Elliston v. Murphy
PRISCS- RULING denying 23 Motion to Amend/Correct; Denying 15 AMENDED PETITION for Writ of Habeas Corpus, filed by David B. Elliston. The Clerk is directed to enter judgment and close this case.. Signed by Judge Janet C. Hall on 1/7/2013. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID B. ELLISTON,
PRISONER CASE NO.
JANUARY 7, 2013
RULING ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS [Doc. No.15]
AND PETITIONER’S MOTION TO AMEND [Doc. No. 23]
The petitioner, David B. Elliston, commenced this action for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his amended petition, he challenges his state court
conviction on the ground that the trial court improperly failed to suppress the victim’s
identification. The respondent argues that the amended petition must be denied
because the petitioner cannot show that the state court decision was an unreasonable
application of Supreme Court law. In response, the petitioner moves to amend his
petition to obtain an evidentiary hearing on his claim rather then a reversal of his
Motion to Amend
The petitioner asks the court to hold an evidentiary hearing in this case. The
standard for whether a habeas petitioner may be entitled to an evidentiary hearing is
statutorily prescribed by section 2254(e)(2) of title 28 of the U.S. Code. The district
court cannot conduct an evidentiary hearing unless the petitioner shows that his claim
relies on either a new rule of constitutional law that was previously unavailable or facts
that could not have been previously discovered through the exercise of due diligence,
and that "the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for the constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2).
In his Motion, the petitioner does not rely on a new rule of constitutional law or
identify any facts not previously discovered. Rather, he appears to want a second
hearing because he is not satisfied with the state court hearing. This dissatisfaction
does not warrant an evidentiary hearing in federal court. The petitioner’s Motion is
Standard of Review
The federal court will entertain a petition for writ of habeas corpus challenging a
state court conviction only if the petitioner claims that his custody violates the
Constitution or federal laws. 28 U.S.C. § 2254(a). The federal court cannot grant a
petition for a writ of habeas corpus filed by a person in state custody with regard to any
claim that was rejected on the merits by the state court unless the adjudication of the
claim in state court either: "(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). The federal law defined by the Supreme Court
“may be either a generalized standard enunciated in the Court’s case law or a
bright-line rule designed to effectuate such a standard in a particular context.”
Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909 (2002) (citing
Gideon v. Wainwright, 372 U.S. 335, 340 (1963)). Clearly established federal law is
found in holdings, not dicta, of the Supreme Court at the time of the state court decision.
Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)). Moreover, Second Circuit law that does not have a counterpart in
Supreme Court jurisprudence cannot provide a basis for federal habeas relief. See Del
Valle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002).
A decision is "contrary to" clearly established federal law where the state court
either applies a rule different from that set forth by the Supreme Court or decides a case
differently than the Supreme Court on essentially the same facts. Bell v. Cone, 535
U.S. 685, 694 (2002) (citing Williams, 529 U.S. at 405–06). A state court unreasonably
applies Supreme Court law when the court has correctly identified the governing law,
but unreasonably applies that law to the facts of the case. The state court decision
must be more than incorrect; it also must be objectively unreasonable, which is "a
substantially higher threshold" than being incorrect. Schriro v. Landrigan, 550 U.S.465,
When reviewing a habeas petition, the federal court presumes that the factual
determinations of the state court are correct. The petitioner has the burden of rebutting
that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011) (standard for evaluating state-court rulings
where constitutional claims have been considered on the merits and which affords
state-court rulings the benefit of the doubt is highly deferential and difficult for petitioner
to meet). The presumption of correctness, which applies to "historical facts, that is,
recitals of external events and the credibility of the witnesses narrating them," will be
overturned only if the material facts were not adequately developed by the state court or
if the factual determination is not adequately supported by the record. Smith v. Mann,
173 F.3d 73, 76 (2d Cir. 1999) (internal quotation marks and citation omitted).
In addition, the federal court’s review under section 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the merits. Cullen,
131 S. Ct. at 1398–99. Because collateral review of a conviction applies a different
standard than the direct appeal, an error that may have supported reversal on direct
appeal will not necessarily be sufficient to grant a habeas petition. Brecht v.
Abrahamson, 507 U.S. 619, 634 (1993).
Following a jury trial in the Connecticut Superior Court for the Judicial District of
Fairfield, the petitioner was convicted of assault in the first degree, attempted murder,
and carrying a dangerous weapon. He was sentenced to a total effective sentence of
twenty-five years. The Connecticut Appellate Court affirmed the conviction, and the
Connecticut Supreme Court denied certification. See State v. Elliston, 86 Conn. App.
479, 861 A.2d 563 (2004), cert. denied, 273 Conn. 906, 868 A.2d 746 (2005).
