The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On December 8, 2005, Grant Williams ("Petitioner") brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his imprisonment due to a conviction for Robbery in the Second Degree under § 160.10(1) of the New York Penal Law following a plea of guilty entered in New York State Supreme Court, New York County on April 9, 1998.*fn1 In his pro se petition, Petitioner alleges that his right to due process under the Fourteenth Amendment of the United States Constitution was violated when, after a Wade-Huntley-Mapp hearing, the state court failed to suppress a show-up identification of Petitioner -- who was handcuffed and surrounded by police officers at the time -- by complainant Mark Kosakiewicz, after another witness had already identified Petitioner and Petitioner had been arrested. (Pet'r Mem. of Law in Supp. of his Mot. Pursuant to 28 U.S.C. § 2254 ("Pet'r Mem.") 1.) This petition is denied.
After pleading guilty to the robbery, Petitioner was sentenced on April 9, 1998 to an indeterminate imprisonment term of eight years to life as a persistent felony offender. Petitioner's conviction was affirmed by the Appellate Division, First Department on June 10, 2004, (Maerov Decl. Ex. D), and the New York Court of Appeals denied him leave to appeal on September 21, 2004, (id. Ex. F).
A. The Suppression Hearing*fn2
At a suppression hearing held on November 19 and 20 and December 4, 1996, the following facts were adduced from the People's six witnesses.
On August 25, 1995, at about 3:15 a.m., New York Police Officer Joseph Senisi, who was in a patrol van in lower Manhattan, responded to a radio transmission about a robbery at 140 East 14th Street. (Supp. Tr. 6.) When Officer Senisi arrived at the location, a parking lot, he spoke with its manager David Abuttbul, one of the alleged victims. (Id. at 9.) Abuttbul recounted how he had just been robbed of about $3,000 in cash by four black men, and that these men had fled the parking lot in a black Mercedes and had headed South on Third Avenue. (Id. at 6-8.) Officer Senisi decided to canvass south of 14th Street for the suspects and Abuttbul joined him in the marked patrol van. (Id. at 2-8.) Senisi later learned that there was a second complainant, Mark Kosakiewicz, who was also in the parking lot and had required medical attention. (Id. at 8.) During the canvass, Abuttbul told Senisi he recognized the suspects' car, a black Mercedes, parked in a gas station parking area at Bond Street and the Bowery. (Id. at 9-12.)*fn3 Nearby, Officer Senisi saw three men on the street by the curb. (Id.) Officer Senisi got out of his car and approached the men who had walked behind a white truck on Bond Street. (Id.) Officer Senisi brought the suspects to the police van where Abuttbul positively identified the suspects and they were arrested.*fn4 (Id. at 12.)
Officer Senisi then handcuffed the men and by radio asked that the second complainant, Mark Kosakiewicz, be brought to the scene. (Id. at 13.)*fn5 Before Kosakiewicz's arrival, [Petitioner] stated in essence to Abuttbul, who was talking to the police, "get the story straight, tell them you gave us that money." (Id. at 14, 250.) The police conducted a second show-up identification when Kosakiewicz had an opportunity to view the suspects, including Petitioner, as they stood on the sidewalk in front of the gas station (id. at 15-17, 252), next to one another, all rear handcuffed, and near police officers facing Kosakiewicz who was in a police car at the gas station, (id. at 15-17, 84-88, 254). Mr. Kosakiewicz positively identified the three individuals. (Id. at 12, 83, 252-54.) Kosakiewicz's identification of Petitioner was made between five (id. at 253) and fifteen (id. at 15) minutes after the Abuttbul's identification. Petitioner asserts that this second show-up identification was unduly suggestive and should not have been allowed.
B. The State Court Ruling
In its decision of June 10, 2004, the Appellate Division, First Department, held that Justice Fried, the judge who held the suppression hearing, had properly denied Petitioner's motion to suppress the show-up identification by complainant Kosakiewicz, the same issue Petitioner is arguing here. In his opinion, Justice Fried had found that Officer Senisi was authorized to detain Petitioner and the other defendants based on Abuttbul's statements to Officer Senisi, and that the circumstances surrounding Abuttbul's show-up identification were not unduly suggestive. (Maerov Decl. Ex. A at 9.) Justice Fried also concluded that the second show-up in which Kosakiewicz identified the Petitioner was not suggestive. He reasoned that, after Abuttbul's positive identification, "handcuffing was certainly appropriate and it is reasonable to infer that because they were rear handcuffed the second complainant did not see the cuffs." (Id. Ex. A at 10.) Justice Fried went on to opine that, even if Mr. Kosakiewicz had seen the handcuffs, the show-up was still not unduly suggestive. Moreover, Justice Fried found that both show-ups were "sufficiently connected and contemporaneous in both time and location as to constitute the ordinary and proper completion of an integral police procedure." (Id. Ex. A at 10) (quoting People v. James, 633 N.Y.S. 2d 280 (N.Y. App. Div. 1995) (finding the successive identifications made by police officers at the scene where Defendant was apprehended were admissible). While James had distinguishable facts because the police officers, not lay witnesses, were the individuals identifying the suspects in those cases, Justice Fried pointed out that the principle that identifications are not prohibited per se still applies. (Maerov Decl. Ex. A at 10.)
On January 5, 1998, Petitioner received a negotiated sentence of eight years to life as a persistent violent felony offender after withdrawing his earlier plea of not guilty and pleading guilty to the charge of robbery in the second degree. (Hr'g of Jan. 5, 1998, at 14-31.) Subsequently, on April 9, 1998, the court sentenced Petitioner to the negotiated prison term of eight years to life. The fact that Petitioner pled guilty in this case, however, does not preclude his challenge here where he is contesting the constitutionality of his arrest. See Lefkowitz v. Newsome, 420 U.S. 283, 285 (1975).
28 U.S.C. § 2254(a) states that: "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because Petitioner's claims were previously decided on the merits, habeas relief may be granted only if the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," ...