United States District Court, N.D. New York
JAMES K. SINGLETON, Jr., Senior District Judge.
Ahmeek Davis, Sr., a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Davis is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Five Points Correctional Facility. Respondent has answered, and Davis has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On June 21, 2008, Davis was charged with criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third and fourth degrees.
On direct appeal of his conviction, the Appellate Division summarized the facts underlying Davis's indictment:
At approximately 1:00 p.m. on June 21, 2008, Police Officer Edward Markham was on patrol and received a transmission from a City of Albany Police Department dispatcher indicating that a black male had exited the passenger seat of a late model white Ford Mustang and pointed a handgun at a group of people standing in the vicinity of Dana Avenue and Knox Avenue in the City of Albany. Markham was also informed by the dispatcher that the black male had fled the scene in the vehicle, which was being driven by another black male. Moments later, Markham received another radio transmission, this time from a police officer on patrol in a nearby area, that the officer was in pursuit of a late model white Ford Mustang that fit the description of the vehicle given in the initial radio dispatch. Markham joined the pursuit and, coming upon the vehicle, attempted to initiate a traffic stop. The driver of the Ford Mustang refused to comply and continued driving two blocks before stopping the vehicle in the middle of the street. At that time, the passenger-a black male who fit the description given in the radio dispatch- suddenly jumped out of the vehicle and fled. While other police officers pursued the passenger, Markham approached the Ford Mustang, took the driver into custody and recovered a.22 caliber handgun and several rounds of ammunition that were on the front passenger seat. [Davis] was apprehended by the other police officers a short distance from the scene and, moments later, was identified by Markham as the passenger of the vehicle who had fled the area. [Davis] was arrested and approximately seven grams of crack cocaine was recovered from his person. Later that day, a witness, during a photographic array conducted by the police, identified a photograph of [Davis] as the individual who had brandished the handgun on the street.
Davis moved to suppress the cocaine recovered from his person as well as the eyewitness's identification. On November 26, 2008, a combined suppression hearing was held pursuant to Dunaway v. New York, 442 U.S. 200 (1979), to determine whether the police had probable cause to arrest Davis, and United States v. Wade, 388 U.S. 218 (1967), to determine the admissibility of the showup identification. At the conclusion of the hearing, the trial court denied Davis's suppression motions:
[Davis] claiming improper identification testimony may be used against him, has moved to preclude pretrial as well as the prospective in-court identification of Melody VanAlstyne that such identification is not constitutionally proper.
People have the burden of going forward to demonstrate that the pretrial ID was not constitutionally impermissible.
[Davis], however, bears the burden of establishing by a preponderance of evidence that the procedure was impermissible. Defense also argues that there was not probable cause to take his client into custody and seizure of any property from him, any subsequent identifications, should be declared fruit of the poisonous tree.
We've heard from four witnesses whose testimony I give full credence to. Police Officer Edward Markhum was on duty on the 21st day of June about one p.m. when he heard a radio call indicating a new white Mustang in the area of Dana and Knox; that two black males were in the vehicle and one of the occupants got out and pointed a gun at a person on the porch on that street and that he was in a different area of the city down on Broadway in lower Arbor Hill. And that he shortly thereafter heard a broadcast from Officer Van Garderen that he encountered a vehicle at Henry Johnson and Washington Avenue, the other side of Washington Park from where this incident was alleged to have occurred; that he, that is Markham got involved in following this car and once he realize[d] there were two cars in line they tried to do a traffic stop at which point the car took off in essence and when it got to the area of Henry Johnson and Sheridan the passenger jumped out and ran northbound on Henry Johnson Boulevard.
Markham himself and Van Garderen took into custody the driver of that vehicle who stayed with the car. He indicated that he viewed the passenger for about ten seconds in the car in the process of leaving; that five to eight minutes later he went to the area of the rear of 98 Henry Johnson Boulevard where [Davis] was then being held. He ID'd him as the same person he saw leaving the newer model white Mustang and running north on Henry Johnson Boulevard and he indicated on the passenger seat which [Davis] had vacated when he approached the car he found a.22 caliber handgun and bullets.
Detective Alfred Martin indicated he was down at the police station later that same day an hour or so later and at the direction of one of the supervisors put together a photo array from a system that the Albany Police Department calls the RICI system; that he took what he said was the most recent photograph they had of [Davis] on file and from that matched [Davis] with five other individuals and prepared an array which was going to be shown to a potential ID witness.
Detective William Van Amburgh indicated that he also was involved in this situation of the menacing that occurred on Dana Avenue and that shortly before three he was interviewing a Melody Van Alstyne and after taking a statement from her, he showed to her what was admitted into evidence as the first of three pages of People's Exhibit one and that's a photo array which includes a photograph of [Davis]. He told her that the person that she encountered on Dana Avenue may or may not be there. The photograph may not be recent but if you do recognize someone, please tell me who it is and from where you recognize them.
She studied this for about a minute and picked out the photograph of [Davis] as the individual she had encountered just a couple hours earlier on Dana Avenue. Parenthetically the photograph of [Davis] as shown to Van Alstyne does not have braids and Van Alstyne had to indicate that the person that had done this had braided but in terms of the fairness concept in terms of this array, none of the people have braids.
And the last witness was Officer Hsu. He indicated that he also was involved in the chase of this vehicle and after the car stopped and [Davis] took off. He was in a foot chase and he caught up with him a few blocks later in the rear of 98 Henry Johnson Boulevard. This was the same person that had taken off from the vehicle.
Based on the forgoing, first I find the People have demonstrated that the identification procedure utilized here was in all ...