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
MEMORANDUM AND ORDER
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.
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
"[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
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
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
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.