United States District Court, W.D. New York
August 23, 2005.
LIONEL SAMPSON, Petitioner,
JAMES CONWAY, Superintendent, Attica Correctional Facility, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner Lionel Sampson ("Sampson") filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction on charges of felony murder,
intentional murder and burglary in New York State Supreme Court
(Monroe County). The parties have consented to disposition of
this matter by the undersigned pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At about 5:15 a.m. on July 26, 1996, forty-eight year-old
Pamela Wood ("Wood"), a clerk at the Wilson Farms convenience
store on North Goodman Street in the City of Rochester, was shot
in the head at point-blank range during an attempted
robbery.*fn1 There were no other individuals in the store at
that early hour, but Edward Gagner ("Gagner"), who customarily
delivered newspapers to the Wilson Farms everyday between 4:15
and 4:30 a.m., had seen a man standing in the telephone booth
outside the store at about 4:30 a.m. Gagner described the man's race as black and estimated that he stood about six-feet,
four-inches-tall, weighed over 200 pounds with a muscular build,
and was wearing a wind-breaker with a "hoodie" jacket. According
to Gagner, the man's head came close to the top of the phone
booth although a little space remained.
When the police arrived on the scene, they discovered Wood's
dead body slumped in the corner of the store's office. The police
also found that the perpetrator had ripped the doors of the
cabinet containing the store's video surveillance system off
their hinges, pulled out the wires of the VCR, and ransacked the
area in the office where the equipment was housed. Apparently,
the three surveillance cameras in the store and the one camera in
the office had been sending images to a monitor continuously
during the incident. Even though the VCR had been disturbed, the
monitor still displayed the last image to have been transmitted
before the office camera was disconnected: a large man bending
over a desk as if he were ripping out the VCR's wires. The man's
face was not visible on this image, but it could be seen on the
videotape that inexplicably was left in the VCR.
The police evidence technician who recovered the videotape
isolated the images from the office camera and transferred them
onto another tape. A law enforcement imaging specialist for
Eastman Kodak Company extracted the image from the videotape left
in the VCR that showed the suspect's face and transferred it to a
set of photographs. He then used computer software to enhance the
photographs so as to increase the brightness and contrast between
the light and dark areas of the images. No alterations were made
to the images, however. Finally, the images were printed on
high-quality photographic paper in order to eliminate graininess.
These photographs showing the likeness of the suspect's face
staring up at the surveillance camera then were broadcast on the local news and printed in the newspaper. Four
individuals Rosemary Arnold ("Arnold"), Lynette Cook ("Cook"),
April Huntley ("Huntley") and Corey Butler ("Butler") who had
either known or worked with Sampson at Wilson Farms saw the
newscast and recognized him as the man on the videotape. Butler,
Arnold and Cook approached the police concerning their
recognition of Sampson and were separately shown print
photographs of the suspect's likeness that had been televised on
the news. All three individuals confirmed their earlier
identifications based upon what they had seen in the media. (Hunt
did not contact the police at that time, but she did testify at
trial, along with Butler, Arnold and Cook, that Sampson was the
individual on the videotape.)
In the days following the murder, Sampson contacted Andre Dade
("Dade"), who had hired him to work as a cashier at Wilson Farms,
and asked him if he had seen the news reports. When Dade replied
affirmatively, Sampson confided that he believed that the police
thought he committed the Wilson Farms crime and asked Dade for
money. Dade refused this request and several other requests
Sampson subsequently made to him for money.
On August 8, 1996, about a week after Butler, Arnold and Cook
had come forward and identified Sampson as the perpetrator, the
police conducted a surveillance of Sampson's residence 732
Genesee Street. Sampson was arrested later that night outside of
a grocery store on Genesee Street where the police had traced
Sampson through a phone call. As he was being handcuffed, Sampson
mused, "[H]ow did you guys find me?" T.971-75. 979-84.*fn2
Sampson was indicted on four counts: intentional murder, felony
murder, depraved indifference murder and second degree burglary.
