The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Dwayne Ponder ("Ponder" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody as the result of a judgment of conviction, following a jury trial in Monroe County Court, on two counts of robbery in the first degree (New York Penal Law ("P.L.") § 160.15(2), (4)) and one count of grand larceny in the fourth degree (P.L. § 155.30(1)). Ponder was sentenced as a persistent violent felony offender to an indeterminate term of 20 years to life. On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed the conviction, and leave to appeal to the New York Court of Appeals was denied. People v. Ponder, 19 A.D.3d 1041, 796 N.Y.S.2d 472 (App. Div. 4th Dept.). Ponder filed several post-conviction motions for collateral relief in state court, none of which were successful.
This timely habeas petition followed. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. 636(c)(1).
For the reasons set forth below, Ponder's request for a writ of habeas corpus is denied and the petition is dismissed.
II. General Legal Principles
The Court's review of habeas petitions filed pursuant to § 2254 is governed by standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Brisco v. Ercole, 565 F.3d 80, 87 (2d Cir. 2009)(citing Messiah v. Duncan, 435 F.3d 186, 196-98 (2d Cir.2006)). The Second Circuit has summarized the main points of the AEDPA inquiry as follows:
Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). We must presume the state court's factual findings to be correct and may overturn those findings only if the petitioner offers "clear and convincing evidence" of their incorrectness. 28 U.S.C. § 2254(e)(1).
Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir.2006) (quoted in Brisco, 565 F.3d at 87).
A state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule . . . but unreasonably applies it to the facts" of a particular case, or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. For purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined by the Supreme Court "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S at 412.
Determinations of factual issues made by a state court must be presumed correct unless the petitioner can show by clear and convincing evidence that such presumption should not apply. See 28 U.S.C. § 2254(e)(1); Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001). The petitioner bears the ultimate burden of proving violations of his constitutional rights by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A federal court ordinarily will not review a federal claim presented in a habeas petition if it has been rejected by the state courts on a ground which is both "independent and adequate[.]" Coleman, 501 U.S. at 736, 11 S.Ct. at 2558; Monroe v. Kuhlman, 433 F.3d 236, 240-41 (2d Cir.2006); Brown v. Greiner, 409 F.3d 523, 532 (2d Cir.2005). While a procedural forfeiture is typically the product of a failure to comply with a state's requirements regarding timely presentation of issues to the court, the question of whether a default discerned by a state court is sufficiently adequate and independent to preclude federal habeas review is governed by federal law. Monroe, 433 F.3d at 241. For a federal court to deny habeas review based on the independent and adequate state ground doctrine, it must be clear that the state court actually relied upon the procedural bar as an independent basis for its disposition of the claim. Fama, 235 F .3d at 809. Where a state court has expressly found both a failure to preserve the argument for appellate review and alternatively (or "in any event") that the argument lacks merit, the procedural bar applies. Id. at 810 n. 4 (citing Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.1996) and Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990)). "[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez, 898 F.2d at 9. When the state court has dismissed a petitioner's federal claim on an adequate and independent state ground, habeas review of that claim is procedurally barred unless the petitionier can demonstrate either (1) cause for the default and prejudice attributable thereto; or (2) that the failure to consider the federal claim will result in a fundamental miscarriage of justice ( i.e., a constitutional error has probably resulted in the conviction of someone who is actually innocent). Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. 2546.
III. Analysis of Petitioner's Claims
1. The identification evidence was tainted and suggestive and insufficient to conviction petitioner of the crime (Ground One)
Ponder asserts in Ground One, as he did on direct appeal, that the various identification procedures were unduly suggestive and that the identification evidence was fatally deficient because the witnesses closest in proximity to him during the course of the robbery were unable to identify him. Ground One combines two due process claims--one pertaining to the insufficiency of the evidence claim and the other concerning the suggestiveness of the identification procedures used. The insufficiency of the evidence is addressed by this Court in Section III.3.1, infra.
Turning first to the argument regarding the alleged suggestiveness of the show-up identification procedures involving the witnesses who were unable to identify him, any error necessarily was harmless because none of these witnesses were able to make positive identifications of Ponder and thus there were no identifications resulting from allegedly suggestive procedures from those witnesses. See, e.g., Petitioner's Appellate Brief at 15 (citing testimony of Officer Fantanza, Tr. at 161).
