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Rios v. Lempke

United States District Court, W.D. New York

May 22, 2014

ELVIN RIOS, Petitioner,
JOHN B. LEMPKE, Respondent.

ELVINS RIOS, Pro Se 08-B-3316 Five Points Correctional Facility Romulus, New York

FRANK A. SEDITA, III MATTHEW B. POWERS Assistant District Attorney, of Counsel Erie County District Attorney's Office Attorney for Respondent Buffalo, New York


LESLIE G. FOSCHIO, Magistrate Judge.


Petitioner commenced this action on March 10, 2011, requesting habeas corpus relief under 28 U.S.C. § 2254 ("§ 2254"). This matter is before the court on consent pursuant to 28 U.S.C. § 636(b)(1)(B). 28 U.S.C. § 636(c) (Doc. No. 10).


On March 10, 2011, Petitioner Elvin Rios ("Petitioner" or "Rios"), proceeding pro se, filed a petition (Doc. No. 1) ("Petition"), commencing this action seeking habeas corpus relief challenging Petitioner's September 5, 2008 conviction by jury in Erie County Court, for violations of New York Penal Law ("N.Y. Penal Law")[1] § 140.30(2)(3) (Burglary in the First Degree), § 160.15(3) (Robbery in the First Degree), § 155.30(4) (Grand Larceny in the Fourth Degree)("the Burglary, Robbery, and Larceny counts")("the First Indictment"), § 160.45(2) (Criminal Possession of Stolen Property in the Fourth Degree), § 190.78(1) (Identity Theft in the Third Degree - three counts), and § 170.10(1) (Forgery in the Second Degree - three counts)("the Criminal Possession, Identity Theft and Forgery counts")("the Second Indictment"). Over Petitioner's objection, the First and Second Indictments ("the Indictments") were consolidated for trial pursuant to N.Y. Crim. Proc. Law § 200.20(2) ("§ 200.20(2)").

Hon. Michael L. D'Amico presided at trial, where the court appointed John R. Nuchereno, Esq. ("Nuchereno") as Petitioner's defense attorney, [2] and the State was represented by Assistant District Attorney Gary W. Hackbush ("ADA Hackbush").

On October 10, 2008, Petitioner was sentenced as a second violent felony offender under the First Indictment, pursuant to N.Y. Penal Law § 70.04 ("§ 70.04"), to a term of 25 years with 5 years of post-release supervision based on Petitioner's Burglary and Robbery counts; and an indeterminate sentence of 2 to 4 years on the Larceny count to run concurrently with the sentences on the Burglary and Robbery counts. Certificate of Conviction - Imprisonment, June 3, 2011. On October 10, 2008, Petitioner was also sentenced as a second violent felony offender under the Second Indictment, pursuant to § 70.04, to an indeterminate sentence of 2 to 4 years on the Criminal Possession count, an indeterminate sentence of 31/2 to 7 years on the three Forgery counts, and a determinate sentence of 1 year on Petitioner's three Identity Theft counts, to run concurrently but consecutive to the sentences imposed under the First Indictment. Certificate of Conviction - Imprisonment, June 3, 2011.

On April 30, 2010, Petitioner's convictions were unanimously affirmed by the New York State Supreme Court Appellate Division, Fourth Department ("the Appellate Division"). People v. Rios, 899 N.Y.S.2d 769 (App. Div. 4th Dep't. 2010) (Appeal on First Indictment), and People v. Rios, 898 N.Y.S.2d 923 (App. Div. 4th Dep't. 2010) (Appeal on Second Indictment). Leave to appeal to the New York Court of Appeals ("the Court of Appeals") in both appeals was denied on July 29, 2010. People v. Rios, 933 N.E.2d 1059 (N.Y. 2010). A request for reconsideration of the denial of leave to appeal was denied on February 24, 2011. People v. Rios, 944 N.E.2d 1156 (N.Y. 2011).

