United States District Court, E.D. New York
OPINION & ORDER
ALLYNE R. ROSS, District Judge.
Petitioner, Wilfredo Aviles, appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New York criminal conviction for two counts of second-degree murder. Petitioner's conviction followed two trials, one declared a mistrial, in which the central question was whether witnesses properly identified petitioner as the person who shot and killed two individuals in a Brooklyn parking garage. Petitioner asks the court to overturn his conviction on the grounds that (1) the evidence at petitioner's second trial was legally insufficient to establish petitioner's identity as the shooter beyond a reasonable doubt and (2) petitioner received ineffective assistance of appellate counsel. For the reasons stated below, petitioner's application is denied.
A. The Double Homicide
The following facts were adduced at both of petitioner's trials.
On the night of November 28, 2005, Natasha Huggins was in a Brooklyn parking garage with her two brothers, Christian Throne and Tyrell Huggins, and auto mechanic Angus Mitchell. They were attempting to start Natasha Huggins's car. Mitchell had gone to retrieve his own car when three men entered the garage. One of the men, Brian McCaskill, left the garage immediately after arriving and remained standing outside of the structure. Another man, Claude Long, and an unidentified third individual approached Natasha Huggins and her brothers. A discussion ensued and around a minute later, the third man pulled out a gun and shot both of the brothers. When Mitchell returned to that area of the garage, he witnessed the shooter, who was then still pointing the gun in the direction of Natasha Huggins's car, the location where the brothers had been shot. Mitchell and the shooter made eye contact before the shooter and Long fled the garage. Natasha Huggins telephoned the police. Later that night, her brothers were pronounced dead.
The next day, Natasha Huggins refused to speak to the police about the shooting. She would later testify that her refusal stemmed from her fear of the unidentified shooter. Soon thereafter, however, she changed course and met with police detectives. She told them that she did not know the shooter, but she described him as a heavy-set man with a light brown complexion who wore a gray hooded sweatshirt at the time of the shooting. Mitchell provided a description of the shooter that matched that provided by Natasha Huggins. Surveillance video from a nearby restaurant was consistent with the two witnesses' accounts. The video depicted a stocky man of medium complexion, dressed in a hooded sweatshirt. The man walked with two smaller, darker-skinned individuals in the direction of the parking garage. The same three individuals were captured by the video camera fleeing the area a few minutes later. In the days after the shooting, no witness was able or willing to identify the shooter.
On June 20, 2006, Detective Christopher Hennigan arrived at an unrelated crime scene where petitioner had been shot. He observed that petitioner matched the descriptions of the individual who had shot Throne and Tyrell Huggins that Mitchell and Natasha Huggins had provided to the police soon after the shootings. Before petitioner left in an ambulance, petitioner told Detective Hennigan his name and stated that he was also known by "Reef' and "Pun." At the scene, near where petitioner had lain wounded, Detective Hennigan found a cellphone that he determined belonged to the mother of Brian McCaskill.
Four months later, on October 19, petitioner was brought to the police precinct in order to participate in a lineup. Petitioner was noticeably thinner than he had been when Detective Hennigan saw him in June. Viewing the lineup, Natasha Huggins identified petitioner as the shooter, observing that he appeared to have lost weight since the night that her brothers were shot. Mitchell stated that petitioner had the same face as the shooter, but was not certain as to his identity because the man in the lineup appeared to weigh less than the man who had killed Christian Throne and Tyrell Huggins.
Petitioner was arrested following the lineup.
B. Pre-Trial Proceedings
Prior to the commencement of trial, petitioner's trial counsel moved to suppress the lineup identifications and petitioner's post-Miranda statements to the police on the grounds that the lineup was unduly suggestive and that the statements were not made voluntarily. A Huntley/Wade hearing was held.
