United States District Court, S.D. New York
April 23, 2004.
CHANG FE LIN, Petitioner, -against- GARY H. FILION, Superintendent, Coxsackie Correctional Facility, Respondent
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Petitioner Chang Fe Lin, ("Petitioner"), pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his
conviction in the New York State Supreme Court, New York County on three
counts of robbery. Petitioner takes issue with two evidentiary rulings
made by the trial court admitting testimony about a pretrial
identification of him by a witness and by a police officer.
Magistrate Judge Michael H. Dolinger, to whom this Court referred the
matter, issued a Report and Recommendation (the "Report") dated March
19, 2004, recommending that the writ be denied and the petition be
dismissed with prejudice. The Report is incorporated and attached hereto.
Petitioner's original date to file objections to the Report was March 29,
2004. Responding to a letter from Petitioner dated March 21, 2004 in
which he indicated that he had been moved to another correctional
facility, the Court inferred that Petitioner had not received the Report. Accordingly, the Court had a copy of the
Report forwarded to Petitioner at the address he gave and extended the
deadline for submission of objections to April 15, 2004. To date,
Petitioner has filed no objections.
Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of a Magistrate
Judge's Report and Recommendation to which objection is made is subject
to de novo review. The Court is also authorized to accept, reject, or
modify, in whole or in part, the Magistrate Judge's findings or
recommendations. Accordingly, this Court, having received no objections
to the Report, reviewed the full record of the petition, including each
of the issues Petitioner raises therein, and considered Magistrate Judge
Dolinger's analysis and conclusions with respect to them. On this basis
the Court dismisses the petition.
Magistrate Judge Dolinger, putting aside respondent's claims that
several of Petitioner's claims remained unexhausted, concluded instead
that the petition was meritless and should be dismissed because it fails
to demonstrate a violation of Petitioner's constitutional rights. The
Court agrees. It finds no meritorious basis in law to support
Petitioner's challenge to his conviction on any of the grounds he asserts
with respect to the identification of him by either the photographic
array or by the police officer who testified to having seen Petitioner in the company of a fellow robber sometime
after the robbery at issue. In examining the record and the law pertinent
to this petition, the Court concludes that there is a sufficient basis in
fact for the verdict and sentence reflected in the judgment entered
against Petitioner. The Court finds no clear error of fact or law in the
Report, and concludes that the principles and authorities relied upon by
Magistrate Judge Dolinger in recommending denial of the petition are
sufficiently controlling to warrant dismissal of each of Petitioner's
arguments. Accordingly, the Court accepts and adopts the Report in its
entirety and denies the writ.
For the reasons discussed above, it is
ORDERED that the petition of Chang Fe Lin for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is denied.
Because Petitioner has not made a substantial showing of the denial of
a constitutional right, this Court will not grant a certificate of
appealability. See Lucidore v. New York State Division of Parole,
209 F.3d 107, 112 (2d Cir.), cert. denied, 121 So. Ct. 175 (2000). The Clerk is directed to close this case. SO ORDERED. Chang Fe Lin v. Gary H. Filion
02 Civ 2878
Attachment to the Court's Decision and Order dated April 23, 2004 REPORT & RECOMMENDATION
Petitioner Chang Fe Lin seeks a writ of habeas corpus to challenge his
1998 conviction in New York State Supreme Court, New York County, on two
counts of Robbery in the First Degree and one count of Robbery in the
Second Degree. Petitioner is presently serving two concurrent prison
terms of nine to eighteen years and a concurrent term of five to ten
In support of Mr. Lin's application, he challenges two evidentiary
rulings of the state trial court, one permitting testimony about a
pretrial photographic identification of him by a witness, and the other
authorizing a police officer's testimony that he had seen Lin together
with his alleged fellow robber one year after the robbery. Lin also
complains that he was denied a hearing on whether this identification of
him was the fruit of an illegal search, that the prosecutor's summation
violated his right to a fair trial and that he was denied a statutory right to challenge
his sentencing status as a predicate felon.
