The opinion of the court was delivered by: Trager, J.
Petitioner was convicted of robbery and grand larceny in New York State Supreme Court, Queens County. Petitioner files this pro se petition for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254 (2000), to vacate his judgment of conviction. For the following reasons, his petition is denied.
The evidence presented at trial supports the following statement of facts. Early in the morning of December 3, 1998, petitioner stole twenty dollars from Surinder Singh outside Mars Deli on Kissena Boulevard near Cherry Avenue in Flushing, Queens. Petitioner was unarmed but threatened to attack Singh. Singh lived one block away from Mars Deli, did most of his grocery shopping there, and frequently bought coffee there before starting his shift driving a taxicab. Singh recognized petitioner, having seen him at Mars Deli once a week for the three to four months before the theft. Singh did not report the altercation to the police.
Three days later, on the afternoon of December 6, 1998, Surinder and his cousin, Amajitt Singh, walked to the deli to buy beer. After paying for the beer, Surinder was carrying about fifty dollars. As they were walking back to Surinder's apartment, petitioner grabbed Surinder by the shoulder from behind and spun him around. Petitioner with two accomplices -whom Surinder did not recognize - surrounded him. While demanding Surinder's money, petitioner held a knife to his abdomen. Surinder pulled the cash from his pocket and handed it to petitioner. After petitioner and his accomplices fled, Surinder returned home and called the police. The police arrived about fifteen minutes later and drove Surinder and Amajitt in their patrol car around the neighborhood to look for petitioner and his accomplices. Surinder and Amajit did not find them.
Two days later, on the evening of December 8, 1998, Edward Simonetti, a detective in the New York City Police Department ("NYPD"), called Surinder and Amajitt into the 109th Precinct station house to interview them and to canvass the neighborhood around Mars Deli with them. Simonetti had been investigating a series of strong-arm robberies - robberies in which no weapon was involved - that had occurred within two blocks of Mars Deli. He had been issued a robbery pattern sheet describing two to four attackers, one, white, the others, black. The robbery pattern sheet had also been distributed to police patrolling the 109th Precinct. At the station house, Surinder described his three attackers - including petitioner - as black men, eighteen to twenty years-old who weighed 140-160 pounds. During his interview, Simonetti received a call from a member of the NYPD's Street Crime Unit in which he was told that a white man had been spotted at the corner of Kissena Boulevard and Cherry Avenue who resembled one of the suspects described in the robbery pattern sheet. Intending on conducting the neighborhood canvass after investigating the suspect identified by the Street Crime Unit, Simonetti drove to Kissena and Cherry with Surinder and Amajitt in the back seat of the car. When they arrived, Surinder spontaneously pointed to petitioner, identifying him as his attacker. Surinder described petitioner by his sweatshirt, which he said petitioner wore during at least one of the robberies; he recognized the sweatshirt by its orange hood. Amajitt confirmed the identification.
Earlier that night, the corner of Kissena Boulevard and Cherry Avenue, a few feet away from Mars Deli, had become the scene of a Terry stop conducted by the Street Crime Unit. The unit had been assigned to the 109th Precinct to investigate the same pattern of robberies that Simonetti was investigating. While driving down Kissena Boulevard, Detective Joseph Saccone of the Street Crime Unit observed petitioner and two other men, who appeared to have large bulges at their waists, standing in front of Mars Deli. Saccone and two other detectives approached them, asked them if they were carrying any weapons and frisked them. The bulges proved not to be weapons. (In one instance, the bulge was a personal tape recorder.)
While Saccone was collecting pedigree information from the three men, Simonetti approached him and told him that Surinder had identified petitioner as the attacker in two robberies. Simonetti arrested petitioner. While processing petitioner's arrest, Simonetti noted that he was a black man, five feet six inches, 116 pounds and twenty-three years old.
Petitioner was charged with robbing Surinder on December 3 and December 6, 1998. In a pretrial motion, petitioner requested a Wade hearing at which he intended to ask the hearing court to suppress Surinder's identification testimony. According to petitioner, the identification procedure was conducted in such an impermissibly suggestive manner that it greatly increased the likelihood of misidentification. The court denied petitioner's motion for a Wade hearing on the ground that the canvass was not police-arranged. People v. Brinson, No. 3997-98, slip op. at 3 (Sup. Ct. Queens County Mar. 25, 1999)("Brinson I").
Petitioner was convicted of robbery in the second degree, robbery in the third degree and grand larceny in the fourth degree and sentenced to thirteen to sixteen years imprisonment. He appealed raising two issues: 1) the court's denial of a Wade hearing violated his right to due process and 2) the State's cross-examination and summation violated his right to due process. In a decision dated February 10, 2003, the Appellate Division, Second Department, held that, under People v. Dixon, 85 N.Y.2d 218, 647 N.E.2d 1321 (1995), the trial court was required to hold a Wade hearing and remitted the matter to the trial court. People v. Brinson, 753 N.Y.S.2d 740, 302 A.D.2d 471 (2d Dep't 2003); see Dixon, 85 N.Y.2d at 223 ("[C]anvassing [a] crime area in a police car was an identification procedure undertaken at the deliberate direction of the State.") (internal quotation marks omitted).
On May 1 and May 8, 2003, a Wade hearing was held at which Simonetti and Saccone testified. Before evidence was presented, the defense moved the court to expand the scope of the hearing to include an inquiry, under Dunaway v. New York, 442 U.S. 200 (1979), into whether his identification was the result of an illegal seizure.
According to Saccone, petitioner was never placed in handcuffs or arrested for the duration of the stop-and-frisk. Saccone and the two police officers assisting him with the Terry stops were entirely dressed in street clothes. Saccone described the street in front of Mars Deli as having "[m]edium to heavy pedestrian traffic" at the time. Wade Hr'g 14:14, May 1, 2003. Likewise, Simonetti testified that when he arrived at the site of the Terry stop, there were between fifteen and twenty people on the street, both black and white. Wade Hr'g 10, May 8, 2003.*fn1
In closing, petitioner's attorney argued that Surinder's identification of petitioner bore characteristics of a "point-out," a show-up and a lineup and was the result of suggestive procedure. Id. at 37:7--8, 42. According to petitioner, any lineup with only three participants is impermissibly suggestive. Id. at 42:23-25. Next, petitioner implied that the circumstances leading up to Surinder's identification of petitioner---i.e., the Terry stop and Simonetti's neighborhood canvass---were coordinated. See id. at 44:4-11. In that way, the identification also resembled a show-up. Id. at 43.
The second part of petitioner's argument was that he was in custody at the time of his identification since he was not allowed to leave after the stop-and-frisk until the police had obtained his pedigree information. Id. at 39-40. According to petitioner, there was no reason to detain him ...