United States District Court, E.D. New York
TIMOTHY J. MURRAY, Petitioner,
THOMAS GRIFFIN, Respondent.
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
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.
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
these points is either procedurally barred or without merit,
and the petition is therefore denied.
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).
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).
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)).
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).
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
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.
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).
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.
Ineffective Assistance of Trial Counsel
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 ...