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Applewhite McGinnis


November 29, 2005




Chris Applewhite brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in New York state Supreme Court, New York County, for first degree assault, first degree criminal use of a firearm, and second and third degree criminal possession of a weapon. Mr. Applewhite argues that: (1) he was convicted on the basis of evidence that was obtained pursuant to an illegal search and should have been excluded; (2) he was denied a fair trial because a witness who was unable to identify him in a pretrial line-up repeatedly referred to him as "the shooter" during the trial; (3) the trial judge improperly instructed the jury that it could infer consciousness of guilt from evidence that "the defendant" fled the scene of the crime after the shooting when the defendant's identity as the shooter was in dispute; (4) the trial court erroneously refused to charge the jury on the unreliability of cross-race identification; and (5) the sentence was excessive and unduly harsh. For the reasons that follow, I recommend that the petition be denied.


A. The Shooting of Michael Collozo

In the early morning hours of Sunday, October 12, 1997, the victim, Michael Collozo, and four friends -- Robert Calero, Eric Flores, Robert Garcia, and Christian Valdera -- were at Playland, a video arcade located on the west side of Broadway at 47th Street in Manhattan. (Tr. 297, 475, 720-21).*fn1 There was a Howard Johnson Restaurant at the other end of the block, on the corner of 46th Street. (Tr. 297, 370, 428-29). In front of Playland, the intersection of Broadway and Seventh Avenue forms a triangular island called Duffy Square. (Tr. 302-04, 306-07, 671). Across the intersection is a McDonald's restaurant. (Tr. 306).

While Mr. Valdera and Mr. Garcia finished playing a game, Mr. Collozo, Mr. Calero, and Mr. Flores went outside Playland to wait. (Tr. 302, 469, 651-53, 722). Standing nearby was another group of young men, whom Mr. Flores and Mr. Calero perceived were "looking at [them] wrong." (Tr. 469-70, 477, 479, 604, 723). Uncomfortable, Mr. Calero convinced his friends to go across the street to the McDonald's. (Tr. 604, 612, 618).

As they were leaving, an altercation developed when Mr. Collozo, who was intoxicated, made offensive comments toward members of the other group. (Tr. 604, 715). Mr. Collozo's friends attempted to pull him back, but as they walked away from Playland, crossing Broadway into Duffy Square, Mr. Collozo continued to make offensive comments and yell racial epithets toward the other group, all of whom were African-American. (Tr. 350, 358-59, 479, 605, 614, 621, 730-31). Four men from the other group started to follow Mr. Collozo's friends across the street. (Tr. 621, 726). When the two groups were about four or five feet away from each other, one man pulled a small, silver-colored, semi-automatic handgun from his waistband and shot Mr. Collozo once in the stomach. (Tr. 359, 362, 366-67, 506, 622-23, 628). The shooter and his friends scattered. (Tr. 368-69, 497, 732, 743). Neither Mr. Collozo nor any of his friends had any weapons. (Tr. 354, 506-07, 629, 743, 769).

Mr. Flores and Mr. Valdera moved Mr. Collozo to the entranceway of the Howard Johnson Restaurant (Tr. 370, 630), while Mr. Calero and Mr. Garcia ran to a pay phone to call an ambulance. (Tr. 624-25). Officer John Majewicz, who was patrolling the Times Square area that night, testified that a young man flagged down his marked police cruiser and reported that his friend was at 46th Street and Broadway and had just been shot. (Tr. 428).

Officer Majewicz and his partner, Officer Aparicio, were the first on the scene, arriving at approximately the same time as an ambulance operated by paramedics Samuel Lubin and David Stern. (Tr. 427-28, 434, 765-67, 770). Patrol supervisor Sergeant James Carlo arrived shortly after. (Tr. 668-69). Mr. Collozo's condition was considered critical, and the paramedics departed with him in under two minutes. (Tr. 768). Mr. Garcia left in the ambulance with Mr. Collozo and accompanied him to St. Vincent's Hospital. (Tr. 631). Mr. Calero, Mr. Valdera, and Mr. Flores showed the officers to the crime scene, where a spent shell casing was recovered. (Tr. 509-10, 631). They also described the shooter to the officers. (Tr. 508-09, 633-34).

