United States District Court, E.D. New York
January 28, 2004.
MICHAEL JONES, a/k/a MICHAEL JEFFERIES, Petitioner, -against- THOMAS RICKS, Superintendent, Upstate Correctional Facility, Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Petitioner Michael Jones, an inmate at the Clinton Correctional
Facility,*fn1 seeks habeas corpus relief from a judgment of conviction
entered after a jury trial in state court. I held
oral argument by telephone conference on January 23, 2004. For the
reasons set forth below, the petition is denied,
At around 12:55 a.m. on February 12, 1998, 17-year-old Sharita Dunn and
her 27-year-old friend, Lyndell McDuffie, were waiting for the bus on the
corner of St. John's Place and Buffalo Avenue in the Crown Heights
section of Brooklyn. As they waited, Jones approached them with his right
hand in his pocket, looked at Dunn, and told them to give him all of
their money and jewelry. The women gave Jones their jewelry and some of
their money. Jones then pulled the butt of a gun out of his waistband and
told the women to give him more or else he would shoot them. The women
gave him the rest of their money, at which point Jones walked away. Dunn
immediately called the police from a nearby payphone. Later that morning,
Dunn and McDuffie identified Jones from photo arrays, in a procedure that
is a subject of this petition. Nine days later, Dunn identified Jones in
a lineup (a photograph of which is attached to respondent's opposition
memorandum) that was indisputably fair.
Jones was charged with two counts each of robbery in the first degree,
robbery in the third degree, grand larceny in the fourth degree, petit
larceny, and menacing in the second degree. He was convicted by a jury of
two counts of robbery in the first degree and sentenced, as a second
felony offender, to two concurrent terms of imprisonment of 15 years.
Jones appealed his judgment of conviction to the Appellate Division,
Second Department, claiming that a substantial portion of the
identification evidence at his trial should not have been admitted
because the government had failed to show that the pretrial
procedures used by the police were free from taint. On May 29, 2001, the
Appellate Division unanimously affirmed Jones's judgment of conviction,
Contrary to the defendant's contention, the hearing
court properly denied that branch of his omnibus
motion which was to suppress identification
testimony. The lineup at which the defendant was
identified was sufficiently attenuated in time from
the prior photographic identification procedure to
nullify any possible taint resulting from the
People v. Jones, 725 N.Y.S.2d 877 (2d Dep't 2001). Jones sought leave to
appeal the Appellate Decision's decision to the New York Court of
Appeals, which was denied on August 17, 2001. People v. Jones, 96 N.Y.2d 920
(2001) (Levine, J.). Jones now petitions for a writ of habeas corpus on
the grounds that (1) he was arrested without probable cause, (2) the
identification procedures used by the police were unduly suggestive, and
(3) the government violated Brady v. Maryland, 373 U.S. 83
it failed to preserve and turn over the photo array in which Jones was
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has
narrowed the scope of federal habeas review of state convictions where
the state court has adjudicated a petitioner's federal claim on the
merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies
to habeas petitions filed after AEDPA's enactment in 1996, the reviewing
court may grant habeas relief only if the state court's decision "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 Supreme Court has
interpreted the phrase "clearly established Federal law" to mean "the
holdings, as opposed to the dicta, of [the Supreme Court's] decisions as
of the time of the relevant state-court decision." Williams v. Taylor,
529 U.S. 362, 412 (2000): see also Gilchrist v. O'Keefe, 260 F.3d 87, 93
(2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as
determined by the Supreme Court, if "the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts." Williams, 529
U.S. at 413. A decision is an "unreasonable application" of clearly
established Supreme Court law if a state court "identifies the correct
governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of [a] prisoner's case."
Id. "In other words, a federal court may grant relief when a state court
has misapplied a `governing legal principle' to `a set of facts different
from those of the case in which the principle was announced.'" Wiggins
v. Smith, 123 S. Ct 2527, 2535 (2003) (quoting Lockyer v. Andrade,
538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).
Under the latter standard, "a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at
411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam)
("Where . . . the state court's application of governing federal law is
challenged, it must be shown to be not only erroneous, but objectively
unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting
Second Circuit has added that although "[s]ome increment of incorrectness
beyond error is required . . . the increment need not be great;
otherwise, habeas relief would be limited to state court decisions so far
off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at
93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has
adjudicated the federal claim on the merits, regardless of whether it has
alluded to federal law in its decision. As the Second Circuit stated in
Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision
on the federal claim even if the state court does
not explicitly refer to either the federal claim or to
relevant federal case law.
261 F.3d 303
, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is
presumed to be correct, and is unreasonable only where the petitioner
meets the burden of "rebutting the presumption of correctness by clear
and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas,
deference does not imply abandonment or abdication of
judicial review. . . . A federal court can disagree
with a state court's credibility determination and,
when guided by AEDPA, conclude the decision was
unreasonable or that the factual premise was incorrect
by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154
, 161 (2d Cir. 2003) (ellipsis in original)
(quoting Miller-El v. Cockrell, 537 U.S. 322
, 123 S.Ct. 1029
B. Jones's Claims
1. Arrested Without Probable Cause
Jones appears to argue that because the photo array was unduly
suggestive, the police did not have probable cause to arrest him.
