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Maldonado v. Burge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


March 24, 2010

EDWIN MALDONADO, PETITIONER,
v.
JOHN BURGE, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM OPINION AND ORDER

Petitioner Edwin Maldonado objects to Magistrate Judge Katz's Report and Recommendation [17] (the "Report"), which recommended that petitioner's petition for a writ of habeas corpus be denied. Respondent also objects to portions of the Report. After reviewing the record, the Report, and the relevant legal authorities, the Court concludes that petitioner's request for a writ of habeas corpus should be denied.

BACKGROUND

The background and relevant procedural history are set forth in more detail in the Report, familiarity with which is assumed.

The Robberies

On May 3, 2002, while German Guzman was stopped at a red light in his taxi in the Bronx, he felt someone reach into his shirt pocket and take his money. (See Trial Tr. Vol. 2, Sept. 11, 2003 ("Tr. B") at 118-19.) Mr. Guzman saw the robber's hand, but not his face. (Id. at 120-21.) After the robbery, Mr. Guzman told the officers called to the scene that the robber had worn a yellow jacket and blue jeans and that he believed the robber to be Hispanic. (Id. at 130, 132-33, 136-37.)

Melinda Barcene, stopped at the same red light, witnessed the robbery. (Trial Tr. Vol. 1, Sept. 10, 2003 ("Tr. A") at 12-14.) At one point, the robber crossed directly in front of her, and she was able to get a close, unobstructed view of his face. (Id. at 28.) A few days later, Ms. Barcene described the robber to Detective Benny Lucchese as a Hispanic male, 5'9 to 5'10 in height, about thirty years old, in need of a haircut, and with a scar on the right side of his mouth. (Tr. B at 169-70; Tr. A at 46-47.) Ms. Barcene also gave a clothing description of the robber that matched Mr. Guzman's. (Id.) From this description, and considering the location of the robbery, Detective Lucchese suspected petitioner of the robbery. (See Wade Hearing Tr. Vol.1, Sept. 3, 2003 ("Wade A") at 85-86, 103.) Detective Lucchese compiled a six photo spread consisting of petitioner and five other similarly featured men and showed it to Ms. Barcene. (Id. at 88-89.) Ms. Barcene identified petitioner as the man who committed the May 3, 2002 robbery. (See Wade Hearing Tr. Vol. 2, Sept. 8, 2003 ("Wade B") at 172.)

On May 21, 2002, a second robbery occurred. Tanya Simpson had paid her taxi fare and was waiting for change when a man approached the driver's window and snatched the money from the driver's front pocket. (Tr. B at 144-46, 149.) The robber then climbed into the taxi beside Ms. Simpson, held a pistol to her head, grabbed a chain from her neck, and took her wallet. (Id. at 145, 147.) The robber's unobstructed face was about two feet from Ms. Simpson's face during the robbery. (Id. at 150.) The driver never reported the robbery, but Ms. Simpson called 911 shortly after leaving the taxi. (Id. at 157-58, 225.) She met with police officers later in the day and described the robber as a light-skinned black or Hispanic male, about 5'7" in height, about thirty years old, weighing about 140 pounds, with a scar next to his mouth, and with black hair in a high "afro" hairstyle. (Id. at 158-60.) She also stated that he had been wearing a blue and red jacket, a blue tee shirt and blue jeans. (Id.) Ms. Simpson looked through a photo book with approximately seventy photos, including twenty-two Hispanic males, and after about twenty-five minutes, she picked petitioner out of the book. (See Wade A at 6-7, 42.)