During this time, Detective Wallace Zeins arrived, spoke with the witnesses and other officers, and ordered the crime scene cordoned off. (Tr. 330-32, 448). Detective Zeins then proceeded to St. Vincent's Hospital, where Mr. Collozo was still in surgery. (Tr. 335). At the hospital, Detective Zeins spoke with Mr. Garcia and obtained from him a description of the shooter. (Tr. 335).

Mr. Calero, Mr. Flores, and Mr. Valdera went with Sergeant Carlo to the Midtown North Precinct, where they gave written statements. (Tr. 512, 518-20, 523-25, 633). They remained at the precinct for eight to ten hours. (Tr. 520-23). Mr. Valdera testified that at some point that morning he and his friends were informed by a member of the police department that a suspect named Chris Applewhite had been arrested. (Tr. 390-92). Mr. Flores recalled that they were told that a suspect had been arrested, but not told his name. (Tr. 518, 521-22).

Although there were some discrepancies, Mr. Valdera, Mr. Flores, and Mr. Calero all described the gun as a small silver-colored semi-automatic, and the shooter as a young black man between nineteen and twenty-five years old, between five-foot-eight and five-foot-ten, medium to slim build, wearing a black "do-rag" and a burgundy leather jacket with the brand name "Avirex" written on the back. (Tr. 363-64, 488, 505, 509).*fn2 At 2:27 a.m. a composite description of the shooter was transmitted by Sergeant Carlo. (Tr. 670; Incident Record Listing ("Incident Record"), attached as Exh. E to Traverse by Petitioner, at 1).*fn3 The transmission described one black male, five-foot-eight, wearing a burgundy jacket with "Avirex" on the back and a black "skull cap" or "skull hat" fleeing eastbound on 46th Street. (Tr. 677).

This description was primarily what Officer Christopher Navarra relied on when he detained the petitioner approximately an hour and a half later. Officer Navarra and his partner, Officer Thomas Kelly, work in the Midtown South Precinct, which shares the same radio frequency as the Midtown North Precinct where the shooting occurred. (Tr. 342-43, 438-39, 682, 803, 807). On the morning of October 12, 1997, Officers Navarra and Kelly were on patrol in the area of East 40th Street between Park and Madison Avenues. (Tr. 804). This area is approximately ten blocks away from where the shooting occurred.

Shortly before 4:00 a.m., Mr. Applewhite flagged down the officers' marked police cruiser and reported that he had just been robbed of his leather jacket by a man with a gun. (Tr. 802, 808-10). Mr. Applewhite pointed to a man who was less than half a block away, holding a gun and "walking at a quick pace" toward the corner of Madison Avenue. (Tr. 809-10, 886, 890). Both officers pursued the man and saw him throw a "maroon" jacket and a handgun under a car parked on Madison Avenue just south of 40th Street. (Tr. 810-11, 887). Officer Kelly arrested the man, identified as Ronnie Butler, and picked up the gun Mr. Butler had thrown down, a "grayish black" revolver. (Tr. 811, 816-17, 829-30, 857).

Officer Navarra collected the jacket from the ground and returned it to the petitioner. (Tr. 811, 816). Mr. Applewhite promptly put the jacket on; as he did so, Officer Navarra saw that "Avirex" was written on the back of the jacket. (Tr. 817, 852-53).

At this point, Officer Navarra realized that Mr. Applewhite fit the description of the suspect from the earlier shooting: he was a black man, twenty to twenty-five years old, approximately five-foot-eight, wearing a black "nylon silk do-rag or knit cap," dark pants, and a maroon leather jacket with "Avirex" written on the back. (Tr. 814, 816-17, 823, 853).

Believing Mr. Applewhite to be a potential suspect in the shooting, Officer Navarra proceeded to pat him down for weapons. (Tr. 818). During the outer-body frisk, the petitioner "tr[ied] to slide his hands towards his torso towards his chest area." (Tr. 818). Officer Navarra asked Mr. Applewhite to place his hands against the wall, and then patted the petitioner's chest. (Tr. 818-19). Officer Navarra felt something under the petitioner's shirt, which he discovered to be a small, silver-gray semi-automatic handgun. (Tr. 819, 821-23, 857). The gun was hanging from Mr. Applewhite's neck on a silver beaded chain looped through the trigger-guard. (Tr. 821-22). The magazine contained five bullets. (Tr. 823).