He was tried before a jury in New York State Supreme Court (Monroe County). By the time of trial, Sampson had
changed his appearance: he was clean-shaven except for a
mustache, had shorter hair and had lost weight. Sampson's
brother, Vernon Williams ("Williams"), testified for the defense
that he did not recognize the photograph of the suspect shown on
television as Sampson. Sampson's friend, Archie Donaldson
("Donaldson"), testified that the man in the videotape did not
look "exactly like [Sampson]." T. 1085, 11113-14. Barbara Pratt
("Pratt") testified for the defense that the suspect depicted on
the newscasts was a man named Leonard Holliman, with whom she had
a "horrible" romantic relationship during 1996. Pratt described
Holliman as being built like the "Pillsbury Doughboy" and police
photographs showed him to be a mere five-feet, four-inches tall.
T. 1137, 1152. Sampson, in contrast, was six-feet,
two-inches-tall and very muscular.
In the videotape of the incident shown to the jury at trial, a
black male armed with a gun and a white female are seen entering
the office of the Wilson Farms. The man is wearing a "hoodie" and
gloves and is much larger than the woman. The two struggle near
the safe and the man places a bag and a handgun on the desk. The
man picks up the gun again and the woman is next seen lying in
the corner, apparently shot. The man leaves the office
momentarily. When he returns, he looks up in the general
direction of the surveillance camera and realizes that he has
been caught on video. He then pulls the video equipment out of
the cabinet, disabling the surveillance system.
The jury returned a verdict convicting Sampson of intentional
murder, felony murder and second degree burglary as charged in
the indictment. He was not convicted of the depraved indifference
murder charge. Sampson was sentenced to an indeterminate term of
imprisonment of twenty-five years to life on each murder count
and to a determinate term of fifteen years on the burglary charge.
The Appellate Division, Fourth Department, of New York State
Supreme Court, unanimously affirmed his conviction. People v.
Sampson, 289 A.D.2d 1022 (App.Div. 4th Dept. 2001). The New
York Court of Appeals denied leave to appeal. People v.
Sampson, 97 N.Y.2d 733 (N.Y. 2002). Sampson challenged the
performance of his appellate counsel in an application for a writ
of error coram nobis which was denied. People v. Sampson,
300 A.D.2d 1154 (App.Div. 4th Dept. 2002).
Sampson filed a petition for a writ of habeas corpus in this
Court on April 16, 2003, in which he raised eight grounds for
relief. See Docket #1. On September 2, 2003, he sought and
obtained a stay of his habeas petition in order to return to
state court for the purpose of exhausting additional claims of
ineffective assistance of appellate counsel. See Docket ##9,
11. On March 30, 2005, Sampson filed an amended petition for
habeas in this Court. See Docket #15. Respondent filed a
memorandum in opposition to the amended petition on May 23, 2005,
arguing that a number of Sampson's claims were unexhausted or
procedurally defaulted. See Docket #16. On July, 7, 2005,
Sampson filed a reply memorandum of law in which he addressed
respondent's exhaustion and procedural default arguments and set
forth in more detail the claims that he had returned to state
court to exhaust in his second coram nobis application. See
For the reasons set forth below, the petition is denied. DISCUSSION
A petitioner must exhaust all available state remedies either
on direct appeal or through a collateral attack of his conviction
before he may seek a writ of habeas corpus in federal court.
28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.
1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of
state remedies requirement means that the petitioner must have
presented his constitutional claim to the highest state court
from which a decision can be obtained. See Morgan v. Bennett,
204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke,
933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the
state court is fairly apprised of the claim's federal nature and
of the factual and legal premises underlying the claim. Grey,
933 F.2d at 119-20.
The Court has reviewed Sampson's submissions to the courts
below and concludes that all of the claims raised in the original
habeas corpus petition and amended habeas corpus petition are
fully exhausted. See Daye v. Attorney General of New York,
696 F.2d 186, 194 (2d Cir. 1982) (en banc); accord, e.g., Strogov
v. Attorney General, 191 F.3d 188, 191 (2d Cir. 1999). An
extended discussion of the issues of exhaustion would be contrary
to the interests of judicial economy, and all of Sampson's claims
may be disposed of readily on the merits.
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a
petitioner seeking federal habeas review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the
evidence presented in state court. See 28 U.S.C. § 2254(d)(1),
(2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Merits of the Petition
Ground I: The verdict is against the weight of the evidence.