Detective Hennigan testified that on June 22, 2006, he showed Natasha Huggins a photo array that included a picture of petitioner. Natasha Huggins did not identify anyone. The detective later showed the same photo array to an individual named Lavar Edwards, who would testify at petitioner's second trial. Edwards identified petitioner's photograph as the picture of the man Edwards had seen with a gun outside the garage where Throne and Tyrell Huggins were killed. A second detective, Christopher Scandole, testified that, following Edwards's identification of petitioner, he went with two fellow detectives and a police sergeant to petitioner's residence. Detective Scandole and the sergeant were admitted into the home by petitioner's father. When Detective Scandole inquired of petitioner whether he would be willing to speak with them at the police precinct, petitioner agreed to do so.
The court denied petitioner's suppression motion. Of relevance to petitioner's habeas petition, at the end of the Huntley/Wade hearing, petitioner's counsel requested a Dunaway hearing to "ask some questions about what information [Detective Scandole] possessed prior to going to" petitioner's home. The prosecutor argued that Edwards's photo array identification established probable cause to arrest petitioner, thus obviating the need for a hearing focused on the legality of his arrest. Agreeing with the prosecutor, the judge denied the Dunaway request.
C. The First Trial
In addition to the trial evidence recited above, the prosecutor at the first trial also adduced the following identification evidence: First, Natasha Huggins identified petitioner as the shooter in court, bolstering her previous identification of petitioner in the police lineup. Second, Mitchell made an in-court identification of petitioner, and he explained that while petitioner's body type did not match that of the shooter, he had recognized petitioner's face in the lineup. Third, two additional witnesses, Bernard Rogers and Ezekiel Briggs, who saw the three men approach the parking garage on the night of November 28, 2005, provided general descriptions of the individual alleged to be the shooter by Natasha Huggins and Mitchell.
After lengthy deliberations, the jury was unable to reach a verdict. The court declared a mistrial.
D. Second Trial
The evidence at petitioner's second trial again included in-court identifications of petitioner by Natasha Huggins and Mitchell, yet it differed from that adduced during the first trial in three notable ways.
First, Lavar Edwards, who had identified petitioner in the photo array shown to Edwards by Detective Hennigan, testified. It was not until May 2006, when he was arrested on gun-related charges, that Edwards told Detective Hennigan that he had information on the Throne and Tyrell Huggins murders. At petitioner's second trial, Edwards testified that he had been outside of the parking garage prior to the shooting when petitioner arrived with McCaskill and Long. Edwards had previously seen petitioner around the neighborhood and knew him by the nickname "Reef." He also knew that petitioner had a tattoo on his neck that read "Denise." When the three men reached Edwards and two of his friends outside of the garage, both Long and petitioner demanded to know the whereabouts of Throne and Tyrell Huggins. Petitioner pulled out a weapon. Another individual standing in close proximity told Long, McCaskill, and petitioner that the brothers were in the parking garage. Long and petitioner entered the garage, while McCaskill remained outside of it. Edwards heard approximately four gunshots-a number consistent with the testimony of both Natasha Huggins and the medical examiner-and saw petitioner flee the garage soon thereafter. Edwards identified petitioner in court as the individual he had seen with the gun and testified to his earlier identification of petitioner in the police lineup, at which he had correctly noted petitioner's weight loss.
Second, the prosecution introduced a recording of the 911 call that Natasha Huggins had placed immediately after the shooting. Much of the call was inaudible, though Natasha Huggins can be heard screaming "Bezo, " the nickname of Brian McCaskill, whom she testified had arrived at the garage with petitioner and Long. The prosecution relied upon the recording to illustrate the hysteria that gripped Natasha Huggins following the shooting, which, the prosecutor argued, helped to explain why she had been afraid to identify petitioner in the photo array in the months before the lineup.
Lastly, Bernard Rogers and Ezekiel Briggs, who both testified at the first trial, did not testify at the second.
After one day of deliberations, the jury pronounced petitioner guilty of two counts of murder in the second degree. Petitioner received two consecutive ...