The opinion of the court was delivered by: John Gleeson, United States District Judge
Gabriel Hoyle, a prisoner incarcerated in the Coxsackie Correctional Facility pursuant to a judgment of the New York State Supreme Court, Kings County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Hoyle challenges his conviction following a jury trial of one count of robbery in the first degree. Appearing pro se, Hoyle seeks habeas relief on the grounds discussed below. Oral argument was held on March 27, 2009, at which Hoyle appeared by videoconference from the facility in which he is serving his sentence. For the reasons set forth below, the petition is denied.
The state's evidence at trial established that in the early morning of November 30, 2002, Hoyle and another man approached Clifton Weithers, who was attempting to enter his apartment building at 1001 Eastern Parkway in Brooklyn. While Hoyle's accomplice pointed a gun at Weithers, Hoyle ripped off Weithers's gold chains and bracelets and took his cell phone. Hoyle was later arrested and indicted in New York Supreme Court, Kings County, on four charges: robbery in the first, second and third degrees and grand larceny in the fourth degree. B. The Procedural History
1. The Trial Court Proceedings
a. The Suppression Hearing
On June 4, 2004, a Wade/Huntley*fn1 hearing was held on Hoyle's motion to suppress the identification testimony and his oral statement.
At the hearing, Detective Thomas McKiernan testified that at approximately 10:00 a.m. on December 20, 2002, Weithers came to the 77th precinct to report that he had just seen, in front of a building at 1445 St. Johns Place, a man who had robbed him three weeks earlier.*fn2 H. 10, 31-32. Weithers told him that his sister, an off-duty police officer, was with him when he observed the man. H. 35. McKiernan, the detective assigned to the December 20 robbery, drove Weithers back to where he had seen the robber to canvass the area, but they were unable to locate him. H. 31-32. McKiernan and Weithers returned to the precinct where McKiernan arranged a computer-generated photo array of persons affiliated with the 1445 St. Johns Place address. H. 11, 32-33. McKiernan showed Hoyle an array of six photographs. Weithers identified Hoyle from the array and signed his name under Hoyle's picture. H. 13.
Hoyle was arrested on January 4, 2003, at 10:45 p.m. and brought to the 77th precinct.*fn3 McKiernan interviewed him in a precinct squad room at 11:35 p.m. H. 21. Hoyle was not handcuffed for the interview and was permitted to use the bathroom and to get a drink of water. H. 21-22. Prior to speaking with Hoyle, McKiernan read him his Miranda rights from a card. H. 22. Hoyle indicated that he understood his rights by circling "yes" on the card and signing his name. H. 23. Hoyle then waived his rights and made an oral statement about the events on December 20 when Weithers and his sister-in-law saw him. McKiernan described the statement as follows:
[Hoyle] told me that he went to the check cashing place looking for somebody he knows as cigarette man. He said when he looked inside . the dude was looking at [him]. He walked to the corner store and the guy followed him, and he got a cigarette. And when he came out he said to him, why you looking at me. Then a car pulled up and a girl came up to me and showed me a badge. They were talking that me and my man robbed him and they said I took a thousand dollars in jewelry.
At 1:15 p.m. the next day, January 5, 2003, McKiernan conducted a lineup that included Hoyle. H. 13, 36. McKiernan obtained five fillers from the Bedford Avenue Shelter based on a description of Hoyle. H. 14. McKiernan had written on his arrest sheet that Hoyle was about five feet four inches, weighed 140 pounds and was 18 years old. H. 36-37. Hoyle weighed the least of all the participants in the lineup and was also the youngest. H. 37-38. Three of the fillers were over 30 years old and one was almost 20 years older than Hoyle and approximately 50 pounds heavier. The two fillers who were closest to Hoyle's age were 25 and both were over six feet tall. H. 38-39. McKiernan explained that seats one, two and three were adjusted to compensate for the height differences. H. 40-42. Each person was given a baseball hat to wear to help them look similar. H. 17-18. Hoyle chose seat number three in the lineup.
While the lineup was being set up, Weithers waited in a back room. He could not see the fillers or Hoyle before the lineup. H. 15-17. When Weithers viewed the lineup he identified Hoyle, in seat number three, as the person who had robbed him. H. 18. McKiernan took photographs of the lineup, which were admitted into evidence at the hearing. H. 19-20.
The defense did not present any evidence at the suppression hearing.
On June 7, 2004, the court denied Hoyle's motion to suppress, holding that the police-arranged lineup was fair and that the procedures were not unduly suggestive. The court noted that while "there were differences in weight, age and skin tone among the participants in the lineup, none of the differences served to single out the defendant in any way." Def. Opp., Ex. B. at 68. In addition, the court denied the motion to suppress Hoyle's post-arrest statement, holding that the statement was made after Hoyle had received Miranda warnings and had waived his rights to remain silent and to counsel. Id. at 66-68.
At trial, Weithers testified that in the early morning of November 30, 2002, he noticed Hoyle and another man laughing nearby as he walked home from an Eastern Parkway bus stop after working a night shift at the Post Office. Tr. 48. Weithers started to walk faster because he felt nervous. As he approached his apartment building he got his keys out so that he could get inside quickly. When he got to the door and was about to insert the key, Weithers heard someone say, "Don't even try it." Tr. 53. Weithers turned around and saw Hoyle and another man, who was holding a gun, approaching him. Weithers saw both men's faces before the man with the gun instructed him to turn back around and face the door. Tr. 53-54.
While the other man put the gun in Weithers's side, Hoyle put his hand into Weithers's shirt and removed his necklaces. Hoyle then took Weithers' bracelets and cell phone. Tr. 56. When Weithers shifted his position, the gunman put the gun to his head and Hoyle told the gunman to shoot Weithers if he moved again. Tr. 58. While Hoyle was removing the jewelry, Weithers was able to see his face clearly in the light that was coming through the glass entrance door. Weithers was also able to see Hoyle's reflection in the glass door he was facing. Tr. 60. Weithers described the man who removed his jewelry as being shorter than 5'7" and as having a "squatty" nose, braided hair and a lighter complexion than the gunman, who was also the taller of the two robbers. Tr. 58-60.
The gunman told Weithers not to move and to stay calm. Then Weithers heard the outer gate to the building swing closed. He turned and saw the two assailants running away down the street. Weithers started screaming and running after the men. He stopped at a payphone and called the police, who arrived soon thereafter. The police and Weithers canvassed the vicinity for the robbers but could not find them. Tr. 62-65.
Weithers testified that on December 20, 2002, he recognized Hoyle and the accomplice in front of a check cashing store. Weithers called his sister-in-law, Police Officer Denise Klass, who came to the location where Weithers was engaged in a conversation with Hoyle. Klass was off-duty; she was not wearing her uniform and did not have her gun with her. When she arrived, she approached Hoyle, identified herself as a police officer and spoke to him. Tr. 71, 113-14. Klass convinced Weithers to accompany her to the 77th precinct, where he met with McKiernan. After McKiernan and Weithers canvassed the area without success, McKiernan conducted the identification procedures discussed above. Tr. 73, 75-76, 136.
The defense called Stanley Reed, the police officer who responded to the scene of the crime on November 30, 2002. Reed testified that Weithers had provided him with descriptions of the robbers: both were black and wore their hair in braids; one was about 5 feet 7 inches and one was about 5 feet 5 inches tall; and one had a light complexion while the other one had a darker ...