The opinion of the court was delivered by: Richard J. Sullivan, District Judge:
MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION
Domingo Espiritu ("Petitioner") brings jury instructions and the jury's allegedly this petition for a writ of habeas corpus inconsistent verdicts. pursuant to 28 U.S.C. § 2254 (the "Petition") challenging his conviction in Before the Court are the Report and New York State Supreme Court, New York Recommendation (the "Report") of the County, for murder in the second degree, Honorable Michael H. Dolinger, Magistrate assault in the first degree, criminal Judge, recommending that the Petition be possession of a weapon in the second denied, and Petitioner's Objections to the degree, and two counts of assault in the Report. For the following reasons, the Court second degree. Specifically, Petitioner adopts the Report in its entirety and denies asserts that: (1) the trial court violated his the Petition. due process rights by refusing to suppress evidence of an unduly suggestive lineup; (2) I. BACKGROUND the trial court violated his right to present a defense by improperly precluding testimony A. Facts from a police detective that two witnesses had failed to identify Petitioner in a lineup; On a hot August day in 1989, police and (3) he was denied effective assistance of officers ejected Petitioner from a public counsel because his trial attorney failed to swimming pool in upper Manhattan after he object to the trial court's allegedly improper swam in a closed area and refused to comply with orders from lifeguards that he get out.*fn1
Petitioner was indicted on February 9, (Tr. at 275, 277-296, 463-476.) Following 1990, and charged with two counts of an altercation with a lifeguard while he was second degree murder, first-degree assault, being escorted out of the pool area, two counts of second-degree assault, and Petitioner turned around and told the criminal possession of a weapon. (Ex. A.) lifeguard that he would be back. (Id. at 297- 298, 300, 472, 477, 682.) Later that day, On September 6, 1998, more than nine Petitioner returned with a firearm and years after the shooting, Petitioner was opened fire in the crowded pool area, killing extradited to New York from the Dominican a thirteen-year-old girl and wounding three Republic. (Tr. at 1078-80.) On September others. (Id. at 120-25, 134-48, 226-27, 302- 29, 1998, the police arranged a lineup, 13, 365-70, 650-56, 864-73, 975-76.) He composed of Petitioner and five men from escaped through a hole in the fence and fled the Ward's Island homeless shelter who the scene. (Id. at 112, 170, 200-01, 216-18, roughly matched Petitioner's age, height, 226-28.) weight, and complexion. (Supp. H'rg at 60- 62, 72; Tr. at 1102, 1105.) Detective Later that evening, the police received Pisano, who organized the lineup, went to an anonymous phone call informing them Ward's Island and personally chose the that Petitioner was the shooter and that he individuals after he had a chance to see was preparing to flee to the Dominican Petitioner. (Supp. H'rg at 70, 101.) At the Republic. (Supp. H'rg at 5-6, 18.) The time of the lineup, Petitioner was police located a photograph of Petitioner, approximately thirty-two years old, 5'5" to created a photo array, and showed it to one 5'6" tall, and weighed 140 pounds. (Id. at of the police officers who witnessed the 95-96.) Petitioner chose to sit in position shooting. (Id. at 7-8.) After the officer two. (Id. at 69-70.) Before conducting the identified Petitioner in the photo array, the lineup, the police asked the other individuals police went to the address provided by the participating in the lineup for their age and anonymous tipster; however, Petitioner was approximate height and weight. (Id. at 100.) not at home and could not be located. (Id. at The police wrote down the following 9, Tr. at 955-960.) Later, the police showed information: the individual in position one the photo array to seven other witnesses, six was thirty-seven years old, 6' tall, and of whom identified Petitioner as the shooter. weighed 215 pounds; the individual in (Supp. H'rg at 31, 40, 42-43, 46, 48, 50.) position three was thirty-eight years old, 5'9" tall, and weighed 150 pounds; the individual in position four was forty-two
