N.Y. 1977) (lineup
not unduly suggestive where three of four fillers had "Afros or bush"
hairstyles while defendant and one filler had "a close-cut hair style").
7. The Totality of the Circumstances
As the Second Circuit has explained, "[w]hen the appearance of
participants in a lineup is not uniform with respect to a given
characteristic, the "principal question' in determining suggestiveness is
whether the appearance "of the accused, matching descriptions given by
the witness, so stood out from all of the other[s] . . . as to "suggest
to an identifying witness that [that person] was more likely to be the
culprit."'" United States v. Wong, 40 F.3d 1347, 1359-60 (2d Cir. 1994);
see also, e.g., United States v. Padilla, 94 CR. 313, 1994 WL 681812 at
*6 (S.D.N.Y. Dec. 5, 1994) ("Even if there are some physical
differences, a photo-array or line-up will not be suggestive so long as
the other pictures or stand-ins sufficiently resembled the defendant "to
allay any concern that the witness might have been unfairly influenced in
their selection of him by any of the noted physical differences between
him and the others.'"). While Abelard gave the police a description of
Roldan after the robbery (Wade Tr. 20-21), that description is nowhere in
the habeas record, so there is no evidence that Abelard was unduly
influenced by any differences in appearance between Roldan and the
fillers. Having viewed the lineup sheet and photograph (Correale Aff.
Ex. 13), this Court agrees with the state court decision that "[w]hile
the physical appearance of the fillers could have been closer, they were
not so dissimilar as to be unduly suggestive." (7/11/86 J. Fried Op. at
The Court notes that pursuant to the AEDPA, "[f]ederal habeas courts
reviewing state court determinations of factual matters must treat those
determinations as presumptively correct, unless those findings are `not
"fairly supported by the record.'" 28 U.S.C. § 2254(d). Petitioner
thus bears the burden of establishing by convincing evidence that the
factual determinations by the state court were erroneous." Taylor v.
Kuhlmann, 36 F. Supp.2d 534, 552 (E.D.N.Y. 1999). As in Taylor, "[t]his
court has reviewed the hearing testimony and photocopies of the lineup
introduced at the Wade hearing [Correale Aff. Ex. 13] and finds that the
state court's factual findings are fairly supported by the record and
that the [state] courts correctly concluded that the lineup composition
was not unduly suggestive." Id.; see also, e.g., Connolly v. Artuz, No.
93 CV 4470, 1995 WL 561343 at *5 (E.D.N.Y. Sept. 15, 1995); Collins v.
Scully, 878 F. Supp. 452, 457 (E.D.N.Y. 1995); Hartley v. Senkowski,
No. CV-90-0395, 1992 WL 58766 at *3-4 (E.D.N.Y. Mar. 18, 1992).*fn13
III. EVIDENCE OF UNCHARGED CRIMES WAS NOT SO PREJUDICIAL AS TO VIOLATE
It is well-established that a federal habeas court "is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68,
112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) ("We have stated many times
that "federal habeas corpus relief does not lie for errors of state
law.'") (quoting Lewis v. Jeffers, 497 U.S. 764
, 780, 110 S.Ct. 3092,
3102, 111 L.Ed.2d 606 (1990)); see also, e.g., Benitez v. Senkowski, 97
Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. &
Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5
(S.D.N.Y. April 29, 1998) (Cote, D.J. & Peck, M.J.); Simmons v. Ross,
965 F. Supp. 473, 480 (S.D.N.Y. 1997). "In general, rulings by the state
trial court on evidentiary questions are a matter of state law and pose
no constitutional issue." Roberts v. Scully, 875 F. Supp. 182
(S.D.N.Y. 1995), aff'd mem., 71 F.3d 406 (2d Cir. 1995); see also, e.g.,
Benitez v. Senkowski, 1998 WL 668079 at *4; James v. Senkowski, 1998 WL
217903 at *5; Simmons v. Ross, 965 F. Supp. at 480.
"Issues regarding the admissibility of evidence in state court concern
matters of state law and are not subject to federal review unless the
alleged errors are so prejudicial as to constitute fundamental
unfairness." McCray v. Artuz, 93 Civ. 5757, 1994 WL 603057 at *2 (S.D.N Y
Nov. 3, 1994); see also, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924-25
(2d Cir. 1988) ("erroneous evidentiary rulings do not automatically rise
to the level of constitutional error"; habeas courts must determine
whether inclusion of evidence was an error of constitutional dimension by
depriving petitioner of a fundamentally fair trial); Benitez v.
