The opinion of the court was delivered by: Denise Cote, District Judge:
Delone Stallings ("Stallings") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following trial. For the reasons set forth in the report and recommendation of Magistrate Judge Andrew Peck issued on March 7, 2012 ("Report") and below, the petition is denied.
On February 24, 2007, Stallings and Mallar Alston ("Alston") robbed a pizza deliveryman at knife point. After the robbery, they went to Alston's apartment, where Stallings bragged to Alston's mother that he had robbed someone. An anonymous tip led the police to the two robbers and on March 1, the deliveryman identified both robbers in separate lineups.
After a Wade/Dunaway hearing, a state court judge ruled that the lineup identification of Stallings was admissible and that his arrest was lawful. The hearing evidence concerning the line-up included the fact that Stallings identified himself as 37 years old, 5'6" and 140 pounds, and chose to occupy position three in the line-up. The four fillers were 23, 25, 29, and 36 years old; they weighed between 160 and 263 pounds. They stood between 5'8" and 6'2", but were seated to minimize the discrepancies in their heights. A sheet was draped over their legs.
Two Polaroid photos of the line-up permitted the judge to find that the defendant and two of the fillers had medium complexions, all of the men had short close cropped hair, the defendant and two fillers had close cropped facial hair, all wore gray t-shirts, none had exposed tattoos, the defendant did not look substantially less heavy than two of the fillers, and all of the men appeared to be African Americans in their twenties and thirties and did not look dramatically different in age. The judge found, in sum, that the five line-up participants did not "look vastly different from one to the other" and that there wasn't "any characteristic that would particularly draw attention" to the defendant.
The defendant was convicted by a jury of first and second degree robbery. At the trial, the deliveryman testified that he saw the faces of both robbers clearly, described his line-up identification of the Stallings and again identified him in court. Ms. Alston testified about the events in her apartment the night of the robbery, including Stallings' statement that he had robbed someone. Stallings made the admission when explaining where he had gotten the pizza that he brought to the Alston apartment.
On December 5, 2008, Stallings was sentenced to concurrent terms of imprisonment of ten and twelve years. On June 3, 2010, the First Department unanimously affirmed the conviction. It held:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning identification and credibility. The victim's identification was supported by credible testimony that defendant boasted about the crime to the co-defendant's mother.
The court properly denied defendant's motion to suppress identification testimony. The record, including the lineup photograph, supports the court's finding that the lineup was not unduly suggestive. The lineup participants were sufficiently similar, and none of the differences between defendant and the others, when viewed in light of the description given by the victim, created a substantial likelihood that defendant would be singled out for identification.
We perceive no basis for reducing the sentence.
People v. Stallings, 74 A.D.3d 456, 456 (1st Dep't 2010). On November 1, the New York Court of Appeals denied leave to appeal. People v. Stallings, 15 N.Y.3d 924 (N.Y. 2010).
On July 7, 2011, Stallings filed this pro se petition. The petition was referred to Magistrate ...