The Court turns next to the show-up procedure involving witness Beverly Riley ("Riley"), who did make a positive identification. On direct appeal, the Appellate Division held that "[d]efendant failed to seek suppression of the identification evidence from the showup identification procedure and therefore failed to preserve for our review his contention that the procedure was unduly suggestive[.]" People v. Ponder, 19 A.D.3d at 1043 (citing People v. Amin, 294 A.D.2d 863, 863-864, 742 N.Y.S.2d 746 (App. Div. 4th Dept. 2002) ("By withdrawing his pretrial request for a Wade hearing and then failing to object to the victim's identification of defendant at trial, defendant failed to preserve that contention for our review (see CPL 470.05 (2))."), lv. denied, 98 N.Y.2d 672, 746 N.Y.S.2d 461, 774 N.E.2d 226)). The Appellate Division went on to hold, in any event, that the "contention is without merit inasmuch as the showup was conducted at the scene of the crimes within an hour of their commission. The fact that defendant was standing in front of a police vehicle does not render the procedure unduly suggestive." Id. (citations omitted).
The suggestive identification claim is procedurally defaulted as a result of the Appellate Division's reliance upon an adequate and independent state ground, namely, the contemporaneous objection rule set forth in C.P.L. § 470.05(2). The Second Circuit has "observed and deferred to New York's consistent application of its contemporaneous objection rules." Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir.1999) (citing Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir.1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied , 514 U.S. 1054, 115 S.Ct. 1436 (1995)). Because there is an adequate and independent finding by the Appellate Division that Ponder procedurally defaulted on his sentencing claim, he would have to show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750. As discussed elsewhere in this opinion, Ponder cannot make any of the required showings. Therefore, his suggestive identification procedure claim is subject to an unexcused procedural default and is barred from habeas review.
In any event, the Appellate Division's conclusion was in line with federal law. Compare with United States v. Bautista, 23 F.3d at 730. In Bautista, the following showup identification procedure, occurred shortly after a drug raid, was found to be not unnecessarily suggestive: a series of suspects "w[ere] presented [individually] . . . in handcuffs [to the eyewitness]; at night; in the custody of police officers; with [their] face [s] lit by flashlights; and in the presence of [a police officer] who, each time the [eyewitness] identified a suspect, radioed to his fellow officers, 'it's a hit.'"
I note that the Appellate Division in Ponder cited People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611, in its rejection of Ponder's contention of suggestiveness, finding it significant that the showup was conducted at the scene of the crimes within an hour of their commission. The Second Circuit recently found that the New York Court of Appeals in Brisco had not unreasonably applied clearly established federal law, and overturned the district court's grant of habeas relief to petitioner based upon a suggestive show-up procedure. See Brisco v. Ercole, 565 F.3d 80, 89-90 (2d Cir. 2009).
The Second Circuit recognized that "a 'showup' procedure is inherently suggestive because it involves the presentation of a single suspect to a witness by the police (as opposed to a lineup, in which several individuals are presented to the police, only one of whom is the suspect), and has accordingly been 'widely condemned,' Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), Brisco, 565 F.3d at 88. Nevertheless, the Supreme Court has held, "a claimed violation of due process in the conduct of a confrontation depends on the totality of the circumstances surrounding it," Stovall, 388 U.S. at 302; accord Brisco, 565 F.3d at 88. "Accordingly, a showup identification violates due process only if it is an ' unnecessarily suggestive' procedure." Brisco, 565 F.3d at 88 (quoting Stovall, 388 U.S. at 302) (emphasis added in Brisco). In other words, without more, a showup procedure is not, in and of itself, unnecessarily suggestive. See id. Here, Ponder has not adduced any additional factors, besides the fact that the procedure was a showup, that lent themselves to a likelihood of misidentification. Accordingly, the Court cannot conclude that the showup procedure utilized in his case was unnecessarily suggestive as that term has been defined by the Supreme Court.
2. The trial court improperly bolstered the testimony of two prosecution witnesses during its marshaling of the evidence (Ground Two)
Ponder asserts that next contends that the trial court marshaled the evidence in an unbalanced manner--namely, that the judge bolstered the testimony of the two identifying prosecution witnesses and consequently deprived him of a fundamentally fair trial. This claim is procedurally barred. The Appellate Division explicitly found petitioner's claim that the trial court had improperly marshaled evidence in its charge to the jury to be unpreserved for appellate review. This finding was based on an independent and adequate state ground, New York's contemporaneous objection rule. Thus, Ponder is precluded from obtaining federal habeas review unless he shows either cause for the default and prejudicial effect, or demonstrates sufficiently the habeas court's failure to review the claim will result in a fundamental miscarriage of justice. As discussed in Section ...