Although defense counsel objected to witnesses, including twenty-two individuals the composition of the lineup on the grounds who either saw the shooting or were victims that the other individuals appeared older and in the shooting. Of these, nine had heavier than Petitioner, the police did not identified Petitioner in the lineup and also alter it. (Supp. H'rg at 104.) Thereafter, made in-court identifications of Petitioner as nineteen eyewitnesses from the pool the shooter.*fn2 (Tr. at 596, 740, 903-04, 926-shooting were asked to make identifications 927.) During the cross examination of based on the lineup. (Id. at 60-62; Tr. at Detective Pisano, Petitioner sought to 1100-01, 1107-09.) As part of that process, introduce testimony concerning each viewed the lineup individually and was misidentifications made by two individuals then escorted out of the building to prevent who were unavailable to testify. (Id. at discussions with the other witnesses. (Supp. 1059-60.) The trial court, however, Hr'g at 75-92; Tr. 1108-12.) In all, nine excluded this testimony on hearsay grounds. witnesses identified Petitioner as the (Id.) shooter; one could not make a definitive identification, but stated that the shooter was On October 3, 2000, the jury returned a either Petitioner or one of the fillers; four verdict of guilty on the counts of (1) second could not identify anyone; and five degree murder based on depraved witnesses misidentified fillers as the shooter. indifference, (2) intentional first-degree (Supp. Hr'g at 78, 81-91.) Among those assault, (3) two counts of second-degree witnesses who identified Petitioner as the assault, and (4) criminal possession of a shooter was an individual who worked for weapon. The jury acquitted Petitioner on one of Petitioner's brothers and saw him the intentional murder count. Petitioner was frequently in the neighborhood. (Tr. at 754- sentenced on October 23, 2000 to concurrent 67, 776-79, 783-91, 818-19.) terms of twenty-five years to life on the murder conviction, seven-and-one-half to Before trial, defense counsel moved to fifteen years for the first degree assault and suppress the identifications on the ground criminal possession convictions, and three-that the lineup was unconstitutionally and-one-half to seven years for the second suggestive. (Id. at 114-15.) After a hearing, degree assault convictions. the trial court denied the motion and held that the identifications would be allowed In February 2003, Petitioner appealed into evidence, finding that the Petitioner and his convictions to the Appellate Division, the fillers appeared sufficiently similar in First Department. (Ex. E.) He argued, inter age, weight, height, and complexion such alia, that the lineup was unduly suggestive that the lineup was a fair test of the and that the trial court erred by excluding witness's ability to make an identification testimony about the misidentifications made and met the requirements of due process. by the two unavailable witnesses. (Id.) The (Id. at 123-25.) The trial court also noted Appellate Division rejected Petitioner's that the Petitioner's age, weight, height and arguments and affirmed his conviction. See complexion were not significant parts of the People v. Espiritu, 767 N.Y.S.2d 218, 219 descriptions given by the witnesses who viewed the lineup. (Id. at 124.)
(N.Y. App. Div. 2003). The court found this error and to include (1) the grounds that that, based on the photograph of the lineup, he raised on his direct appeal and (2) the the participants were sufficiently similar to ineffective assistance of counsel claim that Petitioner such that the lineup was not he raised in state collateral proceedings unduly suggestive. Id. at 218. It also found pursuant to CPL § 440.10. The Petition was that, even if the trial court had erred by reassigned to my docket on September 4, excluding evidence of misidentifications, 2007. any error was harmless. Id. at 219. The Court of Appeals denied leave to appeal. On March 13, 2009, Petitioner filed an See 1 N.Y.3d 597 (2004). Thereafter, on Amended Petition, which challenges his December 21, 2004, petitioner filed a conviction on three grounds. First, motion to vacate his conviction with the trial Petitioner asserts that the trial court violated court, pursuant to New York Criminal his due process rights by refusing to Procedure Law ("CPL") § 440.10, on the suppress evidence of an unduly suggestive ground of ineffective assistance of counsel. lineup. Second, Petitioner argues that the (Ex. O.) He argued that trial counsel was trial court violated his right to present a ineffective because he failed to object to a defense by improperly precluding testimony portion of the jury charge and he failed to from Detective Pisano concerning the two object to the allegedly inconsistent verdicts. witnesses who had failed to identify (Id.) The trial court denied the motion on Petitioner in the lineup. Finally, Petitioner both procedural grounds and on the merits. claims that he was denied effective See People v. Espiritu, 803 N.Y.S.2d 20 assistance of counsel because his trial (N.Y. Sup. Ct. 2005) (table). The Appellate attorney failed to object to the trial court's Division denied leave to appeal. (Ex. T.) allegedly improper jury instructions and the Petitioner is currently incarcerated in jury's allegedly inconsistent verdicts.*fn3
Auburn Correctional Facility in Attica, New Respondent filed her answer on June 5, York. 2009. Thereafter, on June 9, 2009 the Petition was referred to Judge Dolinger for a
