The opinion of the court was delivered by: Marrero, District Judge.
Pro se petitioner Ellis Douglas ("Douglas"), incarcerated at
New York State's Shawangunk Correctional Facility, seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that
his state court convictions violated his due process rights
because they relied on unduly suggestive identification
procedures and because the underlying evidence was insufficient.
The Bronx County District Attorney's Office filed an opposition
on behalf of respondent Leonard Portuondo, the Superintendent of
Shawangunk Correctional Facility. For the reasons set forth
below, Douglas's petition is DENIED.
On June 29, 1995 at approximately 10:00 A.M., a man hailed a
taxi-cab driven by Aliyu Usman ("Usman") in the Bronx, New
York.*fn1 At the conclusion of a one to
five minute cab ride, the passenger directed Usman to stop the
cab in the area of 170th Street, 171st Street, and Park Avenue
in the Bronx. Then, while still inside the cab, the passenger
pointed a silver handgun at Usman and demanded money. Usman gave
the man twenty-five dollars, which was all the money he had. The
man exited the cab, and Usman saw him walk toward nearby
Usman continued driving and pulled over between Park Avenue
and Washington Avenue when he saw a police van. He told the
officers he had been robbed two minutes earlier. He described
the assailant as a black male, between 20 and 21 years old, with
a moustache, braided shoulder length hair, wearing a black hat,
and carrying a silver handgun. The officers in the van relayed
this description over the police radio. Various other officers
responded to the area and began a canvass.
Moments later, on nearby 171st Street by Third Avenue,
officers Guillermo Baez ("Baez") and Theodore Stefatos
("Stefatos") observed a man on foot from their marked police
car. They noticed that he matched the description relayed over
their radio and that he was holding something wrapped in what
appeared to be a black cloth. As the officers drove near the
man, he began walking faster, and when they directed him to
stop, the man turned and, from a distance of four feet, pointed
a silver handgun at the torso of Officer Stefatos, who was
driving the police car. The man assumed what the officers
described as a "combat stance," with one hand in a fist holding
the gun, supported by his other hand. Stefatos shouted "gun" and
floored the accelerator to position the police car behind a
nearby parked van. The man fired two shots at the officers, and
a bullet fragment was recovered from the van. The officers
radioed for assistance and that shots had been fired.
A witness, Alexandria Armstrong ("Armstrong"), who was on her
way to work saw the man shoot at the police car and then enter
an apartment building located nearby at 1480 Washington Avenue.
Another witness, Carmen Perez, who lived in this building, heard
gunshots and was in the process of unlocking the front entrance
to go inside when a man with neck length dreadlocks approached
her from behind. Noticing a gun, she gave him her keys and ran
away. These keys were later found in the front door lock of that
building. According to a third witness, Jenny Santiago
("Santiago"), Douglas, whom she knew as a friend of her son,
Anthony, knocked on her apartment door and Anthony let him in.
Santiago testified that she observed. Douglas enter her
bathroom, and later, she noticed that there was hair in her
bathroom sink. She further noticed that her hairbrush and her
husband's scissors had been moved to the sink from their usual
location atop the toilet tank. Also found in Santiago's
apartment were a hat that did not belong to anyone in Santiago's
family, as well as a silver handgun that, according to ballistic
testing, was operable, presented signs of having been
discharged, and resembled, though did not conclusively match,
the markings on the bullet fragment recovered from the van
behind which Officers Stefatos and Baez had taken cover.
Following his arrest, Douglas appeared in a lineup with five
other individuals, none of whom had dreadlocks, and was
identified by Usman and Armstrong as the perpetrator, as well as
by a third witness, Sabrina Bailey. Additionally, Usman was
shown the silver gun and hat recovered by police and recognized
them as belonging to Douglas.
Following a pretrial hearing pursuant to United States v.
Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (the
"Wade hearing"), the state hearing court determined that the
lineup identification procedure was not unduly suggestive. That
court determined that: the other participants in the lineup
looked reasonably similar to Douglas; nothing about the lineup
or police activity surrounding it indicated to the witnesses
that they should choose Douglas over anyone else or otherwise
directed their attention to him; and that the police did not
allow the witnesses to observe Douglas alone or in any other
suggestive setting. The court conducting the Wade hearing
found significant the fact that, in the face of the witness'
identifying Douglas, none of the participants, including
Douglas, had dreadlocks, those being arguably his most prominent
feature before he removed them.
At trial on May 8, 1997, Douglas was found guilty by a jury of
two counts of attempted murder in the first degree and one count
of robbery in the first degree. Douglas was sentenced to two
concurrent twenty years to life terms of imprisonment for the
attempted murder counts and a fifteen years to life consecutive
term for the robbery. Tho Appollato Division, First Department
affirmed Douglas's convictions on June 6, 2000, see People v.
Douglas, 273 A.D.2d 24, 709 N.Y.S.2d 527 (1st Dep't 2000), and
the New York Court of Appeals denied him leave to appeal from
that decision on September 25, 2000. See People v. Douglas,
95 N.Y.2d 889, 715 N.Y.S.2d 381, 738 N.E.2d 785 (2000).
Douglas's petition is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254.
The AEDPA provides in relevant part that
[a]n application for a writ of habeas corpus on
behalf of a person in custody pursuant to a 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 . . . 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. . . .
28 U.S.C. § 2254(d)(1). "The AEDPA `placed a new constraint on
the power of a federal habeas court to grant a state prisoner's
application for a writ of habeas corpus,' but only `with respect
to claims adjudicated on the merits in state court.'" Jenkins
v. Artuz, 294 F.3d 284, 291 (2nd Cir. 2002) (quoting Williams
v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000)). Otherwise, the pre-AEDPA de novo standard of review
applies. Washington v. Schriver, 255 F.3d 45, 55 (2nd Cir.
2001). Therefore, as a threshold matter, the Court must
determine whether Douglas's claims were adjudicated "on the
merits" by the state Appellate Division.
"`Adjudicated on the merits' has a well settled meaning: a
decision finally resolving the parties' claims . . . that is
based on the substance of the claim advanced, rather than on a
procedural, or other, ground." Sellan v. Kuhlman,
261 F.3d 303, 311 (2nd ...