In his Petition, Petitioner asserts four grounds for federal habeas relief, specifically that the convictions and sentences are based on (1) admission of unreliable identification evidence ("First Ground"); (2) insufficient evidence to support Petitioner's conviction on the Burglary and Robbery counts, and that the verdicts were against the weight of the evidence ("Second Ground"); (3) improper consolidation of the Indictments ("Third Ground"); and (4) prosecutorial misconduct ("Fourth Ground") all in violation the Due Process Clause of the Fourteenth Amendment.

On June 17, 2011, Respondent filed the Declaration of Erie County District Attorney Matthew B. Powers in Opposition to Petitioner's Writ of Habeas Corpus (Doc. No. 8) ("Powers Declaration") opposing the Petition, attaching exhibits A through C ("Powers Declaration Exh(s). ___"), and Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus (Doc. No. 9) ("Respondent's Memorandum"). On July 26, 2011, Petitioner filed Petitioner's Reply In Further Support Of The Petition (Doc. No. 12) ("Petitioner's Reply"). Oral argument was deemed unnecessary.

Based on the following, the Petition is GRANTED in part and DENIED, in part.


As stated, Background, supra at 2, Petitioner challenges his September 5, 2008 conviction based on a February 6, 2008 burglary in Buffalo, New York in which Petitioner allegedly robbed a woman Christina Hobbs ("Hobbs") in her apartment, threatened the use of a weapon, seriously injured Hobbs while assaulting her, and used two credit cards stolen from Hobbs following the assault to purchase tobacco and clothing items.

At Petitioner's February 29, 2008 arraignment on the First Indictment, Petitioner, pleaded not guilty. Arraignment Hearing Tr. at 2.[4] At Petitioner's July 10, 2008 arraignment on the Second Indictment, Petitioner also pleaded not guilty. Petitioner requested a Wade hearing[5] challenging the photo identification array used by police to facilitate identification of Petitioner as the perpetrator during the investigation of the case. Arraignment Hearing Tr. at 1.

The Wade hearing, at which Petitioner challenged the photo array displayed to Hobbs on February 6, 2008 as unduly suggestive ( Wade Tr. at 1-40), [6] was held on July 29, 2008. During the hearing, Buffalo Police Detective Chris Dates ("Dates") testified that after Dates assisted Buffalo Police Detective Patricia Wrest ("Wrest") with assembling the photo array, Dates called Hobbs to come to the police station to view the photo array. ( Wade Tr. at 7-8). Dates further testified that after reading Hobbs instructions from the photo array affidavit and presenting Hobbs with the array, People's Exh. 1, Hobbs proceeded to identify Petitioner as the perpetrator of the assault, and circled and initialed Petitioner's photo in the array. ( Wade Tr. at 12). Dates testified that Nicole Beebe ("Beebe"), a clerk at Olympia Sports, a sporting goods store, viewed the photo array, and indicated that Petitioner was the person who used Hobbs's credit card, after the robbery, to purchase items at the store where Beebe worked on February 6, 2008. ( Wade Tr. at 23-24). On August 7, 2008, the Wade hearing continued and Wrest testified that Christopher Salerno ("Salerno"), a clerk at KW Seneca Tobacco store, viewed the photo array and indicated that Petitioner was the individual who used Hobbs's credit card, following the robbery, to purchase items at KW Seneca Tobacco on February 6, 2008. ( Wade Tr. at 15-16). The trial judge, Hon. Michael D'Amico, found the array not unduly suggestive and denied Petitioner's motion to suppress Hobbs's in-court identification testimony. (Tr. at 10).[7] The trial judge then inquired whether either party wanted to be heard on the record, and defense counsel responded with reference to the issue of consolidation of the two indictments. ( Wade Tr. at 36). Petitioner referenced the previously submitted omnibus motion that articulated Petitioner's dilemma of testifying under both indictments, specifically Petitioner's wish to testify at trial on the First Indictment, as to the use or threat to use a dangerous weapon or causing serious physical injury with regard to the Robbery and Burglary counts, and desire not to testify regarding the alleged use of the two stolen credit cards as charged in the Second Indictment. Wade Tr. at 37. The court rejected Petitioner's request, and granted the prosecutor's request for consolidation. Wade Tr. at 39.

