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July 8, 2003


The opinion of the court was delivered by: John Martin, United States District Judge


Lamont Walker, who was convicted in the New York State Supreme Court, New York County, on charges of Murder in the Second Degree and Manslaughter in the First Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.

Before turning to Petitioner's specific claims, it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254:

(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 proceeding.
See generally Williams v. Taylor, 120 S.Ct. 1495, 529 U.S. 362 (2000).

None of the claims asserted by the Petitioner meet this standard.

Petitioner's principal claim is that the testimony of an eyewitness who was present at the time of the shooting should have been suppressed because it was the product of a suggestive identification procedure. The standard for determining such a claim was set forth by the Second Circuit in Raheem v. Kelly, 257 F.3d 122, 133 (2001);

When the defendant objects to identification testimony to be given by a witness who has identified him prior to trial, a sequential inquiry is required in order to determine whether either the prior identification or an in-court identification of the defendant at trial is admissible. The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. See Part II.A.1. below. If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility, see, e.g., Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986); no further inquiry by the court is required, and "[t]he reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury," Foster v. California, 394 U.S. 440, 442 n. 2, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). If the court finds, however, that the procedures were suggestive, it must then determine whether the identification was nonetheless independently reliable. See Part II.A.2. below. In sum, the identification evidence will be admissible if (a) the procedures were not suggestive or (b) the identification has independent reliability. See, e.g., Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243; Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Salameh, 152 F.3d 88, 126 (2d Cir. 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 885, 142 L.Ed.2d 785 (1999).
In this case, the Court conducted a hearing at which the witness and police officers testified. At the conclusion of the hearing, the Court found that there was nothing inappropriate in the fact that the police had placed the witness in a surveillance van and brought him to the neighborhood to look for Petitioner who the witness had recognized at the time of the shooting from having seen him on several prior occasions. The Court also found that "the lineup was appropriate in its conduct and composition. And the identifications need not be suppressed on the ground that they were unreasonably suggestive." (Hearing Tr. at 779).

There is no basis in the state court record that would support a finding that these conclusions of the state judge constituted "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Even if this Court was to agree with Petitioner that the identification procedures were suggestive, the petition would still have to be denied because as the Appellate Division noted in affirming Petitioner's conviction, "the identification was nonetheless independently reliable." Raheem v. Kelly, supra at 133. Here, the witness had seen Petitioner on approximately five prior occasions, on one of which the witness was told by a friend to watch out for Petitioner because he was a person who robbed drug dealers such as the witness.

In sum, there is no basis to disregard the findings of the state courts that there were no unduly suggestive identification procedures or that the witness' identification of Petitioner was not based on his prior familiarity with Petitioner.

Petitioner's remaining claims relate to two evidentiary rulings of the trial judge; one precluding the testimony of Petitioner's mother and the other permitting rebuttal testimony by Petitioner's probation officer.

In Washington v. Schriver, 255 F.3d 45 (2nd Cir. 2001), the Second Circuit set forth the test for determining whether an evidentiary ruling rises to the level of a constitutional violation:

`[W]hether the exclusion of [witnesses'] testimony violated [defendant's] right to present a defense depends upon whether "the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist." In a close case, "additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." On habeas review, trial errors are subject to lenient harmless error review. The creation of otherwise non-existent reasonable doubt satisfies the "substantial and injurious" standard [of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)]. Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (alterations in the original) (citations omitted); see also Agard, 117 F.3d at 705 (same).'
Not only were the evidentiary rulings of the trial judge well within his discretion, but even if erroneous, the errors were harmless at best.

For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperies; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 48, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the ...

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