Later on May 21, 2002, Detective Glenn Godino arrested petitioner, who was wearing a distinctive bright red "Phillies" baseball jacket with a blue collar and trim, a blue tee shirt with a distinctive caption on the front, and blue jeans. An arrest photo was taken. (See Wade A at 49; Cunningham Aff. Ex. 1 ("Arrest Photo").) Detective Godino frisked petitioner and searched his person, but did not find any physical evidence linking him to the robberies. (Tr. B at 257-61, 278.) The next day, Detective Godino organized a lineup with petitioner and five other Hispanic males. (Wade A at 16-17.) All of the men were sitting and wore black stocking caps. (Id. at 18, 67). A black plastic sheet was placed in front of the men to hide their clothing and thereby avoid undue suggestiveness. (Id. at 18, 67, 69.) However, photographs of the lineup reveal that the very tops of the men's shirts could be seen over the black sheet and that a small portion of petitioner's blue shirt was visible. (See Pet. Decl. Ex. B ("Lineup Photo").) It appears from the photo that petitioner's red "Phillies" jacket had been taken off. (Id.) Both Ms. Barcene and Ms. Simpson separately picked petitioner out of the lineup as the robber in the incidents they had witnessed. (Wade A at 20-21, 26.)

The Wade Hearing

On September 3, 4, and 8, 2003, the court held a Wade hearing to determine if any of the identification procedures had been unduly suggestive. See United States v. Wade, 388 U.S. 218, 232 (1967). During the hearing, the witnesses described the events as above, but Detective Godino, looking at a complaint report he had not prepared, testified that Ms. Simpson had described the robber as wearing a red shirt, rather than her actual description of him wearing a blue tee shirt under his red "Phillies" jacket. (Wade A at 70.) There was some discussion about whether Ms. Simpson had described a red or blue shirt, during which time the trial judge stated that "[i]f a blue shirt was at any point at all visible during the lineup and the witness has described the fact that a blue shirt was worn during the course of the lineup, that may or may not relate to the suggestibility of the proceeding." (Id. at 68-69.) However, Detective Godino affirmed that the report referred to a red shirt. (Id. at 71-72.)

At the conclusion of the Wade hearing, petitioner's counsel moved to suppress Ms. Barcene's photo-array identification, alleging that the array was tainted because petitioner was allegedly the only person in the photos with a scar. (Wade B at 193-95, 198.) The court rejected that motion, stating that the procedure was "eminently fair" and that all the photos showed men who looked very similar. (Id. at 204.)

The Trial

Petitioner's trial began on September 8, 2003. The prosecution called four witnesses- Ms. Barcene, Mr. Guzman, Ms. Simpson, and Detective Godino-and relied heavily on the eyewitness testimony of Ms. Barcene and Ms. Simpson's. Report at 13. Both women testified that they had a clear look at the robber's face and both made in-court identifications. (Tr. A at 16-18; Tr. B at 145-46, 150.) Ms. Simpson testified that the robber wore a blue shirt during the robbery, and that she had previously described the shirt as blue, not red-testimony that clearly called into question the accuracy of the report that Detective Godino had referred to during the Wade hearing. (See Tr. B at 159-61, 178-79.) Ms. Simpson positively identified the arrest photo of the defendant, which she was shown for the first time at trial. (See Tr. B at 161-64.)

Ms. Simpson then testified about the lineup where she had identified the defendant the day after the attack. She testified that during the lineup, all the men were covered up to their necks by a black plastic bag and that they were all wearing black hats. (Id. at 167-68.) Ms. Simpson did not mention that the tops of the men's shirts were visible over the black sheet and was not asked whether she had noticed this fact. (See id.)

Petitioner's trial counsel did not call any of its own witnesses, but relied on cross-examination of the prosecution's witnesses and a theory of misidentification. (See Report at 14.) Counsel pointed to inconsistencies in witnesses' testimony, and argued to the jury that the identification procedures were unfairly suggestive because petitioner was the only one wearing a blue shirt in the lineup and the top of the shirt was visible over the plastic sheets. (See id.; Tr. B at 361-77.)

At the conclusion of the trial, petitioner was convicted of two counts of robbery in the first degree for the May 3, 2002 robbery, and one count of robbery in the third degree for the May 21, 2002 robbery. Thereafter, petitioner's counsel moved to set aside the two guilty verdicts, partly due to the alleged suggestiveness of petitioner's visible blue shirt at the lineup. (See Sentencing Hearing Tr. at 12.) The court denied the motion. (Id. at 13.) Petitioner was sentenced as a second violent felony offender to two concurrent terms of twenty-five years and one concurrent term of three and one-half to seven years of imprisonment, and to five years of post-release supervision. (Report at 15.)

