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BREWER v. PORTUONDO

July 28, 2003

RODNEY BREWER (96-A-6390), PETITIONER,
v.
LEONARD A. PORTUONDO, SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.

MEMORANDUM, JUDGMENT & ORDER

Petitioner is a state prisoner, convicted in New York and seeking habeas corpus relief from this federal court.

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was tried in a single trial for two separate burglaries. Evidence was presented at trial that an intruder entered the living room of Khadija White's Brooklyn apartment through a window. White was sitting alone in the room watching television at the time. When she saw the intruder she screamed. The intruder fled and White called 911. She described the intruder as slim, wearing black shorts and black vest over bare skin, with a hat on backwards.

About ten minutes later police officers arrived at her apartment and then drove her around the neighborhood looking for the intruder. The police officers received a call over their radio and proceeded to a location where an individual, who appeared to be under arrest, was being held by police. The individual was wearing the same clothes that he had been wearing in White's apartment. White identified the man-who was petitioner-as the intruder.

Petitioner had in his possession a bag of jewelry, none of which belonged to White. Also in the bag was a personalized telephone book and a jewelry box. Later in the day a woman, Muriel Silver, came to the precinct house because there had been a burglary at her home. She was shown the items confiscated from petitioner and identified them as her own. Silver stated that she had seen two men acting suspiciously that morning, but when she viewed a lineup that included petitioner she could not identify him as one of the men she had seen. Her property was returned to her without being vouchered by police.

The defense called no witnesses. Petitioner's counsel argued that White's identification was problematic because she was surprised and had seen petitioner for only a few moments. Counsel also argued that he had never been identified by Silver, that he had none of White's property in his possession, and that no fingerprint evidence was entered into evidence against him

Petitioner was found guilty of second degree burglary relating to the White incident and fifth degree criminal possession of stolen property with respect to the Silver incident. He was acquitted of second degree burglary and petit larceny with respect to the Silver incident.

The conviction was affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.

Petitioner filed an application for a writ of error coram nobis, arguing to the Appellate Division that his appellate counsel was ineffective for failing to raise a suggestive-identification claim. The application was denied. No further state collateral proceedings were initiated.

In the instant application for a writ of habeas corpus, petitioner claims (1) that the trial court abused its discretion by failing to grant his motion for severance and allow separate trials for the White and Silver incident; (2) that his conviction was based on an identification that was unduly suggestive and unreliable; and (3) that appellate counsel was ineffective for failing to raised the suggestiveness claim.

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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 ...


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