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United States District Court, E.D. New York

February 12, 2004.

ULYSSES WEST, Petitioner, -against- CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner Ulysses West, an inmate at the Green Haven Correctional Facility, 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 16, 2004. For the reasons set forth below, the petition is denied. Page 2


  On August 14, 1994, Patrick Rennie ("P. Rennie" or the "victim"), a car mechanic, was working in front of an abandoned building at 407 Chauncey Street in Brooklyn, New York. At about 7:15 p.m., P. Rennie was packing up his tools when West arrived in a blue and white van. West was angry and twice asked P. Rennie where his battery was. P. Rennie twice replied that it was "down the street." P. Rennie then went into the building and tried to push the sagging plywood doors (which were hinged but had no knobs) closed while West tried to push his way in, shouting, "I'm going to put two bullets into you, boy."

  After West's friend, Lee Wiggins, gave West a loaded pistol, West chambered a round. While pushing on the door with his right arm, West reached through the opening with his left arm and fired a shot that hit P. Rennie. P. Rennie ran up the stairs, told his girlfriend that West had shot him, and laid down to wait for the police. West, meanwhile, got back in the van and drove away. Emergency Medical Services personnel took P. Rennie to the hospital, where he died that evening. Among other witnesses, the government called at trial Keith Rennie ("K. Rennie), the victim's brother, who testified that he had observed West do the shooting; Linda Toney, the victim's girlfriend, who testified that the victim stated, "West just shot me"; Wiggins, who observed West do the shooting; and Gordon Joseph, who testified that West told him he had shot the victim.

  West was charged with two counts of murder in the second degree and one count each of criminal possession of a weapon in the second and third degrees. He was acquitted of intentional murder but convicted by the jury of "depraved indifference" murder, in violation of Page 3 New York Penal Law section 125.25(2). On May 23, 1995, the court sentenced West to a term of imprisonment of 25 years to life.

  West appealed from his judgment of conviction, claiming that (1) his identification by K. Rennie should have been suppressed because it was the product of an impermissibly suggestive lineup; (2) the trial court erred by admitting into evidence, as an excited utterance, P. Rennie's statement that West had shot him; and (3) the evidence of his guilt was insufficient. On October 4, 1999, the Appellate Division, Second Department, unanimously affirmed West's judgment of conviction:

Contrary to the defendant's contention, the hearing court properly found that the lineup in which he participated was not impermissibly suggestive. Thus, the defendant's motion to suppress identification testimony was properly denied. In addition, the statement made by the victim a minute or two after he was shot, naming the defendant as the shooter, was properly admitted into evidence as an excited utterance.
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find the evidence was legally sufficient to establish his guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
People v. West, 696 N.Y.S.2d 689, 689-90 (2d Dep't 1999) (citations omitted). West sought leave to appeal the Appellate Decision's decision to the New York Court of Appeals, which was denied on November 29, 1999. People v. West, 94 N.Y.2d 831 (1999) (Smith, J.). West now petitions for a writ of habeas corpus on the same three grounds he raised in his direct appeal to the Appellate Division. Page 4


  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. Page 5 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."); Wigging, 123 S.Ct. at 2535 (same). Interpreting Williams, the 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). Page 6

  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)).

  B. West's Claims

  1. Sufficiency of the Evidence

  a. Procedural Default

  The Appellate Division held that West's insufficiency of the evidence claim was "unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find the evidence was legally sufficient to establish his guilt beyond a reasonable doubt." West, 696 N.Y.S.2d at 690 (citations omitted).

  Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review.*fn1 Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's Page 7 interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [its] own errors"); see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").

  A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing `"that the factual or legal basis for a claim was not reasonably available to counsel . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).

  West offers no explanation as to why he did not comply with the contemporaneous objection rule at trial. Furthermore, even if he had been prevented in some manner from raising the insufficiency claim before the trial court, it would still be necessary to demonstrate that he suffered an "actual and substantial disadvantage" to his case or that a Page 8 fundamental miscarriage of justice resulted. West offers no basis for drawing either conclusion. In any event, even if I could review this claim, it would have to be rejected, as discussed below.

  b. The Merits

  A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).