Respondent has opposed the petition. In doing so, he argues that all of
the petitioner's claims are unexhausted and procedurally barred, and that
they are also otherwise meritless. For the reasons that follow, we
recommend that the writ be denied and the petition dismissed with
Petitioner's conviction stemmed from the July 14, 1995 robbery of a
restaurant on Ninth Avenue in Manhattan. That robbery was conducted by
two men, one of whom named Lin Pong was a former employee of the
establishment. According to the victims' trial testimony, Fong and the
second man, whom they identified as petitioner, entered the restaurant
with guns and ordered the owner, Min Cheng, and his wife, together with
three employees, into the basement. (Tr. 310-14, 438-41). Fong then took
the owner's wife back upstairs to open the cash register while petitioner
held the others downstairs at gunpoint. (Tr. 339-40). The men took more
than $2,000.00 and then fled together after threatening Mr. and Mrs.
Cheng with death if they reported the crime. (Tr. 442-49, 472, 317-21). Once the robbers had left, Mr. Cheng called the police while his wife
went to the street and returned with several police officers. (Tr.
322-25, 446-49). They told the police at the time that one of the robbers
was a former employee, and later in the day Mr. Cheng identified
petitioner from a photo array as the second gunman. (Tr. 322-25, 389-92,
446-49, 458, 553-60).
Lin and Fong were not arrested until October 2, 1997. That day Cheng
identified the two men in separate lineups. (Tr. 383-87, 407-11, 418-19,
A New York County grand jury returned an indictment of petitioner in
December 1997, charging him with two counts of first-degree robbery and
two counts of second-degree robbery. (See Declaration of Assistant
Attorney General Darian B. Taylor, executed Dec. 4, 2002 ("Taylor
Decl."), Ex. A, pp. 25-27).*fn1 Petitioner filed an omnibus pretrial
motion that sought, inter alia, to suppress all identification
testimony, claiming irremediable taint from suggestive photographic and
lineup identification procedures. (See id. at pp. 42-54). The court (the
Hon. Felice Shea, S.C.J.) conducted a suppression hearing and denied
Lin's application, finding that the procedures "were conducted in a fair and impartial manner." (Tr. 626).
Trial commenced on July 6, 1998 before Justice Shea and a jury. On July
9, following the presentation of all evidence, the jury convicted Lin on
both counts of first-degree robbery and one count of second-degree
robbery. (Tr. 745-46). It also acquitted him on the second count of
second-degree robbery. (Tr. 746). Justice Shea sentenced Lin on September
22, 1998, as a predicate felon, to three concurrent prison terms, but
declined to impose a separate sentence for probation violation. (Sent.
Tr. 9, 25-27).
Petitioner appealed to the Appellate Division, asserting five claims.
He (1) challenged the introduction of evidence of the photo
identification of him, (2) complained about the testimony linking him to
Fong a year after the robbery, (3) argued that he had been denied the
right to show that the testimonial link between him and Fong was a
product of an illegal police entry into his apartment, (4) asserted that
the prosecutor's summation had denied him a fair trial, and (5) attacked
the sentencing procedure. (See Taylor Decl., Ex. B at pp. 24-44). On
March 21, 2001 the Appellate Division affirmed the conviction but
remanded for re-sentencing to permit Lin to challenge his status as a
predicate felon. See People v. Lin, 281 A.D.2d 32, 722 N.Y.S.2d 155 (1st
Dept. 2001). That remand led to the reimposition of the same sentences.
(See Taylor Decl., Ex. L; Respondent's Memo of Law in Opposition to Petition
("Resp. Memo") at p. 2 n.4).
Lin next sought leave to appeal to the New York Court of Appeals. On
that application he requested permission to raise only the first two
claims from his direct appeal, that is, the arguments about the photo
array and the police sighting of him in the company of Pong. (See Taylor
Decl., Ex. F). The Court of Appeals denied leave on June 20, 2001. See
People v. Lin, 96 N.Y.2d 860, 730 N.Y.S.2d 34 (2001).
