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
MEMORANDUM AND ORDER
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 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
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
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
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
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
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.)
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,
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
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,
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
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
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
"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
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.