Dawkins v. William

Filing 10

ORDER: The 1 Petition for a Writ of Habeas Corpus is denied. Because petitioner has failed to make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the Court declines to issue a Cert ificate of Appealability. In addition, this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith. The Clerk of Court is directed to enter judgment accordingly. SO ORDERED by Senior Judge Allyne R. Ross, on 5/2/2012. C/mailed by Chambers. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

F'L~~'CE

~COURT E..D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

u;. MAYO 2· 20\2 *
x

BROOKLYN OFfICE
ll-CV-356 (ARR)

LUKE DAWKINS,

NOT FOR ELECTRONIC
OR PRINT PUBLICAnON

Petitioner,
-against-

ORDER
WILLIAM LEE,
Respondent.

x
ROSS, United States District Judge:
On January 10,2011, Luke Dawkins ("petitioner"), appearing pro se, filed a petition for a
writ of habeas corpus challenging his criminal conviction pursuant to 28 U.S.C. § 2254. In his
petition, he claims that the state court improperly precluded certain cross-examination of the
police officers who testified at his pretrial hearing, held pursuant to United States v. Wade, 388
U.S. 218 (1967). For the reasons stated below, the petition is denied.

BACKGROUND
Following a bench trial, petitioner was convicted of murder in the second degree, in
violation of New York Penal Law § 125.25[1], and of criminal possession ofa weapon in the
second degree, in violation of New York Penal Law § 265.03[2]. At trial, evidence was adduced
that, at approximately 4:30 a.m. on September 18, 2006, petitioner shot and killed Anton Green,
his friend and housemate, in the presence of Ann Marie Joseph ("Joseph"). The evidence
demonstrated that Joseph had spent approximately four hours in petitioner's company
immediately prior to the shooting and that, during that time, petitioner showed Joseph a
document listing his full name and a prior manslaughter conviction. After shooting Green,
petitioner fled downstairs, and Joseph saw him trying to exit through the back door of the house

vir

and heard him saying that he needed to get rid of the gun. Joseph then left the house, returned to
the shelter where she was living, slept for a period of time, and called the police after she woke
up. Joseph identified petitioner in a photo array later that day. Two other individuals also
identified petitioner from the same photo array. The following day, after petitioner had
surrendered himself to the police, Joseph picked petitioner out of a lineup.
Before trial, petitioner moved for the suppression of the identifications. On December
19,2007, and February 20, 2008, the court held a Wade hearing on petitioner's motion. At the
hearing, Detectives Lee Abrahall and Kevin Stoecker testified about the conduct of the photo
arrays and lineup. On the basis of their testimony, which the court credited in all relevant and
pertinent aspects, the court made the following findings of fact in a written decision:
On September 18, 2006, as part of a homicide investigation, Det. Abrahall
assembled a photographic lineup that contained six photographs. One photograph
depicted defendant; the other five photographs depicted individuals from the
photograph manager system that contained photographs of all arrestees in the City
of New York. From thousands of individuals who matched defendant's basic
physical characteristics, Det. Abrahall selected photographs of five individuals
who closely resembled defendant. Detective Abrahall placed defendant's
photograph in position number one.
On that date, at approximately 12:15 a.m., at the 103 rd Pct. Detective
Squad, Det. Abrahall met with a witness who had lived in the same home with
defendant for one year. The detective explained that he would be shown an array
of six photographs. He asked the witness to indicate whether he recognized
anyone in the photo array. The witness identified the person he knew as "Luke."
At approximately 12:40 a.m., Det. Abrahall conducted another
photographic lineup procedure with a second witness using the same photo array.
Before showing the photo array to the second witness, Det. Abrahall made a pen
marking on the left side of the neck of each individual depicted in the photo array.
He again explained the procedure to the witness, who identified the defendant as
the person known to her as "Luke."
On September 18, 2006, at approximately 1:20 p.m., Det. Abrahall
conduced a third photographic lineup procedure. Detective Stoecker explained
the procedure to the third witness, and the witness identified defendant.