On September 2, 2008, a Sandoval hearing[8] was held where the prosecutor reviewed Petitioner's prior felony convictions. (Tr. at 11-12). Nuchereno argued in support of Petitioner's "need to testify with regard to the burglary/robbery and the elements of physical injury and threatened use of a weapon" (Tr. at 13), and the trial judge ruled that the prosecutor would be able to cross-examine Petitioner on the previous convictions, but not the number of convictions or related facts. Id. Petitioner's jury trial commenced on September 2, 2008, and concluded on September 5, 2008, at which time the jury found Petitioner guilty on all counts as charged in the First and Second Indictments.

Evidence at Petitioner's trial established that at noon on February 6, 2008, Petitioner knocked on the door of the apartment of Justin Montgomery ("Montgomery"), a downstairs tenant then residing at 33 Linview Terrace in Buffalo, New York, the same building where Hobbs resided in the upstairs apartment. (Tr. at 388, 393). Upon receiving no response, Petitioner proceeded to Hobbs's apartment and knocked on her door. (Tr. at 308). At that time, alone in her apartment, Hobbs opened the door of the apartment a couple of inches and asked if she could help Petitioner. (Tr. at 390-91, 394). Petitioner told Hobbs that he had some items to deliver to Montgomery, and Hobbs responded that Petitioner should speak with the landlord of the building, and provided Petitioner with directions to an adjacent building where the landlord lived. (Tr. at 393). After Petitioner left Hobbs's apartment, Hobbs looked out her apartment's front window and observed Petitioner exit the front entrance of her apartment building, and walk in the direction of the landlord's building. (Tr. at 393). Hobbs next saw Petitioner leave the front area of the landlord's adjacent building, proceed toward a green van parked in the area in front of Hobbs's building, and drive away. Id.

That same day, at 1:00 P.M., according to Hobbs, Petitioner again knocked on the apartment door of Hobbs's apartment, and, after Hobbs opened the door, Petitioner again told Hobbs he had some items to deliver to Montgomery, and asked if he could leave the items in the hallway outside of Hobbs's apartment. (Tr. at 407). Hobbs agreed that Petitioner could leave the items in the hallway (Tr. at 409), and watched from the opened door of her apartment as Petitioner made at least three trips to the upstairs hallway near Hobbs's apartment carrying items that included a computer monitor, a computer printer, and a bag of clothing which Petitioner deposited on the hallway floor. (Tr. at 411). Hobbs testified that after carrying a coffee table up the stairs, Petitioner proceeded to place the coffee table on Hobbs's living room floor, [9] at which time Petitioner forcibly grabbed Hobbs's hair and pushed Hobbs to the floor. (Tr. at 414-16). Hobbs then began to kick and scream for help and Petitioner lay on top of Hobbs, held Hobbs down on the floor with one hand, and placed his free hand on Hobbs's mouth. (Tr. at 417). Hobbs testified that Petitioner then told Hobbs "stop screaming or else he would stab me." Id. Hobbs testified that as she continued to scream, Petitioner allowed Hobbs to get up from the floor and instructed Hobbs to go to her bedroom (Tr. at 419), and Hobbs then began to scream even more loudly, and attempted to run past Petitioner and down the stairs from her apartment. (Tr. at 420). As Hobbs was attempting to run past Petitioner, Petitioner grabbed Hobbs around the waist with both hands and, at the same time, turned his attention toward Hobbs's purse located near the doorway of her apartment. (Tr. at 420-21). After dragging Hobbs back into her apartment, Petitioner grabbed Hobbs's purse and attempted to run out of the apartment. (Tr. at 423). Spotting a lanyard from her keys hanging out of the purse, Hobbs asked Petitioner to give her the keys. (Tr. at 424). After allowing Hobbs to remove the keys from her purse Petitioner proceeded downstairs. Id. Looking out of the front window of her apartment, Hobbs then witnessed Petitioner run from the apartment building, get into a green van and drive away. (Tr. at 358). Still looking out the front window of her apartment, Hobbs noticed that the building's landlord, Theodore Ross ("Ross"), was standing outside of her building near his car. (Tr. at 359). Leaving her apartment, Hobbs ran from her building to where Ross was standing. Id. Upon reaching Ross, Hobbs told Ross that she had been robbed and fell to the ground, at which time Ross helped Hobbs return to her apartment, where Hobbs used Ross's cell phone to call 911 and report the incident. Id. A few minutes later, Hobbs received a telephone call from an unidentified police officer who requested a description of the suspect. (Tr. at 366). Hobbs described her attacker as an Hispanic male, 5'10" to 5'11" tall, weighing 230 pounds, with dark hair and wearing a dark baseball cap. (Tr. at 427).