  There was ample evidence of West's guilt. P. Rennie, just after he was shot, told his girlfriend that West was the shooter. (Tr. at 158.) K. Rennie, the victim's cousin, and Wiggins testified that West reached through the opening in the door and fired the gun. (Id. at 15-16, 94.) Finally, West confessed to the shooting to Joseph. (Id. at 205-06.) Page 9

  Indeed, in the Appellate Division, West did not dispute the sufficiency of the evidence that he had fired the gun, killing P, Rennie. He contended only that the circumstances did not constitute "depraved indifference" under the New York murder statute. That question of state law, which was resolved against West, is not cognizable on habeas review.

  2. The Identification

  West claims that the lineup at which he was identified by K. Rennie*fn2 was impermissibly suggestive because he was the only participant who had gray hair. He claims that he therefore looked considerably older than the lineup's "fillers." The Appellate Division dismissed this claim: "Contrary to the defendant's contention, the hearing court properly found that the lineup in which he participated was not impermissibly suggestive. Thus, the defendant's motion to suppress identification testimony was properly denied." West, 696 N.Y.S.2d at 689 (citations omitted).

  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, Page 10 922 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.

  Although lineups are universally regarded as the least questionable of the various identification procedures, they are by no means free from the risk of suggestiveness. "A lineup is unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness and the other lineup participants obviously do not." Id. at 134. For example, a lineup that unnecessarily contrasts the height of the suspect with that of the other participants can be suggestive. See Foster, 394 U.S. at 441-44 (defendant placed with two other men who were six inches shorter). When the appearance of participants in a lineup varies, the Second Circuit has held that "the `principal question' in determining suggestiveness is whether the appearance `of the accused, matching descriptions given by the witness,'" so stood out from the other participants as to suggest to the witness that the suspect was the culprit. United States v. Wong, 40 F.3d 1347, 1359-60 (2d Cir. 1994) (quoting Jarrett, 802 F.2d at 41). Page 11

  The focus of the inquiry is not whether the suspect has a distinctive feature not shared by the other participants, but whether that feature matches the description provided by the witness. Compare Solomon v. Smith, 645 F.2d 1179, 1182-84 (2d Cir. 1981) (lineup suggestive where suspect is only person meeting height and weight descriptions provided by witness), and United States ex rel. Cannon v. Montanye, 486 F.2d 263, 266-67 (2d Cir. 1973) (lineup suggestive where defendant directed to wear green sweater and witness had stated suspect wore green shirt), and Israel v. Odom, 521 F.2d 1370, 1374 (7th Cir. 1975) ("Lineups in which suspects are the only participants wearing distinctive clothing or otherwise matching important elements of the description provided by the victim have been severely criticized as substantially increasing the dangers of misidentification."), with United States v. Jacobetz, 955 F.2d 786, 803 (2d Cir. 1992) (lineup not suggestive despite fact that suspect had smallest mustache where witness had described suspect as having no facial hair at all). It is for this reason that "a lineup may be suggestive to one viewer even though it is not to another. Where one witness has emphasized a particular characteristic of the perpetrator in giving a description to the police, a lineup in which only the defendant has that characteristic may well taint the identification of the defendant only by that viewer." Raheem, 257 F.3d at 134 (citing United States v. William, 469 F.2d 540, 546 (D.C. Cir. 1972) (Bazelon, C.J., concurring in part and dissenting in part)).

  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, Page 12 due process precludes the generation of that Increased certainty through a suggestive lineup.

 Id. at 135 (citations omitted).

  West's gray hair was not part of the description given of the suspect by the witnesses. The description given to the police was of a man between the ages of 50 and 60 years old. (Mar. 21, 1995, Hr'g Tr. at 30.) I have reviewed the original photographs of the lineup at issue here, and at least two of the fillers, though they did not have gray hair, appeared to be approximately the same age as West. The state court's finding that the lineup was not impermissibly suggestive was therefore reasonable.

