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United States District Court, E.D. New York

March 4, 2004.

ROBERT LARGO, Petitioner, -against- CHARLES GRIENER, Respondent

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Pro se petitioner Robert Largo ("Largo") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his convictions in the New York Supreme Court, Queens County for rape, sexual abuse, two counts of burglary, robbery, assault, and criminal possession of a weapon. Largo presents four claims: (1) that he was detained and arrested in violation of the Fourth Amendment; (2) that the complainant's pre-trial line-up identification should have been suppressed because it was unduly suggestive; (3) that he received ineffective assistance of counsel at the pre-trial suppression hearing; and, (4) that the prosecutor suborned perjury before the grand jury. For the reasons set forth below, Largo's petition is denied. Page 2


  Only federal issues can be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may not be granted for claims that were adjudicated on their merits by the state court unless the state court decision (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Factual determinations made by the state court "shall be presumed to be correct," and the presumption can be overcome only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


 A. Exhausted Claim

  Largo contends that he was detained and arrested in violation of the Fourth Amendment and that evidence derived from his arrest should have been suppressed. Prior to trial, the state court held a Dunaway/Mapp/Wade hearing in which, inter alia, the circumstances of Largo's arrest were thoroughly explored. Thereafter, the trial court rendered a written decision finding that Largo was lawfully detained and arrested; thus, "the search of his person and belongings was proper," and his motion to suppress physical evidence recovered during his arrest was denied. See People v. Largo, No. 3760/96 and 291/97, dated Feb. 19, 1998, at 7. Largo later pressed his Fourth Amendment claims on direct appeal. See People v. Largo, 722 N.Y.S.2d 809, 810-11 (2d Dep't 2001) (affirming conviction and agreeing with the hearing court's determination that "the initial police inquiry of the defendant was based on a founded suspicion that criminal activity was afoot;" that Page 3 "[t]he police detention of the defendant . . . fell short of the level of intrusion that constitutes an arrest" and that "probable cause to arrest the defendant arose once the complainant identified him"); see also People v. Largo, 730 N.Y.S.2d 801 (2001) (denial of leave to appeal).

  In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not 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 494-95. Thus, Stone bars habeas review of claims that evidence seized should have been suppressed as fruit of an illegal arrest. See Pina v. Kuhlmann, 239 F. Supp.2d 285, 289 (E.D.N.Y. 2003) ("It is well settled that such claims are not cognizable for habeas corpus review where a State has provided a full and fair opportunity to litigate this issue.").

  Following Stone, the Second Circuit has stated that review of Fourth Amendment claims in habeas petitions is permissible "in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if 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).

  In Capellan, the Second Circuit held that New York has a corrective procedure for Fourth Amendment violations and that the procedure is facially adequate. See id. at 70, n.1. (discussing procedures embodied in N.Y. Crim. Proc. § 710.10 for suppressing unlawfully obtained evidence). Indeed, Largo availed himself of this state procedure. Second, having reviewed the record, the Court concludes that there was no "unconscionable breakdown in the Page 4 underlying process." Largo's Fourth Amendment claim, therefore, is barred by Stone.

 B. Procedurally Barred Claims

  The government contends that Largo's remaining claims are procedurally barred and that he can not satisfy the standard set forth in Coleman v. Thompson, 501 U.S. 722, 750 (1991) to overcome that bar. As an initial matter, Largo does not claim actual innocence. The Court need not engage in the cause and prejudice analysis because, ultimately, Largo's claims lack merit.

 1. Unduly Suggestive Line-Up Claim

  Largo contends that the line-up was unduly suggestive because Detective Tepperman — who conducted the line-up — showed the complainant Largo's "blue jacket and black sweatshirt," prior to the line-up, and then "direct[ed] petitioner to wear the blue jacket and black sweatshirt during the viewing." Pet. Mem. of Law at 36. After the Wade hearing, the hearing court determined that the line-up was properly conducted. See People v. Largo, No. 3760/96 and 291/97, dated Feb. 19, 1998, at 9. Although Largo's claim regarding the clothing was not thoroughly explored at the Wade hearing, it was explored at trial; all relevant trial testimony contradicts Largo's allegation. Detective Tepperman testified at trial that he recalled showing the complainant a bandana and a piece of outerwear — "a kind of big jacket" — but nothing like what Largo was wearing in the line-up photograph. Trial Transcript ("Trial Tr.") at 682-83. Furthermore, neither the complainant nor her son, who had been present at the line-up as a translator, remembered being shown clothing prior to the line-up. See Trial Tr. at 513, 601.

 2. Ineffective Assistance of Trial Counsel Claim

  Largo contends that trial counsel was ineffective for failing to more vigorously cross-examine Page 5 the detective at the Wade hearing about whether he showed the complainant the clothing petitioner subsequently wore in the line up.*fn1 This claim is evaluated under the two prong standard in Strickland v. Washington, 466 U.S. 668 (1984), whereby a defendant must show that counsel's representation "fell below an objective standard of reasonableness" based on "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694.

  Even if Largo could establish that counsel's performance was deficient, he can not satisfy the prejudice prong of Strickland. The victim testified that she had identified Largo in the line-up, not by simply his clothing, but by his eyes and forehead, see Trial Tr. At 604; this is supported by the fact that the victim could not make a positive identification until each line-up participant held their numbers over the lower half of their faces, because the assailant had been wearing a bandana over the lower part of his face. See Trial Tr. at 603-604. Furthermore, if counsel had persued this line of questioning during the Wade hearing, based on the detective's trial testimony, his answers would not have supported suppression of the identification or established that the complainant was shown clothing worn by Largo in the line-up. In sum, Largo cannot demonstrate that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

 3. Grand Jury Claim

  Largo's claim that the prosecutor suborned perjury before the grand jury is unsupported by the record. Inconsistencies between her grand jury and trial testimony were Page 6 thoroughly explored at trial. The Court is not free to re-weigh the jury's assessments of the witnesses' credibility.

  Finally, even accepting that the constitutional violations Largo complains of did occur, those errors would be harmless under either the standard enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993) (error harmless if did not have a "substantial and injurious effect or influence in determining the jury's verdict") or Chapman v. California, 386 U.S. 18 (1967) (error harmless if beyond a reasonable doubt it did not contribute to the verdict) because of the overwhelming evidence of guilt, including unchallenged DNA evidence. See, e.g., Dallio v. Spitzer, 343 F.3d 553, 569 (2d Cir. 2003) (finding error harmless on habeas review under either standard); Zappulla v. New York, 296 F. Supp.2d 309, 319 (E.D.N.Y. 2003) (applying Brecht standard on habeas review and finding harmless error where overwhelming evidence of guilt).


  The petition is denied. A certificate of appealability will not issue because Largo has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.


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