Two to three minutes after receiving a radio dispatch pertaining to the robbery at approximately 1:00 P.M. (Tr. at 540), Buffalo Police Officer James Howe ("Howe") arrived at Hobbs's apartment to take Hobbs's statement about the incident. (Tr. at 540, 544). Upon Howe's arrival, Howe noticed that Hobbs was "shaken, " "somewhat upset, " that her clothes "were kind of disheveled, " there were "some sort of rug markings on her face... her hair was kind of in disarray, " and there was "a cut on the lower jawline, lower portion of her cheek on the left side of her face." (Tr. at 543). Hobbs testified that the struggle with Petitioner resulted in a cut on her face, bruising over her eye, bruising on her legs and ankles, cuts in her hair where some of her hair was pulled out by Petitioner (Tr. at 300), and that she experienced pain for several weeks following the attack. (Tr. at 334). During the visit, Howe observed that a computer monitor and printer, and some bags and other items were placed near the door of Hobbs's apartment (Tr. at 545), that a coffee table was overturned in the middle of the floor just inside the doorway to Hobbs's apartment, and that the living room was in disarray with items strewn about the floor. (Tr. at 546-47, 555). While Howe was interviewing Hobbs, a second police officer Cavins ("Cavins"), arrived and asked Hobbs if she was "all set." Id.

Based on his interview with Hobbs, Howe developed a description of a potential suspect as an Hispanic male, approximately 5'8" tall, weighing between 230 and 240 pounds, having dark hair, wearing a dark blue work shirt and blue cap, with a missing or dark colored front tooth, and driving a green minivan with a license plate that included the letters "C", "F" and "O" and the numbers "3908." (Tr. at 548). Howe testified that after Police Officer Menza ("Menza") came to Hobbs's apartment, Howe overheard a radio dispatch from Menza that a "hit" was made for a green Chevy Venture minivan with license plate number "CFA 3908" registered under the name of Deborah Feltman ("Feltman") who, according to the dispatch, resided at 46 Robinson Street in Silver Creek, New York, a village a short distance south of Buffalo. (Tr. at 550-51).

At the same time of Howe's visit, Wrest arrived at Hobbs's apartment and, consistent with Howe's testimony regarding Hobbs's appearance, described Hobbs as "very, very distraught, " "crying, " "very shaken, " "her face was red, " "she was almost hysterical, " and "[s]he had an injury, a scratch of some sort on one of her cheek, jaw areas." (Tr. at 564). Hobbs provided Wrest with a description of the perpetrator similar to the one that she had provided to Howe, and accompanied Wrest to the police station to complete a formal statement. (Tr. at 566). After answering a telephone call from her mother, Hobbs informed Wrest that unauthorized charges were made using her two stolen cards. (Tr. at 329). Wrest later informed Hobbs that she received information confirming that some purchases had been made using Hobbs's stolen credit cards at Native American Indian, a tobacco store in Irving, New York, and Olympia Sports in Dunkirk, New York. (Tr. at 568).[10] At the same time, Wrest received information that the green van in question was registered to Feltman (Tr. at 567), and, based on a telephone call to the Silver Creek Police Department, Wrest determined that the robbery suspect was Petitioner. (Tr. at 569). On February 7, 2008, after reviewing a printout of transactions using Hobbs's two stolen credit cards, Wrest and Dates drove to Silver Creek to interview potential witnesses at the retail stores where Hobbs's credit cards had reportedly been used. (Tr. at 570).

