The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE SHIRA A. SCHEINDLIN
Petitioner Paul Alexander ("Alexander") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Murder in the Second Degree (New York Penal Law § 125.25) and one count of Attempted Murder in the Second Degree (Id. §§ 110, 125.25) following a jury trial in Supreme Court, Bronx County. (See Pet. ¶¶ 1, 4, 6; Aff. of Ass't District Att'y Melissa R. DiPalo, dated Apr. 2, 2003 ("DiPalo Aff."), ¶ 4). On May 12, 1997, Justice John S. Moore, before whom the case was tried, sentenced Alexander on these charges, respectively, to consecutive indeterminate sentences of twenty-five years to life and eight and one-third to twenty-five years. (S. 16-17).*fn1 Alexander initially filed his petition pro se. (See Pet. at 7). Thereafter, on July 19, 2004, Laura M. Miranda, Esq., advised the Court that she had been retained by Alexander's family to represent him in connection with this proceeding. (See Docket No. 13). Ms. Miranda then filed supplemental papers on Alexander's behalf on November 9, 2004. (See Docket No. 15). In his petition, as supplemented, Alexander contends that (a) the photo array used to identify him was unduly suggestive and tainted a subsequent lineup identification, (b) his sentence was excessive and constituted an abuse of discretion, (c) the prosecutor failed to give him notice that his case was being presented to the grand jury, (d) portions of the prosecutor's summation at trial were improper, and (e) his trial counsel was ineffective for various reasons.
For the reasons that follow, Alexander's petition should be denied. Additionally, because Alexander has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
Alexander's conviction was secured after a prior trial in 1996
resulted in a mistrial. (See DiPalo Aff. Ex. 2 at 3 n.1; Docket No.
7).*fn2 Before that trial, Justice Robert
L. Cohen conducted a Wade hearing on November 20, 1996.*fn3
(See Docket No. 5).
The sole witness at the hearing was Detective Ronald Pereira ("Pereira"), who testified that he was assigned to investigate the shooting death of Alexander's estranged wife, Jacqueline Alexander ("Jacqueline"), on December 27, 1992. (W. 3-4). On that date, he interviewed Vanessa Morris ("Morris") and Carl Graham ("Graham"), the only witnesses to the crime. (Id. at 4-5). Morris witnessed the incident, but did not indicate that she had seen the face of the person who shot Jacqueline. (Id. at 11). Graham, on the other hand, said he could identify the shooter. (Id.).
Because Pereira did not have a suitable photograph of Alexander at the outset of his investigation, he first was able to show Graham a six-picture photo array on January 21, 1993. (Id. at 6, 15). Pereira testified that Graham viewed the array in the squad room at the 43rd Precinct. (Id. at 5). At that time, Pereira explained to Graham that he was going to show him a photo array from which he should try to identify the photograph of the person who shot Jacqueline. (Id. at 6). While Pereira did not remember the details of Graham's identification, it was his usual procedure to have the person making the identification write the date, time and photo selected on the back of the original photo array. (Id. at 16-17). Only a copy of the photo array was available at the Wade hearing, however, because Pereira and his colleagues had been unable to locate the original despite diligent efforts.*fn4 (Id. at 6-7, 19-20).
At the time Graham was shown the photo array, Alexander's whereabouts were unknown. (Id. at 11). After an investigation which included the display of his picture on the television show "America's Most Wanted," Alexander eventually was apprehended. (Id.). Graham then identified Alexander again during a lineup identification on October 25, 1995, at the Bronx District Attorney's Office. (Id. at 9-10).
On cross-examination, Pereira testified that Graham had at first described the perpetrator to him as a "male black, approximately five-eight, 27 years old, [one] hundred and sixty-five pounds, light skin [and wearing] a black ski hat, a black ski mask that covered the mouth and nose, and a black leather jacket with black boots." (Id. at 14). Graham evidently did not provide Pereira with the name of the shooter at that time. (Id. at 21-22). Pereira testified, however, that a complaint report taken by another officer prior to the photo array contained a more detailed description in which Graham described the perpetrator as having "facial hair" and a "mustache and beard or goatee," and identified him by name. (Id. at 22-23).
At the conclusion of the hearing, Alexander's attorney, Edward Dudley, Esq., conceded that lineups at the District Attorney's Office usually are "much fairer" than those conducted at the precinct. (Id. at 33). He nevertheless urged the court to direct that Graham be produced to be questioned regarding the photo array, and what, if anything, he had written on the back. (Id. at 34). As Mr. Dudley explained, he was concerned that "something" might have "happened before [the lineup] that could have added [to] or influenced the witness at the lineup." (Id. at 33). He noted that this was a particular concern because the police had lost "the most critical piece of evidence in the case" before the defense had an opportunity to inspect it. (Id.).
