The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge Buffalo, New York.
Acting pro se, Hector L. Valentin ("Valentin" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in state custody as a result of a conviction on charges of robbery in the first degree (display of a deadly weapon, N.Y. Penal Law § 160.15(4)) and robbery in the second degree (N.Y. Penal Law § 160.10(1)). 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 that follow, the petition is granted in part and denied in part.
II. Factual Background and Procedural History
Valentin's conviction stems from the robbery of a stereo-equipment shop in the northwest area of the City of Rochester in Monroe County. An accomplice, Jose Arroyo ("Arroyo") was indicted separately for his alleged involvement in the robbery. Valentin was indicted under an accomplice theory of liability (N.Y. Penal Law § 20.00).
At approximately 10:30 a.m. on February 29, 2000, John Kemp, was, as was his routine, "hanging out" at Mike's Stereo Shop when an individual (later identified as Valentin) entered the store. Valentin inquired of the store clerk, Terrance McLaurin, if he would be interested in purchasing a DJ mixing-board. After McLaurin indicated his possible interest, Valentin left the store, indicating that he would be right back. Petitioner returned with an accomplice (separately indicted co-defendant Jose Arroyo), carrying both a mixing board and a 9-mm handgun. According to Kemp's testimony at Valentin's trial, Valentin placed the handgun a distance of 6 to 7 inches from McLaurin's head and demanded that the cash register be opened. Petitioner then removed currency from the drawer. In response to Petitioner's subsequent demand for merchandise, Kemp removed speakers from the store's display cases and slid them down the counter toward McLaurin. Kemp recalled that Petitioner was telling his companion to "hurry up" during the incident; the two robbers otherwise conversed in Spanish.
As the robbers quickly took their exit, Kemp saw Petitioner, whom he at this point clarified as being the person who had held the gun during the robbery, driving a "maroonish-colored Grand Am" and pulling out of the parking lot.
Valentin was arraigned on July 19, 2000, and a suppression hearing was scheduled for October 27, 2000. Prior to the hearing, Arroyo's case was dismissed by Justice Kenneth R. Fisher (New York State Supreme Court, Monroe County), after Justice Fisher found that the sole eyewitness, John Kemp ("Kemp"),*fn1 "did not provide clear and convincing evidence that he had an independent basis for making an identification of the defendant, Arroyo." Order of Justice Geraci Denying Valentin's Motion to Set Aside the Verdict Pursuant to C.P.L § 330.30 Motion ("the C.P.L. § 330.30). Order") (citing Order of Justice Fisher Denying Arroyo's Motion to Preclude Identification Evidence). As Justice Geraci recounted,
[Justice Fisher] held that, due to his unreliability, the witness, John Kemp, probably should not be sworn to testify at trial. The court found that Mr. Kemp did not give a reasonably accurate account of what he had seen. He could not describe what happened at the site of the robbery with any consistency, and the court had little or no confidence in his reliability as a witness. The witness testified as to suffering a blackout because of the stress of the moment and described a [previous] serious brain injury that he had suffered in a fall.
C.P.L. 330.30 Order at 3 (citing generally to the Arroyo Order). The prosecution, unable to proceed without the testimony of McLaurin and Kemp, did not oppose a motion to dismiss the charges against Arroyo. Id. With this development, Valentin was released on bail pending the Huntley hearing.
1. Eyewitness Terrance McLaurin
The other eyewitness in addition to Kemp was McLaurin, the employee of the stereo shop. At the beginning of trial, the prosecutor stated to the judge, Mr. McLaurin left the state and then subsequently left, the country, okay? That's the chronology of his history. In other words, he's not been -- he's been available, unavailable, available, and then finally unavailable. And now we have confirmed his whereabouts in the Bahamas, okay?
T.71. Thus, McLaurin did not testify at trial. Trial counsel did not seek dismissal of the indictment based upon McLaurin's non-appearance.
At trial, John Kemp testified that he was thirty-seven-years-old and had been working as a janitor at the Kodak Office building for about five months as of time of trial. When the robbery occurred, on February 29, 2000 about a year ago, Kemp was on disability due to a brain injury caused by a fall from a ladder. Kemp would go to Mike's Stereo Shop "basically every day" to hang out at the store, which sold stereo equipment for cars, homes, TVs, VCRs, mixing boards, turntables, and so forth. At about 10:30 a.m. on February 29, 2000, McLaurin was working at the store. Kemp had known McLaurin for about 3 to 4 months and said that they were "like friends".
T.242. Kemp stated that he used to go in to give McLaurin a "helping hand" and "basically hangout, have somebody to talk to."