At First American Tobacco store, Wrest interviewed Salerno, a store clerk, who provided Wrest with a credit card receipt and a video tape showing a transaction completed by an individual using one of Hobbs's stolen cards. (Tr. at 570-71). Salerno testified that at approximately 2:00 P.M. on February 6, 2008, while he was working as a manager at First American Tobacco in Irving, New York, a small community near Silver Creek, Petitioner, who had according to Salerno, been a regular customer of the KW Tobacco store, entered the store wearing a "Carriage House Company"[11] uniform and unsuccessfully attempted to use the store's automatic teller machine ("ATM"). (Tr. at 513-14). Salerno testified that he asked Petitioner if there was a problem using the ATM, and Petitioner responded that he could not remember his personal identification number ("PIN") and that the ATM card he was attempting to use belonged to his sister. (Tr. at 514). Salerno testified that Petitioner proceeded to successfully purchase two packs of cigarettes using one of the credit cards issued in Hobbs's name, a purchase Petitioner often made on other occasions using a similar looking credit card, and also purchased two cartons of cigarettes after driving a green minivan through the store's drive-thru window using a credit card issued in Hobbs's name. (Tr. at 517). Salerno's testimony was corroborated by a sales draft processed by First American Native Pride showing that on February 6, 2008, at 1:52 P.M., two packs of cigarettes were purchased at KW Tobacco store using a cared issued in Hobbs's name. (Tr. at 518, 521). Respondent's Exhibit 30 ("Respondent's Exh. 30").

Wrest and Dates then drove to The Carriage House Company, the place of Petitioner's employ, where Mr. Kleparek ("Kleparek"), Petitioner's supervisor, explained that Petitioner had not shown up for work that day as scheduled. (Tr. at 571-72). Wrest and Dates then drove past Feltman's house, located at 68 Robinson Street in Silver Creek, where neither Petitioner nor the green Chevy van were seen. (Tr. at 571).

In Dunkirk, New York, a small town near Fredonia, Wrest and Dates interviewed Beebe, who provided receipts indicating purchases made at Olympia Sports on February 6, 2008, using a credit card in Hobbs's name. (Tr. at 572). Beebe testified that she knew Petitioner was the individual who purchased the items from Olympia Sports using Hobbs's credit card because Petitioner had helped Beebe with her car five years earlier and she recognized his face from that meeting. (Tr. at 503).


1. Standard of Review

In reviewing a state prisoner's petition pursuant to 28 U.S.C. § 2254, a district court must make an independent determination as to whether the petitioner is in custody in violation of any rights under the Constitution, or any laws or treaties of the United States. Coleman v. Thompson, 501 U.S. 722, 729 (1991), reh'g denied, 501 U.S. 1277 (1991). Prior to federal court review of a state prisoner's habeas petition, the prisoner must exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1)(A); see Picard v. Connor, 404 U.S. 270, 275 (1971)(citing cases). The exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts, Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005), and "[a] petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it." Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003) (" Cotto ") (citing Ramirez v. Attorney General of New York, 280 F.3d 87, 94 (2d Cir. 2001)). Although the Second Circuit recognizes that a state defendant may fairly present the constitutional nature of his claim to the state courts even without citing chapter and verse of the Constitution, so long as he relies on pertinent federal cases employing relevant constitutional analysis or alleges a pattern of facts that clearly implicates a specific constitutional provision, Cotto, 331 F.3d at 237 (citing Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982))), in this case Petitioner has fairly presented the factual and legal premises of the constitutional claims asserted in the Petition to the state courts on direct appeal to the Appellate Division, and request for leave to appeal to the New York Court of Appeals, thereby satisfying the exhaustion requirement as a prerequisite to federal habeas review. Respondent does not contend otherwise.