Senkowski, 1998 WL 668079 at *4; James v. Senkowski, 1998 WL 217903 at
*5; Watson v. Kelly, 91 Civ. 7925, 1996 WL 409198 at *3 (S.D.N.Y. July
A petitioner seeking habeas relief from an allegedly erroneous
evidentiary ruling bears the "heavy burden" of establishing that the
trial court's error constituted a deprivation of a constitutionally
recognized right such as the right to a fair trial. Roberts v. Scully,
875 F. Supp. at 189; accord, e.g., Benitez v. Senkowski, 1998 WL 668079
at *5; James v. Senkowski, 1998 WL 217903 at *5-6.
"[T]o determine whether a constitutional violation has occurred through
the erroneous admission of evidence, the petitioner must show that `the
erroneously admitted evidence, viewed objectively in light of the entire
record before the jury, was sufficiently material to provide the basis
for conviction or to remove a reasonable doubt that would have existed on
the record without it. In short it must have been "crucial, critical,
highly significant."'" Schurman v. Leonardo, 768 F. Supp. 993, 1001
(S.D.N.Y. 1991) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir.
1985)); accord, e.g., Benitez v. Senkowski, 1998 WL 668079 at *5; James
v. Senkowski, 1998 WL 217903 at *6.
Roldan argues that evidence of uncharged crimes — i.e., his
robbery of two other cab drivers — was improperly received at
trial. (Pet. ¶ 12(C).) A habeas claim asserting a right to relief on
Molineux grounds must rise to the level of constitutional violation, as
required by the above standard, because Molineux is a state law issue.
See, e.g., Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990); Butcher
v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985); Singh v. Madding, No.
C 97-4413, 1998 WL 422331 at *3 (N.D.Cal. July 22, 1998); Sadowski v.
McCormick, 785 F. Supp. 1417, 1419-20 (D.Mont. 1992), aff'd, 2 F.3d 1157
(9th Cir. 1993).
Evidence of uncharged crimes is generally inadmissable so that the jury
does not convict the defendant based on a perceived predisposition
towards criminal conduct that is deserving of punishment rather than for
guilt of the charged offense. E.g., People v. Molineux, 168 N.Y. 264,
291, 61 N.E. 286 (1901); see also, e.g., United States v. Gelzer,
50 F.3d 1133, 1139 (2d Cir. 1995); United States v. Concepcion,
983 F.2d 369, 392 (2d Cir. 1992), cert. denied, 510 U.S. 856, 114 S.Ct.
163, 126 L.Ed.2d 124 (1993); Rios v. Hoke, No. 85-CV-1241, 1988 WL 101013
at *3 (N.D.N.Y. Sept. 19, 1988); People v. Alvino, 71 N.Y.2d 233, 241,
525 N.Y.S.2d 7, 11, 519 N.E.2d 808 (1987); People v. Beam, 57 N.Y.2d 241,
250, 455 N.Y.S.2d 575, 579-80, 441 N.E.2d 1093 (1982); People v.
Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 264, 420 N.E.2d 59
(1981); People v. Allweiss, 48 N.Y.2d 40, 46-47, 421 N.Y.S.2d 341, 344,
396 N.E.2d 735 (1979); People v. Vails, 43 N.Y.2d 364, 368,
401 N.Y.S.2d 479, 481, 372 N.E.2d 320 (1977); People v. Condon,
26 N.Y.2d 139, 143, 309 N.Y.S.2d 152, 154, 257 N.E.2d 615 (1970).*fn14
"However, when the evidence of the other crimes is relevant to an issue
other than the defendant's criminal tendency, it may be admitted on the
basis of an exception to the general rule, but only for the limited
purpose for which it is relevant." People v. Beam, 57 N.Y.2d at 250, 455
N YS.2d at 579-80, 441 N.E.2d 1093; accord, e.g., People v. Alvino, 71 N
Y2d at 241-42, 525 N.Y.S.2d at 11, 519 N.E.2d 808; People v.