Sampson first claims that his conviction should be overturned
on the basis that the verdict is against the weight of the
evidence. However, challenges to the weight of the evidence
supporting a conviction are not cognizable on federal habeas
review. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). In
contrast to the intermediate appellate courts in New York state,
the federal courts may not independently "weigh the relative
probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from the
testimony." People v. Bleakley, 69 N.Y.2d 490, 495 (1987).
Accordingly, Sampson's weight-of-the-evidence claim must be
dismissed as not cognizable on habeas review.
Ground II: Improper admission of identification testimony
Sampson contends that the trial court erred in allowing the
identification testimony of civilian witnesses and in admitting
the out-of-court identification of him by these witnesses. The
Appellate Division concluded that Sampson failed to object to the
admission of the evidence at the time of trial and thereby failed
to preserve this claim for review and that, in any event, the
claim was without merit. Respondent is correct that this claim is
procedurally defaulted because the state court relied upon an
adequate and independent state ground in concluding that it was
unpreserved for appellate review. Harris v. Reed, 489 U.S. 255,
261 (1989) (Federal habeas review of a state conviction is
prohibited where the state court judgment is based on an
"adequate and independent state ground," such as a procedural bar
rule.). Samspon has not attempted to demonstrate nor can he on the record before this Court cause
for the default and prejudice attributable thereto, or that
failure to consider the federal claim will result in a
fundamental miscarriage of justice. Id. (citations omitted);
see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16 (1995).
Sampson cannot overcome this procedural default, and therefore
the claim is barred from habeas review.
Ground III: The in-court identification testimony was the
subject of bolstering by the prosecution.
Sampson argues that the prosecution improperly bolstered the
in-court identification testimony of several witnesses by having
the witnesses testify as to their prior out-of-court
identification claims. The Appellate Division also found this
claim to be unpreserved for review because Sampson failed to
object to the admission of this evidence. Respondent is correct
that this claim is subject to a procedural default which Sampson
is unable to overcome given the absence of cause and prejudice
and the fact that a fundamental miscarriage of justice will not
occur if the Court fails to consider the claim. See Schlup,
513 U.S. at 314-16. Accordingly, this claim is barred from habeas
Ground IV: Compromise of jury secrecy
During deliberations, the jury requested that it be permitted
to view isolated frames from the surveillance videotape. As a
means of accommodating that request, a videotape operator and
court deputy were permitted to enter the jury room in order to
operate the videotape player and retrieve the requested images.
Defense counsel proposed this solution, and Sampson agreed to it
in open court. Sampson now contends that allowing these
individuals into the jury room for the limited purpose of
assisting the jurors in viewing the videotape violated the
secrecy of the deliberation process such that his conviction was
unconstitutionally obtained. On direct appeal, the court held that Sampson waived his objection by consenting to
the procedure used and, in any event, his contention lacked
In Clark v. United States, the Supreme Court explained that
the need for privacy and secrecy during the jury deliberation
process derives from the risk that the "[f]reedom of debate might
be stifled and independence of thought checked if jurors were
made to feel that their arguments and ballots were to be freely
published to the world." 289 U.S. 1, 13 (1933) (Cardozo, J.);
accord, e.g., United States v. Thomas, 116 F.3d 606, 619 (2d
Cir. 1997), vacated on other grounds, 531 U.S. 1062 (2001);
U.S. CONST. amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury . . ."), U.S. CONST. amend XIV. "[I]f an intrusion
into the jury's privacy has, or is likely to have, the effect of
stifling such debate, the defendant's right to trial by jury may
well have been violated." Johnson v. Duckworth, 650 F.2d 122,
125 (7th Cir. 1981) (also noting that "jury privacy is not a
constitutional end in itself; it is, rather, a means of ensuring
the integrity of the jury trial"). Thus, the purpose of the rule
precluding persons other than jurors from being in the jury room
during the jury's discussions is twofold: it protects the privacy
of the deliberative process and prevents the inhibiting effect
that such outsiders would have on the vigorous discourse
necessary to the jury's fact-finding duties. See Clark,
289 U.S. at 13; Thomas, 116 F.3d at 619.
In New York v. Hill, the Supreme Court reiterated that
"[w]hat suffices for waiver depends on the nature of the right at
issue." 528 U.S. 110, 114 (2000) (holding that defense counsel
can effectively waive a defendant's right to be brought to trial
on a specified date under the Interstate Agreement on Detainers).