Rebuffed by the state courts, Lin turned to this court, filing his
habeas petition with the Pro Se Clerk on August 7, 2001. By order dated
April 15, 2002, Chief Judge Mukasey directed that Lin file an amended
petition that specified the claims he was asserting in this proceeding.
Lin complied with that directive by filing an amended petition dated May
Respondent first argues that Lin failed to exhaust his state-court
remedies with respect to all of his claims and that these claims should
now be deemed procedurally barred. He also contends that they are not of
constitutional dimension and are otherwise meritless. I. Exhaustion
Before seeking federal habeas review, a petitioner must exhaust all
state-court remedies by "fairly present[ing]" each federal claim for
relief to the highest state court capable of review. See Fama v.
Commissioner of Correctional Services, 235 F.3d 804, 808-809 (2d Cir.
2000) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); Caballero v.
Keane, 42 F.3d 738, 740 (2d Cir. 1994). Prior to 1996, a petitioner's
failure to exhaust his state-court remedies required the district court
to dismiss the petition in its entirety, without prejudice, unless the
petitioner withdrew the unexhausted claim. See Levine v. Commissioner of
Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995) (citing Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982)). However, pursuant to the
Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "[a]n
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the state." 28 U.S.C. § 2254 (b)(2). See,
e.g., Jones v. Keane, 329 F.3d 290, 294 n.6 (2d Cir. 2003) (noting that a
district court may reject an unexhausted habeas claim on the merits);
Aparicio v. Artuz, 269 F.3d 78, 91 n.5 (2d Cir. 2001) (same); Nieblas v.
Smith, 204 F.3d 29, 31 (2d Cir. 1999) (declining to address issues of
exhaustion and failure to preserve because habeas petition can be denied
on its merits); Brown v. Kuhlmann, 142 F.3d 529, 534 (2d Cir. 1998) (declining to address
whether a state-law procedural default is a bar to federal habeas review
because petition can be denied on its merits).
In this case Lin never asserted his third, fourth and fifth claims on
his leave application to the New York Court of Appeals, and respondent
correctly contends that this represents a failure to exhaust. As for the
first two claims, respondent argues that neither claim was presented to
the state appellate courts in constitutional terms and asserts that this
too amounts to non-exhaustion. Finally, respondent suggests that since
petitioner has no viable remedies left in state court, all of these claims
should be analyzed under procedural bar rules and found to be barred from
habeas review. (See Resp. Memo of Law at pp. 14-17).
Although respondent's assessment of the exhaustion requirement and its
application to Lin's petition may well be correct, we note that all of
petitioner's claims are plainly meritless and that one is procedurally
barred for reasons other than a failure to exhaust. Accordingly, we
choose to bypass the exhaustion issue and instead recommend dismissal
with prejudice on the basis that petitioner fails to demonstrate a
violation of his constitutional rights. II. Asssessment of Petitioner's Claims
A. The Photo Arrays
Lin's first complaint is that the trial court impermissibly allowed the
State to introduce testimony at trial that Mr. Cheng had twice identified
him from large photo arrays. This issue does not raise a constitutional
question, since there is no constitutional prohibition on the use of
evidence of a photo-array identification, provided that the photo array
itself was not unduly suggestive, a claim that Lin never made.*fn2 See,
e.g., United States v. Salameh, 152 F.3d 88, 125-26 (2d Cir. 1998).
Compare United States v. Eltayib, 88 F.3d 157, 166 (2d Cir. 1996)
(stating that photo array is improperly suggestive if accused's picture
stands out so as to suggest to the viewer that the accused is the likely
culprit). Indeed, evidence of photo-array identification is routinely
admitted in federal court. See, e.g., Salameh, 152 F.3d at 125 (citing
cases). Petitioner's claim arises solely under New York law, which ordinarily
prohibits the State from introducing evidence of a pre-trial
identification from a photo array. See, e.g., People v. Cioffi,
1 N.Y.2d 70, 73, 150 N.Y.S.2d 192, 194 (1956); People v. Cuiman,
229 A.D.2d 280, 282, 656 N.Y.S.2d 243, 247 (1st Dept.), leave denied,
90 N.Y.2d 903, 663 N.Y.S.2d 515 (1997). Since the source of petitioner's
photo-array claim is state law, no relief could be granted here even if
Lin were correct that the trial court had violated that law. See, e.g.,
Givens v. Surge, 2003 WL 1563775, *6 (S.D.N.Y. March 4, 2003) (citing
cases); United States ex rel. Bryant v. Vincent, 373 F. Supp. 1180,
1183-84 (S.D.N.Y. 1973). See Estelle v. McGuire, 502 U.S. 52, 67
(1992)(habeas relief available only for violations of federal law);
Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (same).