In reviewing habeas petitions, a federal court is not permitted to act as appellate courts to review matters within the jurisdiction of the state courts, or review specific rulings and decisions of state trial and appellate courts not involving federal constitutional claims; rather, the court is to determine whether the proceedings in the state court, as challenged by a habeas petition, amount to a violation of the Petitioner's federal constitutional rights as declared by the Supreme Court. 28 U.S.C. § 2254(d)(1); Coleman, 501 U.S. at 729. Accordingly, federal review of state court convictions are limited to errors of such federal constitutional magnitude they necessarily deny the criminal defendant the right to a fundamentally fair trial. See Cupp v. Naughton, 414 U.S. 141, 147 (1973). Pursuant to 28 U.S.C. § 2254(e)("§ 2254(e)"), formerly 28 U.S.C. § 2254(d), the state court's determination as to evidentiary matters is presumed correct, unless the federal habeas court concludes that the relevant state court determination is not fairly supported by the record, Sumner v. Mata, 449 U.S. 539, 546-47 (1981), and it is the burden of the petitioner to establish, by clear and convincing evidence, that the court's factual determination is erroneous. 28 U.S.C. § 2254(e)(1). Section 2254(e), applies by its terms, "to factual determinations made by state courts, whether the court be a trial court or an appellate court." Sumner, 449 U.S. at 547.

In this case, the court is in possession of the complete state record, including the motions, hearings and trial transcripts, and briefs filed in connection with Petitioner's direct appeal to the Appellate Division. Petitioner has not requested that the court conduct an evidentiary hearing prior to resolving his claims as alleged in the Petition, and does not otherwise challenge the record as inaccurate. Accordingly, the court finds an evidentiary hearing unnecessary.

Pursuant to § 2254, as amended by Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court must give substantial deference to a state court determination that has "adjudicated [the federal constitutional claim] on the merits." 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001). Specifically, AEDPA requires that where a state court has adjudicated the merits of a petitioner's federal claim, habeas corpus relief may not be granted unless the state court's adjudication

(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) ("§ 2254(d)").

Under Williams v. Taylor, 529 U.S. 362, 364 (2000), a federal habeas court may grant relief if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Id. This AEDPA requirement for habeas relief applies to petitions filed on or after the statute's April 24, 1996 effective date, See, e.g., Williams, 529 U.S. at 402; Lindh v. Murphy, 521 U.S. 320, 336 (1997); Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000) ( per curiam ), cert. denied, 531 U.S. 840 (2000), and thus applies to the Petition. State court decisions involve unreasonable application of Supreme Court caselaw where such decisions "identif[y] the correct governing legal principle from [the Supreme Court's] decisions but unreasonably appl[y] that principle to the facts of [a] prisoner's case." Id. A federal habeas court must therefore apply the § 2254(d) deferential review standard where the state court has "adjudicated [the federal claim] on the merits" 28 U.S.C. § 2254(d), and, in instances where claims have not been adjudicated on the merits, apply the pre-AEDPA de novo review standard, even where the petition was filed after the effective date of the statute. See Sellan, 261 F.3d at 314; Boyette v. Lefevre, 246 F.3d 76, 89, 91 (2d Cir. 2001).

A petitioner alerts the state court to the constitutional nature of a claim by directly citing to a specific constitutional provisions and arguing that such provision was violated. See Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001) ("if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court."). In many instances whether a state court has adjudicated a federal constitutional claim on its merits is not so clear. See Jimenez v. Walker, 458 F.3d 130, 136 (2d Cir. 2006).

In Sellan, the Second Circuit articulated three steps a habeas review court should follow to determine whether a federal claim has been adjudicated "on the merits" by a state court. These include (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than determination on the merits of the asserted federal constitutional claims. See Sellan 261 F.3d at 314 (citing Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)).