2

On September 19,2009, at approximately 11 :30 p.m., Det. Abrahall
conducted a lineup at the 103rd Pet. Detective Squad. Defendant and five other
male fillers were seated on a bench in the interview room. Each one wore an
orange windbreaker jacket and cap. Defendant was seated in position number six
at the request of his attorney, who was also present.
Detective Abrahall explained to the second witness who had viewed the
photo array that she would be viewing a lineup and should let him know if she
recognized anyone. When the witness viewed the lineup, Det. Abrahall asked her
if she recognized anyone. She identified the defendant and stated that she
recognized him as the person who had shot Anthony.
Dkt. No.9, Ex. 1 at 1-2. Joseph was the "second witness" who identified petitioner both in the
photo array and in the lineup.
The court denied suppression of the identifications. The court noted that "[a]n
identification procedure violates due process only if it is conducted in such a manner that there is
a 'very substantial likelihood of irreparable misidentification'~' and stated that it had examined
the photographic arrays that were shown to the witnesses. Id. at 3 (quoting Neil v. Biggers, 409
U.S. 188, 198 (1972). On the basis of that examination, it concluded that their composition was
not suggestive because the individuals depicted were sufficiently similar to defendant in general
physical appearance to negate any likelihood of misidentification. Id. The court similarly found
that the lineup fillers had characteristics that were sufficiently similar to defendant and that the
lineup was not suggestive. Id. at 4.
For the purposes ofthis petition, it is necessary to review some of the detectives'
testimony at the Wade hearing. During cross-examination of Detective Abrahall, petitioner
attempted to elicit information about what transpired in the investigation before the photo array
was assembled, including which witness or witnesses had given descriptions of the perpetrator,
what the witnesses had said in their interviews with the detectives, and whether any of the
witnesses had mentioned petitioner's name or indicated that they knew petitioner. Hearing

3

Transcript at 18-24. The court sustained objections to these questions and explained that the
court's role was to decide whether the photo arrays and lineup were suggestive and that the
information petitioner was seeking to elicit was irrelevant in that regard. Id. at 21-22,24. When
asked on cross-examination, Detective Abrahall testified that he did not recall that either of the
first two witnesses had given an identifying tattoo as part of the description of the perpetrator.
Id. at 30.
During the hearing, petitioner also questioned the detectives about whether the witnesses
had any contact with one another. The detectives testified that, to their knowledge, none of the
witnesses came into contact with one another while they were at the precinct. Id. at 27, 61.
Detective Abrahall indicated that Joseph was free to leave the precinct at any time between her
viewings of the photo array and lineup but remained in an interview room, leaving with a female
police officer to use the bathroom when needed, for the entire day. Id. at 32-34. The interview
room was on the other side of the building from the room into which petitioner was placed when
he arrived in the precinct. Id. at 35-36.
After the judge issued his decision on the suppression motion, the case proceeded to a
bench trial, which commenced on September 23,2008. At trial, Joseph testified, in relevant part,
that she had identified petitioner in the lineup from having seen him the night before, and she
made an in-court identification of petitioner. Trial Transcript at 148, 163. Petitioner was
convicted of both charges and, on October 23,2008, was sentenced to prison terms of twentyfive years to life on the murder count and ten years on the weapons-possession count, to be
served concurrently. Sentence Transcript at 17.
Petitioner thereafter appealed his conviction. On appeal, he argued that the court
overseeing the Wade hearing improperly precluded petitioner from exploring whether the

4

identification procedures conducted with Joseph were suggestive. In particular, he argued that
the court improperly precluded him from questioning the police officers regarding (1) the
description given of the perpetrator that was used to create the photo array and (2) possible
communications that occurred among and between witnesses and police officers during the
identification procedures. See Def. 's Appellate Brief. The Appellate Division affirmed the
conviction and held that the Supreme Court did not improvidently exercise its discretion in
restricting the scope of the cross-examination of the police officers at the suppression hearing.
People v. Dawkins, 71 A.D.3d 782 (2d Dept. 2010). Petitioner applied for permission to appeal
to the New York Court of Appeals, which denied leave to do so on May 28,2010. People v.
Dawkins, 14 N.Y.3d 887 (2010). Petitioner subsequently filed the instant habeas petition.

DISCUSSION
I.

Standard of Review
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDP A") established a

deferential standard that federal habeas courts must apply when reviewing state court
convictions. 28 U.S.C. § 22S4(d). The statute provides, in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(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.
Id. Here, petitioner does not argue that the adjudication of his claims "resulted in a decision that
was based on an unreasonable determination of the facts in light of the evidence presented in the

5

State court proceeding," so at issue is only whether the state court's decision resulted in a
decision involving an unreasonable application of clearly established Federal law. Id.
The statutory language "clearly established Federal law, as determined by the Supreme
Court ofthe United States" refers to "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). A state court decision is "contrary to" clearly established Supreme Court
precedent if "the state court applies a rule that contradicts" Supreme Court precedent or if "the
state court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from that precedent." Id. at 405-06.
With respect to the "unreasonable application" clause, "a federal habeas court ... should ask
whether the state court's application of clearly established federal law was objectively
reasonable." Id. at 409. An "objectively unreasonable" application lies somewhere between
"merely erroneous and unreasonable to all reasonable jurists." Francis S. v. Stone, 221 F.3d 100,
109 (2d Cir. 2000). "Where a state court's decision is unaccompanied by an explanation, the
habeas petitioner's burden still must be met by showing there was no reasonable basis for the
state court to deny relief." Harrington v. Richter, 131 S. Ct. 770, 784 (2011).

