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May 4, 2005.

DARRYL HOLMES, Petitioner,
DALE ARTUS, Superintendent, Clinton Correctional Facility Respondent.

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


On December 5, 1995, in the New York State Supreme Court, New York County, petitioner Darryl Holmes was convicted following a jury trial of one count of Murder in the Second Degree (N.Y. Penal Law § 125.25), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03), and one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02). On January 10, 1996, Holmes was sentenced to concurrent prison terms of 25 years to life, 7-1/2 to 15 years, and 3-1/2 to 7 years respectively.

Holmes, who is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York, has petitioned this Court under 28 U.S.C. § 2254 for a writ of habeas corpus. For the reasons stated below, his petition should be denied.


  Holmes's conviction arose from the murder of Nathaniel Brown (referred to herein either as "Brown" or by his full name) at 1806 Amsterdam Avenue in Manhattan on October 14, 1994. Holmes was indicted on October 25, 1994. A. Pre-Trial Proceedings

  Prior to trial, a hearing was held pursuant to United States v. Wade, 388 U.S. 218 (1967) in response to Holmes's motion to suppress the identification testimony of witnesses who had identified him at a lineup.*fn1 At the hearing, Detective Paul Mueller of the New York City Police Department ("NYPD") testified that, shortly after 9:00 p.m. on the night of October 14, 1994, he responded to a shooting at 1806 Amsterdam Avenue. (Mueller: H. 5-6).*fn2 Upon arriving at the scene, Detective Mueller saw a black male, later identified as Nathaniel Brown, lying in the lobby of the building after having been shot. (Mueller: H. 6). Detective Mueller received a description of the assailant as being a 5'9" tall "male black, . . . light skinned, black hat, black pants, Desert Storm army jacket, muscular build." (Mueller: H. 87). Detective Mueller spoke with two eyewitnesses, Jose Sandoval and Renee Flowers, both of whom described the perpetrator as a "light-skinned . . . stocky" black male in his early-to-mid twenties, weighing approximately 165 pounds, and standing approximately 5'6" tall. (Mueller: H. 7-8). Sandoval and Flowers also described the assailant as "wearing a green army jacket" and a "black knit hat." (Mueller: H. 8).

  During the course of the investigation, other detectives interviewed a man by the name of Kevin Richardson. (Mueller: H. 8). Based upon Richardson's statement, Detective Mueller learned that, on the day that Brown was shot, Richardson had accompanied Brown to Staten Island, where Brown had an argument with his stepdaughter, Rhonda Brown. (Mueller: H. 9). After the dispute, Richardson drove Nathaniel Brown to 1806 Amsterdam Avenue. (Mueller: H. 9-10). Detective Mueller also learned that, at some point that same evening, a black male who fit the description of the shooter was at Richardson's residence, located at 14 West 102nd Street in Manhattan, looking for both Richardson and Nathaniel Brown. (See Mueller: H. 10). Mueller subsequently learned that Holmes was Rhonda Brown's boyfriend. (Mueller: H. 12).

  Holmes was taken into custody by Detective Brian Speer of the NYPD on October 15, 1994. (Mueller: H. 13; Speer: H. 122-23). Detective Speer said that he knew Holmes by his nickname, "Light," which was given to him because of his light complexion. (Speer: H. 120). Detective Speer had seen Holmes on "at least" forty occasions and thought that Holmes's physical characteristics matched the description of the shooter. (Speer: H. 121). Detective Speer also had seen Holmes wearing an army jacket. (Speer: H. 121-22). Holmes testified that he was 5'11" tall and that, at the time he was taken into custody, he weighed approximately 230 pounds. (Holmes: H. 159).