Petitioner's' Direct Appeal

Petitioner then appealed on numerous grounds, represented by counsel from the Office of the Appellate Defender. (See Report at 16.) As is relevant to the present petition, petitioner contended, among other things, that his Sixth Amendment right to the effective assistance of counsel had been violated because his trial counsel failed to move to reopen the Wade hearing, as is permitted under N.Y. Crim. Proc. Law. §710.40(4), after learning that Ms. Simpson described the robber's shirt as blue, not red. The Supreme Court, Appellate Division adjudicated the appeal on the merits and found that petitioner had not been deprived of effective assistance. People v. Maldonado, 25 A.D. 3d. 423, 423-24 (App. Div. 2006). Petitioner sought leave to appeal to Court of Appeals, but that application was denied. See id., lv. denied 6 N.Y. 3d 836 (2006).

Petition for Habeas Corpus

Petitioner then brought the present petition for habeas corpus, reiterating his claim that his Sixth Amendment right to the effective assistance of counsel had been violated because his trial counsel failed to move to reopen the Wade hearing after learning that Ms. Simpson described the robber's shirt as blue, not red. Petitioner contends that a reopened Wade hearing may have resulted in the suppression of Ms. Simpson's lineup identification as unduly suggestive, which in turn would taint her in-court identification, which in turn would have led to a reasonable probability of a different verdict on the May 21, 2002 robbery charge because Ms. Simpson's testimony was the prosecution's only evidence with respect to that robbery. (See Mem. in Supp. of Petition for Habeas Corpus at 29-31; Petitioner's Objections to the Report ("P. Objections") at 7, 10, 12.) The parties agree that petitioner has exhausted his remedies and that the petition is timely.

The petition was referred to Magistrate Judge Katz, who issued his Report on November 7, 2008. The Report recommended that the petition be denied because petitioner had not established that the Appellate Division's decision was contrary to or involved an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), as would be required in order for a writ to lie under 28 U.S.C. § 2254(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Report at 33. In the course of reaching that conclusion, Judge Katz independently analyzed whether petitioner had met his burden of satisfying the two-part test set by Strickland, which requires a defendant seeking to establish ineffective assistance of counsel to prove: (i) that counsel's representation fell below an objective standard of reasonableness (the "performance prong"); and (ii) that the deficient performance prejudiced the defense (the "prejudice prong"). 466 U.S. at 687. With respect to the performance prong, Judge Katz noted that it was plausible that counsel viewed any attempt to reopen the Wade hearing as "futile," but ultimately found that he could not conclude that counsel's failure to move to reopen the Wade hearing was professionally reasonable. Report at 24, 26. However, Judge Katz held that petitioner's ineffective assistance of counsel claim failed under the prejudice prong because petitioner had not demonstrated that there was a reasonable probability that he would have succeeded in suppressing the identification had the Wade hearing been reopened, and therefore could not show that there was a reasonable probability that the outcome of the trial would have been different but for counsel's errors. Id. at 26, 31-32.*fn1

Both petitioner and respondent filed objections to the Report. Petitioner contends that Judge Katz applied an erroneous legal standard in reviewing petitioner's claims for ineffective assistance of counsel. In the alternative, petitioner contends that even if Judge Katz applied the correct legal standard, that standard was satisfied because there is a reasonable probability that the lineup identification would have been suppressed at a reopened hearing. (P. Objections at 10-12.). Respondent objects to Judge Katz's finding that petitioner's counsel's performance may have been professionally unreasonable, but agrees with his conclusion that even if it was, petitioner was not prejudiced in any way. (Respondent's Objections to the Report at 2.)

DISCUSSION

Where objections are made to portions of a report and recommendation by a Magistrate Judge, a district court is required to make a de novo determination regarding those portions of the report to which objections are made, 28 U.S.C. § 636(b)(1)(C), by reviewing the Report, the record, applicable legal authorities, and the parties' objections and replies. See Bandhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. Id. (citations omitted).