Officer Navarra handcuffed the petitioner, placed him under arrest for possession of the weapon (H. 21),*fn4 and radioed for a sergeant investigating the shooting to come to the scene. (Tr. 822). Shortly after 4:00 a.m, Detective Zeins took Mr. Garcia to 40th Street and Madison Avenue for a show-up identification of the petitioner. (Tr. 336). Mr. Garcia positively identified Mr. Applewhite. (H. 27-28). When Mr. Garcia made the identification, the petitioner and Mr. Butler were both handcuffed and standing side by side, approximately two feet away from each other. (H. 26-27). Testimony about this show-up identification was never introduced at trial because Mr. Garcia could not be located. (H. 2).

On October 15, 1997, Mr. Applewhite was placed in a line-up viewed by Eric Flores and Christian Valdera. (Tr. 373, 512-13, 684-85, 831-32). Officer Navarra and Detective Juan Jiminez conducted the line-up, at which counsel for the defense was present. (Tr. 684-86, 831-32). Mr. Valdera was unable to make an identification. (Tr. 374, 392, 406, 704). Mr. Flores positively identified Mr. Applewhite. (Tr. 516).

B. Legal Proceedings

The petitioner was arraigned on October 30, 1997, on a grand jury indictment charging Mr. Applewhite with attempted murder and lesser charges. On December 14, 1998, a suppression hearing was held before Justice Carol Berkman. In addition to other arguments, Mr. Applewhite challenged the basis for his detention and arrest, and sought to suppress the gun as the fruit of an illegal search.

(H. 87, 89-90). Justice Berkman found that the limited pat-down search of the petitioner was proper and that the gun was therefore admissible. (H. 97-99).

During the hearing, the defense requested that a previously filed speedy-trial motion be held in abeyance pending further investigation, and the trial be postponed during this investigation. (H. 102-04). Justice Berkman refused to postpone the trial further and set January 4, 1999 as the trial date. (H. 104-05).

The trial began on April 6, 1999, before Justice Charles Tejada. Eric Flores was the only identification witness presented by the prosecution. (Tr. 417-18). Although Mr. Flores testified that he was sure he correctly identified the shooter during the line-up, when asked whether he recognized the same man anywhere in the courtroom, Mr. Flores said he did not. (Tr. 471-72, 517-18).

Christian Valdera testified that he had been unable to make an identification during the line-up. (Tr. 374). When asked whether he would be able to recognize the shooter if he saw him again, Mr. Valdera responded, "I don't think I would." (Tr. 374). Asked whether he recognized anyone in the courtroom as the shooter, Mr. Valdera answered that he did not, and explained, "I didn't see his [the shooter's] face." (Tr. 409-11).

However, during his narrative of the events of October 12, 1997, Mr. Valdera made several statements in which it was evident that he believed Mr. Applewhite to be the person who shot Mr. Collozo. (Tr. 300-01, 310). Mr. Valdera referred to "the guy that shot Michael . . . whatever his name is, Applewhite, Chris Applewhite, that guy." (Tr. 300). He stated that "Chris's friends was [sic] hanging out right outside Playland." (Tr. 301). When the altercation escalated, "the shooter, Chris . . . was standing right . . . in front of Michael. . . ." (Tr. 310). Mr. Valdera also stated that when he viewed the line-up, he thought one of the men "looked familiar," but did not identify anyone because he was unsure. (Tr. 374, 408-10). The person in the line-up who Mr. Valdera thought he recognized was not Mr. Applewhite. (Tr. 408, 686, 702).

Defense counsel moved for a mistrial on the grounds that Mr. Valdera had made an improper in-court identification of the petitioner, and that the prosecution had failed to give the defense prior notice of an identification witness, as required by CPL § 710.30. (Tr. 321-23). The prosecution maintained that Mr. Valdera had not made an identification and was not an identification witness. (Tr. 417-18). Justice Tejada denied the motion without deciding whether or not an identification had been made, because he found that either way no notice was required. (Tr. 322-23, 416-17). During extensive cross-examination and redirect questioning, Mr. Valdera admitted that he had not identified Mr. Applewhite or anyone else as the shooter, and could not do so because he never saw the shooter's face. (Tr. 409-11).