At about 12:15 that day, Kemp recalled, "[A] person come [sic] in, asked Terrance if he was interested in buying mixing board, a DJ mixing board. Terrance said yeah. So the person went out, said he would be right back, went out to his car or wherever he went to go get it, came back. When he came back there was two of them. When he entered the store I had my back towards-- turned towards them, and when I heard him say give up the $80.00, I thought they made a deal until when he came from behind me and I see what was the robbery was going down."
What led Kemp to believe there was a robbery occurring was "when [he] seen [sic] the pistol." When asked what kind of pistol it was Kemp stated, "if I had to-- a black pistol, maybe a 9-millimeter?" T.243. Kemp testified that it was being pointed at McLaurin's head. From about "[s]ix/seven inches away. T.2543. When Kemp turned and saw this pistol, he said he was "about as close as we are right now", meaning the distance between him and Terrance was approximately 10 to 12 feet. T. 244. He described the lighting conditions as "very well lit" as the store had fluorescent lights in the ceiling. The front of the store was glass windows and a glass door. Inside the store looking out he could see the street. T.244.
Kemp testified "there were two different guys. First guy came in, he came in by himself and then when he went out to get the mixing board he brought his friend back with him." T. 245.
Kemp did not know either of the men previously, but he assumed that they were friends. The first man that came in, Kemp described as as "[s]tocky" "Hispanic kid." Kemp testified that he was wearing a black leather coat. Keep your 245 when they came it "back into the store, the first kid that came in, the stocky kid had the mixing board in his hands" T. 246. Ask for a general description of what the second man look like, Kemp said, "thin built, Chinese eyes" and also Hispanic. He estimated their age as in their mid-20s. The first man had the gun pointed at Terrance's head.
When asked where the second man was and what he was doing, Kemp testified that when he turned around he thought they had made a deal, "so they were both standing right next to Terrance but when they made their -- when they came up towards the cash register -- the person who had the gun had [sic] it to Terrance, then the other kid was standing right next to me." T. 247, Kemp testified that he had an opportunity to look at the face of the first man. It was not obstructed by any kind of hat or mask or glasses.
When the second man came in with the first man, Kemp testified that the second man was not holding anything. When asked for the exact words he heard from the first man towards Terrance, he said "I know they were talking about the mixing board so I thought they made a deal he said give up the money so I just thought they made a deal you know, until I realized what was happening." T.248. While the first man had a gun pointed at McLaurin's head, he told McLaurin "to open the fucking register." T.248. McLaurin replied, "you open it." T. 249. The first man then opened the register, "took a few bucks out, and then said give up the merchandise." While this was occurring he still had the pistol. Kemp then walked around behind the counter, opened up the case, and took car amplifiers out (about four or five), and a car stereo, and slid them down the counter. McLaurin gave them to the first man. T.249-250.
Kemp identified the "first man", the man who had the gun, as Valentin. T.254-55. Kemp testified that the first man took the merchandise and gave it to person number two. T.250. Kemp related, "Number one was saying to number two to hurry up, hurry up something like that, come on, come on." T.251 The pistol was still being pointed by person number one (Valentin) at McLaurin. Then the two men began talking in Spanish so Kemp could not understand what they were saying.
Almost immediately after that they turned around and "walked pretty fast," T.253, out of the store. The number two robber left first with number one right behind him. T.252 Kemp recalled that when they "exited the store they made a right to the parking lot." T.252. The parking lot was on the same side of the street as the stereo shop.Kemp observed the first man, whom he identified as Valentin, driving a "maroonish-colored Grand Am" and pulling "[v]ery, very fast" out of the parking lot. T.255.
On cross-examination, trial counsel questioned Kemp extensively about his identification testimony from the Arroyo matter. The documents signed by Kemp indicated that he gave a statement to police a few days after the incident, following his attendance of an identification procedure at the police station, in which he identified Arroyo as a participant in the robbery.
T.281. Trial counsel sought to show that Kemp had identified Arroyo as the gunman, but Kemp stated that he was just "attempting to pick out the two people who were involved in the incident."
T.281. Kemp maintained that he had never said, on any occasion, that the photograph he picked out (i.e., of co-defendant Arroyo) was the gunman. T.282. Kemp stated that he looked through photographs and identified one (Arroyo) who was involved in the robbery. T.283. Trial counsel introduced Kemp's statement to the police at that time in which he said, "Investigator Murphy told me the person I identified was named Jose Arroyo." T.285.
Trial counsel also attempted to impeach Kemp with his testimony at the independent source hearing before Justice Fisher in the Arroyo matter. Trial counsel got him to admit that he did say that he had gone into the police department and viewed the photographs "in an attempt to identify the gunman." T.286. Thus, trial counsel sought to show that since Kemp had only identified one person (Arroyo), and since he had testified that he was identifying the gunman during the photo array, therefore, he had identified Arroyo as the gunman.