In any event, we note that the ruling of the trial judge has not been
shown to have contravened state law. The issue arose as a result of the
defense counsel's cross-examination of Mr. and Mrs. Cheng. In the course
of his questioning of Mr. Cheng, he asked why the restaurant owner had
not originally given a detailed physical description of the second robber
to the police. (Tr. 390-92). In answering, Mr. Cheng alluded vaguely to
having looked at photographs. (Tr. 391-92). Moreover, when questioning
Mrs. Cheng, counsel asked her about her visit to a police precinct two
days after the robbery. Counsel elicited her admission that she had reviewed a
photo array and had selected a photograph that she had pronounced herself
to be eighty percent certain depicted the other robber, an identification
that had proven to be erroneous. (Tr. 462, 464-65, 587).
In the face of these references to photo arrays, the State asked
permission to show that Mr. Cheng had in fact picked Lin's picture from
among the vast number of photographs shown to him on the day of the
robbery. (Tr. 514-18). The trial judge ruled for the prosecutor, finding
that the defense attorney had opened the door to this inquiry, apparently
because if left unexplained Cheng's statement about photographs could
have been understood by the jurors to have meant that he had not been
able to identify Lin. (Tr. 522-23, 525-26).*fn3
New York law recognizes such an exception to its ordinary prohibition
on photo-array identification testimony. See, e.g., People v. Giallombardo, 128 A.D.2d 547, 548, 512 N.Y.S.2d 481, 482 (2d
Dept. 1987). in any event, the decision of the Appellate Division
explicitly rejecting this claim a decision that is entitled to
presumptive deference as a statement of New York law, see, e.g., West v.
Amer. Tel. & Tel., 311 U.S. 223, 237 (1940) (noting the presumptive
deference accorded to intermediate appellate state court decisions on
state law); Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d
Cir. 1994) (federal courts must defer to state court decisions on issues
of state law) establishes that the trial judge correctly applied state
law. See Lin, 281 A.D.2d at 321, 722 N.Y.S.2d at 155 (citing Cuiman, 229
A.D.2d at 282, 656 N.Y.S.2d at 245).
B. The Post-Robbery Linkage Between Lin and Fong
Lin's second claim arises from the trial testimony of a police officer,
Theodore Hall, who reported that in June 1996, he had entered the
apartment of Lin and found him in the company of Fong. (Tr. 531-35). Hall
also testified that at the time Lin's hair was shorter than it was at
trial. (Tr. 534-35). This testimony was deemed pertinent both to the
questioned linkage between Lin and Fong, the former employee whom the
restaurant owners had unequivocally identified as one robber, and to
petitioner's physical appearance prior to his growing his hair longer. Petitioner's challenge to the trial court ruling allowing this
testimony is based on the contention that it was both irrelevant and
prejudicial, apparently because it linked him to Fong. According to
petitioner, the evidence at his trial never definitively established that
Fong was the other robber, and hence the linkage of him to Fong was
unfairly misleading, a problem compounded by the court's instruction to
the jurors that they should decide whether petitioner had acted in
concert with Fong. (See Taylor Decl., Ex. B at pp. 31-34).
