The opinion of the court was delivered by: John Gleeson, United States District Judge
Anthony Norris petitions for a writ of habeas corpus challenging his December 17, 2001 conviction in state court in Kings County, following a jury trial, of attempted robbery in the first degree.
Oral argument of the petition, which was filed pro se, was held by teleconference on December 5, 2006. Based on the papers submitted and the argument, I appointed counsel to represent Norris. An evidentiary hearing, at which Norris's trial counsel testified, was held on April 30, 2007. For the reasons set forth below, the petition is denied.
On December 5, 2000, at approximately 7:30 p.m., 25 year-old Ayisha Stewart and her six year-old daughter entered a C-Town grocery store on Pennsylvania Avenue in the Crown Heights section of Brooklyn, New York. She was approached in the produce aisle by a man she did not know, who engaged her in conversation and asked for her telephone number. Stewart thought the man was attempting to "come on to" her. After several minutes of unreceptive responses from Stewart, the man walked away, but soon returned and stood in front of her. He told her, "You have something that I want . . . your chain." Stewart protested loudly, causing the man to remove a knife and ask her, "Do I have to stab you?" Stewart saw four to six inches of the blade, and saw that the knife had a brown handle. Stewart's daughter became frightened, and Stewart shouted at the man. He responded by telling her he'd been joking.
At that point an employee came out of the back of the store. Both Stewart and the man stopped shouting at each other, and the employee "looked, turned, and kept on going, minding his business." Stewart then began to shout again and called for security. Instead of heading toward the exit of the store, Stewart decided to move to the rear of the store so that the man would not have an opportunity to "hurt me or my child and then run out the door." For another several minutes, Stewart rushed through the store calling for security. The man followed her, telling her to "shut up," and that he would "punch her in the face." Stewart finally reached the front of the store, where a group of people stood watching, none of whom attempted to step in. Finally, a man "from up top" came, and Stewart asked him to call the police. Her assailant said, "Go ahead. Call the police. I am going to punch you in the face." When Stewart was handed a phone to make the call, the man left the store. The entire incident took approximately 10-15 minutes. Tr. 300-02.
The day after the incident, Detective Stephen Gilliam spoke to Stewart by telephone; she gave a description of the assailant as a black male standing six feet tall, 160 pounds, and about 25 years old. She did not tell Gilliam whether or not she saw a knife, and Gilliam did not ask her. She did not mention seeing a gold tooth in her assailant's mouth. Tr. 315-18.
Three weeks after the incident, Stewart identified Norris in a lineup. When Norris was arrested after the lineup, it was confirmed that he was five feet nine inches tall, 220 pounds, and 32 years old at the time. Tr. 273.
Norris was arrested and charged in Kings County with attempted robbery in the first degree and attempted robbery in the third degree. He was also charged with robbery in the first degree and robbery in the third degree in connection with an incident that took place on November 13, 2000. On that date, a different victim, Rachel St. Vil, was approached in the hallway outside her apartment by a man with a knife who demanded and took her jewelry. St. Vil and another witness to that event identified Norris in the same lineup that Stewart saw.
B. The Procedural History
1. The Trial Court Proceedings
At trial, the jury heard testimony from St. Vil and the other identifying witness about the November robbery charges, and from Stewart about the events that took place in the C-Town grocery store on December 5. The defense theory was mistaken identity.
Defense counsel highlighted that the day after the December 5 incident Stewart identified her assailant as 6 feet tall, 160 pounds, when Norris is in fact three inches shorter and 60 pounds heavier than she reported. A girlfriend of Norris's also testified that Norris had a gold tooth, Tr. 334, a feature that none of the witnesses had reported. Also, Norris was permitted to stand in front of the jury box at trial and display the gold tooth to the jurors.
The court instructed the jury to conduct independent deliberations with respect to the two events at issue, noting that "although these two incidents are being tried together, you need to deliberate separately as to whether the evidence was sufficient in each of the incidents." Tr. 402-03. The court also told the jury, that "[t]he possibility of human error or mistake, and the possible likeness or similarity of persons are among the elements you must also consider when evaluating testimony as to the identity of the perpetrator." Tr. 398.
On December 17, 2001, the jury deadlocked on the charges stemming from the November incident, leading to the dismissal of those charges. However, the jury found Norris guilty of attempted robbery in the first degree, a Class C felony, in relation to the December events at the C-Town store. Norris was sentenced to 16 years to life in prison as a persistent violent felony offender.*fn1
On appeal to the New York Supreme Court, Appellate Division, Second Department, Norris denied that he was the man who approached Stewart in the store, and that even if, arguendo, he was the man in question, the prosecutor failed to establish that he had the intention to rob Stewart. In particular, he argued (1) the People failed to prove beyond a reasonable doubt that Norris committed attempted robbery in the first degree, and the verdict was against the weight of the evidence; (2) Norris was deprived of a fair trial because a police officer testified that he placed Norris under arrest after the witness viewed the line-up, thereby improperly bolstering witness testimony; and (3) the sentence pursuant to New York's persistent violent felony offender statute was unconstitutional in light of the principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).
On March 29, 2004 the Appellate Division unanimously affirmed the conviction. People v. Norris, 773 N.Y.S.2d 591 (2d Dep't 2004). The court rejected all three of Norris's claims due to procedural default. Id. "In any event," the court found, the evidence viewed in the light most favorable to the prosecution "was legally sufficient to establish the defendant's guilt beyond a reasonable doubt," and "the verdict of guilt was not against the weight of the evidence." Id. at 592 (citing People v. Contes, 60 N.Y.2d 620 (1983); People v. Williams, 84 N.Y.2d 925 (1994)). The court also found that any possible error in admitting the police officer testimony describing the lineup was harmless, since "the defendant elicited other information from the police officer regarding the same subject and relied on it in pursuit of his defense." Id. Finally, the court found that the constitutional challenge to sentencing pursuant to the persistent violent felony offender statute was without merit. Id.
Norris's application for leave to appeal to the New York Court of Appeals was denied on June 24, 2004. People v. Norris, 3 ...