Ventimiglia, 52 N.Y.2d at 359-60, 438 N.Y.S.2d at 264, 420 N.E.2d 59;
People v. Allweiss, 48 N.Y.2d at 46-47, 421 N.Y.S.2d at 344,
396 N.E.2d 735; People v. Vails, 43 N.Y.2d at 368, 401 N.Y.S.2d at 482,
372 N.E.2d 320; People v. Condon, 26 N.Y.2d at 143, 309 N.Y.S.2d at 154,
257 N.E.2d 615; People v. Molineux, 168 N.Y. at 293, 61 N.E. 286.
"In People v. Molineux (supra), [the New York Court of Appeals] stated
what has come to be known as the five Molineux exceptions to the rule
forbidding introduction of evidence of similar crimes." People v. Beam,
57 N.Y.2d at 250, 455 N.Y.S.2d at 580, 441 N.E.2d 1093. The New York Court
of Appeals in Molineux held that "[g]enerally speaking, evidence of other
crimes is competent to prove the specific crime charged when it tends to
establish (1) motive; (2) intent; (3) the absence of mistake or
accident; (4) a common scheme or plan embracing the commission of two or
more crimes so related to each other that proof of one tends to establish
the others; (5) the identity of the person charged with the commission of
the crime on trial." People v. Molineux, 168 N.Y. at 293, 61 N.E. 286;
accord, e.g., People v. Alvino, 71 N.Y.2d at 242, 525 N.Y.S.2d at 11,
519 N.E.2d 808; People v. Ventimiglia, 52 N.Y.2d at 359, 438 N.Y.S.2d at
264, 420 N.E.2d 59; People v. Allweiss, 48 N.Y.2d at 47, 421 N.Y.S.2d at
344, 396 N.E.2d 735; People v. Vails, 43 N.Y.2d at 368, 401 N.Y.S.2d at
482, 372 N.E.2d 320; People v. Condon, 26 N.Y.2d at 143, 309 N.Y.S.2d at
155, 257 N.E.2d 615.
At the pretrial Molineux hearing in Roldan's case, the trial court
rejected the People's argument that evidence of the robberies should be
admissible based on the identity and common scheme or plan exceptions set
forth in Molineux, and its progeny, and held that the taxi drivers could
testify only that they saw the gun in Roldan's possession that night and
Roldan possessed that gun when arrested by the police. (Molineux Tr.
Roldan complains that Syoum implied that, not only had he seen Roldan
in possession of a gun, but also that Roldan had robbed him. (Pet.
¶ 12(C).) Syoum, however, never stated that he was robbed, testifying
only as follows:
Q: What is your occupation?
A: Yellow cab, medallion driver, part time.
Q: Mr. Syoum, I would like to call your attention to
the early morning hours of July 6th of 1985. I ask you
to tell the jury whether or not you see someone here
in the courtroom whom you also saw on that date at
approximately 3:45 a.m.?
A: I think he needs to take off his glasses.
Q: Do you see someone here?
A: That's him.
Q: Would you point him out again?
A: That's him. (pointing)
THE COURT: Indicating the defendant.
[PROSECUTOR]: Thank you.
Q: At the time you saw the defendant, Mr. Syoum, on
that morning, at that hour, did he have anything in
Q: What did he have?
A: He had a gun.
Q: What kind of a gun?
A: Small Beretta.
Q: Would you please look carefully at that exhibit
[People's Ex. 8], Mr. Syoum?
A: This is definitely it.
Q: Is there any doubt in your mind about that?
A: No doubt. No doubt.
Q: At the time when you saw that gun in the hand of
this defendant, Mr. Syoum, how long did you spend
looking at it, that is, the gun?
A: 20 seconds.
Q: Would you describe for the jury, just in general,
the lighting conditions, were you able to see
Q: Would you tell the jury approximately how close or
how far the gun was from where you were at the time
you saw it?
A: Very close.
Q: I'm sorry?
A: Very close.
(Tr. 150-52.) That was the extent of Syoum's direct testimony, and
defense counsel wisely chose not to cross-examine. (See Tr. 163.)
After Syoum's testimony, the trial court denied defense counsel's
motion for a mistrial (Tr. 153-61), but precluded Abelard from revealing
that he was a taxi driver (Tr. 159). Roldan argues, however, that since
this information was revealed in the prosecutor's opening statement, the
court's limiting instruction was insufficient. (Pet. ¶ 12(C).)
Additionally, Roldan argues that Abelard's testimony clearly communicated
to the jury that there had been yet another taxi driver robbery. (Pet.
¶ 12(C).) Abelard testified:
Q: Mr. Abelard, I ask you to think back to the early
morning hours of July the 6th, 1985.
Q: And to tell the jury, please, whether you see
anyone here in the courtroom this afternoon whom you
also saw at approximately 1:45 on that morning, July
A: Yes, on that day of July —
A: I saw a black gun —
Q: Mr. Abelard, my question is, do you see anyone in
the courtroom this afternoon whom you also saw on July
5th — withdrawn — July the 6th of 1985,
at approximately 1:45 in the morning?
