Jenkins v. Cook
ORDER: For the reasons stated in the attached Memorandum and Order, Jenkins's petition is denied. Because Jenkins has failed to make a substantial showing that he was denied a constitutional right, no certificate of appealability shall issue. Ordered by Judge John Gleeson on 4/24/2015. (Ross, Peter)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION ONLY
- versus -
900 Third Avenue, 21st Floor
New York, New York 10022
Ronald Marc Daignault
Attorneys for Petitioner
RICHARD A. BROWN
Queens County District Attorney’s Office
125-01 Queens Boulevard
Kew Gardens, New York 11415
Attorney for Respondent
JOHN GLEESON, United States District Judge:
Eric Jenkins petitions under 28 U.S.C. § 2254 for a writ of habeas corpus, seeking
relief from a state court judgment convicting him of murder in the second degree and criminal
possession of a weapon in the second degree. He argues that he was denied his federal
constitutional rights over the course of his four trials in state court. I heard argument on the
motion on August 14, 2014. For the reasons given below, neither a writ nor a certificate of
appealability shall issue.
The Offense Conduct and Indictment
At approximately 8:45 p.m. on April 11, 1992, Michael Reese was fatally shot
while standing at a bus stop shelter on Guy R. Brewer Boulevard in Jamaica, Queens. Reese
sustained one gunshot wound to his back and two to the back of his head. He was pronounced
dead at the scene. During the ensuing investigation, the police questioned Garvey Napoleon,
who later testified that he was an eyewitness to the shooting. After being shown a single
photograph of petitioner Eric Jenkins, Napoleon identified Jenkins as the shooter. On May 12,
1992, the police arrested Jenkins and charged him with murder of Reese.
Napoleon testified in the Grand Jury that he saw Jenkins shoot Reese, and further
that he recognized Jenkins from seeing him in Brooklyn prior to the shooting. Another witness,
David Morgan, testified that he had heard Jenkins threaten to kill Reese the day before the
murder because Reese had beaten Cecil Saddler, Jr., Jenkins’s nephew. The grand jury charged
Jenkins with two counts of murder in the second degree, N.Y. Penal Law § 125.25, one count of
criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03, and one count
of criminal possession of a weapon in the third degree, N.Y. Penal Law § 265.02.
The Motion to Suppress and the First Trial
Jenkins moved to suppress Napoleon’s in-court identification. He contended that
the single-photo show up was unnecessarily suggestive, and that there was insufficient evidence
to show that Napoleon was previously acquainted with Jenkins, rendering the procedure
improper and the identification unreliable. At the close of the hearing on March 1, 1993, the
court denied Jenkins’s motion.
The first trial began on May 5, 1993. On May 12, the trial court declared a
mistrial based on prosecutorial misconduct after finding that the prosecutor had failed to disclose
that the State had entered into a cooperation agreement with Morgan, who was the State’s key
The Second Trial, Subsequent Appeals and the Successful Petition for a Writ of
The second trial began on September 22, 1993. A new prosecutor appeared for
the State, and at the outset of the trial she acknowledged on the record that the State had entered
into an agreement with Morgan and further stated that she expected that information to come out
during her direct examination of Morgan.
However, during the direct examination, the prosecutor never asked Morgan
about the cooperation agreement and the information did not otherwise come out. On crossexamination, when asked by defense counsel about his plea agreement with the State, Morgan
initially denied its existence. When defense counsel then confronted Morgan with his testimony
from the first trial acknowledging the existence of an agreement, he admitted that he had made a
deal for a reduced sentence. He did not explain that his deal with the State was contingent upon
his testifying against Jenkins. On redirect examination, the prosecutor asked Morgan if he had
ever met with her before or made any agreement with her; he responded in the negative to both
questions. He did not explain that he had met with the first prosecutor assigned to the case to
arrive at his cooperation agreement. During her summation, the prosecutor argued to the jury
that Morgan had no reason to lie: he “[n]ever met me before he testified, never made any deal
The jury convicted Jenkins of one count of murder in the second degree and one
count of criminal possession of a weapon in the second degree. On October 27, 1993, Jenkins
was sentenced to concurrent prison terms of fifteen years to life on the murder count and three to
nine years on the weapons-possession count.