This claim amounts to a challenge to the trial court's evidentiary
ruling, an issue that ordinarily does not rise to the level of a
constitutional violation. See, e.g., Estelle, 502 U.S. at 67. To trigger
constitutional review, the ruling must either have violated a specific
constitutional guarantee or else have violated state law and have been so
significant and egregious as to have rendered the trial fundamentally
unfair. See, e.g., Panzarino v. Phillips, 2004 WL 99868, *18-19
(S.D.N.Y. Jan. 22, 2004)(citing cases).
Petitioner's argument on this point does not suggest that the court's
admission of Officer Hall's testimony linking him to Fong long after the
robbery violated any specific constitutional guarantee. As for his
due-process right to a fundamentally fair trial, that protection is not implicated unless the state court
erroneously admitted evidence that was so significant as to have
eliminated a reasonable doubt about the defendant's guilt that would
otherwise have existed. See, e.g., Dunnigan v. Keane, 137 F.3d 117, 125
(2d Cir.), cert. denied, 525 U.S. 840 (1998). To meet this rigorous
standard, the court must conclude that the disputed evidence was
"crucial, critical, highly significant", Collins v. Scully, 755 F.2d 16,
8-19 (2d Cir. 1985), that is, that it had "a substantial and injurious
effect in determining the jury's verdict." Noble v. Kelly, 246 F.3d 93,
101 (2d Cir. 2001). That did not occur here.
The ruling in question here has not been shown to have violated state
law. New York gives the trial court broad discretion to admit testimony
that is relevant to the issues in the case. See, e.g., People v. Alvino,
71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 11 (1987). Moreover, the court may
admit evidence that will be pertinent only if the jury finds certain
facts that are in dispute at the trial such as, in this case, Fong's
participation in the robbery. See, e.g., People v. Seifert, 152 A.D.2d 433,
441, 548 N.Y.S.2d 971, 975 (4th Dept. 1989), leave denied, 75 N.Y.2d 924,
555 N.Y.S.2d 43 (1990).
Fong's role in the robbery was strongly supported by the testimony of both Mr. and Mrs. Cheng.*fn4 Under those circumstances, a
post-robbery discovery by the police that petitioner and Pong were sharing
an apartment was certainly pertinent to the question of Lin's
participation in the robbery and to his guilt on the charge of
second-degree robbery under Penal Law § 160.10(1), which requires proof
of acting in concert. See, e.g., People v. Berry, 267 A.D.2d 102, 102,
700 N.Y.S.2d 131, 132 (1st Dept. 1999)(noting relevance of evidence that
defendant was acquaintance of co-defendant). Moreover, the physical
description of Lin offered by Officer Hall was relevant to the jury's
assessment of the reliability of the victim's identification of Lin,
particularly since Lin's physical appearance had changed in one respect
since his arrest, and since Mr. Cheng himself had testified to such a
change. (Tr. 349-51).
In any event, the testimony can scarcely be said to have been so
crucial as to have eliminated a reasonable doubt that would otherwise
have existed at trial. Both Mr. and Mrs. Cheng testified that the robbery
was conducted by two individuals, thus satisfying the acting-in-concert
requirement of Penal Law § 160.10(1). Furthermore, Mr. Cheng positively
identified Lin not only from the two photo arrays shortly after the robbery, but also from a lineup
nearly three years later.
Given the strength of the State's case and the marginal significance of
Officer Hall's testimony, there is no basis to find that the court's
challenged ruling eliminated an otherwise available reasonable doubt.
See, e.g., Collins, 755 F.2d at 18-20.
C. The Denial of an Evidentiary Hearing
Petitioner's next claim rests on his complaint that he was not afforded
a suppression hearing concerning Officer Hall's testimony. Petitioner
apparently contends that since Officer Hall had not obtained a warrant
for entry into the apartment, his presence there had violated Lin's
Fourth Amendment protections.