When questioned about his brain injury, Kemp testified that it was not severe and that although he had not taken his medication on the day of the robbery, he had no seizure and did not black out. T.291. He admitted to being "a little nervous" and to saying previously that he "felt a seizure coming on when [he] saw the gun . . . ." T.292. Trial counsel confronted Kemp with his testimony at the hearing before Justice Fisher that he almost had a seizure while the robbery was happening, that before he has a seizure, he starts to shake badly and starts to black out. T.292. In that testimony, he denied to Justice Fisher that his vision started to cloud over a bit, stating that, "I know one thing, you're going to put a gun in your [sic] face and I'm gonna make sure I look at and know who you are." T.293.
Trial counsel got Kemp to admit that he had "tremors or shakes". Kemp stated, "I didn't blackout." T.293. Trial counsel pointed out that Kemp was shaking presently; Kemp stated, "I always shake." T.294.
Kemp maintained that in the proceeding before Justice Fisher, he was there to identify "person number two" and he commented, "I believe his name was Jose Arroyo or something like that." T.309.
Trial counsel confronted Kemp with his testimony before Justice Fisher when the judge asked him, "do you recall how it was as you were viewing the monitor [displaying the photographs] that you came to pick out an individual as the person who had the gun." T.306. Kemp said yes, and described the procedure of how he viewed the photographs. Kemp repeatedly stated, "I don't believe so" when trial counsel asked him if he told Justice Fisher that he was "ninety percent certain that that [i.e. Arroyo] was the person was the gun." T.302. However, Kemp finally admitted to that statement, and confirmed that Valentin was the person he picked out on the computer monitor. T.307.
On re-direct, and re-re-direct examination, Kemp testified that he did not have a seizure during the incident and "was coherent through the whole thing." T.308. He explained that he only needed glasses for reading, not for distance. T.308. Kemp stated that failure to take his medication only results in migraine headaches; it does not affect his vision or memory. T.309.
Kemp also explained that he did not think he was identifying "the gunman" during the photo array procedure but rather believed that he was supposed to pick out anyone who looked like either of the two robbers. T311-12. When he saw Arroyo's picture, he said to the officer, "that's one of them there, that's all." T.312. He reiterated that Arroyo was "person two" as described in his narrative of the robbery--that is, the robber who did not have the gun. T.314-15. With regard to the questioning before Justice Fisher, Kemp explained that it was the judge who said that the person identified in the photo array was Arroyo; Kemp testified, "I never said it [the photo he identified] was the gunman . . . ." T.324.
Kemp admitted to trial counsel that had agreed with Justice Fisher's statement that the person he identified during the photo array was the gunman. T.325.
3. Petitioner's Former Girlfriend, Sarah Bower
Twenty-one year old Sarah Bower, Valentin's former girlfriend who at one point resided with him, saw him twice on the day of the robbery--once, briefly in the early afternoon when Petitioner stopped by at Cordello's Pizzeria where Bower worked, and again, later in the afternoon when Petitioner picked Bower up after work. See T.340-42. According to Bower, Valentin was driving a red Pontiac Grand Am filled with various pieces car stereo equipment--a "pretty loaded" system. T.342.
About one week after the robbery, Bower and Petitioner went to the corner store in the plaza which also contained Mike's Stereo Shop. T.343. They were driving Bower's car. Petitioner told Bower not to park the car, saying to her, "'Don't pull up, don't go to the store, don't pull up in here, I robbed the store last week, I don't want to be seen [sic] around here, these people see me through the window'-- a whole bunch of the same stuff." T.350. "Basically, he didn't want to be seen there, he did not want my car to be there, he did not want my car to be there, he did not want to be seen. He did not even want to be around that area on that corner. Id.
According to Bower, Petitioner stated, "I can't be around this store, this is the store I robbed last week, I robbed that store the same day I met you, how do you think I got my stereo stuff, we have to get away from here, we have to get out of here, I can't be seen by these people."
T.351. When asked to describe how Valentin had described he had robbed the store, Bower replied, "He just held them up." T.351. Bower testified that she "didn't really ask" but said that "[h]im and another person had went [sic] in there and held them up by [sic] the gun and --."
T.351. When asked what, if any weapon, did Valentin refer to, Bower stated, "It wasn't mentioned. Held them up by [sic] gunpoint. I mean, not a particular weapon in particular. I didn't really ask, either." T.352. Bower said that she did not k now "in particular which person had the gun, but [she] was told they were together." T.353.
Bower recalled Petitioner had informed Bower about the robbery on the same day of the incident, during the first of the two occasions that he had stopped by the pizza parlor where Bower worked. Bower said, "[Petitioner] had actually told me that he ...