On August 12, 1996, the Appellate Division, Second Department affirmed
Jenkins’s conviction. People v. Jenkins, 230 A.D.2d 806 (2d Dep’t 1996). It found that the
single-photo identification procedure by which Napoleon first identified Jenkins as the shooter
was permissible because “[u]nder the facts presented, the identification of the defendant was
merely confirmatory.” Id. at 807. It dismissed Jenkins’s other claims, including his claim of
prosecutorial misconduct, finding them to be without merit. Id. A judge of the New York State
Court of Appeals denied Jenkins leave to appeal the conviction on October 15, 1996. People v.
Jenkins, 88 N.Y.2d 1069 (1996) (Smith, J.). The Appellate Division later dismissed Jenkins’s
petition for a writ of error coram nobis, in which he claimed that he had received ineffective
assistance of counsel. People v. Jenkins, 665 N.Y.S.2d 583 (2d Dep’t 1997).
On January 8, 1998, Jenkins, proceeding pro se, filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He asserted, inter alia, that (1) Napoleon’s in-court
identification was tainted by the impermissibly suggestive single-photo identification procedure,
and (2) the prosecutor’s failure to correct Morgan’s false testimony about his cooperation
agreement and her reinforcement of that false testimony constituted prosecutorial misconduct.
Judge Nina Gershon granted the petition for habeas relief on the basis of
prosecutorial misconduct, finding that the prosecutor had failed to correct Morgan’s omission of
the fact that his testimony was required under his cooperation agreement and then “capitalized
upon the omission both on redirect examination and in her summation.” Jenkins v. Artuz, No.
98-cv-277, at *28 (E.D.N.Y. May 16, 2001). The court found that “[t]he combined effect of
these actions was to leave the jury with the mistaken impression that Mr. Morgan had no
cooperation agreement with the State and, thus, that there was no reason to doubt his credibility.”
Judge Gershon dismissed Jenkins’s claim that Napoleon’s in-court identification
should have been suppressed, stating that “the totality of the circumstances show that his
identification of petitioner was based on his prior familiarity and not the single photograph
shown to him by police.” Id. at *23.
The Second Circuit affirmed, holding that “the writ should issue because the
Appellate Division’s denial of Jenkins’s federal due process claim relating to the use of false
testimony against him was an unreasonable application of clearly established federal law as
determined by the Supreme Court of the United States.” Jenkins v. Artuz, 294 F.3d 284, 286-87
(2d Cir. 2002).
The Identification Hearing and Third Trial
In 2002, as the parties were preparing for a third trial, Napoleon informed the
prosecutor that he had falsely testified at the grand jury proceeding ten years earlier and at
Jenkins’s first two trials after being pressured to do so by the original case detective. Napoleon
reported that after he identified Jenkins based on a single photograph shown to him by the police
detective, the detective told him that it would be better if he testified that he had known Jenkins
prior to the shooting. Napoleon admitted that, in fact, he did not know Jenkins from before the
shooting. However, he reaffirmed all of the remainder of his testimony.
The prosecutor informed the court and defense counsel of Napoleon’s false
testimony. Defense counsel moved to inspect the grand jury minutes and to dismiss the
indictment. On May 8, 2003, the court denied the motion to dismiss the indictment. Defense
counsel then moved to suppress Napoleon’s in-court identification of Jenkins, alleging that the
single-photo identification procedure used by the detective was unnecessarily suggestive and that
there was no independent basis for the reliability of the identification now that it was known that
Napoleon was not previously acquainted with Jenkins.
The court conducted a hearing on October 22, 2002. At the hearing, Napoleon
was questioned by the prosecutor, defense counsel, and occasionally by the court about his
recollection of the shooting. He answered questions about the scene of the shooting, his location
and ability to observe the shooting (e.g., the lighting conditions, whether his view was
obstructed, his distance from the shooting), his knowledge of those involved, what he in fact
observed, and his false testimony at prior proceedings. The court then heard argument from
counsel regarding whether or not Napoleon had a sufficient opportunity to observe the shooting
and the shooter to form an independent recollection of the event. The court concluded that the
State had shown by clear and convincing evidence that Napoleon possessed an independent
source for his in-court identification of Jenkins. The court found:
The witness had an unobstructed view of the defendant as the
defendant walked toward the victim, as he shot the victim, and as
he ran from the scene of the homicide. The witness was able to
make his observations of the defendant in an area that was well lit
from several different sources and the witness was a reasonable
distance away from the defendant. The witness also testified that
the defendant was facing in his direction and that he could see the
defendant’s face without any obstructions blocking his view.
Pet.’s Memo. of Law, Ex. 2 at 4 (citation omitted), ECF No. 20-3 at 40. The court therefore
denied Jenkins’s motion to suppress Napoleon’s in-court identification.