  That same evening, Detective Mueller prepared to place Holmes in a lineup. (See Mueller: H. 33-34). The lineup consisted of six individuals, including Holmes. (See Mueller: H. 36). Once the lineup fillers arrived, the fillers and Holmes were placed in the same interview room at the precinct house. (Mueller: H. 34). Of the six participants in the lineup, two of the individuals, including Holmes, had a lighter skin tone than the other four lineup participants. (Mueller: H. 74). Although Mueller noticed the differences in complexion between the lineup participants, he did not make any attempt to find other fillers who had a skin tone that more closely resembled Holmes's. (Mueller: H. 75). Holmes selected position number two in the lineup. (Mueller: H. 36). A photograph of the lineup was admitted into evidence at the hearing. (H. 35); see Lineup Photograph (annexed as Ex. D to Petition) ("Lineup Photograph"). The lineup photograph shows that the other light-skinned lineup participant was seated in position number five in the lineup. See Lineup Photograph.

  Howard Sails was the first individual to view the lineup. (Mueller: H. 37). Sails worked as a security guard at 14 West 102nd Street, the building in which Richardson lived. (See Mueller: H. 10, 37). Sails informed police that he had seen an individual enter the premises at 14 West 102nd Street on the evening of October 14, 1994 looking for Richardson and Brown. (See Mueller: H. 10-11). Prior to viewing the lineup, Sails was shown a videotape taken from a camera in the building that depicted the person Sails had seen enter the premises. (See Mueller: H. 80). After viewing the lineup, Sails recognized Holmes and stated that he was "eighty percent sure" that Holmes was the individual he saw enter the building. (See Mueller: H. 37). In an interview conducted after the identification, Sails informed Detective Mueller that the person whom he saw enter the building was an individual whom he had never seen before and had not seen since. (Mueller: H. 81-82).

  The hearing court granted defense counsel's motion to introduce the grand jury testimony of the witnesses who viewed the lineup. (See H. 158-59). When Sails was asked during his grand jury testimony what he could say about the individual he selected at the lineup, he responded: "Well, the guy from number two, the guy who [was] holding number two, he was light skinned, he was a little stocky." Sails' Grand Jury Testimony (reproduced as Ex. E to Petition) ("Sails' Grand Jury Testimony"), at 42. When the prosecutor pressed Sails to state where he recognized number two from and where he had last seen him, Sails responded that number two "could have been the guy" he saw while working at 14 West 102nd Street. See id. In response to a question from the prosecutor concerning the level of certainty in his identification, Sails said it "[c]ould have been like 70 to 80 percent" and then added that he "wasn't quite sure." Id.; see also H. 212 (defense counsel reading these portions of Sails' grand jury testimony into the record).

  The next person to view the lineup was Jose Sandoval. (Mueller: H. 38). Sandoval was an employee of the liquor store located next door to 1806 Amsterdam Avenue. (See Mueller: H. 46). Upon viewing the lineup, Sandoval "indicated . . . that he was either choosing number 2 or number 5" as the person he saw in the vicinity of 1806 Amsterdam Avenue on the night in question. (See Mueller: H. 39). At Sandoval's request, the lineup participants stood up. (Mueller: H. 39). Sandoval chose Holmes as the person he had seen on the night in question. (Mueller: H. 39). In his grand jury testimony, however, Sandoval testified that, upon his request, only Holmes and the individual seated in position number five stood up. See Sandoval's Grand Jury Testimony (reproduced as Ex. E to Petition) ("Sandoval's Grand Jury Testimony"), at 104. At that time, Sandoval told the detective that Holmes was "most like" the man he saw in the vicinity of 1806 Amsterdam Avenue "because of [his] color and [his] weight, his height, and the way he stood up." See id. at 105. Sandoval testified before the grand jury that Holmes's features were "more similar" to the features of Brown's attacker than the other participants in the lineup. See id. at 103-04; accord H. 213. When asked if he was able to tell the detective that he was "sure" that Holmes was the man he observed, Sandoval responded by stating that Holmes "was the person who had the most features like him." See Sandoval's Grand Jury Testimony at 105; accord H. 213-14.