In September 2005, the petitioner filed a petition for writ of habeas corpus in
state court. The state court denied the petition in April 2010, and the Connecticut
Appellate Court dismissed the appeal. See Elliston v. Comm'r of Corr., 131 Conn. App.
787, 28 A.3d 1019 (2011). The petitioner then commenced this action.
During the late evening of November 15, 2001, or the early morning of November
16, 2001, the victim saw the petitioner leave a vehicle and approach with a shotgun.
When the victim ran, the petitioner shot him in the back of the legs. The victim fell to the
ground. The petitioner moved in front of the victim and tried to shoot him in the head.
The victim sustained one wound in each shoulder before the petitioner left the area.
During the incident, the street was well lit, and the victim saw the petitioner’s face.
Elliston, 86 Conn. App. at 480–81.
When a patrol officer arrived on the scene, the victim was in critical condition and
inarticulate. The officer followed the victim to the hospital. During a brief interview, the
victim said he could identify the shooter, but did not provide a name. On November 16,
2001, the victim told a detective that the shooter was a Jamaican man named "Dave,"
who lived in a certain area of Bridgeport. About ten days later, the victim provided a
physical description to the detective. Id. at 481.
At some point, the detective showed the victim a single photograph of a man
meeting the victim’s description of the petitioner. The victim said that the man in the
picture was not the man who shot him. On December 1, 2001, the detective showed
the victim a picture of the petitioner. The victim identified the petitioner as the shooter.
Although the detective possessed a photo array that included the picture of the
petitioner at the time he showed the victim the single picture, he did not show the victim
the photo array until December 12, 2001. The victim immediately and positively
identified the picture of the petitioner from the photo array. The victim also stated that
he worked with the victim and knew him as "Dave" from the workplace and as "Bartley"
from the neighborhood and a local club. Id. at 481–82.
The petitioner challenges his conviction on the ground that the trial court
improperly denied his motion to suppress, thereby depriving him of due process. He
argues that using a single photograph for identification was unnecessarily suggestive
and that the resulting identification was unreliable.
Criminal defendants have a due process right to be free from identification
procedures that are "so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377,
384 (1968). See Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (noting that "reliability
is the linchpin in determining the admissibility of identification testimony").
The court analyzes an allegedly unduly suggestive identification in two steps.
First, the court considers whether the initial identification was obtained in a manner that
"unduly and unnecessarily suggested that the defendant was the perpetrator." Second,
even if the identification was unduly suggestive, the court considers whether the
identification was independently reliable. Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir.
2001), cert. denied, Donnelly v. Raheem, 534 U.S. 1118 (2002). In assessing reliability,
the court considers the following factors: (1) the witness’ opportunity to view the
suspect at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of
the witness’ prior description of the perpetrator, (4) the level of certainty demonstrated
by the witness, and (5) the length of time between the incident and the identification.
Neil v. Biggers, 409 U.S. 188, 199–200 (1972). No one factor is dispositive on the issue
of independent reliability. The determination is made based on the totality of the
circumstances. See Raheem, 257 F.3d at 135. In making this assessment, the court is
entitled to rely on the judgment of the jury regarding the credibility of the identification.
See Brathwaite, 432 U.S. at 116.
In analyzing this claim, the Connecticut Appellate Court applied a state standard
that mirrors the federal standard. Thus, the state decision is not contrary to Supreme
The Connecticut Appellate Court first considered the identification procedure and
concluded that the use of a single photograph to identify the petitioner was
unnecessarily suggestive. See Elliston, 86 Conn. App. at 484. However, upon
balancing the applicable factors, the appellate court concluded that the identification
was reliable. The victim testified that he could see the petitioner’s face when he exited
the vehicle and when he was standing in front of the victim. He identified the petitioner
within twenty-four hours as a Jamaican man named Dave and knew where the
petitioner lived. Ten days after the incident, the victim provided the petitioner’s age and
physical characteristics. The victim knew the petitioner from his workplace, the
neighborhood, and a local club. In addition, the victim rejected the first photograph of a
man with all of the physical characteristics, before positively identifying the photograph
of the petitioner. Considering the totality of the circumstances, the appellate court
concluded that the identification was reliable. See id. at 485–86.
This court concludes that the analysis and conclusions of the Connecticut
Appellate Court are not an unreasonable application of clearly established Supreme
Court law. Accordingly, the Amended Petition for writ of habeas corpus is denied.
The Amended Petition for writ of habeas corpus [Doc. No. 15] and the
petitioner’s Motion to Amend [Doc. No. 23] are DENIED. Because the petitioner has
not shown that he was denied a constitutional right, a certificate of appealability will not
issue. The Clerk is directed to enter judgment and close this case.
SO ORDERED this 7th day of January 2013, at New Haven, Connecticut.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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