Jenkins’s third trial commenced on January 7, 2003 and ended on January 17,
2003, when the court declared a mistrial due to a hung jury. 1
Before the close of the third trial, defense counsel indicated on the record that although Jenkins
would be willing to plead guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), he refused to plead guilty
to first-degree manslaughter in exchange for a sentence of time served because he “w[ould] not allocute to a murder
On March 4, 2003, Jenkins moved to reopen the October 22, 2002 identification
hearing, alleging ineffective assistance of counsel. The motion was denied.
The Motion to Present Expert Testimony, Fourth Trial and Direct Appeal
On April 9, 2003, Jenkins filed a motion for leave to call an expert witness
regarding eyewitness identification. The trial court denied the motion, finding:
The Court, having already participated in a trial of this matter, and
in a position to weigh the request against other relevant factors, is
aware that other evidence exists linking the defendant to this
crime. This Court is also aware that an “independent source”
hearing has been held where the circumstances under which the
eyewitness observed the defendant were fully explored and found
to be sound. Accordingly, the Court chooses not to exercise its
discretion to permit an “identification expert” to testify.
Pet.’s Memo. of Law, Ex. 5 (citation omitted).
The fourth trial began on October 21, 2003. Napoleon and Morgan testified for
the State, as did two witnesses who had first testified at the third trial: Jerry Payne and Sean
Gibson. Payne and Gibson both testified that they witnessed the fight involving Reese and
Jenkins’s nephew and also, alongside Morgan, saw Jenkins that evening. They testified that
Jenkins asked about Reese and threatened retribution against him. Gibson, who was friends with
Reese and also dating Jenkins’s niece, testified that after the shooting, Jenkins asked him over
the phone to tell everyone that he had not killed Reese. Pet.’s Memo. of Law, Ex. A at A3635
(Fourth Trial Tr. at 642). Gibson’s testimony continued: “I said but you did. He said but I need
you to tell everybody I didn’t.” Id. Gibson testified that sometime later Jenkins “said he didn’t
mean to shoot Michael in the head. He was going to shoot him in the leg but Michael turned to
that he did not do.” Jenkins had at that time been incarcerated since his May 12, 1992 arrest. Pet.’s Memo. of Law
at 9-10, Ex. A at A4494-95 (Third Trial Tr. at 778:16-779:16). Jenkins asserts that he again turned down an offer to
plead guilty to manslaughter in exchange for time served after the close of the third trial, maintaining his innocence.
Id. at 15.
The jury found Jenkins guilty of murder in the second degree and criminal
possession of a weapon in the second degree. Jenkins was sentenced to indeterminate terms of
imprisonment of 25 years to life on the conviction of murder in the second degree and 5 to 15
years on the conviction of criminal possession of a weapon in the second degree, to run
concurrently with each other.
In May 2006, Jenkins appealed his judgment of conviction. On March 6, 2007,
the Second Department modified the judgment by reducing the sentence imposed on the murder
conviction to an indeterminate term of imprisonment of fifteen years to life and the sentence
imposed on the criminal-possession-of-a-weapon conviction to an indeterminate term of
imprisonment of three to nine years, as had been imposed after the second trial. The court
otherwise affirmed the decision. It specifically found that there was clear and convincing
evidence proving that Napoleon identified Jenkins in court based on independent observations
from the shooting and also that the court properly denied Jenkins’s motion to call an expert
witness on eyewitness identification. See People v. Jenkins, 38 A.D.3d 566, 567 (2d Dep’t
2007). A judge of the Court of Appeals denied leave to appeal on May 31, 2007. People v.
Jenkins, 8 N.Y.3d 986 (2007) (Jones, J.).
The Instant Habeas Petition, § 440 Motion and First § 440 Hearing
On May 16, 2008, Jenkins filed this petition for a writ of habeas corpus. On
August 1, 2008, I granted a stay of the petition to allow Jenkins to file a motion under N.Y.
Crim. Proc. Law § 440.10, to pursue an unexhausted claim in state court. Jenkins thereafter
moved in that court to vacate his judgment of conviction, alleging, inter alia, that the trial court
abused its discretion and denied Jenkins due process by barring Jenkins’s eyewitnessidentification expert from testifying. On September 19, 2008, he filed a supplemental
memorandum of law in support of his § 440 motion on the grounds of newly discovered
evidence. In that memorandum, Jenkins argued that both Napoleon and Gibson had recanted
past testimony in statements to private investigators retained by defense counsel. The
investigators had obtained a written statement from Gibson on July 17, 2008, in which he
recanted his statement that Jenkins had admitted to being the shooter. On September 14, 2008,
the investigators had obtained a written statement from Napoleon in which he recanted his
eyewitness identification of Jenkins as the shooter and stated that his identification was the
product of police pressure. Both statements were prepared by one of the investigators and then
signed by the witness.