  The next person to view the lineup was Alejandro DeJesus (a/k/a Niko Dellacruz), who was present at the scene at the time of the incident in question. (Mueller: H. 40, 48-49).*fn3 Upon viewing the lineup, DeJesus did not identify anyone as the perpetrator. (Mueller: H. 40).

  The final person to view the lineup was Renee Flowers, who was also an eyewitness. (Mueller: H. 7, 41). Upon viewing the lineup, Flowers indicated that she recognized Holmes. (See Mueller: H. 41). Before the grand jury, Flowers testified that she selected Holmes at the lineup because he had "the same features" as the man she saw at 1806 Amsterdam Avenue on the night that Brown was shot. See Flowers' Grand Jury Testimony (reproduced as Ex. E to Petition) ("Flowers' Grand Jury Testimony"), at 17. During the course of her grand jury testimony, however — in a portion that was admitted at the Wade hearing (H. 158-59) and read into the record at trial — Flowers stated that the reason she had picked Holmes at the lineup was "because of his complexion" and because he was "light skinned and his features looked the same" as the perpetrator. (Tr. 890-91). Flowers then further described what led her to identify Holmes as the perpetrator at the lineup:
Q. Can you tell us what your level of certainty is or was on Saturday, October 15, 1994, when you selected . . . number two in the lineup that you saw at the 30th Precinct?
A. All right. I seen that he was light skinned and the, first of all, he was, you know, the lightest one that I've seen there and I felt that, you know, this was the individual. . . .
Q. Was the man that you selected in the lineup the man holding the number two, was he similar in appearance to the man in the hat which you had seen . . . on October 14, 1994?
A. Yes, he appeared to be the gentleman. Q. And what is — can you tell us about your level of certainty regarding your identification, can you talk about that at all?
A. I only can say certainly about the clothes and that's what I can say in his complexion, and like I said, all I saw was the side of him.
Flowers' Grand Jury Testimony at 52-53.

  The trial court concluded that there was no police suggestiveness in the lineup and thus rejected Holmes's motion to suppress the identification testimony. (H. 221, 247). Although acknowledging that the witnesses' descriptions of the perpetrator focused upon his light complexion, the court stated that case law did not require that fillers in a lineup have a complexion identical to the subject of the lineup. (See H. 245-46). In reaching its decision, the court also emphasized the fact that the witnesses had not made definitive identifications. (H. 246). Specifically, the court commented that if the police were attempting to be suggestive in this instance, they "did a miserable job of it because they have witnesses who are uncertain" in their identification of Holmes as Brown's attacker. (H. 220).

  B. The Evidence Presented at Trial

  1. The People's Case

  On the afternoon of October 14, 1994, Kevin Richardson drove Nathaniel Brown to see Karen Brown, his estranged wife, at her home in Staten Island. (See Richardson: Tr. 478-80, 482, 484-86; K. Brown: Tr. 261-63).*fn4 Shortly after arriving at the house, Nathaniel Brown got into an argument with Rhonda Brown, his stepdaughter, during the course of which Brown hit or grabbed Rhonda. (See K. Brown: Tr. 263-65; Richardson: Tr. 480-81, 488-89). As Rhonda attempted to exit the apartment, Brown grabbed her by the arm, and, subsequently, the two slid down a nearby stairway. (Richardson: Tr. 489). After reaching the bottom of the stairway, Rhonda yelled at Brown, "`you're dead mother fucker. You're dead.'" (Richardson: Tr. 489). Following the altercation, Nathaniel Brown and Richardson returned to Manhattan, and Karen Brown called the police to report the argument. (See Richardson: Tr. 489-90; K. Brown: Tr. 1026-28). Upon returning to Manhattan, Richardson dropped Nathaniel Brown off at 1806 Amsterdam Avenue at approximately 8:40 or 8:45 p.m. (Richardson: Tr. 490).