Detective Joseph Ramirez of the New York City Police Department Firearms Analysis Division testified as an expert witness that the shell casing found at the scene of the shooting had been fired from the semi-automatic pistol found on Mr. Applewhite. (Tr. 914, 916, 927-29). He also testified that the pistol taken from Mr. Applewhite had been defaced, in that the serial number had been "obliterated" by being "scratched or ground off." (Tr. 920-21).

At the close of testimony, the prosecution requested a jury instruction charging that flight may be used as evidence of consciousness of guilt. (Tr. 971). The defense objected, arguing that there was no evidence that Mr. Applewhite made any attempt to flee from police officers, and noting that he even initiated the encounter with the police. (Tr. 971). Justice Tejada denied the objection and instructed the jury as requested by the prosecution. (Tr. 971).

The defense requested that the court charge the jury on the difficulty of cross-racial identification and instruct it to evaluate carefully the testimony of an identifying witness of a different race from the defendant. (Tr. 979-80). Justice Tejada denied the application and stated that the defense was "precluded from arguing anything about race, because nothing about race came out in this trial. . . . [T]hat is sheer speculation on your part and not based on any evidence that was adduced at trial." (Tr. 980-81).

The jury returned a verdict on April 15, 1999, finding Mr. Applewhite guilty of one count of assault in the first degree in violation of New York Penal Law ("Penal Law") § 120.10(1), one count of criminal use of a firearm in the first degree in violation of Penal Law § 265.09, one count of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03, and one count of criminal possession of a weapon in the third degree in violation of Penal Law § 265.02(3). He was found not guilty of attempted murder. (Tr. 1171-74).

At the sentencing hearing on May 19, 1999, Mr. Applewhite was sentenced to two indeterminate terms of imprisonment of 7 to 14 years for first degree assault and first degree criminal use of a firearm, one term of 4 to 8 years for criminal possession of a weapon in the second degree, and one term of 31/2 to 7 years for criminal possession of a weapon in the third degree, all sentences to run concurrently.*fn5 Based on the nature and circumstances of the crime, the defendant's "good family," and his lack of a criminal record, Justice Tejada did not impose an additional consecutive sentence of five years on the charge of criminal use of a weapon in the first degree, as requested by the prosecution and as normally required by New York Penal Law § 265.09. (S. 4-5, 25).*fn6

Mr. Applewhite appealed to the Appellate Division, First Department, on the same five grounds that are the basis for the present petition. (Brief for Defendant-Appellant dated March 18, 2002 ("Pet. App. Br."), attached as Exh. A to Declaration of Megan P. Davis in Opposition to Petition for a Writ of Habeas Corpus dated Feb. 7, 2005 ("Davis Decl."), at 6). Mr. Applewhite's conviction was unanimously affirmed by the Appellate Division on October 3, 2002. People v. Applewhite, 298 A.D.2d 136, 748 N.Y.S.2d 4 (1st Dep't 2002).

The Appellate Division found that the police had reasonable suspicion to stop and frisk Mr. Applewhite, and his suppression motion was therefore properly denied. Id. at 136-37, 748 N.Y.S.2d at 4. On the claim that identification testimony had been improperly admitted against him, the Appellate Division found that the petitioner was not prejudiced by Mr. Valdera's statements because defense counsel "fully cross-examined the witness and it was abundantly clear to the jury that the witness was unable to make an identification." Id. at 137, 748 N.Y.S.2d at 5.

The Appellate Division found that the flight instruction was proper because the jury "had ample evidence upon which to find that defendant was the assailant," and "could have reasonably found that the assailant's flight from the scene demonstrated a consciousness of guilt, which was relevant to the issue of his mental state at the time of the crime." Id., 748 N.Y.S.2d at 5. Finally, the Appellate Division agreed that the trial court "properly refused to charge the jury on the asserted unreliability of cross-racial identifications," and correctly instructed the jury on the legal principles applicable to identification and witness credibility. Id., 748 N.Y.S.2d at 5. The Appellate Division noted that there was no basis in the record for the requested charge, and that the "[d]efendant's present argument rests primarily on psychological research that is not part of the record before us." Id., 748 N.Y.S.2d at 5.