B. Procedural History Report and Recommendation.
Petitioner filed his initial petition for a On July 7, 2009, Petitioner submitted a writ of habeas corpus on or about August 9, motion requesting that the Court hold his 2005, and it was assigned to the Honorable petition in abeyance pending the exhaustion Kenneth M. Karas, District Judge. of additional claims that he intended to add However, Petitioner erroneously stated on to his Petition based on ineffective the Petition that he had not appealed his post-conviction petition to the highest state court having jurisdiction over the matter, assistance of trial and appellate counsel.*fn4 evidence presented in the State court (See Pet'r's Mot. Pleading Special Matters.) proceeding." 28 U.S.C. § 2254(d). Respondent opposed the motion. Before Judge Dolinger could rule on the motion, A court may accept, reject, or modify, in however, the Appellate Division denied whole or in part, the findings or Petitioner's motion without opinion. See recommendations made by a magistrate People v. Espiritu, 2009 N.Y. Slip Op judge. Fed. R. Civ. P. 72(b); Grassia v. 87158(U) (1st Dep't Oct. 29, 2009). On Scully, 892 F.2d 16, 19 (2d Cir. 1989). A January 25, 2010, the Court of Appeals court may accept those portions of a report denied leave to appeal the decision. See to which no specific, written objection is People v. Espiritu, 13 N.Y.3d 938 (2010) made, as long as the factual and legal bases (table). supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Judge Dolinger filed his Report on Corp., 956 F. Supp. 509, 513 (S.D.N.Y. August 3, 2010, recommending the Petition 1997) (citing Fed. R. Civ. P. 72(b) and be denied. Judge Dolinger did not expressly Thomas v. Arn, 474 U.S. 140, 149 (1985)). rule on Petitioner's Motion Pleading Special To the extent that a party makes specific Matters. Petitioner timely submitted his objections to a magistrate judge's findings, objections.*fn5 the court must undertake a de novoreview of the petitioner's objections. See 28 U.S.C.
§ 636(b)(1); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, Pursuant to the Antiterrorism and where the objections are "conclusory or Effective Death Penalty Act of 1996 general," or where the petitioner "simply ("AEDPA"), a federal court may grant reiterates his original arguments," the report habeas corpus relief only if a claim that was should be reviewed only for clear error. adjudicated on the merits in state court "(1) Walker v. Vaughan, 216 F. Supp. 2d 290, resulted in a decision that was contrary to, or 292 (S.D.N.Y. 2002) (citation and internal involved an unreasonable application of, quotation marks omitted); accord Cartagena clearly established Federal law, as v. Connelly, No. 06 Civ. 2047 (LTS) determined by the Supreme Court of the (GWG), 2008 WL 2169659, at *1 (S.D.N.Y. United States; or (2) resulted in a decision May 23, 2008). Objections of parties that was based on an unreasonable appearing pro se are "generally accorded determination of the facts in light of the leniency" and construed "to raise the strongest arguments that they suggest."