I. Standard of Review of State Court's Decision Under AEDPA

Under AEDPA, there are three sets of circumstances under which a federal court may grant a writ of habeas corpus to a state prisoner: (i) if the state court's denial of relief "resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States;" (ii) if the state court's denial of relief "resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States;" or (iii) if the state court's denial of relief "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The phrase "clearly established Federal law, as determined by the Supreme Court of the United States" limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Leslie v. Artuz,230 F.3d 25, 32 (2d Cir. 2000).

A state court decision is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a materially indistinguishable set of facts. Williams, 529 U.S. at 405. The "unreasonable application of federal law" clause is independent of the "contrary to" standard and means more than simply an erroneous or incorrect application of federal law. See id. at 411; see also Henry v. Poole, 409 F.3d 48, 68 (2d. Cir. 2005). Under this clause, a federal court may grant a writ of habeas corpus "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413; see also Henry, 409 F.3d at 68. A federal court reviewing a habeas petition "may permissibly conclude that the federal law has been unreasonably applied by the state court even though not all reasonable jurists would agree that the state court's application was unreasonable." Henry, 409 F.3d at 68 (citing Williams, 529 U.S. at 409). Ultimately, the inquiry is whether the state court's application was "objectively unreasonable," Williams, 529 U.S. at 409, a standard that falls "somewhere between merely erroneous and unreasonable to all jurists." Henry, 409 F.3d at 68 (internal quotation marks and citation omitted).

As noted above, the third potential basis for granting a writ of habeas corpus under AEDPA is if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented . . ." 28 U.S.C. § 2254(d)(2). In this case, the Appellate Division did not premise its decision to deny petitioner's' ineffective assistance of counsel claims on any purely factual findings, nor has petitioner argued that he is entitled to habeas relief on this basis. (See P. Objections at 31.) Thus, 28 § 2254(d)(2) is not applicable and will not be discussed further.*fn2

The preceding discussion makes clear that the standard of review set by AEDPA for the present petition is deferential. This Court is not being called upon to determine whether the state court correctly rejected petitioner's ineffective assistance of counsel claim. See Williams, 529 U.S. at 410. Rather, this Court's task is simply to determine whether the state court's rejection of petitioner's Sixth Amendment ineffective assistance of counsel claim was contrary to or involved an unreasonable application of clearly established federal law (as defined above).

II. Petitioner's Request for a Writ of Habeas Corpus

a. Clearly Established Federal Law

The petition before this Court raises a Sixth Amendment ineffective assistance of counsel claim premised upon counsel's failure to move to reopen a Wade hearing to suppress an out-of-court identification that is alleged to have been unduly suggestive. Under AEDPA, the threshold question is whether the claim is governed by any applicable clearly established federal law. Here, it is. Ineffective assistance of counsel claims are "squarely governed by [the Supreme Court's] holding in Strickland v. Washington." Williams, 529 U.S. at 390. As noted, the Supreme Court established therein a two-prong test to determine whether a defendant's Sixth Amendment right to effective counsel has been violated.

Under the performance prong of Strickland, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."466 U.S. at 689. In determining whether counsel's performance fell below an objective standard of reasonableness, "a court must bear in mind both that counsel 'has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process,' and that counsel must have 'wide latitude' in making tactical decisions." Henry, 409 F.3d at 63(quoting Strickland, 466 U.S. at 688, 689). Thus, the court must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.

Under the prejudice prong of Strickland, petitioner must prove that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Thus, "[i]t is not enough to show only that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. On the other hand, it is not necessary to establish that the outcome of the case "more likely than not" would have been different. Id.