Leave to appeal to the New York Court of Appeals was denied on March 27, 2003, People v. Applewhite, 99 N.Y.2d 625, 760 N.Y.S.2d 106 (2003), and on reconsideration on May 30, 2003, People v. Applewhite, 100 N.Y.2d 536, 763 N.Y.S.2d 1 (2003).

The petitioner filed this petition on June 22, 2004, within one year of the date his conviction became final. The respondent concedes that the petition is timely and opposes the petition on the merits.


A. Suppression of Evidence Under the Fourth Amendment

Mr. Applewhite argues that his motion to suppress the gun as the fruit of an illegal search should have been granted because the police lacked reasonable suspicion to stop and frisk him. He claims that Officer Navarra detained him on the basis of a description that was "generic" and legally insufficient to support reasonable suspicion or conduct a protective frisk. (Pet. App. Br., 21-28). However, Stone v. Powell, 428 U.S. 465 (1976), bars federal habeas review of this claim because it was fully litigated in the state courts.

In Stone, the Supreme Court held that "[w]here 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." 428 U.S. 465, 494. The Fourth Amendment exclusionary rule is inapplicable on federal habeas corpus review "absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review. . . .

[T]he application of the rule is limited to cases in which there has been both such a showing and a Fourth Amendment violation." Id. at 494 n.37.

Generally, a petitioner will have been denied an opportunity to litigate only "(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). Here, the petitioner does not deny that a suppression hearing occurred. Rather, he claims a breakdown in the process occurred because Justice Berkman was biased against him. This accusation is wholly unsubstantiated. As "proof" of Justice Berkman's bias, the petitioner first asserts that he was improperly denied a hearing on his motion for release under New York's speedy trial statute, CPL § 30.30. The transcript shows, however, that Justice Berkman did not decide this motion, but rather granted defense counsel's request to hold the motion in abeyance. What Justice Berkman refused was counsel's request to further postpone the trial. (H. 104-05).

The petitioner also asserts that Justice Berkman "displayed flagrant scorn and disregard" for the Fourth Amendment "and stated she 'always forget[s the] fact that such exists.'" (Petition for a Writ of Habeas Corpus ("Petition"), at 4-5). The transcript shows that Justice Berkman merely stated that she could not recall the specific designation of the state constitutional analogue to the Fourth Amendment, and would therefore refer to the suppression issue in terms of the federal constitution. (H. 94). The record, then, is devoid any evidence of judicial bias, and Mr. Applewhite has not met the threshold requirements of Stone and Capellan that would permit this Court to review his Fourth Amendment claim.

B. Statements by Christian Valdera

Mr. Applewhite asserts that the trial court denied him his constitutional right to a fair trial by permitting the admission of improper and unduly prejudicial testimony. At trial, Christian Valdera, a witness for the prosecution, repeatedly referred to the defendant as "the shooter." The petitioner argues that this testimony improperly suggested that Mr. Valdera had recognized Mr. Applewhite in an earlier police line-up, when in fact Mr. Valdera had been unable to make an identification. (Pet. App. Br. at 30-33). The Appellate Division found that the testimony was not unduly prejudicial.

1. Standard of Review

Where the state appellate court has already decided a claim on the merits, that finding can only be set aside by a habeas court if it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28. U.S.C. § 2254(d)(1). The Supreme Court has explained that "contrary to federal law" means that the state court decision on a question of law is "opposite to" a decision of the Supreme Court, or the state decision differs from one reached by the Supreme Court "on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). An "unreasonable application" of law means that the state court applied the correct governing legal principle in an "objectively unreasonable" way. Lockyer v. Andrade, 538 U.S. 63, 76 (2003); Williams, 529 U.S. at 409-10, 413. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410 (emphasis in original).