The short answer to this argument is that Fourth Amendment claims may
not be heard by a habeas court if the state courts provide an adequate
mechanism for adjudicating such claims. See Stone v. Powell, 428 U.S. 465,
481-82 (1976). There is no question that New York supplies an adequate
method for airing such issues, see, e.g., Capellan v. Riley, 975 F.2d 67,
70 n.1 (2d Cir. 1992), and hence petitioner cannot be heard to complain
on Fourth Amendment grounds about the trial court ruling admitting this
testimony, unless he can demonstrate that the mechanism was unavailable to him
because of "an unconscionable breakdown in the underlying process." Id.
at 70 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.)(en banc),
cert. denied, 434 U.S. 1038 (1978)). This is an extremely narrow
exception, and may be invoked only if "the state  furnished no
process, or if the process furnished was `. . . meaningless [because] the
totality of state procedures . . . did not provide rational conditions
for inquiry into federal-law . . . questions.'" Id. (quoting P. Bator,
"Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners", 76 Harv. L. Rev. 441, 456-57 (1963)). Petitioner does not
make a meaningful effort to meet this standard.
Lin relies upon a colloquy between defense counsel and the court during
the course of the trial, in which the attorney objected in general terms
to the State calling Officer Hall to testify about his observation of Lin
and Fong in 1996. Counsel asserted that he was moving to suppress at that
late date because he had only just learned that the State intended to
call the witness to offer such testimony. Counsel said that there "may"
have been a problem with the officer having entered the apartment in
question since he did not have a warrant. (Tr. 512-13). The prosecutor
had specified that the officer had obtained consent, and petitioner's
attorney did not pursue the matter further. (Tr. 511). Petitioner did not receive an evidentiary hearing on this point because
he never satisfied the state procedural requirements for such a hearing.
The pertinent statute requires the filing of a suppression motion with
specific factual allegations that would put in question the constitutional
validity of a challenged search or seizure. See N.Y. Crim. Proc. L. §
710.60(1). Moreover, although such a motion is ordinarily required to be
filed within forty-five days after arraignment, N.Y. Crim. Proc. §
255.20, the New York courts have an obligation to address such a motion
even if made during the trial, if the grounds stated "could not, with due
diligence, have been previously [known]" by the defendant, or for other
"good cause". N.Y. Crim. Proc. L. § 255.20(3). See N.Y. Crim. Proc. L. §
710.40(2). Moreover, the motion may be made orally during trial. N.Y.
Crim. Proc. L. § 710.60(5). See generally Feuerstein v. People of New
York. 515 F. Supp. 573, 576 (E.D.N.Y. 1981).
In this case petitioner's attorney offered no facts to support a claim
of violation of his client's Fourth Amendment rights. Indeed, all he said
was, "There may be a substantial Fourth Amendment issue as to whether the
police had a right to be in the apartment to be arresting these people
without a warrant based on a prior complaint, especially where this
apartment is alleged to be the residence of both these individuals." (Tr.
511). Since the prosecutor specifically represented that the police had
knocked on the door and obtained consent from the occupants to enter, and since
defense counsel offered no response to this representation, there was no
basis for the court to conduct a hearing. See, e.g., People v. Mendoza,
82 N.Y.2d 415, 427, 604 N.Y.S.2d 922, 927 (1993); People v. Reynolds,
71 N.Y.2d 552, 558, 528 N.Y.S.2d 15, 17-18 (1988).
This sequence of events does not demonstrate any violation of
petitioner's constitutional rights. The failure to conduct a hearing
because of petitioner's failure to comply with facially reasonable and
neutrally applied procedural requirements is plainly not an
"unconscionable breakdown" of otherwise adequate state suppression.
procedures. It also does not constitute a denial of due process, since the
states are free to impose reasonable procedural predicates to the
conducting of evidentiary suppression hearings. See, e.g., United States
ex rel. Fein v. Deegan, 410 F.2d 13, 21-22 (2d Cir.), cert. denied,
395 U.S. 935 (1969). See also Pulver v. Cunningham, 562 F.2d 198, 200-01
(2d Cir. 1977).