While it is undisputed that Strickland applies to the present petition-and to all Sixth Amendment ineffective assistance of counsel claims-it is not clear precisely how the general standards articulated therein apply to a fact pattern like the one before this Court, in which the ineffective assistance of counsel claim is premised on a failure to make a suppression motion. The Supreme Court's decision in Kimmelman v. Morrison, 477 U.S. 365 (1986), provides some guidance regarding the application of Strickland in this context, but as the discussion below will show, that guidance is incomplete. In Kimmelman, the Supreme Court held that where an ineffective assistance of counsel claim is premised on counsel's failure to make a suppression motion, to satisfy the prejudice prong of Strickland the petitioner must prove that the underlying suppression claim was "meritorious" and that "there is a reasonable probability that the verdict would have been different absent the excludable evidence . . ." Id. at 375.*fn3 The requirement that the underlying suppression motion be "meritorious" was articulated in Kimmelman as being relevant to the prejudice prong of Strickland, but it is also relevant to the performance prong in that counsel's failure to make a suppression motion that is obviously non-meritorious cannot be said to constitute deficient performance. See Worthington v. United States, 726 F.2d 1089, 1093-94 (6th Cir. 1984) (Contie, concurring) ("[W]here a suppression motion would be successful, an attorney is guilty of ineffective assistance if he does not file the motion on time . . . Conversely, if such a motion would fail, counsel may not be criticized for having accurately assessed his client's chances of successfully challenging the warrant . . .").

The problem posed by Kimmelman is that the Supreme Court did not define "meritorious" and has not done so since then, which has led to some confusion regarding the precise meaning of the rule articulated by that decision. Petitioner contends that a suppression claim is "meritorious" under Kimmelman if it is "colorable, viable, has quality, or is substantial"-in other words, if it "has merit and is therefore potentially successful"-and faults Judge Katz for failing to employ this interpretation of Kimmelman in the Report. (P. Objections at 3-4, 9.) Thus, petitioner argues that the prejudice prong of Strickland is satisfied if he can show that the suppression motion is potentially successful and that if the suppression motion had succeeded, there is a reasonable probability the outcome of the trial would have been different. (Id. at 9.) The Court, however, concludes that petitioner's interpretation of the term "meritorious" appears overly broad and, in any event, certainly does not qualify as clearly established federal law within the meaning of AEDPA.

While the Supreme Court never defined what it meant by "meritorious," a complete reading of Kimmelman suggests that, at minimum, the Supreme Court intended to set out a higher standard than the standard petitioner urges upon the court. In Kimmelman, the respondent brought an ineffective assistance of counsel claim based on his counsel's failure to move to suppress physical evidence alleged to have been seized from his bedroom without a warrant. 477 U.S. at 368-69. Such a suppression claim would likely have been considered colorable since warrantless searches of the home are generally unconstitutional unless an exception applies. Yet the respondent was not able to prevail on his ineffective assistance of counsel claim simply by alleging that counsel failed to make the suppression claim. Instead, the Supreme Court remanded the case to the trial court to further develop the record with respect to the prejudice prong of Strickland, in part because the state had not conceded the illegality of the search and no hearing had been held on the underlying merits of the Fourth Amendment claim. Id. at 390-91. The fact that the Supreme Court remanded for further proceedings suggests that the Supreme Court did not mean to imply that a "meritorious" suppression motion is one that is merely colorable, or that the prejudice prong of Strickland is satisfied whenever a party raises a colorable suppression claim (and can show that if suppression had resulted, there is a reasonable probability that the outcome of the proceeding would have been different).

The circuit courts have advanced a few different interpretations of Kimmelman's statement that petitioner must have a "meritorious" suppression motion in order to satisfy the prejudice prong of Strickland. Several courtshave stated or implied that a "meritorious" suppression motion is one that would succeed if made.*fn4 Other courts have stated or implied that to satisfy Kimmelman, a petitioner must show that it is likely that the suppression motion would have succeeded, or that there is a reasonable probability that the suppression motion would have succeeded.*fn5

The Court is not aware of any circuit court to have reached the conclusion advanced by petitioner that in order for a suppression claim to be "meritorious" under Kimmelman, it need only be colorable or have some potential for success. The Second Circuit cases cited by petitioner do not so hold. Petitioner relies heavily on the Second Circuit's statement in Lynn v. Bliden, 443 F.3d 238, 249 (2d Cir. 2006),that"[i]n prior habeas cases in which there were claims of ineffective assistance of counsel for failing to request a Wade hearing, this Court has demanded some showing of the likelihood of success at the hearing." Petitioner contends that this language makes clear that he only needs to show that "there is at least a colorable or viable ground for suppression" (and a reasonable probability that the verdict would be different if the lineup had been suppressed) in order to prevail on the present petition. (P. Objections at 6).