On January 23, 2009, the § 440 court ordered an evidentiary hearing for the
limited purpose of considering Gibson’s recantation, holding Jenkins’s remaining claims in
abeyance. The hearing began on April 24, 2009. The investigator who took Gibson’s statement
testified about the interview and the methods he employed with Gibson. Gibson testified that he
met with the investigators and signed a written statement prepared by them, but that half of the
document was blank when he signed it. Although he did not read the statement carefully at the
time of signing it, Gibson testified that the final document differed in several respects from the
version he had signed, specifically indicating the new and/or differing language in the final
statement. Gibson denied knowledge of two paragraphs in the statement that stated that Jenkins
had never told Gibson that he was the shooter. Gibson testified that the paragraph was added at a
later date, after he had signed the document. Gibson stated numerous times at the hearing that he
had testified truthfully at Jenkins’s trials.
On May 15, 2009, Jenkins filed a second supplemental memorandum of law in
support of his § 440 motion. He claimed that, based on newly discovered evidence, his rights
under Brady v. Maryland, 373 U.S. 83 (1963), had been violated. Jenkins had learned that
Gibson had made trips to court in connection with Jenkins’s first and second trials. He had also
learned that the prosecutor from Jenkins’s second trial stated in an August 6, 2008 deposition
that there had been a witness in Jenkins’s case who wanted to enter into a cooperation agreement
but was refused by the State. This witness was imprisoned upstate and had been brought down
and interviewed by the prosecutor but not used at trial. From these statements, Jenkins inferred
that Gibson, who at the time was imprisoned upstate, was the witness mentioned by the
prosecutor in her deposition and had refused to testify at the first two trials without an agreement
The § 440 court issued three separate opinions denying all of Jenkins’s claims.
On August 10, 2009 the court denied Jenkins’s arguments from his second
supplemental memorandum. The court held that Jenkins had failed to show that the evidence
regarding Gibson’s court trips and the prosecutor’s deposition testimony was newly discovered
evidence. Pet.’s Memo. of Law, Ex. 12. It found that the court trips could have been discovered
with the exercise of due diligence and further that it was “highly unlikely” that the disclosure of
the meetings would have changed the outcome of the trial. Id. at 3. Additionally, the court
determined that “[t]here is no proof that the prosecutor and Sean Gibson ever reached an
understanding in which Gibson’s cooperation was exchanged for any offer of leniency or any
other benefit granted by the prosecutor at any time prior to or during defendant’s first two trials.”
Id. at 4. As such, the meetings did not produce exculpatory evidence constituting Brady material
and “would not likely have had an impact on the verdict.” Id.
On September 18, 2009, the court denied Jenkins’s claim that the trial court had
abused its discretion by denying his motion to present expert eyewitness-identification
testimony, finding that the claim was subject to a mandatory procedural bar because it had been
decided on the merits on direct appeal. Pet.’s Memo. of Law, Ex. 13 at 12. The court also
rejected Jenkins’s argument that Napoleon’s recantation constituted newly discovered evidence
and further determined that the recantation was not credible. Id. at 13-18.
Finally, on September 29, 2009, the court found that “Sean Gibson did not recant
his trial testimony in a written statement to two private investigators in July, 2008. Based on the
hearing testimony, the alleged written recantation statement is unreliable and not worthy of
belief.” Pet.’s Memo. of Law, Ex. 14 at 7. The court described the investigator’s “methods used
to obtain the alleged written statement” as “extremely suspect and unusual”:
[I]nstead of asking Mr. Gibson about the incident directly, [the
investigator] warned Mr. Gibson about possible federal court
consequences before asking him anything . . . . [He] . . . told Mr.
Gibson that when the Federal Court realizes it was lied to in 2001
and given perjured testimony, there would be serious consequences
. . . federal courts do not like being lied to and a lot of people will
be scrambling to save themselves.