However, Fourth Amendment claims cannot be raised on habeas review.
Federal habeas review of such claims is governed by the Supreme Court's
decision in Stone v. Powell, 428 U.S. 465 (1976). As the Court stated:
"[W]here the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not require
that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial." Id., at 482. The Second Circuit has held
that Fourth Amendment claims in habeas petitions are re viewable only if
(1) the state has provided no corrective procedures at all to redress the
alleged Fourth Amendment violation, or (2) the state has provided a
corrective mechanism, but the defendant was precluded from using that
mechanism because of an unconscionable breakdown in the underlying
process. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Gates v.
Henderson, 568 F.2d 830, 840 (2d Cir. 1977). New York has a
well-established procedure for the resolution of claims of illegal
arrest. See N.Y. Crim. Proc. Law § 710.20. There is no indication, and
Jones does not contend, that he was precluded from using that mechanism
in the state court. Accordingly, he may not obtain habeas relief on his
Fourth Amendment claim.
2. The Identification
Jones claims that the photo array in which he was identified by both
victims was impermissibly suggestive. However, in a second claim
which is in some tension with his
"unduly suggestive" claim Jones contends that he was not able to review
the photo array because it was neither preserved nor turned over by the
government. After a Wade/Dunaway hearing, the hearing court concluded
that the identification was fair and not suggestive. (Hr'g Tr. at 51.)
The court further held that "[o]nce the identification was made, there
was probable cause and the subsequent lineup was fair. Accordingly, the
Wade and Dunaway are denied." (Id. at 51-52.)*fn2
Due process requires that criminal trials "proceed consistently with
`that fundamental fairness' which is `essential to the very concept of
justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting
Lisenba v. California, 314 U.S. 219, 236 (1941)). "When the prosecution
offers testimony from an eyewitness to identify the defendant as a
perpetrator of the offense, fundamental fairness requires that that
identification testimony be reliable." Raheem v. Kelly, 257 F.3d 122, 133
(2d Cir. 2001). When a witness has made a pretrial identification, a
challenge to that identification and to an in-court identification of the
defendant at trial triggers "a one-step or two-step inquiry." United
States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990); see also,
e.g., Raheem, 257 F.3d at 133. The first step is to determine whether the
pretrial identification procedures were unnecessarily suggestive. See,
e.g., Id. If they were not, the challenge is denied, and the reliability
of the identification is a question only for the jury. See, e.g., id.
(citing Foster v. California, 394 U.S. 440, 442 n.2 (1969)); Jarrett v.
Headley, 802 F.2d 34, 42 (2d Cir. 1986). If the procedures were
unnecessarily suggestive, the
second step is to determine whether the identification testimony is
nevertheless admissible because it is "independently reliable rather than
the product of the earlier suggestive procedures." Maldonado-Rivera, 922
F.2d at 973; see also Raheem, 257 F.3d at 133. "In sum, the identification
evidence will be admissible if (a) the procedures were not suggestive or
(b) the identification has independent reliability." Id.
Furthermore, the Second Circuit has held that
[t]he defendant's protection against suggestive
identification procedures encompasses not only the
right to avoid methods that suggest the initial
identification, but as well the right to avoid having
suggestive methods transform a selection that was only
tentative into one that is positively certain. While a
witness is entitled to become surer of an
identification, due process precludes the generation
of that increased certainty through a suggestive
Id. at 135 (citations omitted).
"The fairness of a photographic array depends on a number of factors,
including the size of the array, the manner of presentation by the
officers, and the array's contents." Maldonado-Rivera, 922 F.2d at 974.
The defendant's photograph should not be the only one in the array that
matches the witness's description of the suspect. Id. "One would think
that if a suspect is described only in terms of one characteristic, the
filler photos in an array would also portray people having that
characteristic." United States v. Eltayib, 88 F.3d 157, 166 (2d Cir.
1996) (witness described suspect as having full head of bushy hair; all
photos but that of suspect had hair cropped out); see also United States
v. Fernandez, 456 F.2d 638, 641-42 (2d Cir. 1972) (array impermissibly
suggestive where surveillance photos depicted light-skinned male with
"Afro" and defendant's photo was only one of six in array that "remotely
description). But see United States v. Mickens, 926 F.2d 1323, 1329 (2d
Cir. 1991) (fact that defendant's picture was the only photocopy in the
array is "insignificant").*fn3
At the Wade/Dunaway hearing, Detective Franklin, who, as investigating
officer, oversaw the photo array identification, described the
identification in this case as follows:
The office is approximately 15 feet by 20 feet.
Inside of the office is [sic] approximately seven
desks. The computer is in the office. It is in the
corner as you enter the office, the far left corner.
The computer is facing the wall. There is only space
for one chair between the wall and the computer. I
come in the office, will put the statistics in the
computer. It conies out with so many photos; over a
hundred pages. I start the photos off and I place one
of the complainants, because there is only room for
one person the way the table is set, there is only
room for one person, I place one of the persons by the
computer and they [sic: she] work the computer,
because all they have to do is click the mouse, and
they work and go through the pages.