No. 06 Civ. 5023 (LTS), 2008 WL 2811816, Second, Petitioner objects to Judge at *1 (S.D.N.Y. July 21, 2008). Dolinger's conclusion that the exclusion of testimony from the police officer who As set forth in the fifty-six page Report, conducted the lineup that two unavailable Judge Dolinger found all of Petitioner's witnesses to the lineup did not identify claims to be meritless. (Report at 3.) First, Petitioner as the shooter did not violate he found that the lineup was not unduly Petitioner's constitutional rights. Third, suggestive, and thus, the Appellate Division Petitioner argues that he received ineffective reasonably applied Supreme Court assistance of appellate counsel, but does not precedent. (Id. at 24.) Relying on a address Judge Dollinger's conclusion that photograph of the lineup and physical his challenge to trial counsel's performance descriptions of Petitioner and other is procedurally barred and, alternatively, individuals in the lineup, Judge Dolinger meritless. The Court addresses Petitioner's found that "petitioner was sufficiently objections in turn. similar in appearance to the other men in the lineup." (Id. at 26.) Second, Judge Dolinger 1. Identification Evidence found that Petitioner was not denied his right to present a defense when the trial Petitioner objects to Judge Dolinger's court prevented him from eliciting testimony determination that the other participants from the detective who conducted the lineup were "sufficiently" similar in appearance regarding misidentifications made by two such that the lineup was not unduly unavailable witnesses. (Id. at 30.) He found suggestive. He argues that the differences that the trial court properly applied state law between him and the other participants were in ruling that this evidence was inadmissible so great in terms of weight, height, hearsay and, even if the trial court's decision complexion, and age that based on the was erroneous, any error was harmless. (Id. shooter's description witnesses could at 33-34.) Finally, Judge Dolinger found identify only him as the perpetrator. The that Petitioner's ineffective assistance of Court reviews Petitioner's claims de novo. counsel claim was procedurally barred because the state court denied the claim on Although Petitioner points out a number an independent and adequate state ground. of differences between himself and the other (Id. at 38.) Alternatively, he held that the participants in the lineup, many of which are claim was meritless. (Id. at 47.) readily apparent from the photograph of the lineup, the Court holds that the Appellate
A. Petitioner's Objections Division did not err when it concluded that the lineup was not unnecessarily suggestive.
Petitioner raises three objections to the Under clearly established federal law, Report. First, he asserts that Judge Dolinger identification evidence is admissible unless incorrectly found that the participants in the it was "unnecessarily suggestive" and lineup were sufficiently similar to Petitioner. created a "very substantial likelihood of (Pet'r Obj. at 2.) He contends that the irreparable misidentification." Brisco v. appearances of the participants were clearly Ercole, 565 F.3d 80, 90 (2d Cir. 2009) distinct. (Id. at 4.) In support of his (quoting Stovall v. Denno, 388 U.S. 293, argument, Petitioner provided side-by-side 302 (1967) and Simmons v. United States, photographs of himself and the other 390 U.S. 377, 384 (1968)) (internal participants in the lineup. (Id. at 5-7.) quotation marks omitted). This standard "hews closely to the facts of a particular U.S.C. § 2254(e)(1). Here, Petitioner has case and turns on a court's judgment in not come forward with clear and convincing evaluating those facts." Id. Courts applying evidence to challenge the findings made by this fact-dependent standard are "entitled to the Appellate Division, and has not significant leeway." Id. (internal quotation established that it unreasonably applied marks omitted). federal law by concluding that the lineup was not unduly suggestive.
Noticeable differences between the suspect and fillers in a lineup do not First, although the participants had automatically render a lineup unduly varying complexions, all of them appear to suggestive. Due process does not require be of Hispanic origin. The difference in "total uniformity of appearance" between complexion between Petitioner and the the defendant and the other participants in fillers -- to the extent there is a difference -- the lineup. Piper v. Portuondo, 82 F. App'x would not necessarily signal to the witness 51, 52 (2d Cir. 2003). When the appearance that Petitioner was the culprit. Second, of participants in a lineup is not uniform while Petitioner was the shortest individual with respect to a given characteristic, the in the lineup, the differences in height were principal question in determining not unduly suggestive since all of the suggestiveness is whether "the appearance participants were seated and their actual of the accused . . . so stood out from all of standing height was not revealed. Third, the others as to suggest . . . [that the while some of the other participants were accused] was more likely to be the culprit." noticeably heavier than Petitioner, the United States v. Wong, 40 F.3d 1347, 1359- Appellate Division did not misapply clearly 60 (2d Cir. 1994) (citations, internal established federal law by concluding that quotation marks and alterations omitted). these differences did not render the lineup Generally, courts have found that a lineup is unduly suggestive. Cf. Jones v. Fischer, No. unduly suggestive "if the defendant is the 05 Civ. 7774 (WHP), 2009 WL 884814, at only participant who meets the particular *5 (S.D.N.Y. March 30, 2009)(holding that description of the perpetrator given by the state court's determination that the eyewitnesses." E.g., Frazier v. New York, lineup was not unduly suggestive was not 156 F. App'x 423, 425 (2d Cir. 2005) unreasonable where the defendant was the (finding ...