The Hill Court noted the difference between "certain
fundamental rights," which the defendant must personally waive,
and other "decisions pertaining to the conduct of the trial," which the attorney may make and to
which the defendant is deemed bound. Id.; accord, e.g., Clark
v. Stinson, 214 F.3d 315, 324 (2d Cir. 2000). Examples of the
first category include the Sixth Amendment right to
representation by counsel and the Fifth Amendment right to plead
not guilty. See id. In the latter class fall decisions by
counsel concerning what arguments to pursue, what evidentiary
objections to raise, and what concessions to make regarding the
introduction of evidence. See id.
Viewing Sampson's allegations through the lens of the foregoing
case law, the Court has no difficulty concluding that the process
leading to his conviction was not corrupted in any way. First, as
the Seventh Circuit noted in Duckworth, jury privacy is not a
constitutional end in and of itself, and Sampson does not explain
how he was prejudiced by this alleged "piercing of the veil" of
jury secrecy. Sampson does not allege that the jury continued to
deliberate while the videotape operator and court deputy were
preparing the videotape for viewing. Nor does Sampson contend
that the videotape operator and court deputy acted improperly
while they were in the jury room, let alone that they overheard
or participated in any of the jury's discussions. Notably,
Sampson does not assert that these two individuals did anything
other than cue up and play the surveillance videotape for the
jury and then leave.
Turning to the issue of Sampson's waiver, the Supreme Court has
held that the Sixth Amendment right to a public trial is subject
to waiver, provided that any such waiver is made knowingly and
voluntarily. Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938).
Here, Sampson does not dispute that he personally consented to
this procedure in open court after his own attorney suggested it.
Thus, Sampson does not have a credible basis for denying that he
consented to the extremely limited intrusion of two non-jurors
into the jury room during deliberations. Ground V: Failure to comply with the notice requirements of
New York Criminal Procedure Law § 710.30
Sampson claims that the trial judge should have excluded his
statement to the police at the time of his arrest, "Damn, how did
you guys find me?", because the prosecution failed to comply with
the notice requirements of New York Criminal Procedure Law
("C.P.L.") § 710.30 (prosecution must provide notice to defendant
within 15 days of arraignment of intention to use defendant's
statement as evidence at trial).
This Court may entertain an application for a writ of habeas
corpus only if Sampson's custody violates the Constitution, laws,
or treaties of the United States. See 28 U.S.C. § 2254(a).
Federal courts do not have the power to correct a misapplication
of state law unless that misapplication itself violates federal
law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);
Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002).
Sampson's claim pursuant to C.P.L. § 710.30 does not present a
federal question. E.g., Ventura v. Artuz, 2000 WL 995497, No.
99-Civ-12025 (S.D.N.Y. July 19, 2000) (violation of C.P.L §
710.30 is "clearly a state law issue and is not cognizable under
federal habeas review"); Smith v. Artus, 2005 WL 1661104, at
*7, No. 03C-iv-9819 (S.D.N.Y. July 14, 2005) (same). Therefore,
the Court is precluded from reviewing Sampson's claim relating to
alleged violations of C.P.L. § 710.30.
Ground VI: Erroneous exclusion of evidence of petitioner's
intent to surrender
As part of the defense case, counsel proffered the testimony of
Sampson's brother, Vernon, that Sampson told him allegedly at
some point prior to his arrest that he was going to turn
himself in to the police after Vernon's wedding. Counsel argued
that this evidence was admissible as a state-of-mind exception to
the hearsay rule. Counsel urged that the prosecution opened the
door to this line of testimony, pointing to the prosecution's
argument that evidence of Sampson's request for money from Dade and his question at the
time of his arrest about how the police managed to find him
demonstrated Sampson's plan to avoid capture and his
consciousness of guilt. According to the defense, evidence of
Sampson's intent to surrender was admissible as an exception to
the hearsay rule because it was being offered to demonstrate his
state of mind at the time of the incident that is, his
then-current intent to surrender in the future. The trial court
excluded the evidence, finding that it was being offered to prove
the truth of the matter asserted therein and, as a result,
constituted self-serving hearsay. T. 1087-91.
As an initial matter, the admissibility of evidence presents a
question of state law. Even if the trial court's ruling was
erroneous as a matter of New York law, this alone would not be
sufficient to merit federal habeas relief. See Estelle v.
