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March 5, 2003


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


Pro se petitioner Manuel Valtin ("Valtin"), incarcerated at New York State's Mid-State Correctional Facility, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that his state court conviction for Robbery in the Second Degree violated his rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution because: (a) his conviction was against the weight of the evidence, (b) the trial court's refusal to deliver a consciousness of guilt charge to the jury deprived him of a fair trial, (c) the police did not have reasonable cause to stop him while he was walking on the street, and (d) the show-up procedure used to identify him as the assailant was unduly suggestive. The State of New York (the "State") filed an opposition on behalf of respondent M.L. Hollins, who was the Superintendent of Mohawk Correctional Facility, where Valtin was incarcerated when he first filed his habeas petition. For the reasons set forth below, Valtin's petition is denied.


On November 10, 1999, Valtin was convicted by a jury in Supreme Court, New York County, of Robbery in the Second Degree (New York Penal Law § 160.10[2] [a]). Valtin was sentenced as a predicate felon to a prison term of eight years.

The evidence presented at Valtin's trial (the "Trial") convinced the jury that around 12:30am on February 26, 1999, Valtin attacked and robbed Farhad Farmian ("Farmian") as Farmian walked home from work on Lafayette Street in Manhattan on a cold and wet winter evening. As described by Farmian, Valtin jumped out from behind a parked car and punched Farmian in the mouth, knocking him down and cutting his lip. Hitting the ground caused a cheap pen Farmian was carrying in his pocket to fall out, and also popped open the clasp on his Rolex watch, which then fell off his wrist to the ground.

Farmian immediately took a cab back to his nearby apartment and contacted the police. A few minutes later, police officers Thomas McGillicuddy ("McGillicuddy") and Vincent Ballesteri ("Ballesteri"), two plain-clothes officers who were patrolling in an unmarked van, heard a police radio alert about the incident and quickly discovered Valtin walking alone a few blocks from the scene of the crime. The officers followed Valtin, watched him remove a camouflage jacket he was wearing over his clothing and then saw him take off a gray zippered sweater he was wearing underneath the jacket. Carrying the gray sweater in his hand, Valtin continued walking and entered a local bodega, where he purchased some snack food and then discarded the sweater in a trash can.

After retrieving the sweater from the trash, the officers arrested Valtin and notified the police dispatcher, who contacted two uniformed officers, Harry Hernandez and John Paone ("Paone"), who were interviewing Farmian at his nearby apartment. Farmian was quickly brought to the scene, where he identified Valtin — who was not handcuffed and was surrounded by several plain-clothes officers — from a distance of approximately 11 to 20 feet in a procedure known as a "show-up identification" (the "Show-up"). Farmian also identified the discarded sweater as the clothing item Valtin had been wearing when he robbed Farmian.

Valtin alleges several constitutional violations occurred during the Trial. First, Valtin contends that his conviction was not supported by legally sufficient evidence. Second, Valtin argues he was deprived of a fair trial when the trial court denied his request to charge the jury that the proof that he discarded the sweater amounted at most to consciousness of guilt evidence with slight or no evidentiary value. Third, Valtin claims that the police did not have reasonable cause to stop him and, by doing so, they violated his Fourth Amendment Right to be free from unreasonable search and seizure. Finally, Valtin alleges that the Show-up was inadmissable because it was unduly suggestive and there were no exigent circumstances that justified its use.

After his conviction, Valtin appealed to the New York Supreme Court, Appellate Division, which affirmed Valtin's conviction. See People v. Valtin, 728 N.Y.S.2d 435 (App. Div. 1st Dept. 2001). On October 3, 2001, the New York State Court of Appeals denied Valtin's application for leave to appeal. See People v. Valtin, 735 N.Y.S.2d 500 (N.Y. 2001). Valtin filed a habeas petition with this Court on February 4, 2002.



Valtin's petition is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001). Under AEDPA, a federal court may not grant a writ of habeas corpus with respect to any claim that was "adjudicated on the merits" in the state court unless the state court decision is either contrary to clearly established federal law or involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254 (d); Morris, 264 F.3d at 46 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Moreover, the state court's application of clearly established federal law must be objectively unreasonable, not merely erroneous. See Williams, 529 U.S. at 387 n. 14.

In the instant case, the claims Valtin raises in his petition were adjudicated on the merits in the State proceedings. See Valtin, 728 N.Y.S.2d at 435 (finding Valtin's conviction to be based on legally sufficient evidence and not materially affected by trial court's refusal to deliver consciousness of guilt instruction). Thus, this Court is constrained under ยง 2254(d) to give due deference to the State court's final decision unless ...

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