D. The Prosecutor's Summation
Petitioner's fourth claim challenges four remarks of the prosecutor
during the course of her summation that, he claims, were not based on
trial evidence. This claim is procedurally barred and in any event
meritless. Defense counsel did not object to three of these comments at trial, and
accordingly the Appellate Division squarely held that the objections were
not preserved for appellate review. See Lin, 281 A.D.2d at 321, 722
N.Y.S.2d at 155. The court further observed that, if it had chosen to
address the merits, it would have found that the four statements
constituted "fair comment on the evidence and reasonable inferences that
could be drawn therefrom, and were responsive to the defense summation."
The explicit reliance by the Appellate Division on the absence of a
contemporaneous objection by Lin at trial represents an independent and
adequate state-law ground for the state court to have refused to address
the merits of petitioner's claim. See, e.g., Aparicio, 269 F.3d at 93.
Moreover, the fact that the appellate court then proceeded to note, in
the alternative, that the claim was meritless does not undercut this
conclusion. See, e.g., Epps v. Commissioner of Correctional Services,
13 F.3d 615, 618 (2d Cir. 1994). It necessarily follows that the claim is
procedurally barred unless the petitioner demonstrates cause for the
procedural default in state court and resultant prejudice, or else
establishes that a refusal to address the issue at this stage would
constitute a fundamental miscarriage of justice. See, e.g., Jones v.
Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Washington v. James,
996 F.2d 1442, 1446-49 (2d Cir. 1993), cert. denied, 510 U.S. 1078
(1994). Petitioner does not even attempt to explain or justify the failure of
his attorney to object at trial to the assertedly improper comments of
the prosecutor; indeed, the obvious explanation is that his counsel did
not view the remarks as improper. Accordingly, Lin does not demonstrate
cause, and we therefore need not address the question of prejudice,
although, as we note below, the claim is plainly meritless. Lin also does
not remotely suggest that deeming the claim to be procedurally barred
would constitute a fundamental miscarriage of justice. Petitioner cannot
show either that he is in fact innocent or that his conviction was
attributable to the remarks in question.
Even if we were to ignore the procedural-bar analysis, the result would
be the same. Petitioner fails to show that the statements he highlights
denied him a fundamentally fair trial.
For a petitioner to obtain habeas relief on the basis of a prosecutor's
summation comments, it is not sufficient that the "remarks were
undesirable or even universally condemned." Darden v. Wainwright,
477 U.S. 168, 181 (1986). Rather, the trial must have become "so infected
with unfairness as to make the resulting conviction a denial of due
process." Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Accord Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)
(standard of habeas review for prosecutorial misconduct is "the narrow one of due process, and not
the broad exercise of supervisory power"). Judged by this standard, none
of the remarks in question threatened the fairness of the trial.
The first statement cited by Lin was a characterization of the
testimony of Mr. and Mrs. Cheng, to the effect that they would "never,
ever" forget Lin's face, that it was "emblazoned" in their memories, and
that they had both determined to remember the robbers' faces when the
incident began. (Tr. 653-54). Lin's theory seems to be that the
prosecutor could not use these words because they were not quotes from the
witnesses' testimony. (See Taylor Decl., Ex. B at pp. 37-38).
The fact is, however, that both Mr. and Mrs. Cheng testified that they
had paid close attention to Lin's face during the robbery because they
wanted to be able to recall it in the future. (Tr. 312, 325, 455-56,
470). Thus, the prosecutor was fairly characterizing testimony in the
record, albeit in colorful language, which is a permissible rhetorical
and argumentative device. See, e.g., United States v, Smith, 778 F.2d 925,
929 (2d Cir. 1985). Moreover, these comments were certainly proper
rebuttal to the defense attorney's prior argument to the jurors that the
Chengs had not had an adequate opportunity to observe Lin during the
robbery. (Tr. 632-49). See, e.g., United States v. Thai, 29 F.3d 785, 807 (2d
Cir. 1994) (quoting United States v. Praetorius, 622 F.2d 1054, 1060-61
(2d Cir. 1979)).