McGuire, 502 U.S. at 67. The relevant inquiry with respect to
federal law is whether the challenged evidentiary rulings so
infected the proceedings with unfairness as to render the trial
fundamentally unfair. See Dunnigan v. Keane, 137 F.3d 117, 125
(2d Cir. 1998).
The Court agrees with the trial court's conclusion that this
self-serving hearsay evidence should not have been admitted.
Because it was lacking in circumstantial guarantees of
trustworthiness, it did not meet the test of reliability.
Moreover, the Court cannot find that the evidence was of even
marginal importance to the trial. In truth, the testimony easily
could have cut against Sampson's cause since the jury also could
have interpreted a plan to surrender as showing consciousness of
guilt. Finally, Sampson has not demonstrated a shred of prejudice
as a result of the trial court's evidentiary ruling on this
issue. Accordingly, this claim does not provide a basis for
Ground VII: Failure to issue a "circumstantial evidence"
charge Sampson contends that the alleged evidence of his guilt was
wholly circumstantial and that therefore the trial court erred in
refusing to give what is commonly referred to in New York law as
a "moral certainty" charge, see People v. Roldan,
88 N.Y.2d 826, 827 (N.Y. 1996). According to Sampson, the images extracted
from the surveillance videotape from the witnesses identified him
as the perpetrator essentially were "circumstantial evidence" of
what was depicted on the original videotape. On direct appeal,
the Appellate Division rejected this claim as without merit.
Under New York law, a circumstantial evidence jury charge is
only required, at the defendant's request, when the evidence
against a defendant is comprised solely of circumstantial
evidence. E.g., People v. Daddona, 81 N.Y.2d 990, 992 (N.Y.
1993) ("Whenever a case relies wholly on circumstantial evidence
to establish all elements of the charge, the jury should be
instructed, in substance, that the evidence must establish guilt
to a moral certainty."). However, where a charge is supported
with both circumstantial and direct evidence, the court need not
so instruct the jury. Id.
Sampson's argument, albeit creative, has no sound basis in law
or logic. Here, four witnesses identified Sampson as the person
depicted on the surveillance videotape. This identification
evidence was not rendered circumstantial by the fact that the
witnesses identified Sampson after viewing images extracted from
the original surveillance videotape. Because these
identifications constituted direct evidence of Sampson's guilt, a
circumstantial evidence charge was not warranted in this case.
Therefore, this claim affords no basis for habeas relief.
Ground VIII: Ineffective assistance of appellate counsel
A. Legal standard In order to prevail on a claim of ineffective assistance of
counsel within the framework established by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), a habeas
petitioner must satisfy a two-part test. First, a petitioner must
demonstrate that counsel's performance was so deficient that
counsel was not functioning as "counsel" within the meaning of
the Sixth Amendment to the Constitution. Id. at 688. In other
words, a petitioner must show that his attorney's performance
"fell below an objective standard of reasonableness." Id.
Second, a petitioner must show that counsel's deficient
performance prejudiced him. Id. at 694. To establish the
"prejudice" prong of the Strickland test, a petitioner must
show that a "reasonable probability" exists that, but for
counsel's error, the outcome of the trial would have been
different. Id. at 694.
Although the Strickland test was formulated in the context of
evaluating the effectiveness of trial counsel, the same standard
applies to claims regarding the performance of appellate counsel.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing,
e.g., Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).
Appellate counsel need not present every non-frivolous argument
that could be made on petitioner's behalf. Mayo,
13 F.3d at 533. Moreover, reviewing courts should not employ hindsight to
second-guess an appellate attorney's choices concerning strategy.
Mayo, 13 F.3d at 533; see also Jones v. Barnes, 463 U.S. 745,
754 (1984). Omission of insignificant claims that will likely be
unsuccessful does not prejudice a defendant. See Mayo,
13 F.3d at 534 ("To establish prejudice in the appellate context, a
petitioner must demonstrate that `there was a "reasonable
probability" that [his] claim would have been
successful. . . .'") (alteration in original) (quoting Claudio v.
Scully, 982 F.2d at 803)).