Id. at 8. Based on the investigator’s testimony, the court determined that the investigator’s
statements to Gibson “were obviously designed to coerce, scare, and intimidate Mr. Gibson in
the hopes of obtaining a favorable statement.” Id. The court also questioned the investigator’s
choice not to record the interview and to write out Gibson’s statement himself. Given that the
court found credible Gibson’s testimony, “reaffirmed many times” during the hearing, that he
had not recanted any of his trial testimony to the defense investigators, it denied Jenkins’s § 440
The § 440 Appeal and Second § 440 Hearing
On March 22, 2010, the Appellate Division, Second Department granted Jenkins
leave to appeal the § 440 court’s decisions. On May 31, 2011, the Appellate Division affirmed
the § 440 court’s August 10, 2009 and September 29, 2009 orders. The Appellate Division
reversed and remanded the part of the September 18, 2008 order related to Napoleon’s
recantation, finding that the lower court’s determination was unwarranted in the absence of a
hearing. People v. Jenkins, 84 A.D.3d 1403, 1407 (2d Dep’t 2011).
A second § 440 hearing was held before a different court on various dates
between September 2011 and January 2012. The investigator who took Napoleon’s statement –
the same one who took Gibson’s statement – testified about his interactions with Napoleon. He
made similar preliminary statements to Napoleon as he did to Gibson:
I said federal courts don’t like to be lied to. That this situation is
going to viewed very gravely by the Federal District Court, and
when something like that happens, when a series of lies begins to
unravel in a court setting, the people who are responsible for those
lies are going to try to save themselves at the expense of others,
and you don’t want to be one of the others.
Second § 440 Tr. (Oct. 31, 2011) at 210. The investigator related that in response to his opening
lines and then to his questioning, Napoleon “was very quiet” and often “nodding.” Id. at 210,
213. According to the investigator, Napoleon “wasn’t saying anything really” until he began
“bemoaning the fact that it hadn’t gone away. He had hoped that this whole thing would be over
and done with, and now here somebody was on his front step asking him questions . . . .” Id.
Napoleon testified that he felt that he couldn’t turn away the investigators who came to his door
because he was on probation and believed one investigator to be a law enforcement official. He
said that he felt threatened and signed the statement he was presented with because he wanted the
investigators to leave. Napoleon reaffirmed his trial testimony that he saw Jenkins shoot Reese.
On October 24, 2012, the second § 440 court denied Jenkins’s motion. The court
found that Napoleon’s recantation to the defense investigator “would have slight value at a new
trial” given Napoleon’s credibility in reaffirming his eyewitness testimony:
This Court had an opportunity to assess Napoleon’s credibility at
the hearing during extensive direct and cross-examination. I find
that his testimony affirming the truthfulness of his trial testimony
is credible, that the explanation he gave for the statements he made
to [the investigator] is reasonable, and that his repudiation of the
recantation is believable. It was undisputed that the investigators
arrived without warning, entered his home, told him that the other
witnesses had recanted and that the federal court would look very
unkindly at perjured testimony, and advised him that he would be
left “holding the ball.” I credit Napoleon’s testimony concerning
the circumstances of his statements to [the investigator].
Pet.’s Memo. of Law, Ex. 18 at 7-8. The court further concluded that the recantation would be
admissible only as a prior inconsistent statement at a future trial, which, because such evidence
“merely impeaches,” falls short of the standard for newly discovered evidence. Id. at 8.
Moreover, the court noted the presence of “ample” evidence corroborating Napoleon’s trial
testimony, including Jenkins’s admission to Gibson that he was the shooter. Id. at 8-9. Finally,
the court dismissed Jenkins’s argument that “the facts and circumstances surrounding the
identification are highly suspect,” finding that all such facts and circumstances were known to
the jury, which evaluated them and assessed Napoleon’s credibility before returning a guilty
verdict after the fourth trial. Id. at 9.
On February 28, 2013, Jenkins filed an application for leave to appeal. The
application was denied on September 4, 2013. Following the denial of his state court § 440
motion, Jenkins filed his first amended petition for a writ of habeas corpus in this court on
February 28, 2014. I heard oral argument on August 14, 2014.
The Standards of Review
Exhaustion and Procedural Default
The exhaustion requirement, codified at 28 U.S.C. §§ 2254(b) and (c), obligates a
federal habeas petitioner to exhaust state judicial remedies before seeking relief from a federal
court. To exhaust state remedies, a petitioner must “fairly present” his federal constitutional
claims to the highest state court with jurisdiction over them. Duncan v. Henry, 513 U.S. 364,
365 (1995) (internal quotation marks and alterations omitted); Daye v. Attorney General of New
York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). This requirement, which “springs primarily
from considerations of comity” between the federal and state systems, affords the state system
the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Id.