The second challenged prosecutorial statement was that Mrs. Cheng had
not remained in the basement throughout the robbery and could have been
mistaken in testifying that her husband was facing the wall during the
robbery. (Tr. 661-62). The prosecutor made this comment in response to
defense counsel's argument that since Mrs. Cheng had described her
husband as facing the wall, Mr. Cheng must have lied in saying that he
had observed Lin during the events in question. (Tr. 647-48). The basic
facts that the Chengs were marched to the basement, that Mrs. Cheng was
then led back upstairs while her husband remained with Lin in the
basement, and that Mr. Cheng testified that he had observed Lin's face
are part of the trial record. Since defense counsel questioned Cheng's
ability to have seen Lin, it was certainly permissible for the prosecutor
to invite the jury to make the obvious inferences that she was
suggesting. See, e.g. United States v. Collins, 78 F.3d 1021, 1040 (6th
Cir. 1996); Smith, 778 F.2d at 929.
The third comment that petitioner attacks concerned Mr. Cheng's
conceded failure to give the police a detailed physical description of
the robbers when they first interviewed him. In seeking to explain why Mr. Cheng was able to describe Lin in more detail at trial,
the prosecutor suggested the possibility that, as a recent immigrant at
the time of the robbery, Cheng may have been more handicapped by English
language difficulties than he was three years later, during the trial.
(Tr. 663-64). This proposed inference, which responded to defense
counsel's attack on Mr. Cheng's failure to offer a detailed physical
description of the second robber on the day of the robbery (Tr. 646-49),
had at least some support in the record, since the officer who had
questioned the Chengs shortly I after the robbery testified that he had
faced a language barrier
with them that made communication difficult. (Tr. 544-4, 549). In. any
event, regardless of whether the inference was a reasonable one, the
suggestion by the prosecutor, when viewed in the context of her complete
summation and the entire proceeding, obviously did not deprive Lin of a
fundamentally fair trial.
Petitioner's last challenge to the prosecutor's summation charged that
the prosecutor is guilty of misconduct in remarking that the police
detective who had conducted the lineup knew that Mr. Cheng's lineup
identification of petitioner was "trustworthy." (Taylor Decl., Ex. B at
p. 19; See Tr. 684-88). The cited passage responded to an argument by
defense counsel that the line-up identification by Cheng had been
unreliable because Cheng had hesitated before selecting Lin. (Tr.
642-45). The testimony by the detective was that he had seen Cheng scan the lineup and stop at petitioner, and then
begin to breathe heavily, from which the detective inferred that Cheng
had recognized Lin and was afraid to identify him. (Tr. 416-17).
Moreover, Cheng himself testified that he had hesitated in identifying
Lin because of fear for his family. (Tr. 348-49, 371-73).
On summation, the prosecutor simply recalled the officers corroborating
testimony for the jury and suggested, quite reasonably, that if the
detective had not noted such fear, he would likely have said to the
witness, in the face of hesitation, "[i]f you don't recognize anybody,
say so, that's ok", instead of simply waiting silently for the witness to
gather his courage. (Tr. 687). Again, this argument was grounded in the
evidence and hence entirely proper.
E. The Sentencing Claim
Lin's remaining complaint is that, when first sentenced, he requested
an adjournment, which the trial court denied. (See Taylor Decl., Ex. B at
pp. 42-44). Whatever the potential constitutional status of such a claim,
Lin's claim is moot since the Appellate Division upheld his objection on
appeal and remanded for re-sentencing. Since there is no dispute that
Lin then received a sentencing hearing, there is no current case or controversy sparked
by the asserted error of the trial court at the original sentencing.
For the reasons noted, we recommend that the writ be denied and the
petition dismissed with prejudice.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the
parties shall have ten (10) days from this date to file written objections
to this Report and Recommendation. Such objections shall be filed with
the Clerk of the Court and served on all adversaries, with extra copies
to be delivered to the Honorable Victor Marrero, Room 414, 40 Centre
Street, and to the chambers of the undersigned, Room 1670, 500 Pearl
Street, New York, New York. Failure to file timely objections may
constitute a waiver of those objections both in the District Court and on
later appeal to the United States Court of Appeals. See, Thomas v. Arn,
474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636 (b) (1); Fed.R.Civ.P. 72,