The opinion of the court was delivered by: Dearie, Chief Judge.
Petitioner Mark Dell petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the application is denied and the petition dismissed.
In April 2002, following a jury trial at which he testified, petitioner was convicted of robbery in the first degree and burglary in the second degree for his role in an armed home invasion in a Brooklyn apartment building. He was sentenced to two seventeen-year terms to be served consecutively. The Appellate Division reduced the sentence to concurrent terms but otherwise unanimously affirmed the conviction. People v. Dell, 11 A.D.2d 631 (2d Dep't 2004). Leave to appeal was denied. People v. Dell, 4 N.Y.3d 762 (2005). Petitioner's co-defendant, Iyatta Warburton, entered a plea of guilty over the prosecution's objection and received a five-year sentence.
The basic facts of the crime are not in dispute. On the morning of November 6, 2000, as thirteen year-old Corey Mantock was leaving for school, two men hiding near the elevator seized him and forced themselves, along with the boy, back into the boy's home. The men then embarked on a duct-taping spree, binding first the boy's hands, then those of his mother Diana Mantock, and then the hands and feet of Diana's companion Courtney Hughes. The assailants eventually fled with cash and jewelry, leaving the victims bound. Police were telephoned only when Corey managed to chew the tape off his hands.
The principal issue at trial was identification. Five of the seven claims in the habeas petition involve the pre-trial and trial rulings that bear on that issue.
A. Pre-Trial Identification
Three weeks after the crime, each victim independently identified petitioner from a photographic array. Four weeks after that, on March 21, 2001, lineups were held. Hughes and Diana Mantock identified petitioner, but Corey identified a filler.
At the Wade hearing held in December 2001, the court found no indication of actual suggestiveness in the lineups. But the photographs of the lineup were of questionable quality, and made it "very hard [for the court] to determine" what the participants "actually looked like." H. 33. The court therefore suppressed the lineups and held an independent source hearing as to Hughes and Diana Mantock.
Diana testified that, on the morning of the attack, the two assailants were within six steps of her as she watched them running from the elevator toward her son; their faces were directly in front of hers as they pushed her son into the apartment and ordered them both to the couch. H. 81-82. She stated, "I was watching [petitioner] because he had my son, so I was watching what he was doing to my son." H. 84-85. It was morning, the lamps were on, and the assailants faces were not covered. H. 84-85. On the day of the crime, she had told police that petitioner was wearing a knitted tam hat and earrings, was neither fat nor skinny, and spoke with a Jamaican accent. H. 98-102.
Hughes testified that he was on the sofa, fifteen feet from the door, when the assailants first arrived. Hughes believed that, because the invaders were unmasked, they would likely decide to kill the victims to prevent later identifications. H. 108. Petitioner approached Hughes with a gun, taped his legs and hands, and made him lie on the floor. H. 109. These actions took about two minutes; Hughes stated, "He was, you know, close. He was right in front of me so there's no mistaken identification here." H. 110. When the assailants "were about to tape [his] mouth," Hughes panicked and offered to show them where cash was hidden. H. 111, 114. Petitioner then untaped Hughes's legs, escorted him into the bedroom at gunpoint, and was led to money under the carpet. H. 112, 119-20. On the day of the crime, Hughes had told police that petitioner was "taller than the other guy," and "not dark like the other guy," and that he wore a hooded sweatshirt and a tam hat. H. 114.
The hearing judge asked Hughes whether he was "so scared" that perhaps that fear might "detract" from his memory, and whether the events happened "so long ago" that he might no longer recognize the attackers; Hughes replied: "I know exactly what he looks like" and "I never forget [sic] his face." H. 114-15.
In making its findings, the hearing court considered the opportunity Diana and Hughes had to view the assailants, their degrees of attentiveness, the accuracy of their prior descriptions to police, the level of certainty they displayed at the hearing, and the length of time between the incident and the hearing as required by the federal and state authorities that the court recited. H.134-37 (citing Manson v. Brathwaite, 432 U.S. 98 (1977); People v. Neese, 138 A.D.2d 531 (2d Dep't 1988); People v. Androvett, 135 A.D.2d 640 (2d Dep't 1987)). Crediting the testimony of Diana and Hughes on these points, the court concluded that the state had met its burden of showing that police-initiated procedures "ha[d] not tainted" Diana's or Hughes's "ability to independently identify [petitioner] as the person who committed the crimes" and ruled that each would be allowed to identify petitioner at trial. H. 137.
B. Trial Testimony: Diana Mantock and Hughes
Diana's trial account of the crime was consistent with her hearing testimony, but more detailed. T. 36-43. She testified that she observed petitioner as he (i) removed duct-tape from his pocket, bound her son's hands, and carried the boy into the bedroom; (ii) removed the jewelry she was wearing; (iii) forced her into the bedroom; (iv) duct-taped her feet; (v) wrapped his gun in a sheet and threatened that "nobody [was] coming out alive" unless he got all the money; and (vi) forced Hughes to the floor, struck him with a gun and prepared to tape his mouth. On her capacity to identify petitioner, Diana testified that "there [was] no doubt about it," because "he push[ed] my son in the apartment" at gunpoint "[s]o I won't forget his face." T. 59.
Hughes's trial testimony was consistent with Diana's. T. 106-26. On petitioner's identity, Hughes testified that, "without a doubt," petitioner was one of the two assailants. T. 126. Hughes insisted that he "kn[e]w that's him for sure" and that he "kn[e]w exactly." T. 126.
C. The Question of Corey's Testimony
The possible use of Corey Mantock's lineup misidentification at trial was discussed considerably, with the court voicing its concern that the parties seemed not to have thought the matter through. T.44-45. Before resting, the prosecution declared its intent to call Corey. When the court asked the prosecutor why she "would call a witness in [her] case who has identified somebody else as the perpetrator," she asked to consult her supervisor. T. 221-222. The defense stated, "[i]f they don't want to call him I may ask for a missing witness charge." T. 222.
Counsel argued that because Corey was one of the victims, jurors would expect him to be a prosecution witness and should, therefore, be permitted to draw the opposite inference from the prosecution's decision not to call him. The court disagreed, remarking that Corey was "not a witness expected to give testimony favorable to the People" ...