AEDPA Deference to State Court Decisions and Findings of Fact
A federal habeas court may grant habeas relief “with respect to a[ ] claim that was
adjudicated on the merits in State court proceedings” only if 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” or “was based on an unreasonable
determination of the facts in light of the evidence in the State court proceeding.” 28 U.S.C. §§
2254(d)(1)-(2). 2 In addition, a federal habeas court must presume all state court factual
determinations to be correct, unless the petitioner rebuts the findings by clear and convincing
evidence. Id. § 2254(e)(1). AEDPA’s deferential review applies whenever a state court disposes
of a state prisoner’s federal claim on the merits, regardless of whether it gives reasons for its
This limitation on relief is frequently referred to as “AEDPA deference.” E.g., Cullen v.
Pinholster, 131 S. Ct. 1388, 1410 (2011); Berghuis v. Thompkins, 560 U.S. 370, 390 (2010); Miller-El v. Cockrell,
537 U.S. 322, 341 (2003).
determination or refers to federal law in its decision. See Harrington v. Richter, 562 U.S. 86, 99100 (2011); Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
The Supreme Court has interpreted the phrase “clearly established Federal law” to
mean “the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of
the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000); see also
Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001). A decision is “contrary to” clearly
established federal law if “the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.
A decision is an “unreasonable application” of clearly established federal law if a state court
“identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of [a] prisoner’s case.” Id. at 413. Elaborating on
the “unreasonable application” standard, the Supreme Court has held that a habeas court may
only “issue the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with [the Supreme Court’s] precedents.” Richter, 131 S. Ct. at
Jenkins’s Claims for Relief
Jenkins makes four arguments in support of his petition. He first raises two
claims which he first raised on direct appeal: (1) the identification-hearing court’s determination
that Napoleon had an independent source to make his in-court identification of Jenkins as the
shooter was contrary to, or an unreasonable application of, clearly established federal law; and
(2) the state court’s denial of Jenkins’s motion to present expert testimony on eyewitness
identification deprived him of due process. Jenkins next raises two claims that he raised in his §
440 motion: (3) the state court’s refusal to vacate Jenkins’s conviction where the State failed to
disclose Brady material related to Gibson’s cooperativeness and willingness to testify, and its
failure to correct Gibson’s false testimony regarding his refusal to testify, were contrary to or an
unreasonable application of clearly established federal law; and (4) the state court’s refusal to
vacate Jenkins’s conviction in light of Napoleon’s and Gibson’s recantations deprived him of
The Independent Source Hearing
“When the defendant objects to identification testimony to be given by a witness
who has identified him prior to trial, a sequential inquiry is required in order to determine
whether either the prior identification or an in-court identification of the defendant at trial is
admissible.” Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). First, the court must determine
whether the pre-trial identification procedure “unduly and unnecessarily suggested that the
defendant was the perpetrator.” Id. “Single-photo identifications are generally disfavored as
unduly suggestive,” and this case is no exception. United States v. Stanley, No. 09-cr-0141
(NGG), 2009 WL 5066864, at *4 (E.D.N.Y. Dec. 22, 2009) (citing United States v. Concepcion,
983 F.2d 369, 377 (2d Cir. 1992)). The Second Circuit “has consistently condemned the
exhibition of a single photograph as a suggestive practice, and where no extenuating
circumstances justify the procedure, as an unnecessarily suggestive one.” Wiggins v. Greiner,
132 F. App’x 861, 865 (2d Cir. 2005) (citation and internal quotation marks omitted). The State
has articulated no extenuating circumstances or other justification for the investigating police
detective’s use of a single-photo procedure with Napoleon as opposed to an alternate procedure,
such as a photo array. Indeed, Napoleon has alleged that the detective coached him to say that he
had prior familiarity with Jenkins, which he did not have, in order to help establish that the
identification was independently reliable and therefore admissible. There is no question that the
detective knew the identification procedure was improper. I conclude that the use of a singlephoto display in this case was unnecessarily suggestive.
The next step of the inquiry is whether or not the challenged identification was
“nonetheless independently reliable.” Raheem, 257 F.3d at 133. “Whether an in-court
identification has a source independent of an earlier tainted identification is a mixed question of
law and fact.” Young v. Conway, 698 F.3d 69, 77 (2d Cir. 2012), cert. denied, 134 S. Ct. 20
(2013) (citing United States v. Wade, 388 U.S. 218, 241-42 (1967)). “On federal habeas review,
mixed questions of law and fact translate to ‘mixed constitutional questions (i.e., application of
constitutional law to fact).’” Id. (quoting Overton v. Newton, 295 F.3d 270, 277 (2d Cir. 2002)).