A: Let me take a look.
A: No, I don't see him.
Q: Mr. Abelard, I have asked you to look carefully at
everyone in the courtroom and to tell the jury whether
you see anyone here now whom you also saw at
approximately 1:45 in the morning of July the 5th
— withdrawn — July the 6th of 1985? The
jury is awaiting your answer, sir.
A: I see somebody who looks like him.
Q: Looks like who?
A: Like the guy I saw.
Q: Looks like who?
A: The guy I saw on July 6th.
Q: Who is that, Mr. Abelard?
A: Can I point him out?
Q: Yes, you may.
A: It looks like that guy with the glasses, like the
man with the glasses.
Q: Like the man with the glasses?
Q: Is there anything different now, Mr. Abelard, about
that man's appearance?
A: The glasses.
. . . . [The court instructs that person, i.e.,
Roldan, to remove his glasses]
Q: Do you see anyone here now in the courtroom who you
saw on the morning of July 6th of 1985 at
approximately 1 o'clock in the morning?
Q: Who is it?
THE COURT: Indicating the defendant.
[PROSECUTOR]: Indicating the defendant.
Q: At the time you saw the defendant on that day,
sir, did the defendant have anything in his hands?
A: He had a gun in his hand.
Q: What kind of a gun?
A: It was a small black gun.
Q: I ask you to look at what has been received in
evidence as People's Exhibit 8. Do you recognize
A: Yes, I do.
Q: What do you recognize it to be?
A: By the shape, the color and the size.
Q: I'm sorry?
A: I recognize that gun by the shape, the color and
Q: Have you seen that gun before?
Q: When did you see it before?
A: In the lineup.
THE COURT: Sustained. The jury will disregard it.
Q: Is that the gun which you saw in this man's hand?
Q: When you saw the gun at that time, Mr. Abelard, how
long did you look at it?
A: About sixty seconds.
Q: What were the lighting conditions, just in
general, tell the jury what the lighting conditions
A: Good. In good condition.
Q: Were you able to see it clearly?
A: Very clear.
Q: And how close to you, or how far from you was the
weapon you saw at that time?
A: About one feet away.
(Tr. 227-32.) Again, Roldan's counsel did not cross-examine. (See Tr.
232.) Roldan's counsel did not renew his motion for a mistrial after
Abelard's testimony. (See Tr. 232-36.)
At most, these witnesses implied that Roldan robbed them.
Implications, however, do not generally amount to evidence and therefore
the taxi drivers' testimony was insufficient to constitute a ground for
habeas relief. See, e.g., United States v. Croft, 124 F.3d 1109, 1119
(9th Cir. 1997); United States v. Sullivan, 911 F.2d 2, 8 (7th Cir.
1990); Reid v. Lacey, 91 Civ. 5779, 1992 WL 162988 at *4 (S.D.N Y
1992); Olivo v. Henderson, 88 Civ. 4481, 1990 WL 129190 at *6 (S.D.N Y
Aug. 29, 1990).
Additionally, even if the testimony amounted to inadmissible evidence
of uncharged crimes, the trial court's prompt curative instructions to
the jury eliminated the risk of unfair prejudice. In response to Syoum's
testimony, the judge issued the following curative instructions:
Again, ladies and gentlemen, with respect to any
evidence concerning the possession of a particular gun
by the defendant on a date or at a time subsequent to
the time of the alleged crimes charged in the
indictment on trial here, I caution you that you are
not to consider any such evidence with respect to
whether this defendant has a general propensity to
commit crimes. That is, you are not to consider it
more likely that the defendant committed the crimes
charged in this indictment, if you find that he was
subsequently in possession of a gun or, indeed, that
that possession of that gun on that subsequent
occasion was even illegal or that it was used
illegally on any subsequent occasion.
I instruct you that you are to consider any
testimony concerning a subsequent possession of a gun
by the defendant, if you find that he subsequently
possessed that gun, along with any other evidence in
this case with respect thereto, solely and only as it
relates to the identification of the defendant as the
perpetrator of the crimes charged in this indictment
which is on trial. That is, if you find that the
defendant was, in fact, in subsequent possession of
this gun, you may consider this evidence solely and
only as it bears on the identification of the
defendant as the perpetrator of the crimes charged in
this indictment which were allegedly committed on July
6, 1985, at approximately 12:30 or 12:40 a.m.
involving Roscoe Cummings.
