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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


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 Page 2 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 identification Page 3 procedures used by the police were free from taint. On May 29, 2001, the Appellate Division unanimously affirmed Jones's judgment of conviction, holding:

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 photographic array.
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 (1963), when it failed to preserve and turn over the photo array in which Jones was initially identified.


 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 Page 4 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 Williams, the Page 5 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, 1041 (2003)). Page 6

 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 Page 7 "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 Page 8 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 lineup.
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 resembl[ed]" that Page 9 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 person.
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 Page 10 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, Page 11 405 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 Page 12 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 12.)

  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 identifications. Page 13


  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.

  So Ordered.

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