Kelly v. Lee
MEMORANDUM AND ORDER (REDACTED) : The petition for a writ of habeas corpus is denied. Because Kelly has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment accordingly and to close the case. Ordered by Chief Judge Carol Bagley Amon on 9/22/2014. (Fernandez, Erica)
IN CLE~ OFFICE
U.S. Dl5TRICT COURT E"' 'I y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
+:. SEP 2 2 2014 i1•
NOT FOR PUBLICATION
MEMORANDUM & ORDER
l l-CV-3903 (CBA)
- against WILLIAM A. LEE,
AMON, Chief United States District Judge.
Robert Kelly, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. He seeks to vacate his New York state conviction following ajury trial in
the Supreme Court ofNew York, Kings County, of rape, performing criminal se)(ual acts,
robbery, and petit larceny. For the reasons stated below, Kelly's petition is denied.
I. The Crime and Prosecution
At appro)(imately 12:30 a.m. on July 30, 2005, OL and George Santiago, while sitting in
OL's car, were approached by four individuals who informed OL and Santiago that they were
being robbed. OL and Santiago were directed to get in the back seat; forced to close their eyes
and hand over their property, including their wallets and cellular telephones; and were then
transported to 1495/1499 East 46th Street in Brooklyn, NY, where Kelly and Kelly's brother
resided at the time. There, OL was repeatedly se)(ually assaulted. After appro)(imately an hour
and a half, OL and Santiago were let go, and they later went to the police to report what had
happened. The police arrested Kelly, Raynold Voltaire, Yashika Cochrane, Etzer Edmee and
Gerdzer Edmee (the "Edmee brothers") in connection with these crimes.
A. Pre-trial Hearing
Kelly was tried in Kings County Supreme Court in January 2007. On January 4, 2007,
the court held a pre-trial hearing pursuant to People v. Huntley. 15 N.Y.2d 72 (1965) and
Dunaway v. New York, 442 U.S. 200 (1979) to determine whether Kelly's post-arrest statements
should be suppressed. During this hearing, counsel for Kelly argued that the court should also
conduct a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967). Specifically, one of
the trial witnesses, Beverly Johnson--who identified Kelly as one of the individuals she saw
around the apartment complex at the time OL was sexually assaulted--had identified Kelly after
the police presented her with a photo array. (Jan. 4, 2007 Hr'g Tr. at 2-3, 30-31.) The
government argued that Johnson knew Kelly from the 149511499 East 46th Street apartment
complex, where they both resided, and a Wade hearing was therefore not necessary. (Id. at 3,
31.) Defense counsel asserted that Kelly did not know anyone from the building and that his
time living there had only been temporary. (Id. at 3.)
During the pre-trial hearing, Detective Steven Litwin testified that he met with Johnson
on August 13, 2005. (Id. at 32.) Johnson told Detective Litwin that she knew Kelly as the
brother of one of her neighbors in the apartment complex, and knew that Kelly's nickname was
"Boo." (Id. at 33.) Detective Litwin further testified that Johnson told him that in the month
before the alleged crimes she had seen Kelly around the apartment complex with his male
accomplices-the Edmee brothers and Voltaire. (Id.) Johnson further stated that she saw Kelly
numerous times during that month-long period. (Id.) Detective Litwin then showed Johnson a
photo array and Johnson identified Kelly, stating "Number I. That's Boo." (Id. at 35.) At the
conclusion of the hearing, the court found that "the People have met their burden of proof as far
as the Dunaway/Huntley and even the - although this was not scheduled - the Wade portion of
this hearing is concemed." 1 (Id. at 36.)
Trial commenced on January 9, 2007. Santiago and OL testified as to the events of July
30, 2005. They both testified that on July 30, 2005, they were sitting in OL's car, a white 2004
Altima, when at approximately 12:30 a.m. a woman approach the driver's side of the car and
asked what time it was. (Jan. 9, 2007 Tr. ("Trial Tr.") at 94-95, 244-45.) Men then approached
the passenger side of the car and said something to the effect of"this is a robbery." (Id. at 9697.) OL and Santiago were instructed to get into the back of the car and four individuals got into
the car, with a man in the driver's seat. (Id. at 97, 246.) OL and Santiago were instructed to
close their eyes and hand over their possessions, including wallets, cell phones and jewelry. (Id.
at 98, 247.) The man in the driver's seat asked OL how much money she had on her ATM card
and forced her to provide her pin code. (Id. at 100, 250.) OL and Santiago were then driven to
another location, at which time several of the individuals got out of the car. (Id. at 100, 251.)
After the individuals came back to the car, OL and Santiago were driven to a second location and
taken out of the car with towels over their heads so they were unable to see. (Id. at 101, 251.)
Santiago and OL were led down stairs and taken to two separate rooms. (Id. at 102, 252.)
