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DOUGLAS v. PORTUONDO

November 6, 2002

ELLIS DOUGLAS, PETITIONER,
V.
LEONARD A. PORTUONDO, RESPONDENT.



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

  DECISION AND ORDER

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.

I. BACKGROUND

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).

II. DISCUSSION

A. STANDARD OF REVIEW

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 ...


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