However, the excerpted statement from Lynn must be read in the context of the Court's holding in that case, which rejected an ineffective assistance of counsel claim premised on a failure to request a Wade hearing because there was nothing in the record to suggest that had the Wade hearing been reopened, the identification would have been suppressed. Lynn, 443 F.3d at 249. There is no indication that the Second Circuit in Lynn intended to spell out for future litigants precisely how strong the underlying suppression motion must be in order to prevail on an ineffective assistance of counsel claim premised on the failure to make such a motion. Rather, the Court was merely noting that the evidence in that case fell far below any standard that may be relevant because there was no evidence in the record that the identification would have been suppressed had the hearing been reopened.*fn6

As this discussion reveals, there is some uncertainty under federal law as to precisely what showing is required to satisfy Strickland's prejudice prong where the ineffective assistance of counsel claim is premised on a failure to make a suppression motion. The Supreme Court has made clear that as a threshold matter, the suppression motion must be "meritorious," but it is not entirely clear what "meritorious" means in this context. The weight of the authority and the logic of Kimmelman suggest that petitioner must show, at minimum, a reasonable probability that the suppression motion would succeed, and quite possibly that that the suppression motion would in fact succeed. In the end, in light of the incomplete guidance provided by Kimmelman and the divergent opinions of the circuit courts, it is probably not possible to treat the rule articulated therein as clearly established federal law and to evaluate the state court's decision against that uncertain standard. At minimum, petitioner's interpretation of Kimmelman is not clearly established federal law within the meaning of AEDPA under any analysis. Accordingly, the Court will look to the general standards articulated by the Supreme Court in Strickland, as that decision continues to provide "sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims." See Williams, 529 U.S. at 391.

b. The "Contrary To" Test

The Court has no trouble concluding that the Appellate Division's decision was not "contrary to" Strickland. The Appellate Division concluded that petitioner was not deprived of effective assistance of counsel under state or federal standards, citing Strickland and reasoning that, "[a]lthough petitioner's counsel did not move to reopen the Wade hearing upon learning that one of the robbery victims had described defendant as wearing a blue shirt, the same color he wore at a lineup, this did not deprive defendant of effective assistance [because] such a motion would not have resulted in suppression." See Maldonado, 25 A.D. 3d. at 423-24. This conclusion plainly does not represent a legal conclusion opposite to that reached in Strickland; rather, it appears to represent the Appellate Division's application of the prejudice prong of Strickland to the facts before it.

c. The "Unreasonable Application" Test

The Court also finds that the Appellate Division's decision was not an unreasonable application of Strickland. While that Appellate Divisions' decision appears to have focused on the prejudice prong of Strickland, this Court concludes that petitioner has failed to satisfy the performance prong as well. Although Judge Katz found that "there is no apparent strategic justification for not moving to reopen the Wade hearing" and that it could not "conclude that counsel's failure was professionally reasonable" (Report at 26), this Court respectfully disagrees. Petitioner's trial counsel could reasonably have concluded that moving to suppress the lineup would have been a strategic error. First, trial counsel could reasonably have concluded that the motion to suppress was unlikely to succeed in light of the facts surrounding the lineup procedure and the New York case law on suggestive identifications (see discussion, infra), as well as the fact that the trial court had already denied his motion to suppress Ms. Barcene's photo identification. More importantly, petitioner's trial counsel could reasonably have concluded that even if he did manage to convince the trial court to suppress the lineup identification, there was nothing to suggest that Ms. Simpson's earlier photo book identification of petitioner was improper and would have been suppressed; and further that it was highly unlikely that Ms. Simpson's in-court identification would ultimately have been suppressed as tainted by the lineup since Ms. Simpson's prior independent identification of petitioner from the photo book would support the reliability of her in-court identification. See U.S. v. Douglas, 525 F.3d 225, 242 (2d Cir. 2008) (noting that the central question in determining whether an in-court identification should be suppressed is whether the identification is reliable). Accordingly, the Court finds that it was a reasonable strategy for petitioner's trial counsel to use the fact that petitioner's blue shirt was visible during the lineup as a jury argument-specifically, to buttress his misidentification theory by attempting to raise doubt in the jurors' minds as to whether the police has used fair identification procedures-rather than moving to suppress the identification. Thus, petitioner has failed to establish that his trial counsel's performance was deficient under the performance prong of Strickland.