Under AEDPA, I must determine whether the state court’s decision on the mixed constitutional
question “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) (cited
in Young, 698 F.3d at 77). The State bears the burden of proving by clear and convincing
evidence that the in-court identification was based upon observations independent of the
suggestive identification procedure. See Young, 698 F.3d at 78.
In determining whether a witness’s in-court identification of a defendant has
reliability independent of an unnecessarily suggestive identification procedure, a court looks
generally to the factors set out in Neil v. Biggers: “ the opportunity of the witness to view the
criminal at the time of the crime,  the witness’ degree of attention,  the accuracy of the
witness’ prior description of the criminal,  the level of certainty demonstrated by the witness
at the confrontation, 3 and  the length of time between the crime and the confrontation.” 409
Courts have since recognized that there is little correlation between the certainty and reliability of
the testifying witness. See Young, 698 F.3d at 87-89 (2d Cir. 2012). However, the law requires that the
U.S. 188, 199-200 (1972). “A good or poor rating with respect to any one of these factors will
generally not be dispositive, and in each case, the question of independent reliability must be
assessed in light of the totality of the circumstances.” Raheem, 257 F.3d at 135 (citations
The state court held a hearing to determine whether Napoleon had an independent
source for his in-court identification of Jenkins. I conclude that its finding that the State had
proven the existence of an independent source by clear and convincing evidence was reasonable.
First, based on the hearing testimony, the court determined that Napoleon had ample opportunity
to view Jenkins during the shooting. The area was well lit from several sources, including the
Rochdale Village complex, streetlights on Guy R. Brewer Boulevard, open stores and passing
cars, and the light of the bus stop shelter near to where Reese was shot. The court further found
that Napoleon was a reasonable distance away when observing Jenkins. He first noticed Jenkins
as Jenkins moved toward the bus stop with his companions. He continued to observe them as
they approached Reese. Napoleon’s view was unobstructed as he watched Jenkins shoot Reese.
Moreover, because Jenkins did not stand directly behind Reese, Napoleon saw Jenkins’s face.
He continued to observe Jenkins as Reese fell down and then, as Napoleon ran from the scene,
he looked back and watched Jenkins shoot Reese as he lay on the ground. Napoleon saw Jenkins
a final time as Jenkins fled back towards the well-lit complex.
Second, Napoleon was near the scene of the shooting to sell drugs, and as a result
was on the look out in order to avoid being caught by the police. It would thus be reasonable to
conclude that he was paying a high degree of attention to his surroundings. Third, throughout
the long life of this case, including at the independent source hearing, Napoleon has maintained
reasonableness of a state law decision be determined in light of relevant Supreme Court holdings at the time of the
last adjudication on the merits. See Greene v. Fisher, 132 S. Ct. 38, 44 (2011).
that he is certain that Jenkins is the man he saw on the night of the shooting. The third and fifth
Biggers factors are not here indicators of reliability, but the other factors make the state court’s
finding of independent reliability reasonable. Although the decision could have gone the other
way, as Jenkins argues at length based on opposing evidence, I conclude that the state court’s
decision cannot be characterized as unreasonable and thus I may not disturb it on habeas review.
On April 9, 2003, five months before his fourth trial, Jenkins moved in the state
court for permission to call an expert on identification procedures. Specifically, the proposed
expert testimony would relate to the “forgetting curve,” how stress affects identification, the
effect on a witness of repeated viewings in court, the “assimilation factor,” and the disconnect
between witness confidence and the reliability of the identification.
“The right to call witnesses in order to present a meaningful defense at a criminal
trial is a fundamental constitutional right secured by both the Compulsory Process Clause of the
Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.” Washington v.
Schriver, 255 F.3d 45, 56 (2d Cir. 2001) (citations omitted) (noting that the line of cases
regarding the fundamental right of an accused to present a defense “has been applied to the
exclusion of expert witnesses”). “‘Erroneous evidentiary rulings rarely rise to the level of harm
to this fundamental constitutional right’ to present a meaningful defense. Nevertheless, state
evidentiary rules cannot be inflexibly applied in such a way as to violate fundamental fairness.”
Id. (quoting Agard v. Portuondo, 117 F.3d 696, 705 (2d Cir. 1997), rev’d on other grounds, 529
U.S. 61 (2000)).