In order for the deferential review standards of § 2254(d)(1) to apply, "the state court need only dispose of the [p]etitioner's federal claims on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (citing Sellan, 261 F.3d at 312). Thus, where there is nothing to indicate that the federal claim has been decided solely on state procedural grounds, the federal claim will be considered to have been adjudicated on the merits. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002). Specifically, the failure to state specific reasons for a state court adjudication on federal claims raised on a petitioner's direct appeal does not avoid a finding that the state court determination was on the merits of each federal ground presented to the appellate court for purposes of applying AEDPA's deferential standards. See, e.g., Brown, 283 F.3d at 498 ("[b]ecause there is no basis either in the history of the case or the opinion of the Appellate Division for believing that [petitioner's] Sixth Amendment claim was denied on procedural or any other nonsubstantive grounds, we find that his claim was adjudicat[ed] on the merits' by the state court, and therefore review his Sixth Amendment claim under the more deferential standard set forth in § 2254." (citing Sellan, 261 F.3d at 314)). In this case, on appeal Petitioner specifically contended that the People did not establish proof beyond a reasonable doubt that Petitioner actually possessed a dangerous instrument, Appellant Brief at 12, and. The Appellate Division disposed of Petitioner's federal claims based on improper identification testimony providing that the trial court properly credited police testimony that the photo array shown to Hobbs was not unduly suggestive so as to taint Hobbs's later in-court identification of Petitioner, and rejected Petitioner's claims of insufficient evidence and improper prosecutorial misconduct on summation on procedural grounds. Rios, 899 N.Y.S.2d at 771. The Appellate Division further disposed of Petitioner's federal claim of consolidation on the basis of no merit, and disposed of Petitioner's claim of prosecutorial misconduct during trial as cured by the trial court during proceedings. Id. The Appellate Division thus decided Petitioner's claims of improperly tainted in-court identification testimony and consolidation on substantive grounds providing reasons for such disposition, thus requiring application of the deferential standards for federal habeas review in accordance with § 2254(d) and Williams.

2. Merits of Petitioner's Claims

As stated, Petitioner asserts four grounds for habeas relief, including (1) failure to suppress inculpatory evidence, specifically, a photo array used by police during the investigation of Petitioner's alleged offenses, Petition ¶ 12(A) ("First Ground"); (2) lack of sufficient evidence to support each conviction, and that the verdict was against the weight of the evidence Petition ¶ 12(B) ("Second Ground"); (3) prejudicial consolidation of the First and Second Indictments for trial, Petition ¶ 12(C) ("Third Ground"); and (4) prosecutorial misconduct during the prosecutor's examination of Dates and Wrest and in the prosecutor's statements in summation. Petition ¶ 12(D) ("Fourth Ground"). The court addresses the merits of each of Petitioner's grounds in turn.

A. First Ground - Failure to Suppress Identification Evidence

Petitioner challenges his burglary and robbery convictions on the trial court's failure to suppress the prosecution's identification evidence, Petition ¶ 12(A) at 8, alleging that the presiding judge erred in refusing to suppress Hobbs's identification of Petitioner in an unduly suggestive photo array conducted by Wrest on February 7, 2008. Id. Petitioner further alleges that comments made to Hobbs by officer Wrest prior to Hobbs's viewing the photo array, including a comment that the police had a person of interest under investigation and wanted Hobbs to view some photos to see if she recognized anyone in the photos, were unduly suggestive, resulted in a tainted and erroneously admitted in-court identification by Hobbs of Petitioner, requiring that such in-court identification be suppressed. Petition ¶ 12(A) at 8. Specifically, Petitioner asserts that Wrest, by informing Hobbs that the photo array included a photo of a person of interest (Tr. at 25), created an improper expectation to Hobbs that Hobbs should identify a person in the photo array, Petition ¶ 12(A) at 9, that Wrest's indication Hobbs's landlord told Hobbs the police had a partial license plate on the green Chevy van heightened the chance of a misidentification of the perpetrator, and that differences between the physical description Hobbs gave the police about the perpetrator and Petitioner support this assertion, Petition ¶ 12(A) at 10, further tainting Hobbs's in court identification of Petitioner. Petition ¶ 12(A) at 8. Respondent maintains that the photo array presented to Hobbs on February 7, 2008, was not unduly suggestive, and that Wrest's comments did not unfairly influence Hobbs's identification of Petitioner in the photo array. Respondent's Memorandum at 9.