  3. The Excited Utterance

  Finally, West contends that the court improperly admitted into evidence Rennie's statement to his girlfriend, just after being shot, that West shot him. The Appellate Division dismissed this claim: "[T]he statement made by the victim a minute or two after he was shot, naming the defendant as the shooter, was properly admitted into evidence as an excited utterance." West, 696 N.Y.S.2d at 689.

  Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, West bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), affd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the Page 13 basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).

  While out-of-court statements are generally excluded as hearsay, the Supreme Court has ruled that the conditions of the excited utterance exception have proven over time "to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath and cross-examination at a trial." Lilly v. Virginia, 527 U.S. 116, 126 (1999) (quotation marks omitted). An excited utterance is therefore recognized as a traditional exception to the hearsay rule under both New York and federal law. See, e.g., Fed.R.Evid. 803(2); Lilly, 527 U.S. at 126; People v. Brown, 70 N.Y.2d 513 (1987). It is defined as a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Fed.R.Evid. 803(2); see also Brown, 70 N.Y.2d at 519-20 ("made under the stress of excitement caused by an external event and not under the impetus of studied reflection").

  Because an excited utterance is a firmly rooted hearsay exception, it "carries sufficient indicia of reliability to inevitably satisfy the Confrontation Clause," Mungo v. Duncan, 277 F. Supp.2d 176, 184 (E.D.N.Y. 2003) (citing White v. Illinois, 502 U.S. 346, 356 (1992)), and therefore needs no further showing of "particularized guarantees of trustworthiness," Idaho v. Wright, 497 U.S. 805, 814 (1990). "The theory is that under the stress of the excitement recently caused by an exciting event, the declarant is unlikely to have had time to fabricate." Mungo, 277 F. Supp.2d at 184. As Judge Weinstein notes, however, the exception is of Page 14 "dubious merit" as the "very exciting event and excitement of the extra-judicial declarant may have caused him to make a mistake of observation, recollection or recounting." Id.

  Be that as it may, the Appellate Division's conclusion that Rennie's statement identifying West as his shooter qualified as an excited utterance was not unreasonable in light of the facts before it. The evidence at trial showed that West shot Rennie, who then ran up two flights of stairs and said, about one or two minutes after being shot, that West had shot him. Rennie then collapsed. It was certainly not unreasonable for the Appellate Division to conclude that a delay of only a minute or two between the unquestionably exciting event and Rennie's statement did not remove it from the excited utterance exception. See Fed.R.Evid. 803 advisory committee's note to paras. (1) & (2) ("[T]he standard of measurement is the duration of the state of excitement. `How long can excitement prevail? Obviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.'" (quoting Slough, Spontaneous Statements and State of Mind, 46 Iowa L. Rev. 224, 243 (1961))); United States v. Jones, 299 F.3d 103, 112 (2d Cir. 2002) ("[A]n excited utterance need not be contemporaneous with the startling event to be admissible."); see also, e.g., United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990) (admissible as excited utterance despite delay of five or six hours) (citing Gross v. Greer, 773 F.2d 116, 119-20 (7th Cir. 1985) (12-hour delay); United States v. Kearny, 420 F.2d 170, 171, 174-75 (D.C. Cir. 1969) (same); Guthrie v. United States, 207 F.2d 19, 22-23 (D.C. Cir. 1953) (11-hour delay)); United States v. Delvi, 275 F. Supp.2d 412, 415-16 (S.D.N.Y. 2003) (40-minute delay).

  Besides the fact that almost no time had passed, other factors also lent credibility to Rennie's statement. See Scarpa, 913 F.2d at 1017 ("The length of time between the event and Page 15 the utterance is only one factor to be taken into account in determining whether the declarant was . . . `under the stress of excitement caused by the event or condition.'" (quoting Gross, 773 F.2d at 119-20)). Here, P. Rennie was the victim of a violent crime; he knew West prior to the incident; he made the statement almost immediately after he was shot; and he had no reason to lie about the incident. The Appellate Division therefore correctly admitted Rennie's statement as an excited utterance. At the very least, its decision was not unreasonable.


  For the foregoing reasons, the petition is denied. Because West 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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