(Tr. 163-64, emphasis added.)
In response to Abelard's testimony, the trial judge once again issued
Members of the jury, I caution you once again, and
most strenuously, that with respect to any evidence
concerning the possession of a particular gun, as has
been marked in this case as People's Exhibit 8, by the
defendant on the date or a time subsequent to the time
of the alleged crimes charged in this indictment
before you, I caution you that you are not to consider
such evidence with respect to whether this defendant
has a general propensity to commit crimes; that is,
you are not to consider it more likely that the
defendant committed the crimes charged in this
indictment if you find that he was subsequently in
possession of the gun which has been marked People's 8
in Evidence, or indeed that the possession of that gun
on some subsequent occasion was even illegal, or that
it was used illegally on any subsequent occasion.
I instruct you that you are to consider any
testimony concerning a subsequent possession of a
gun, People's 8, by this defendant, along with any
other evidence in this case with respect thereto, that
is with respect to said gun, solely and only as it
relates to the identification of this defendant as the
perpetrator of the crimes charged in this indictment,
that is the one that is now on trial.
That is, if you find that this defendant was in fact
in subsequent possession of People's 8 in Evidence,
you may consider this evidence solely and only as it
bears on the identification of this defendant as the
perpetrator of the crimes allegedly [committed] on
6th of 1985, at approximately 12:30 or 12:45 A.M.
involving Roscoe Cummings, and for no other purpose.
(Tr. 232-34, emphasis added.)
And in his closing charge to the jury, the trial judge again reminded
them that they could use evidence that Roldan possessed a gun at other
times that night only for a limited purpose:
Members of the jury, I have allowed the People in
this case to introduce evidence that on another
occasion this defendant, Juan Roldan, was seen or
found in possession of a .25 caliber automatic
introduced in evidence as People's Exhibit 8. I
repeat, as I did each time such evidence was
admitted, that the fact that this defendant possessed
the gun, if you find that he did possess this gun, at
a time subsequent to the robbery and shooting of Mr.
Cummings is no proof whatsoever that he possessed a
propensity or disposition to commit the crimes charged
in this indictment or any other crime. It is not
offered for such purpose and must not be considered by
you for that purpose. Instead, the People offer such
evidence of the defendant's possession of People's
Exhibit 8 in evidence several hours after the robbery
and shooting of Mr. Cummings — I believe it was
one hour and three hours — solely for the
purpose of establishing the defendant's identity as
one of the perpetrators of the crimes charged in the
indictment on trial before you and solely as to the
contentions of the prosecution. I urge you that such
evidence can be considered by you only for such
limited purposes of identity and for none other.
The fact that I allowed you to hear such evidence
should not be considered by you that I have any
opinion as to the value to prove that purpose. The
sufficiency of such evidence to prove the purpose for
which it is offered is solely a question for the
jury. If you find it insufficient and of no value,
disregard it, forget it. If you find it sufficiently
probative of that purpose, you may give it such weight
as you believe it deserves. It will then be your duty
to consider such evidence, together with all the other
evidence in the case, in deciding whether the People
have proved the defendant's guilt beyond a reasonable
doubt of the crimes charged in the indictment now on
(Tr. 472-74.) Defense counsel did not take any exceptions to the charge.
"[T]he Court must presume that the jury is capable of understanding and
following limiting instructions provided during the course of and at the
conclusion of the trial with regard to the manner in which it may use
evidence." United States v. De Yian, 94 Cr. 719, 1995 WL 368445 at *11
(S.D.N.Y. June 21, 1995); see also, e.g., Zafiro v. United States,
506 U.S. 534, 540-41, 113 S.Ct. 933, 938-39, 122 L.Ed.2d 317 (1993);
Greer v. Miller, 483 U.S. 756, 767 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97
L.Ed.2d 618 (1987); Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct.
1702, 1708, 95 L.Ed.2d 176 (1987) ("with regard to inferential
incrimination the judge's instruction may well be successful in
dissuading the jury from entering into the path of inference in the first
place, so that there is no incrimination to forget"); Tennessee v.
Street, 471 U.S. 409, 415, 105 S.Ct. 2078, 2082, 85 L.Ed.2d 425 (1985);
Marshall v. Lonberger, 459 U.S. 422, 438, n. 6, 103 S.Ct. 843, 853, n.