The other complainant is sitting in the room but
the screen of the computer is not visible to them
[sic: her] and it's also not visible to me.
One of the complainants identified that person
who she believed robber her was on the screen.
At that time, that six [i.e., the six-photo
array from which the identification was made]
stays on that screen. I move her out of the chair
and then I move the second complainant into the
chair to view the six photos on the screen.
She agreed on the same photo. She did not see it
prior to me putting it in. She picked the same
At that point, then, I get the pertinent information
and I attempt to apprehend this person.
(Hr'g Tr. at 69-70.) The statistics that Franklin entered into the
program (which the officers call the "force field") were based on the
description given to him by Dunn and McDuffie: "male, bla[c]k, five foot
eight, 160 pounds." (Id. at 9-10.) The first complainant to view photo
arrays Franklin does not remember which that was (id. at 10) spent
about 15 or 20 minutes
viewing over 30 pages of six photos per page, for a total of over
180 photos, before identifying Jones. (Id. at 13, 34-36.)
I cannot conclude that the hearing court was unreasonable in holding
that the photo array procedure was not unduly suggestive. One complainant
viewed over 180 photos before identifying Jones. The other, though she
had heard her friend identify a picture to Franklin, did not see that
picture or have any other means of identifying it prior to viewing the six
photographs on the screen. Furthermore, the statistics Franklin entered
into the "force field" program male, black, 5'8", 160 pounds ensured
that the persons pictured in the photos were of similar gender, race, and
build. Indeed, Jones's picture only came up because the program
functioned as it was supposed to. Also, Franklin testified at the hearing
that the photos were all of black males, though he could not determine
their height or weight. (Id. at 12.) Therefore, this claim does not
justify issuance of the writ.*fn4
3. The Brady Claim
In a criminal prosecution, the government has a constitutional
obligation to disclose material exculpatory evidence to the defendant.
See Giglio v. United States,
405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83 (1967).
Exculpatory evidence is material "if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different." Strickler v. Greene, 527 U.S. 263,
280 (1999) (quotation marks omitted). Furthermore, to merit relief, the
nondisclosure must "undermine confidence in the outcome of the trial."
Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quotation marks omitted). For
purposes of the government's responsibilities under Brady, the Supreme
Court draws no distinction between impeachment evidence and exculpatory
evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985)
("Impeachment evidence, however, as well as exculpatory evidence, falls
within the Brady rule. Such evidence is `evidence favorable to an
accused,' so that, if disclosed and used effectively, it may make the
difference between conviction and acquittal." (citations omitted)
(quoting Brady, 373 U.S. at 87)). The "individual prosecutor has a duty
to learn of any favorable evidence known to others acting on the
government's behalf in the case, including the police." Kyles, 514 U.S.
at 437; see also Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (assuming
that state protective-service agency files could be Brady material).
Several factors militate against granting habeas relief to Jones. The
first is the apparent good faith of the government. See Arizona v.
Youngblood, 488 U.S. 51, 57-58 (1988); United States v. Miranda,
526 F.2d 1319, 1324 (2d Cir. 1975). It knew of the photo array viewed by
the two complainants and disclosed its existence to Jones, but it was
unable to produce the array due to limitations in the "force field"
program. As Franklin testified: "When the photos come up, however many
number of photos come up in a screen of six, you cannot print the
screen of six, and you cannot reproduce the order that they came. So if I
did it a different time, that same six would not come." (See Hr'g Tr. at
Second, one of the complainants who identified Jones at trial had first
identified him in an indisputably fair manner (i.e., from an array of 180
photos). Third, the second of the two photo array identifications appears
to have been suggestive only to the limited extent that the complainant
was aware that the suspect identified by the first complainant was on the
screen. The unchallenged testimony about the "force field" program
supports the conclusion that the array itself was not likely to be
suggestive. Cf. Youngblood, 488 U.S. at 57-58 ("Whenever potentially
exculpatory evidence is permanently lost, courts face the treacherous
task of divining the import of materials whose contents are unknown and,
very often, disputed." (quotation marks omitted)). Fourth, there is a
remote possibility, see supra note 3, that the taint of the suggestive
array was dissipated by the intervening lineup. For all of these
reasons, I reject the Brady claim.
Notwithstanding the foregoing, I feel compelled to express my dismay
that the police and the prosecutors would engage in an identification
procedure that does not preserve the arrays shown to witnesses. To develop
a program that will produce computer-selected photographs based on a
victim's identification strikes me as a positive development. To fail to
take the extra small step of permitting a viewed array to be printed out
or at least recreated for future inspection is unfair to defendants.
Respondent's counsel asserts that the use of the "force field" has been
very limited. Whatever the reason for that, it seems plain that these
easily remedied limitations in the program must be corrected if
defendants are to have a meaningful opportunity to challenge
For the foregoing reasons, the petition is denied. Because Jones has
failed to make a substantial showing of a denial of a constitutional
right, no certificate of appealability shall issue.