2. Analysis

Improperly admitted evidence may violate a defendant's Fourteenth Amendment right to due process. However, to constitute such a violation, the evidence must be so prejudicial that it renders the entire trial fundamentally unfair. Dowling v. United States, 493 U.S. 342, 352 (1990). In the Second Circuit, the test is whether, in the context of all the evidence before the jury, the contested evidence was "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).

In this case, the Appellate Division found that Mr. Valdera's testimony was not unduly prejudicial. On the record as a whole, this finding is not unreasonable. The evidentiary value of Mr. Valdera's reference to the defendant as "the shooter" is slight. Mr. Valdera admitted several times on both direct and cross-examination that he never saw the shooter's face and could not identify anyone as the shooter. Both the prosecutor and defense counsel emphasized in their closing arguments that Mr. Valdera had not identified Mr. Applewhite in the line-up or in the courtroom, and the prosecution stressed that Mr. Valdera had never made any identification. (Tr. 1015-16, 1044, 1086). The judge, in his instructions to the jury, referred to Eric Flores as the only identification witness. (Tr. 1109-12). Finally, the defense was allowed to question Mr. Valdera about his criminal record, thereby attacking his credibility and reducing the overall value of his testimony.

In light of the other evidence against Mr. Applewhite, including the facts that he was found with the gun used in the shooting and that Mr. Flores identified him as the shooter, it is not reasonably likely that the jury was so confused or misled by Mr. Valdera's statements that his testimony could have provided the basis for conviction. It is also unlikely that his testimony could have removed a reasonable doubt that otherwise would have existed. The Appellate Division found that "there was no prejudice" to Mr. Applewhite, because his counsel "fully cross-examined the witness and it was abundantly clear to the jury that the witness was unable to make an identification." On consideration of the record as a whole, this decision was neither unreasonable nor contrary to Supreme Court precedent.

C. Flight Instruction

Mr. Applewhite contends that he was deprived of a fair trial by the trial court's instruction to the jury that it could consider "[t]estimony that the Defendant fled after the shooting" (Tr. 1113) as evidence of consciousness of guilt. The petitioner claims that this flight instruction was improper because the identity of the shooter was a fact in dispute at trial, and asserts that this instruction effectively directed the jury to find that he was the person who fled after the shooting.

For an erroneous jury instruction to support a claim for habeas corpus relief, the error must have "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). The federal court must review the jury charge as a whole and consider the instruction in the context of the whole trial record. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Smalls v. Batista, 191 F.3d 272, 277 (2d Cir. 1999). The reviewing court's task is not to determine "whether the challenged instructions, standing alone, are erroneous or misleading" as a matter of state law, Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997), but rather "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Estelle, 502 U.S. at 72 (internal quotation marks omitted). Where due process has not been violated, "instructions that contain errors of state law may not form the basis for federal habeas relief," Gilmore v. Taylor, 508 U.S. 333, 342 (1993). Jury instructions in state trials are a matter of state law, and "it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68. Thus, the task of the habeas court is not to determine whether a given instruction was correct or incorrect under state law, but rather whether, in the context of the trial as a whole, the instruction violated the petitioner's constitutional right to due process.

The heart of Mr. Applewhite's claim is that the judge's flight instruction in this case had the effect of withdrawing a crucial disputed fact from the jury. The petitioner does not challenge the constitutionality of flight instructions generally, only the way in which the court conveyed the instruction in this case. The identity of the person who fled the scene of the crime was a factual issue to be settled at trial. In Mr. Applewhite's view, the judge's flight instruction gave the jury licence to leap to the conclusion that the prosecution had proved that it was Mr. Applewhite who fled.

Standing alone, the flight instruction might have had that effect. The judge told the jury that "in this case, the People have introduced evidence of certain behavior and conduct by the defendant from which the People contend that the jury may draw an inference that such conduct is evidence consciousness of guilt." (Tr. 1112-13). The court went on to lay down the ground rules for drawing an inference from flight without reminding the jury that the matter of who fled the scene of the crime was a disputed issue for the jury to decide.