Whether or not the exclusion of witness testimony rises to the level of a
constitutional violation depends on whether “the omitted evidence evaluated in the context of the
entire record creates a reasonable doubt that did not otherwise exist.” Jones v. Stinson, 229 F.3d
112, 120 (2d Cir. 2000) (alterations, internal quotation marks, and citations omitted).
The state court denied Jenkins’s motion to call an expert, reasoning that there was
other evidence in the case linking Jenkins to the crime, and the Appellate Division determined
that the motion was properly denied. Separate and apart from the extra measure of deference
required by AEDPA, I conclude that the trial court’s decision was not an abuse of its broad
Napoleon’s eyewitness testimony identifying Jenkins was bolstered by the
testimony of three other witnesses at the fourth trial. Gibson, Morgan and Payne testified that
Jenkins had made threats against Reese and asked for information about him after Reese beat up
Jenkins’s nephew. Gibson also testified that Jenkins had admitted shooting Reese. Though other
judges might have decided the matter differently, it was well within the trial court’s discretion to
deny the motion for permission to call an expert witness.
Finally, the question on habeas review is not whether the decision prevented
Jenkins from presenting his defense, but rather whether the state court’s decision that it did not
was unreasonable. It clearly was not.
Jenkins alleges that his rights were violated under Brady when the state failed to
disclose information about Gibson’s court trips and the State’s back-and-forth on whether or not
to call him as a witness and/or enter into a cooperation agreement with Gibson prior to the fourth
trial. Jenkins contends that this evidence shows that Gibson was unwilling to testify without a
cooperation agreement, information the defense could have used to undermine his credibility at
In order to establish a Brady v. Maryland violation, the defendant
must show that (1) the government suppressed favorable evidence,
and (2) the evidence the government suppressed was material. A
defendant cannot satisfy the suppression requirement if the
defendant, directly or through counsel, “either knew, or should
have known, of the essential facts permitting him to take advantage
of [that] evidence.” As for the materiality requirement, “favorable
evidence is material, and constitutional error results from its
suppression by the government, if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” “A ‘reasonable
probability’ is ‘a probability sufficient to undermine confidence in
the outcome’ of the case.”
Lamberti v. United States, 22 F. Supp. 2d 60, 66-67 (S.D.N.Y. 1998), aff’d sub nom.
Badalamenti v. United States, 201 F.3d 430 (2d Cir. 1999) (footnotes and citations omitted).
The state court’s rejection of this claim was not unreasonable. First, defense
counsel knew of the essential facts that would allow him to ascertain the information at issue.
Indeed, counsel independently secured it at a later time. Moreover, the information was not
material. Gibson had provided a written statement to the police about Jenkins’s confession to
him five days after the murder, well before his incentive to curry favor with the prosecutor arose.
When he finally testified, his arrangement with the prosecutor, and the benefit he was to receive
for his testimony, were fully and properly disclosed. The details of his dealings with the
prosecutor prior to and during the first and second trials, in which he did not testify, were
characterized by the Appellate Division as neither exculpatory nor material. That determination
simply was not an unreasonable application of Brady and its progeny. 4
Jenkins also contends that the State’s failure to correct Gibson’s testimony regarding his absence
as a witness at Jenkins’s first two trials was contrary to clearly established federal law. Brady mandates that a
prosecutor avoid soliciting false testimony, and also that he or she not allow it to go uncorrected. See Perkins v.
LeFevre, 642 F.2d 37, 40 (2d Cir.1981). Gibson’s testimony was not false. Though Jenkins has assumed that
Gibson resolved not to testify until securing a benefit for himself, there is no proof of that proposition. As such, I
decline to find that Gibson was untruthful when he testified during cross-examination that it was “not correct” that
“only until and after [he] received a benefit . . . did [he] decide to testify.” Pet.’s Memo. of Law, Ex. A at
Newly Discovered Evidence
Jenkins challenges the state court’s refusal to vacate his conviction based on
Napoleon’s and Gibson’s recantations. However, the state court made detailed factual findings
after a hearing crediting Napoleon’s and Gibson’s testimony. I presume the truth of these
determinations, and in light of the hearing testimony, I find them to be entirely reasonable.
For the reasons stated above, Jenkins’s petition is denied. Because Jenkins has
failed to make a substantial showing that he was denied a constitutional right, no certificate of
appealability shall issue.
John Gleeson, U.S.D.J.
Dated: April 24, 2015
Brooklyn, New York
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