  Following the incident, Karen heard Rhonda speaking on the telephone. (K. Brown: Tr. 268). Because Rhonda was crying and shaking, Karen took the telephone from her. (K. Brown: Tr. 268). At the other end of the line was Holmes, Rhonda's boyfriend, who was informed by Karen that Rhonda had had an argument with Nathaniel Brown. (See K. Brown: Tr. 268-70; Lamar: Tr. 298). Holmes asked Karen where Nathaniel Brown was and she informed him that he was either at Richardson's apartment located on 102nd Street or at his own apartment located at 1806 Amsterdam Avenue. (K. Brown: Tr. 270).

  At approximately 8:30 p.m. that evening, Sails, a security guard at Richardson's apartment complex, was approached by a man outside of the security booth where he was working. (Sails: Tr. 691-92, 696-98, 705). Sails described the man as a "light skinned" black male in his twenties, with a "stocky" build between 5'9" and 6'0" tall. (Sails: Tr. 699-700). The man was wearing a black knit hat which was covering his eyebrows and a "greenish gray" jacket with the collar turned up. (Sails: Tr. 700-01). Although the area around the security booth was well-lit, Sails testified that it was difficult to see the man's face because the hat he was wearing "was pulled low over his eyebrows" and because his collar was turned up. (Sails: Tr. 720, 722). As the man approached, he asked Sails about an address located at "102 Central Park and Columbus." (Sails: Tr. 701). After Sails informed him there was no such address, the man made a call on his cell phone. (Sails: Tr. 701-04). Phone records showed that a call was placed at about this time from this cell phone to Karen Brown. See Resp. Mem. at 12 (citing telephone records admitted at trial as Exhibits 19A and 19B). Karen Brown also testified that Holmes called her that evening, asking about Richardson's name and confirming his apartment number — thus suggesting to her that he was actually at the 102nd Street address when he called. (K. Brown: Tr. 273-74).

  After placing the phone call, the man requested that Sails ring the buzzer to Richardson's apartment. (Sails: Tr. 704-05). After buzzing Richardson's apartment, Richardson's son told Sails to send the man up and Sails did so after the man signed his name "S. Jenkins" in a visitors logbook. (Sails: Tr. 705, 708, 723; R. Richardson: Tr. 1279-80). The parties stipulated that the logbook signature matched a sample of Holmes's handwriting introduced at trial. (See Tr. 1433). In addition, the parties stipulated that Holmes had used the name "Darvin Jenkins" as an alias in the past. (Tr. 1433).

  Richardson's son, who was ten years old at the time he testified, opened the door to the apartment and the visitor asked if he knew of Nathaniel Brown's whereabouts. (See R. Richardson: 1276, 1281-82). Richardson's son informed him that he did not know where Brown or his father were at the time. (R. Richardson: Tr. 1281-82). Sails never saw the man leave the building. (Sails: Tr. 753).

  Later that same evening, Sails, along with several detectives, watched a videotape from a surveillance camera that videotaped anyone entering and exiting the building. (Sails: Tr. 709-11; Smoot: Tr. 1090). The videotape was played in open court during the course of the trial. (Sails: Tr. 720-22). Sails could not recall if he reviewed the videotape with detectives before or after describing the individual who approached him at the security booth to police. (Sails: Tr. 749). In Rhonda Brown's grand jury testimony, which was admitted into evidence at trial, she testified that she recognized Holmes upon viewing the videotape. (Tr. 1448-49).

  Holmes called Karen Brown a second time that evening to ask the other address she had given him and to confirm that it was 1806 Amsterdam Avenue, Apartment 4B3. (K. Brown: Tr. 275). At this time, Karen Brown again provided Holmes with the address. (K. Brown: Tr. 275).