A defendant's due process rights include the right not to be the object of suggestive police identification procedures that create a very substantial likelihood of irreparable misidentification. See United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) (citing Simmons v. United States, 390 U.S. 377, 384 (1968)). For purposes of due process, the fairness of a photographic array depends on factors that include the size of the array, the manner of presentation, and whether any suggestive comments were incorporated. Concepcion, 983 F.2d at 377. Photographic arrays do not violate due process requirements where the arrays provide images of more than one individual, there is nothing suggestive in the manner of presentation, and the picture of the accused does not stand out from the other photos in comparison to that of the accused as to "suggest to an identifying witness that [the accused] was more likely to be the culprit." Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir. 1986) (citing United States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984)). It is thus the totality of the circumstances that determines whether an identification procedure is unduly suggestive. Simmons, 390 U.S. 377 at 383; Connor v. Poole, 440 Fed.Appx. 29, 31 (2d Cir. 2011) (identifying factors include witness's opportunity to view criminal during crime, degree of attention, accuracy of prior descriptions, level of certainty and length of time between crime and confrontation). In this case, Petitioner claims that the photo array was composed by the police without any reference to the description of the perpetrator as given by Hobbs to Detective Dates. Petition ¶ 12(A) at 10. Contrary to Petitioner's contention however, the photo array presented on February 7, 2008, included Petitioner's photo alongside the images of five other unidentified individuals, Wade Tr. at 6, 16, each of whom, like Petitioner, had facial hair, somewhat stocky build, and dark skin tone. (Tr. at 29). People's Exh. 1. The photo array in this case therefore conforms to due process requirements. See Brisco v. Ercole, 565 F.3d 80, 88, 89 (2d Cir. 2009) (inquiry for due process purposes includes whether identification procedures create a very substantial likelihood of irreparable misidentification of defendant as the perpetrator, and whether identification has independent reliability under the five factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (citing Raheem v. Kelly, 257 F.2d 122, 133 (2d Cir. 2001))). As the Appellate Division found no merit in Petitioner's contention on appeal as to this issue, Rios, 899 N.Y.S.2d 769 at 770, under the AEDPA deferential review standard, the Appellate Division did not unreasonably misapply Supreme Court due process precedent to this issue and accordingly, Petitioner's First Ground asserts no basis for habeas relief.

Nor is there any merit to Petitioner's contention that the photo array evidence should be suppressed because comments made by Detective Wrest to Hobbs at the time the array was shown to Hobbs were unduly suggestive. Petition ¶ 12(A) at 9. Petitioner relies on Simmons v. United States, 390 U.S. 377 (1968), to support the contention that "the chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime" Simmons, 390 U.S. at 383. Specifically, Petitioner contends that Detective Wrest's indication to Hobbs just prior to viewing the photo array, that the array included the image of a person of interest, heightened the chance that Petitioner would be identified as the perpetrator of the crime. Petition ¶12(A) at 9. Contrary to Petitioner's assertion otherwise, the record shows no indication that Wrest's comments to Hobbs during the photo array served to heighten Hobbs's misidentification of Petitioner. Specifically, Dates testified that prior to showing the photo array to Hobbs, neither Dates nor Wrest said anything to Hobbs other than they "wanted [Hobbs] to look at some photos." Wade Tr. at 8. Wrest testified that prior to showing Hobbs the photo array she told Hobbs the police "had prepared some photos... [t]here may or may not be a picture of the person who committed the crime against her, and [the police] wanted her to look at the photos and see if she could find someone that may have been the person that had attacked her the day before." Wade Tr. at 26 (underlining added). Petitioner offers no evidence on this point, and a review of the record reveals nothing to indicate that Hobbs was told details about the progress of the investigation, or that the police suggested any specific individual pictured in the photo array was under suspicion. Wrest's comment left the identification entirely up to Hobbs; it is devoid of undue suggestiveness. Moreover, Hobbs testified she had several face-to-face encounters with Petitioner in daylight within a short period of time, Tr. at 309, 310, 314, 316, 324, 352, and described several relevant physical characteristics of the assailant including gender, race, height, build, (Tr. at 326), facial hair (Tr. at 311), and clothing (Tr. at 315), which generally matched the Petitioner, such that the facts as relied upon by the Appellate Division regarding Hobbs's in-court identification of Petitioner had a reliable ...

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