However, the trial court also made clear that the jury had first to decide whether the prosecution had proven that Mr. Applewhite was the person at the scene of the crime. Before giving its flight instruction, the court instructed the jury to determine "whether the defendant is the right man, the actual perpetrator of the crime. . . . If you . . . have a reasonable doubt whether the defendant is the right man who committed the crimes charged in the indictment, you must find him not guilty." (Tr. 1109-12). The judge listed the evidence the prosecution had offered, including the eyewitness testimony and physical items recovered from the defendant, and admonished the jury to consider this evidence with great care before deciding whether the prosecution had proven the element of identity beyond a reasonable doubt.

Under the standard set by the Supreme Court, then, the flight instruction in this case cannot be deemed a violation of Mr. Applewhite's Fourteenth Amendment right to due process. Even if, standing alone, the flight instruction suggested that Mr. Applewhite's presence at the crime scene was an established fact, in the context of the jury charge as a whole, it is not reasonably likely that the jury failed to properly execute its deliberative function with regard to the issue of the assailant's identity.

D. Cross-Race Identification Instruction

Mr. Applewhite next claims that his right to due process was violated by the trial court's refusal to instruct the jury on the unreliability of cross-race identification. This claim cannot support habeas relief because, considering the record as a whole, the trial court's refusal to give the requested jury charge did not render the trial unfair and did not deprive the petitioner of any constitutional right.

Like a jury charge improperly given, a jury instruction improperly withheld can support a claim for habeas relief only if the trial's court's failure to give the charge "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154-55 (1977) (citing Cupp v. Naughten, 414 U.S. at 147, and noting that "[a[n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law"). Courts that have considered the question of when, if ever, a cross-race identification must be given have come to varying conclusions, but no court has found that the failure to give a cross-race identification charge in circumstances comparable to those in this case violates due process. See People v. Jenkins, 166 A.D.2d 237, 238, 560 N.Y.S.2d 630, 630 (1st Dept. 1990) (denial of cross-racial instruction did not deprive defendant of due process where jury instruction conveyed appropriate principles of identification); Murrell v. State, 747 N.E.2d 567, 573 (Ind. Ct. App. 2001) (cross-race jury instruction not required where there has been no showing of a fact-specific risk that the identification may have been mistaken due to cross-race factors); Lenoir v. State, 77 Ark. App. 250, 260, 72 S.W.3d 899, 905 (Ark. Ct. App. 2002)(due process not violated by trial court's refusal to give cross-race identification instruction).

In an influential opinion, the Supreme Court of New Jersey reversed the conviction of a black man who had been convicted solely on the basis of an identification made by a white victim eight months after the crime. State v. Cromedy, 158 N.J. 112, 131-32, 727 A.2d 457, 467 (N.J. 1998). The court found that the cross-race identification instruction should have been given because the absence of any physical evidence made the single eyewitness identification of critical importance. The court specifically limited its holding, which was based on state law, to cases where an identification by a single witness is critical and is not corroborated by any other evidence.

Courts in some states, including New York, have cited the New Jersey court's reasoning with approval, but have declined to give a jury instruction in cases factually distinguishable from Cromedy. See, e.g., People v. Ellison, 777 N.Y.S.2d 760, 761, 8 A.D.3d 400, 401 (2d Dep't 2004) (affirming denial of cross-race instruction where identification corroborated by physical evidence); Murrell, 747 N.E.2d at 573 (instruction not required where no showing of fact-specific risk that identification in present case mistaken due to cross-race factors).

In People v. Ellison, the defendant was in possession of a necklace stolen from the victim when he was apprehended a short time after the robbery. As in Ellison, and in contrast to Cromedy, the prosecution's case against Mr. Applewhite consisted of more than the identification by Mr. Flores. Mr. Applewhite was arrested in the vicinity of the crime, not long after the shooting, in possession of the weapon used to shoot Michael Collozo. He matched the physical description of the shooter and wore the particular clothes that all of the witnesses described, even those who were unable to make an identification because they did not see his face.