  At approximately 9:00 p.m. that same evening, Nathaniel Brown entered the liquor store adjacent to 1806 Amsterdam Avenue and began a discussion with Jose Sandoval, an employee at the store. (Sandoval: Tr. 396-98). Brown and Sandoval continued their conversation outside the store, at which time they were joined by Renee Flowers, who also lived at 1806 Amsterdam Avenue. (Sandoval: Tr. 398, 402; Flowers: Tr. 795, 800-02). During this encounter, Sandoval saw a man standing on a nearby sidewalk. (Sandoval: Tr. 398-99). Sandoval described the man as being approximately 5'10" tall, as having a lighter skin tone than himself and a "very strong" build. (Sandoval: Tr. 399). Sandoval testified that the man was wearing a "dark" winter hat covering the lower part of his forehead, including his eyebrows, and a "brown light jacket" that appeared to be an "army jacket." (Sandoval: Tr. 400-01). When Sandoval first saw the man, the man was looking at the door to 1806 Amsterdam Avenue with his hands in his pockets. (Sandoval: Tr. 401-02, 404). The conversation outside the store lasted "about a minute" and Sandoval reentered the store. (Sandoval: Tr. 404-05). Flowers and Brown subsequently headed towards the door of 1806 Amsterdam Avenue, where Brown lived on the fourth floor with his girlfriend. (Flowers: Tr. 800, 802). Brown rang the outside intercom to his girlfriend's apartment to let her know that he was coming upstairs. (Flowers: Tr. 802-03). The entrance to 1806 Amsterdam Avenue had two sets of glass doors, one after the other, and each door was locked. (Flowers: Tr. 797-98). Brown unlocked the first door with his key, and he and Flowers entered the building. (Flowers: Tr. 803). At that point a man began to follow them into the building. (Flowers: Tr. 803-04). Flowers described the man as a "light skinned" black male, with a "broad" build, wearing a black ski hat and a "green army jacket." (Flowers: Tr. 804-05). Because the man's black hat came down to his eyebrows, and because the collar to the man's jacket was pulled up to his ears, Flowers could only see the man's face from his eyebrows to his chin. (Flowers: Tr. 805-06). Flowers testified that the man "always had his head down" and that the lighting in the vestibule was "dim" because the only lighting was provided by the outside street lights. (Flowers: Tr. 808, 810).

  Flowers and Brown asked the man if they "could . . . help him." (Flowers: Tr. 809). The man informed them that he was there to visit a friend, "Reggie." (Flowers: Tr. 809). Flowers informed the man that "he had the wrong building [since] there was no Reggie that lived there." (Flowers: Tr. 809). In response, the man stated that he knew "Reggie" lived in the building because he had visited him "earlier." (Flowers: Tr. 809-10). At that point, Flowers "got kind of nervous" and turned away from the man. (Flowers: Tr. 810). Brown informed the man that he would not permit him to enter the building. (Flowers: Tr. 810-11). Brown then opened the inner vestibule door and allowed Flowers to enter the building. (Flowers: Tr. 811). The man stuck his foot in the doorway and Brown again informed him that he would not permit him to enter the building. (Flowers: Tr. 812). Brown told the man that he should use the intercom system and the man made a motion as if he was going to do so. (Flowers: Tr. 812). The man, however, reached into his jacket and pulled out what "looked like the . . . handle of a gun." (Flowers: Tr. 812). As Flowers turned to run down the hallway, she heard two gun shots. (Flowers: Tr. 812-13). Following the shooting, Flowers went to tell Brown's girlfriend that he had been shot. (See Flowers: Tr. 813). When police arrived, Brown was bleeding and laying face up in the lobby of the building underneath the mailboxes. (Mueller: Tr. 1143-44). Brown was taken to St. Luke's Hospital and he subsequently died. (See Mueller: Tr. 1145; Smiddy: Tr. 1295).

  Throughout the encounter, Flowers did not get a "complete look" at the shooter's face. (Flowers: Tr. 818; accord Flowers: Tr. 825, 831, 833, 848, 871-72). Flowers testified that the man's clothing, specifically, the fact that "his hat [was] pulled down and his coat pulled up," prevented her from observing the man's face. (Flowers: Tr. 818). In fact, Flowers indicated that she did not look at the man who eventually shot Brown because she was "scared." (Flowers: Tr. 872).