Justice Cohen denied the request that Graham be produced for questioning, finding that there was no evidence of suggestiveness in the lineup identification procedures. (Id. at 40). Additionally, the Justice found that any suggestiveness in the photo array was, as a matter of law, sufficiently attenuated by the untainted lineup more than two years later. (Id.). For these reasons, Alexander's motion to suppress Graham's identification was denied. (Id. at 40-41).
The People's proof at trial would have permitted a reasonable juror to find as follows:
Jacqueline and Paul Alexander were married and lived together for approximately seven or eight years before they separated in 1990. (T. 204). After they separated, Jacqueline went to live in a women's shelter with their two children. (Id. at 204-05). Between the time of their separation and the morning of December 27, 1992, Jacqueline had filed for both a divorce and an order of protection against Alexander. (Id. at 205). Jacqueline and the children eventually moved to an apartment at 1725 Bruckner Boulevard in the Bronx, where she resided until the date of her death. (Id. at 206).
On December 24, 1992, Alexander told his relative, Brian Giddings, that he thought Jacqueline was "cheating" on him. (Id. at 84-85). Two days later, on December 26, 1992, Alexander went to Jacqueline's apartment to visit his children. (Id. at 207). At around 6:00 or 6:30 p.m., Graham, who was a friend of Jacqueline's, arrived at the apartment. (Id. at 232-34). After Jacqueline told Graham that Alexander was in the bedroom, Graham left, stating that he "felt uncomfortable." (Id. at 234-35). Around 8:30 or 9:00 p.m., several other people, including Morris, who was Jacqueline's cousin, entered Jacqueline's apartment while Alexander was still there. (Id. at 206-07). Later that same evening, after Alexander had left, Graham returned to the apartment. (See id. at 210, 235). The only other people in the apartment at that time were Jacqueline, Morris, and the children. (Id. at 235). Although the adults had planned to go to a party that night, everyone remained in the apartment. (Id. at 211). Graham slept in the bedroom with Jacqueline, while Morris slept on the couch in the living room. (Id. at 221-22, 269).
Between 5:00 and 6:15 a.m. on the morning of December 27th, Morris, Graham and Jacqueline had a conversation on the living room couch, before Jacqueline proceeded to walk Graham to the door. (Id. at 211-12, 236). After Graham unlocked the door, a man later identified by Graham as Alexander pushed open the door. (Id. at 236). Alexander was wearing a black ski hat, a black ski mask covering his mouth and nose, a black leather jacket, and black boots. (Id. at 140, 238). Despite this garb, Alexander's forehead and some of his facial hair were visible. (Id. at 238). Alexander put a gun to Graham's head and pulled the trigger, but the gun did not discharge. (Id. at 236).
Jacqueline then said "Paul, no. Paul, no. Whatever you're going to do, do it to me." (Id. at 212; see also id. at 236). In response, Alexander pressed the gun tightly to Jacqueline's forehead and pulled the trigger, fatally wounding her. (Id. at 73-74, 239). After the gunshot, Morris ran into the children's bedroom, where she remained until the incident was over. (Id. at 212).
During a subsequent struggle for the gun, Graham threw Alexander into the hallway and ran down the stairs. (Id. at 239). As Graham was heading toward the stairs, he looked back at Alexander, whose mask had come off, and was able to see his face for about fifteen or twenty seconds. (Id. at 241-42, 247-48). Graham then ran to the police station, where he remained for the rest of the day. (Id. at 237).
In his initial interview, Graham did not tell the police that he had seen the shooter's face because he was scared that he would be "further involved in the situation." (Id. at 242-43). Nevertheless, Graham described the shooter as being approximately five feet eight inches tall, one hundred and sixty-five pounds in weight, light-skinned, and twenty-seven years old. (Id. at 140, 315). A few weeks later, Graham had a change of heart and admitted to the police that he had seen the shooter's face. (Id. at 118-19, 146-47, 302-03). Graham later identified Alexander as the shooter from the photo array on January 21, 1993, during the lineup in October 1995, and in open court. (Id. at 119-20, 245, 248).
The only evidence adduced by Alexander as part of the defense case consisted of a question and answer from the testimony at Alexander's first trial. During that testimony, Graham claimed, contrary to his testimony at the second trial, that his failure to tell the police during his first interview that the shooter's mask had come off was inadvertent. (Id. at 327-28).