II.

The Wade Hearing Did Not Involve an Unreasonable Application of Clearly
Established Federal Law
Petitioner argues that he is entitled to habeas relief because the state court erroneously

limited his questioning of the police officer witnesses who testified at the Wade hearing. Pet. at
6. As he did in his direct appeals, petitioner claims that he was wrongly precluded from asking
certain questions about the description of the perpetrator used to create the photo array and about
possible communications between the witnesses and the police officers. Because petitioner's
arguments before the state courts focused solely on how the precluded testimony might have

6

uncovered problems with the photo array procedures conducted with Joseph, only this claim is
exhausted, and the court will construe his petition in this limited fashion. Having reviewed the
record, the court finds no grounds on which to grant relief.
Because it is well-established that "federal habeas corpus relief does not lie for errors of
state law," Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citation and internal quotation marks
omitted), the court shall construe petitioner's claim as alleging that the state court's preclusion of
certain questioning at the Wade hearing violated his right to present a complete defense.
"Supreme Court precedent makes clear that a criminal defendant is entitled by the Constitution to
a meaningful opportunity to present a complete defense." Wade v. Mantello, 333 F.3d 51,57
(2d Cir. 2003); see Crane v. Kentucky, 476 U.S. 683, 690 ("The Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.") (citations and internal
quotation marks omitted). "A defendant's right to present relevant evidence is not, however,
unlimited; rather it is subject to 'reasonable restrictions,'" including those established by the
rules of evidence. Wade, 333 F.3d at 59 (quoting United States v. Scheffer, 532 U.S. 303, 308
(1998). Moreover, where, as here, the state appellate court found that the trial court properly
exercised its discretion in ruling on evidentiary matters, habeas relief is available only if this
court first finds that the appellate court's determination of the evidentiary issue was objectively
unreasonable. Id. at 59-60.
In the instant case, the Appellate Division found proper the trial court's decision to curtail
testimony about which witnesses had described the perpetrator, what the witnesses said in their
discussions with police, and whether any of the witnesses had mentioned petitioner's name or
indicated that they knew petitioner. The court does not find this determination to be objectively
unreasonable. When the trial judge explained that he did not find such information relevant to

7

his determination of whether the photo array was suggestive, defense counsel responded that it
was also necessary for the court to decide whether the procedure itself was fair, and the court
permitted counsel to proceed with questioning targeted at this objective. Hearing Transcript at
21-22. However, as respondent notes, defense counsel did not thereafter ask what descriptive or
other information the witnesses provided to police about the perpetrator. Instead, defense
counsel continued with questions about where police obtained the information that factored into
preparing the photo array. Id. at 22. As such, petitioner is incorrect in arguing that he was
improperly precluded from questioning the police officers about the description used to create
the photo array. Petitioner's claim that he was incorrectly prevented from questioning the police
about the interactions that occl,lITed between and among the witnesses and police officers is also
belied by the record, as both officers testified freely about their interactions with the witnesses
and stated that, to their knowledge, the witnesses had no contact with one another.
Nor does the court see how the questions that were actually precluded could have
ferreted out relevant information that would establish that the photo array was suggestive.
Petitioner, in his appellate brief, speculated that the precluded questions might have shown that
the composition of the array was suggestive because the answers to those questions might have
revealed that a witness had described, to police, a salient feature that distinguished petitioner
from others in the photo array. Appellate Brief at 18. However, a review of the photo array that
was shown to Joseph reveals no feature of the salient sort that, in the cases cited in petitioner's
appellate brief, were deemed to be overly suggestive. See id. at 18-19. All of the participants in
the photo array were African American males in their twenties; they had closely shaven hair,
comparable builds, and similar markings on their necks; and petitioner's clothing did not
distinguish him from the others in the array. As such, petitioner cannot establish that the state

8

court's resolution of these evidentiary issues was an objectively unreasonable application of
clearly established Supreme Court law, and habeas relief is not available.
CONCLUSION

The petition for a writ of habeas corpus is denied. Because petitioner has failed to make
a "substantial showing of the denial ofa constitutional right," 28 U.S.C. § 2253(c)(2), the court
declines to issue a certificate of appealability. In addition, this court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith. Coppedge v. United
States, 369 U.S. 438,444-445 (1962). The Clerk of Court is directed to enter judgment
accordingly.
SO ORDERED.

/S/

Dated:

May~Oll
Brooklyn, New York

9

SERVICE LIST:

Petitioner:
Luke Dawkins
08-A-5816
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582