Turning to the prejudice prong, petitioner must show that there was a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding (here, the trial) would have been different. Strickland, 466 U.S. at 694. Although the Appellate Division's discussion of its reasons for denying petitioner's ineffective assistance of counsel claim was brief, its decision appears to have been premised on a conclusion that petitioner could not satisfy the prejudice prong because reopening the Wade hearing "would not have resulted in suppression" of the lineup under New York state law since the "blue shirt was not so distinctive to draw attention to defendant."*fn7 See Maldonado, 25 A.D. 3d. at 424. Obviously, if the suppression motion was denied, the outcome of the trial could not have been different.

Petitioner argues that the Appellate Division's conclusion that the suppression motion would not have succeeded was an unreasonable application of Strickland's prejudice prong . To the extent that petitioner is arguing that the Appellate Division's underlying analysis of New York law on suggestive identifications was incorrect, that challenge is not cognizable on habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id.

Even if it were cognizable, petitioner would not prevail because the Court cannot conclude that the Appellate Division's application of Strickland's prejudice prong was objectively unreasonable. Petitioner argues that there is a reasonable probability that Ms. Simpson's lineup identification would have been suppressed as unduly suggestive because the top of his blue shirt was visible during the lineup, he was the only person in the lineup with a blue shirt, and Ms. Simpson had described him as wearing a blue shirt during the robbery. (P. Objections at 10-12). As Judge Katz aptly noted in the Report, New York courts have found lineups to be improperly suggestive in this context only where defendant's clothing was unusual, figured prominently in the witness' description, or if there was evidence that the witness relied on the clothing to identify the suspect in the lineup. See Report at 27-28 (collecting cases). Judge Katz's thorough review of the case law suggests that whether a lineup is unduly suggestive is a fact-specific determination that depends on the totality of the circumstances surrounding the identification. Here, a blue shirt in itself is not particularly distinctive, which undermines a finding of suggestiveness. See, e.g., People v. Gilbert, 295 A.D.2d 275, 276 (1st Dep't 2002). And while the blue shirt was one feature of Ms. Simpson's description of petitioner, it could hardly be classified as a "prominent" factor, given that she also described petitioner's skin tone, height, hair style and color, weight, age, the scar next to his mouth, and other items of clothing that he was wearing (including a particularly distinctive "Phillies" jacket). When the facts of petitioner's case are considered as a whole, the Court agrees with the Appellate Division and Judge Katz that the lineup was not suggestive (see Maldonado, 25 A. D. 3d at 423-24; Report at 30). Moreover, regardless whether the Appellate Division's conclusion was correct or not, the Court cannot certainly cannot conclude under the deferential standard of review set by AEDPA that the Appellate Division's judgment on the issue of suggestiveness rendered its application of Strickland's prejudice prong objectively unreasonable. See Williams, 529 U.S. at 409.*fn8

III. Certificate of Appealability

The Court concludes that petitioner has not made a substantial showing of the denial of a constitutional right, and recommends that no certificate of appealability be issued. See 28U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Although there is some uncertainty under federal law regarding the precise showing required to make out an ineffective assistance of counsel claim premised on a failure to make a motion to suppress, petitioner has not made a substantial showing that he was denied his Sixth Amendment right to the effective assistance of counsel under any reasonable reading of federal law. In other words, the question whether petitioner was denied his Sixth Amendment right to the effective assistance of counsel is not debatable among jurists of reason and does not deserve encouragement to proceed further. See id. Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).


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