  Sandoval and DeJesus, another liquor store employee, heard two gun shots coming from the building next door. (Sandoval: Tr. 411-12; DeJesus: Tr. 899, 902-03). As Sandoval went to the door of the liquor store, he saw the man in the "army jacket" that he had previously seen standing on the sidewalk walk past him with his hands in his pockets and his head facing down. (Sandoval: Tr. 412-13). Sandoval indicated that he was unable "to get a good look" at the man's face "because [the man] always had his head down." (Sandoval: Tr. 416). Sandoval, however, testified that it was "the color of [the man's] skin" that "stayed in [his] mind." (Sandoval: Tr. 450-51). Although DeJesus did not see the man's face, he stated that the man was approximately 5'8" or 5'10" tall. (DeJesus: Tr. 907, 914). DeJesus testified that the assailant wore a black winter hat and an "olive green" or "green" military jacket with the collar "[a] little lifted up." (DeJesus: Tr. 903-05).

  Following the shooting, Sandoval, Richardson, Rhonda Brown, Flowers, and Sails gave statements to the police. (Sandoval: Tr. 462; Richardson: Tr. 496; R. Brown: Tr. 599; Flowers: Tr. 823-24; Sails: Tr. 709). Holmes was taken into custody at about 4:00 or 4:30 p.m. on October 15, 1994. (See Speer: Tr. 515; Mueller: Tr. 1149-50). At the time, Holmes had several toothpicks, a black knit hat, and a cellular phone in his possession. (Mueller: Tr. 1150, 1157-59, 1242, 1261-62). In fact, Holmes was wearing the black knit hat when he was taken into custody. (Mueller: Tr. 1242; Speer: Tr. 515).*fn5 The videotape retrieved from the 14 West 102nd Street security booth showed that the individual seeking to gain entrance to Richardson's apartment was holding a cellular phone and had a toothpick in his mouth. (See Mueller: Tr. 1149, 1262). Detective Mueller also testified that the man he "viewed in the video was wearing a green army jacket and a black knit hat" and that this clothing "correspond[ed]" with the eyewitnesses' descriptions of the perpetrator's clothing. (Mueller: Tr. 1262). At the time of his arrest, Holmes informed Detective Mueller that he was 5'8" tall and weighed 185 pounds. (Mueller: Tr. 1262).

  The police conducted a lineup that included Holmes later that evening. (Mueller: Tr. 1151-52). Holmes chose to sit in position number two in the lineup. (Mueller: Tr. 1154-55). At trial, Sails, Sandoval, DeJesus, and Flowers all testified regarding what occurred at the lineup. (See, e.g., Sails: Tr. 716-19; Sandoval: Tr. 417-19, 452-54; DeJesus: Tr. 912-13, 917-25; Flowers: Tr. 816-19, 821, 856-59, 861-64, 890-92). None of the witnesses, however, made an in-court identification of Holmes. Resp. Mem. at 27.

  After being shown a picture of the lineup, Sails testified that "the man holding number 2 could have been the person" that approached him at the security booth on October 14, 1994. (See Sails: Tr. 717-18). At the time of the lineup, Sails was "[a]bout seventy to eighty percent" certain that Holmes was the individual he observed from his security booth. (Sails: Tr. 718).

  Sandoval testified that the two individuals that looked most similar to the perpetrator were Holmes and the individual seated in position number five "because of the color of their skin." (Sandoval: Tr. 417). Sandoval testified that Holmes and the individual seated in position number five were the only lineup participants who came close to his description of the perpetrator. (Sandoval: Tr. 452). As a result, Sandoval directed his attention solely towards those two individuals. (Sandoval: Tr. 452). Sandoval requested that Holmes and the individual seated in position number five stand up and take a step forward, and he was then able to observe their build and height. (Sandoval: Tr. 418). Based upon his observation, Sandoval concluded that Holmes had characteristics "similar" to "the man in the army jacket" that he saw standing on the ...

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