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.
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
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
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
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.
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.");
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).
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 ...