3. Conviction and Sentencing
On April 22, 1997, after approximately one day of deliberations, the jury found Alexander guilty of both charges. (See id. at 450, 460, 482). At the sentencing, which took place on May 12, 1997, Dudley noted that his client still denied his guilt, but argued that if he did commit the crime, it was a "crime of passion," for which his sentences should run concurrently. (S. 12). Justice Moore rejected this assertion, observing that Alexander had engaged in an "ongoing, escalating level of violence directed toward the deceased," rather than "an isolated incident that occurred under the stress of emotion." (Id. at 15). He therefore sentenced Alexander to consecutive prison sentences of twenty-five years to life on the murder charge and eight and one-third to twenty-five years on the attempted murder charge. (Id. at 16-17).
In September 1999, the Legal Aid Society filed an appellate brief on behalf of Alexander, in which it claimed that (a) the prosecution did not prove its case beyond a reasonable doubt; (b) the trial court erroneously failed to suppress the lineup identification, which was the result of an unduly suggestive photo array identification; and (c) Alexander's sentences were unduly harsh and should be reduced to run concurrently. (Ex. 1 at 1-2). On March 21, 2000, the Appellate Division rejected those claims and unanimously affirmed the judgment of conviction. People v. Alexander, 706 N.Y.S.2d 311 (1st Dep't 2000). The court held that Alexander's claim that the photo array was unduly suggestive because Alexander appeared to be the only light-skinned man was not preserved for appellate review because it was not raised during the Wade hearing. (Id.). The court also noted that if it were to reach the merits of that unexhausted claim, it would find that the two-year gap between the photo identification and the lineup was "sufficient to attenuate any possible suggestiveness." Id. Finally, the court found that the verdict was based on legally sufficient evidence and was not against the weight of the evidence, and that the trial court did not abuse its sentencing discretion. Id.
By letter dated March 24, 2000, Alexander's counsel sought leave to appeal to the New York Court of Appeals on the basis of all three issues raised before the Appellate Division. (Ex. 4). That application was denied on April 25, 2000. People v. Alexander, 94 N.Y.2d 945 (2000).
On April 27, 2001, Alexander filed a pro se motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("CPL"). (Ex. 6). Alexander raised three grounds for relief: (a) the prosecutor's failure to give him notice that his case was being presented to the grand jury; (b) the prosecutor's false inflammatory statements in summation; and (c) ineffective assistance of counsel. (Id. at 8-9). With respect to the last of these claims, Alexander complained that his trial counsel had (a) failed to move for dismissal of the indictment despite the prosecutor's failure to give Alexander notice that his case was being presented to the grand jury; (b) failed to move to reduce the murder charge to Manslaughter in the Second Degree although the grand jury evidence showed that the shooting was inadvertent; (c) waived Alexander's right to testify before the grand jury as a result of his alleged failure to conduct an adequate interview of Alexander; (d) failed to move for dismissal of the attempted murder charge or its reduction to Menacing in the Second Degree or Reckless Endangerment in the First Degree because the evidence did not corroborate the complainant's allegation that the gun had jammed; (e) with respect to the photo array, failed to (i) object to it as unduly suggestive on the ground that Alexander's photograph was the only one of a light-skinned man, (ii) object to the use of a photocopy, (iii) request reconstruction of the original, or (iv) request further particulars regarding the fillers and the complaint report containing Graham's description of the perpetrator; and (f) improperly stipulated that Jacqueline (i) had an order of protection against Alexander, (ii) lived in a women's shelter, and (iii) had filed for divorce. (Id. at 8-9).
By order dated April 5, 2002, Justice Moore denied Alexander's motion to vacate the judgment. (Ex. 8). The Justice held that Alexander was not entitled to notice of the presentment of his case to the grand jury under Section 190.50 of the CPL and that even if a violation of that statute had occurred, Alexander waived his claim by failing to file a timely motion to dismiss the indictment. (Id. at 11). The Justice also held that a violation of Section 190.50 does not give rise to a constitutional claim. (Id.). The Justice also noted that Alexander's criticisms of the prosecutor's summation remarks were "inappropriate," "belied by the record," and precluded from review because of his failure to raise them on direct appeal. (Id. at 12-13).
Finally, the Justice found that Alexander was not denied the effective assistance of trial counsel. (Id. at 15). The court noted that Alexander's trial counsel made the appropriate pretrial motions by seeking to inspect the grand jury minutes, dismiss the indictment, suppress the pretrial and in-court identifications, and compel the production of all exculpatory materials and relevant police reports and notes. (Id.). Moreover, the court found that at both trials counsel made effective opening statements and appropriate motions and applications, vigorously cross-examined the prosecution's witnesses, raised appropriate objections, and gave effective closing statements. (Id. at 16). The court also noted that it had inspected the grand jury minutes and determined ...