The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Cole Bryant ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Monroe County Supreme Court of two counts of Sodomy in the First Degree (former N.Y. Penal L. § 130.50(1), (3)) following a jury trial before Justice Joseph T. Valentino. Petitioner is currently serving a determinate term of imprisonment of twenty years.
II. Factual Background and Procedural History
On September 16, 2003, petitioner stopped B.E. (or "the
victim") as she walked alone to School No. 17 in the City of Rochester, and asked her to use a pay phone to call his niece.
T. 348-56.*fn1 B.E. held the phone while petitioner dialed, but the call was not answered. T. 351, 353, 356. Police later found the victim's palm print on the phone, and records showed that an unanswered call was placed from that phone at 8:46 a.m. on September 16. T. 542, 569, 882.
Petitioner then led B.E. behind an abandoned house. When she began screaming, he covered her mouth and told her that if she screamed again, he would punch her in the face. T. 358-60. According to the victim, petitioner then "pulled out his penis" from his pants and "put his private" in her mouth. Afterward, petitioner gave B.E. a piece of "Doublemint" brand chewing gum.
T. 360-63. After chewing the gum, B.E. threw the foil wrapper on the ground, where it was later recovered by police. T. 364, 525. Petitioner told B.E. to wait where she was and count to 20. After doing so, the victim ran away and encountered a woman in a car who took her to the police station, where she reported the attack.
On the date of the incident, police conducted show-up identification procedures with two individuals. B.E. stated unequivocally that neither man was the perpetrator. H, 22-23, 60.*fn2 That day, Inv. David Blaho ("Blaho") of the Rochester Police Department arranged for B.E. to meet with a police artist, who produced a sketch of the perpetrator based on the victim's description. H. 61. Police also showed B.E. an 18-photo array, as well as 50 photographs on the police department's identity management computer system, but she could not recognize any of the subjects. Petitioner was not depicted in any of the photographs viewed by the victim. H. 31-32, 62-71, 73.
Two days later, Blaho conducted an identification procedure with a potential witness named Denise Chong ("Chong"). Chong had observed a man staring into the playground at School No. 17 the day before the attack. H. 74-75, 118. She could not identify that person from a series of 116 photographs shown to her, none of which depicted petitioner. H. 76. Blaho then showed Chong a separate, 6-photograph array, and again she did not recognize any of the individuals pictured. H. 77-78.
The following day, September 19, Inv. Ronald Reinstein ("Reinstein") met with petitioner at the Public Safety Building after he had been arrested for an unrelated criminal trespass.
H. 161-63; H2. 6; H3. 28-30. Petitioner stated that he was staying with an uncle who lived on Campbell Street in the neighborhood near School No. 17. He also told officers that he "walked the kids to school" and "helps out, watches the kids, and walks them." H. 167. Regarding the day of the incident, however, petitioner said that he would be unable to tell them anything that occurred before 10:00 a.m. that day because he "had a blackout" and had been having "strange dreams" before that. H. 167. Petitioner disclosed that he may have been aware of why the police were speaking with him; that he had a sexual encounter with a 16 year-old girl, and that it "became rough." H. 168. He stated that the girl lived somewhere on Orange Street. Id. Later that day, petitioner agreed to provide the police with an oral swab for DNA purposes. Id. at 171.
On September 20, 2003, Reinstein and Officer Laurie Kingsley ("Kingsley") showed B.E. a 6-photograph array and instructed her to look at the photographs "to see if there was anyone there she recognized and to let us know if there was anybody in those photographs that harmed her earlier in the week." H. 27-29. Looking at the photographs in order, B.E. stopped at the fifth one and told the officers that "she didn't want to look at photos anymore," and would not continue speaking with the officers. H. 28, 186-88. B.E. stopped at the fifth photo, which depicted the petitioner. H. 50, H2. 80. She did not, however, indicate that she recognized anyone and did not identify the fifth photograph as her attacker.
Approximately one-and-a-half hours later, Reinstein showed B.E. the same 6 photographs from the array in the same order, individually, slightly larger and in color. H. 24-25, 28-29, 44-45, H2. 80. The victim focused her attention on one particular photo. The officers told her "if the bad guy was in any of these photographs, to throw the bad guy out and that Investigator Reinstein would take care of the bad guy." H. 26. In response, B.E. crumpled up and threw petitioner's photo at Reinstein. H. 25-26.
Later that day, investigators went to petitioner's uncle's apartment to speak with petitioner. H. 81-82, 178; H2. 54. While investigators were in the apartment, petitioner told them, without being questioned, "I wanted her to suck my dick. She didn't want
to. I didn't care. I made her do it anyway." H. 87-88, 178; H2. 68. At that time, petitioner was placed under arrest and transported to the Public Safety Building. While he was in the back seat of the police car, petitioner stated, "I am sorry. This is the first time that I did this." H. 88-89. After waiving his Miranda rights, petitioner told investigators that "he stuck his dick in her mouth because of the scent," but did not elaborate on what that meant.
H. 93. Petitioner also referred to the chewing gum he gave to B.E. after the incident: "She wanted the gum. I was on Campbell Street. She sucked my dick. I saw the woman in the van pick her up. I thought she was going to take her home and she did not love me anymore." H. 95.
Finally, on September 23, Blaho showed another photo array to Chong, and she selected the photograph of petitioner as the person she saw staring at the playground of School No. 17. H. 80-81.
The victim, Chong, and the investigating officers testified at petitioner's trial. Petitioner testified on his own behalf, denying that he was the man who accosted and sexually assaulted B.E. T. 917-43. The jury found petitioner guilty of two counts of Sodomy in the First Degree. T. 1149-50. Petitioner was then sentenced to concurrent, determinate terms of imprisonment of 20 years, with 5 years of post-release supervision. S. 13.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) the trial court erred in declining to reopen the Wade hearing; (2) the trial court erred in allowing Ms. Chong to testify regarding petitioner's "prior bad act" of staring at the playground; (3) the convictions were not supported by the weight of the evidence; (4) the New York State Constitution requires police to electronically record stationhouse interrogations; and (5) the sentence was harsh and excessive. Resp't Appendix B. The Fourth Department unanimously affirmed the judgment of conviction. People v. Bryant, 43 A.D.3d 1377 (4th Dept. 2007), lv. denied, 9 N.Y.3d 1031 (2008).
Petitioner then filed a timely petition for habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that his conviction was obtained by the use of impermissibly suggestive identification procedures. See Petition ¶ 22 & Attach. For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed.
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). 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] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). 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, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091(2003). A state court's findings "will not be overturned on factual grounds ...