Here, the petitioner was not deprived of constitutional due process by the trial court's refusal to give a cross-race identification instruction, where there was no basis in the record for such a charge. See Jenkins, 166 A.D.2d at 238, 560 N.Y.S.2d at 630. Mr. Applewhite argued on appeal that race was "an underlying issue" in this case because all of the witnesses "were non-black and were presumably Latino[] while the shooter and his group of friends were reportedly all black." (Pet. App. Br. at 46). However, the petitioner presumes Eric Flores and the other witnesses to be Latino based on their surnames; at trial, he neither questioned them about their race nor submitted any other evidence to support this belief. The petitioner also did not attempt to introduce any scientific evidence of the unreliability of cross-race identifications. The petitioner's brief to the Appellate Division highlighted psychological studies regarding witnesses' difficulty identifying individuals of a different race (Pet. App. Br. at 45-56), but none of this information was presented during trial.

The facts of this case fail to establish the foundation for requiring a cross-race identification instruction, even under the Cromedy rule. Considering the record as a whole, the trial court's denial of the petitioner's requested jury instruction did not render the trial unfair, and therefore did not deprive the petitioner of due process.

E. Excessive Sentence

Mr. Applewhite contends that his sentence is excessive and unduly harsh. This claim is unexhausted and procedurally defaulted.

Under federal law, a petitioner must exhaust all available state court remedies for each claim prior to seeking federal habeas review. 28 U.S.C. § 2254(b),(c). Exhaustion requires that the factual and legal basis for each claim be fairly presented to the highest available state court. Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (citations omitted). To fully exhaust a claim raised on appeal in New York state court, a petitioner must present the claim in his application to the Court of Appeals. Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 96 (2d Cir. 2001). For a claim to be fairly presented, it must be articulated in federal constitutional terms sufficiently to alert the state court to the federal nature of the claim. Daye v. Attorney General, 696 F.2d at 192. Although the petitioner need not cite "book and verse on the federal constitution," Picard v. Connor, 404 U.S. 270, 278 (1971) (internal quotation marks omitted), "if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court." Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001).

An unexhausted claim that could have been but was not raised in the state court may be deemed exhausted if the petitioner is procedurally barred from returning to the state court to litigate the claim. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). The merits of a procedurally defaulted claim may not be reviewed by a federal court unless the petitioner either shows cause for the default and actual prejudice to him resulting from it, or shows that failure to consider the defaulted claim would result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 749-50 (1991).

Mr. Applewhite's excessive sentence claim is unexhausted because it was not raised to the state court in constitutional terms. On direct appeal, the petitioner relied on New York Criminal Procedure Law § 470.15(3), which grants the appellate court discretion to reduce a defendant's sentence in the interests of justice, even where the sentence is within the permissible statutory range, if the appellate court finds the sentence to be unduly harsh under the circumstances. (Pet. App. Br. at 58-59). In the petitioner's application to the Court of Appeals, he did not direct the court's attention to the excessive sentence claim; the petitioner only asked the court to review the other four claims raised in his appeal. (Davis Decl., Exh. E at 7). Though CPL § 470.15 does not grant to the Court of Appeals the same discretionary power to reduce a sentence, that court could have reviewed a constitutional claim that the sentence violated the petitioner's rights under the Eight Amendment. Because such a claim was never raised, it is unexhausted.

This claim is now procedurally defaulted in that Mr. Applewhite has no further opportunity to raise this claim to the state court. Under New York law, a defendant may only seek leave one time to appeal his conviction to the Court of Appeals. New York Criminal Procedure Law § 460.25; see, e.g., People v. Miranda, 662 N.Y.S.2d 258, 242 A.D.2d 967 (1st Dep't 1997) (denial of application for leave to appeal is final and no new application may thereafter be made); People v. Castillo, 616 N.Y.S.2d 947, 207 A.D.2d 718 (1st Dep't 1994). This claim cannot be reviewed by this Court notwithstanding the default because the petitioner has not shown cause for the default and prejudice to him as a result of it. See Dretke v. Haley 541 U.S. 386, 388 (2004) (cause requires showing that circumstances beyond petitioner's control prevented him from litigating the claim in state court). Nor can it be demonstrated that a fundamental miscarriage of justice would result from this court's refusal to review this claim now. See Murray v. Carrier, 477 U.S. 478, 496 (1986) (fundamental miscarriage of justice requires showing of actual innocence).


For the reasons set forth above, I recommend that Mr. Applewhite's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 62, 6(a), and 6(e)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, with extra copies delivered to the chambers of the Honorable P. Kevin Castel, Room 2260, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully submitted,


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