6, 74 L.Ed.2d 646 (1983); Watkins v. Sowders, 449 U.S. 341, 347-48, 101
S.Ct. 654, 658-59, 66 L.Ed.2d 549 (1981); Delli Paoli v. United States,
352 U.S. 232, 242, 77 S.Ct. 294, 300, 1 L.Ed.2d 278 (1957) ("Unless we
proceed on the basis that the jury will follow the court's instructions
where those instructions are clear and the circumstances are such that
the jury can reasonably be expected to follow them, the jury system makes
little sense."); United States v. Romero, 54 F.3d 56, 60 (2d Cir. 1995),
cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 568 (1996);
United States v. Coffey, 823 F.2d 25, 28 (2d Cir. 1987) ("These prompt
sufficed to eliminate any unfair prejudice that might have resulted from
a fact being placed unfairly before the jury."); United States v. Pena,
793 F.2d 486, 491 (2d Cir. 1986); United States v. Ebner, 782 F.2d 1120,
1126 (2d. Cir. 1986) ("Such limiting instructions are "`an accepted part
of our present trial system,'" . . . and consequently there is a
`presumption that juries will follow [them].'"); United States v.
Bernard, No. 3:97CR48, 1998 WL 241205 at *7 (D.Conn. April 2, 1998); Aziz
v. Warden of Clinton Correctional Facility, 92 Civ. 0104, 1992 WL 249888
at *8 (S.D.N.Y. Sept. 23, 1992), aff'd, 993 F.2d 1533 (2d Cir.), cert.
denied, 510 U.S. 888, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993); Travison v.
Jones, 522 F. Supp. 666, 669-70 (N.D.N.Y. 1981) ("In view of this clear
and unqualified instruction, it is difficult to accept the contention
that petitioner was deprived of a fair trial in violation of federal
constitutional rights. The premise upon which our jury system is founded
is that a jury accepts and follows clear instructions of the trial
Taking the record as a whole, the trial court's limiting instructions
cured any prejudicial effect the testimony may have had. See, e.g.,
Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *6 (S.D.N.Y. Sept.
17, 1998) (Cote, D.J. & Peck, M.J.) ("Moreover, taking the record as a
whole, the trial court's limiting instruction and jury charge cured any
prejudicial effect the testimony may have had."); Harris v. Hollins, 97
Civ. 4376, 1997 WL 633440 at *3 (S.D.N.Y. Oct. 14, 1997) ("the court's
curative instruction ameliorated any prejudicial effect the testimony may
have had"); Aziz v. Warden of Clinton Correctional Facility, 1992 WL
249888 at *8 ("`any prejudice to defendant which may have been occasioned
by the witness' remark was rendered harmless by the court's curative
instructions'"); Angulo v. Kelly, 91 Civ. 1707, 1992 WL 110765 at *3
(S.D.N.Y. May 4, 1992) ("The trial court also instructed the jury to
disregard several of these statements, thus, eliminating any possible
prejudice to the defendant.").*fn16
Furthermore, while Leslie has asserted that Green failed to present the
defense's ballistics case meaningfully or to cross-examine Cotter
effectively, the transcript reveals that Green was essentially successful
at establishing the inconclusive nature of the ballistics evidence and
the experts' unwillingness to opine that the cartridge indentation at
issue was necessarily caused by the firing pin of the gun recovered from
the scene. Leslie has failed to indicate anything that a properly
licensed representative could have done that would have meaningfully
changed this bottom line, or that would have made a difference in the
mind of the jury during its deliberations.
Had Green been Leslie's sole representative, it would of course make
little difference whether Green's performance at trial was competent.
Under the rationale of Solina, after all, even representation by an
imposter with the skills of Clarence Darrow requires reversal.
As explained above, however, White's primary involvement throughout
Leslie's trial militates against an application of the per se rules set
forth in Novak and Solina. and the Strickland inquiry is highly
deferential. The record is therefore properly scrutinized to determine
whether the representation provided was sufficiently competent to avoid
reversal. Insofar as Leslie's representation is concerned, it was.
As far as Leslie's other ineffective assistance grievances are
concerned, most of which concern alleged deprivations addressed and
rejected in the instant opinion, the Strickland test's requirements have
also not been met. These contentions are without merit.
For the reasons set forth above, Leslie's petition for relief pursuant
to 28 U.S.C. § 2254 is hereby dismissed.
The petitioner having made a substantial showing of a denial of a
federal right, a certificate of appealability shall issue, pursuant to
28 U.S.C. § 2253, on the limited question of whether the nature of
Green's representation violated Leslie's Sixth Amendment rights.
It is so ordered.