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Murray v. Griffin

United States District Court, E.D. New York

June 28, 2017

TIMOTHY J. MURRAY, Petitioner,


          BRIAN M. COGAN U.S.D.J.

         Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, setting aside his conviction for multiple counts of robbery and one count for possession of stolen property. The facts relating to his conviction will be set forth below as necessary to address his points of error, but to summarize, petitioner, together with an unapprehended accomplice, mugged a woman, Margaret Whittaker, hitting her in the face and taking her purse. The police had obtained a search warrant for petitioner's home on suspicion of his involvement in other robberies, and when they executed it, they found Whittaker's driver's license in his apartment. Whittaker picked petitioner out of a lineup and identified him as her assailant at trial.

         Plaintiff raises three points of error: (1) the lineup was unduly suggestive because petitioner was the only one with dreadlocks, and the police suggested to Whittaker that her assailant was in the lineup; (2) petitioner's counsel was ineffective because in his motion to suppress the search warrant, he omitted better arguments than he made; and (3) the prosecutor's closing argument deprived petitioner of due process.

         Each of these points is either procedurally barred or without merit, and the petition is therefore denied.

         I. Lineup identification

         The Appellate Division summarily rejected this claim, holding that “[c]ontrary to the defendant's contention, the suppression court properly declined to suppress the lineup identification evidence on the ground that it was unduly suggestive.” People v. Murray, 136 A.D.3d 714, 715, 24 N.Y.S.3d 194 (2nd Dep't), leave to appeal denied, 27 N.Y.3d 100, 438 N.Y.S.3d 112 (2016).

         Because the Appellate Division rejected the claim on the merits, its decision attracts the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). That statute requires petitioner to demonstrate that the state court's decision 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). The decision of a state court is “contrary” to clearly established federal law within the meaning of § 2254(d)(1) if it is “diametrically different” from, “opposite in character or nature” to, or “mutually opposed” to the relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks omitted). A state court decision involves “an unreasonable application” of clearly established federal law if the state court applies federal law to the facts of the case “in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005).

         The Supreme Court has made clear that the AEDPA standard of review is extremely narrow, and is intended only as “a ‘guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal . . . . '” Ryan v. Gonzales, 568 U.S. 57, 75 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Since Harrington, the Supreme Court has repeatedly admonished Circuit Courts for not affording sufficient deference to state court determinations. See, e.g., White v. Wheeler, 136 S.Ct. 456, 460 (2015) (“This Court, time and again, has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.'”) (quoting Burt v. Titlow, 134 S.Ct. 10, 16 (2013)).

         As applied to identification evidence, due process requires the exclusion of identification testimony that is so unreliable as to create “a very substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (internal quotation marks and citation omitted). To be admissible, the court must find either that the identification procedures were not unduly suggestive or that the identification was independently reliable despite any unnecessarily suggestive procedure. See id. at 114; Neil v. Biggers, 409 U.S. 188, 199 (1972); Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001).

         Claiming that the physical arrangement of a lineup was unduly suggestive on federal habeas corpus review is particularly difficult because a state court's determination that it was not is treated as a finding of fact. And “a determination of a factual issue made by a State court shall be presumed to be correct[, ]” subject to rebuttal by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Moreover, “there is no requirement that even in line-ups the accused must be surrounded by persons nearly identical in appearance, however desirable that may be.” United States v. Reid, 517 F.2d 953, 965 n. 15 (2d. Cir. 1975); accord Espiritu v. Haponik, No. 05 Civ. 7057, 2012 WL 161809 at *6 (S.D.N.Y. Jan. 19, 2012) (“[F]actual findings of the state court regarding the suggestiveness of the lineup must be presumed correct in the absence of clear and convincing evidence to the contrary.”).

         I have reviewed the same photographs of the lineup as the state court. I cannot say that the photographs refute the state court's finding by clear and convincing evidence. I will assume that there is a part of one dreadlock showing on one of the participants in the lineup because the parties seemed to acknowledge that on appeal, but it is not at all visible in the photographs. Under the AEDPA review standard, the state courts' determination must be upheld.

         Petitioner's other criticism of the lineup is that, when the detective in charge of the investigation called Whittaker and asked her to come view it, he told her that the police “made an arrest of somebody that may have been in possession of her New York State driver's license.” However, under well-established federal law, this is not unduly suggestive. Not only did the detective fail to definitively advise the witness that the suspect was, indeed, in the lineup, but the law is clear that even had he had so advised her, that would not be considered sufficiently suggestive to have violated petitioner's due process rights. Habeas decisions in this Circuit have consistently held that “[a] substantial likelihood of irreparable misidentification is not created when police officers merely tell a lineup viewer that the suspected perpetrator will be in the lineup.” Priester v. Strack, No. 98 Civ. 7960, 2001 WL 980563, *4 (S.D.N.Y. Aug. 23, 2001) (citing Hodge v. Henderson, 761 F.Supp. 993, 1007-08 (S.D.N.Y. 1990) (“[I]t is implicit in the viewing of a lineup that a suspect might appear . . . . [S]uch information does not predispose the viewer of the lineup to select any particular person . . . . ”)); Green v. Connell, No. 05-CV-5795, 2006 WL 3388656, *8 (E.D.N.Y. Nov. 21, 2006) (“[I]t is implicit in the display of a line-up that a suspect is among the persons viewed, and stating this fact to a witness is thus insufficient to create a substantial likelihood of misidentification.”); see also Jenkins v. City of New York, 478 F.3d 76, 93 (2d Cir. 2007) (“This Court . . . has held that although the police generally should refrain from informing a witness that the suspect is in the lineup, a lineup is not unduly suggestive merely because they do so.”); Sales v. Harris, 675 F.2d 532, 538 (2d Cir. 1982) (“As to the lineup, the only hint of suggestiveness emanated from the police officer's statement to [the victim] just prior to viewing the lineup that a suspect was in custody. Although this court has expressed disapproval of such a statement, the suggestiveness in this case was minimal . . . .”) (internal citation omitted).

         Of particular importance is the fact that petitioner must show that the Appellate Division's decision is contrary to or an unreasonable application of Supreme Court authority concerning identification of witnesses, and no Supreme Court decision suggests that a police officer may not advise a lineup witness that they have a suspect in custody, let alone merely saying something that allows an inference that the suspect may be in custody. See Piper v. Portuondo, 82 F. App'x 51, 52 (2d Cir. 2003) (“[N]either we nor the Supreme Court has ruled that such statements, by themselves, render a lineup impermissibly suggestive.”). Since the police merely advised the victim that the suspect “may” have had possession of her license, without even confirming whether the suspect would be in the line-up, petitioner cannot meet the standard for habeas corpus relief.

         II. Ineffective Assistance of Trial Counsel

         A. Background

         Prior to petitioner's arrest, police had been investigating several pattern robberies in the neighborhood where Whittaker was attacked. The police were particularly looking for a vehicle that been seen in connection with the prior robberies, specifically, a gold Chevy Tahoe with a Harley-Davidson sticker on the back. There was a poster containing this description of the vehicle hanging in the neighborhood precinct. In ...

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