B. Alleged grounds of ineffectiveness 1. Failure to challenge reasonable doubt instruction
Sampson asserts that "appellate counsel failed to raise that
the trial court in the instruction to the jury relative to the
`deliberation duties' charged that each juror had a duty `to
determine whether that juror has, in fact, a reasonable doubt of
the defendant's guilt as the term as defined under our law.'"
Petition at 7, ¶ 12 (Docket #1). At trial, the court's charge on
reasonable doubt read, in part, as follows:
A doubt of a defendant's guilt, to be a reasonable
doubt, must arise either from the nature and the
quality of the evidence in this case or from the lack
or insufficiency of the evidence in this case.
Therefore, the first duty of each juror is to
consider and weigh all the evidence in this case and
decide which you believe is credible and worthy of
your consideration. The next duty of each juror is
to determine whether that juror has, in fact, a
reasonable doubt of the defendant's guilt as the term
is defined under our law.
T. 1285-86 (emphasis supplied).
Sampson argues that the italicized language in the charge
impermissibly diverged from the "approved language `a doubt for
which some reason can be given.'" (emphasis supplied). Although
New York's Pattern Jury Instructions and state appellate courts
condone the "some reason" language, the federal courts have
viewed it with wariness. In Vargas v. Keane, the Second Circuit
explained that "instructions tying `reasonable doubt' to a doubt
`for which you can give a reason' or, in the more passive
formulation, `for which a reason can be given' may well be
unwise, because of the possibility that such an instruction will
`intimidate a juror by suggesting that he may be called upon to
explain his doubts.'" 86 F.3d 1273, 1277 (2d Cir. 1996) (quoting
United States v. Davis, 328 F.2d 864, 867 (2d Cir. 1964)
(rejecting challenge to instruction defining reasonable doubt as
"a doubt for which you can give a reason")); see also Chalmers
v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996) (considering
constitutionality of a state trial court instruction defining reasonable doubt as "a doubt for
which some good reason can be given" and holding that the "good
reason" language constituted an "incorrect statement of law which
should never be made").
Given these precedents, it is clear that there was no error of
federal constitutional magnitude in the instruction given at
Sampson's trial. In fact, because it omitted the problematic
"some reason" language, it arguably was more fair to the
2. Failure to argue that the trial court should have
conducted Daubert hearing
Sampson suggests that appellate counsel should have argued that
it was error to not to hold a hearing pursuant to Frye v.
United States, 293 F. 1013 (D.C. Cir. 1293), and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to determine the
admissibility of the images from the surveillance videotape.
According to Sampson, the prosecution's law enforcement imaging
specialist who extracted the images from the videotape was an
"expert witness" who used "special `Adobe Photo Shop' computer
program equipment" to prepare the videotape shown at trial. The
defense expert witness, however, testified at trial that there
was nothing improper about what the prosecution's imaging
specialist had done with respect to the preparation of the
videotape. Moreover, defense counsel never asked for an
opportunity to further challenge the reliability of the software
used to produce the enhanced videotape. Since the claim was
unpreserved in the trial court, appellate counsel cannot be
faulted for failing to advance a claim that the appellate court
certainly would have declined to review.
3. Failure to argue denial of right to confrontation at
Sampson argues that he was denied his Sixth Amendment right to
confrontation at the suppression hearing because the police officers were permitted to
testify regarding their interviews with the identification
witnesses, but the witnesses did not testify personally. Under
New York and federal law, hearsay is admissible at suppression
hearings. E.g., People v. Parris, 83 N.Y.2d 342 (N.Y. 1994)
("[P]robable cause can be established at the suppression hearing
. . . by hearsay information[.]") (citing, e.g., Draper v.
United States, 358 U.S. 307, 311-312 (1959)); United States v.
Raddatz, 447 U.S. 667, 679 (1980) ("At a suppression hearing,
the court may rely on hearsay and other evidence, even though
that evidence would not be admissible at trial."). Appellate
counsel cannot be found ineffective for failing to assert this
claim, which had no likelihood of success on appeal.
In sum, Sampson has failed to show that he was prejudiced in
any way by appellate counsel's omission of these non-meritorious
arguments on appeal. The Court has reviewed appellate counsel's
thorough and well-written brief, and it is evident that Sampson
received constitutionally adequate representation on his direct
For the reasons stated above, Lionel Sampson's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Sampson has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253.
IT IS SO ORDERED