OL testified that four men then repeatedly sexually assaulted her. (Id. at 252-56.) After
approximately an hour and a half, Santiago and OL were taken back to the car and driven to
another location. (Id. at 105, 258.) The towels were taken off their heads but they were told not
Although referred to as "the Wade portion" of the hearing, it appears that the hearing was held pursuant
to People v. Rodriguez, 79 N.Y.2d 445 (1992). See Stallings v. Woods, No. 04-CV-4714(RLM), 2006
WL 842380, at *16 n.17 (E.D.N.Y. Mar. 27, 2006) ("In New York, a Rodriguez hearing is held in lieu of
a Wade hearing when the prosecution alleges that, by virtue of a prior relationship between a witness and
the defendant, the witness is 'impervious to police suggestion,' and her identification is therefore
untainted by an otherwise suggestive pretrial identification procedure." (quoting Rodriguez, 79 N.Y.2d at
to open their eyes until they counted to 200. M at I 05, 258.) OL testified that they waited
several minutes before opening their eyes and they subsequently notified the police. (Id. at 259.)
OL was treated at Coney Island Hospital that day. Connie Sestito, a certified sexual assault
forensic examiner at Coney Island Hospital, testified that she examined OL and found evidence
of forcible sexual assault. (Id. at 373.)
Yashika Cochrane, one of Kelly's accomplices, also testified at trial. Cochrane had
entered into a cooperation agreement with the government pursuant to which she pleaded guilty
to attempted robbery in the second degree in exchange for her testimony against Kelly and other
individuals involved in the July 30, 2005 crimes. M at 400-03.) She testified that Kelly, who
she knew by the nickname "Boo," had planned the robbery on the afternoon of July 29, 2005.
(Id. at 383-84.) That evening, Cochrane left with Kelly, Kelly's brother, and the Edmee brothers
to find someone to rob. (Id. at 386.) When they saw Santiago and OL in the car, Kelly directed
Cochrane to go up to the car and ask for the time. (Id. at 388-89.) Santiago and OL were then
told to get in the back of the car and Cochrane, the Edmee brothers, and Kelly got into the car,
with Kelly in the driver's seat. (Id. at 390.) Cochrane testified that the car made two stops, the
second of which was the apartment complex where Kelly lived. (Id. at 393.) Santiago and OL
were taken into the basement and Cochrane did not see OL again. Mat 394.) Cochrane was
then instructed to wipe down the car and when she returned to the basement, she saw that
Raynold Voltaire had come out of his apartment. (Id. at 394-95.) Kelly then gave Cochrane
money and she left the apartment building. (Id. at 395-96.)
Raynold Voltaire, another one of Kelly's accomplices, also testified at trial. Voltaire had
similarly entered into a cooperation agreement with the government, pursuant to which he
pleaded guilty to rape in the first degree in exchange for his testimony. (Id. at 157-59.) He
testified that he was the superintendent of the 1495/1499 East 46th Street apartment complex
where OL was assaulted, and where Kelly resided for a period of time. (Id. at 112.) He testified
that he knew Kelly only by the nickname "Boo," and that early in the morning of July 30, 2005
he was awoken in his apartment and told to come to the maintenance room. (Id. at 134-35.)
There, he witnessed Kelly raping OL. (Id. at 137-39, 146.) He testified that he and the Edmee
brothers also raped OL in the maintenance room. (Id. at 143-44.) Voltaire further testified that,
after OL and Santiago were released, he went to 7-Eleven with Kelly, where they used OL's
ATM card. (Id. at 149-50.) He identified Kelly as one of the individuals in the photographs
derived from the 7-Eleven surveillance video. (Id. at 165-67.) The government entered into
evidence both the surveillance video and the photographs derived from the video. (Id. at 16163.)
In addition, Kelly's neighbor, Beverly Johnson, testified that she saw a white carsimilar to OL's-parked outside the 1495/1499 East 46th Street apartment complex around 2
a.m. the morning of July 30, 2005. (Id. at 443-46.) She testified that she saw Voltaire and Kelly,
who she knew as "Boo," on the ground floor of the apartment complex near the maintenance
room, and that the light in the maintenance room was on. (Id. at 444.) Johnson identified Kelly
in court as the individual she saw the morning of July 30, 2005. (Id. at 448.)
Detective Mark Sandow from the Crime Scene Unit testified that, on August 2, 2005, he
searched the basement of the 1495/1499 East 46th Street apartment complex and found a number
of items, including two condoms just outside the maintenance room and a number of cigarette
butts inside the maintenance room. Mat 230.) Mary Quigg, an expert in the field of forensic
biology employed at the Office of the Chief Medical Examiner, testified that she found Kelly's
DNA on the inside of one of the condoms, (id. at 325-26), despite the fact that Kelly had
previously told police that he had never had sex there, (id. at 272-73). Additionally, Quigg
testified that she found Kelly's DNA on two of the cigarette butts recovered from the
maintenance room. (Id. at 339.)
Detective Litwin, who interviewed Kelly after his arrest, testified that Kelly told him he
had been temporarily living at the 1495/1499 East 46th Street apartment complex, but that he
also had an apartment at 218 St. James Place in Brooklyn, NY. (Id. at 273.) On August 3, 2005,
Detective Steven Litwin and Detective Christopher Potenza searched Kelly's apartment at
1495/1499 East 46th Street. (Id. at 276-77.) Detective Litwin testified that there, he found a pair
of grey men's Puma sneakers and a New York Yankees baseball cap, which he stated "appeared .
. . [to be] the items that the defendant wore when he was depicted in surveillance photos from the
7-Eleven store on Utica Avenue." (Id. at 277.) He also testified that he saw various items,
including a pair of new sneakers, a digital camera, and a bowling ball, which OL testified had
been stolen from her car. (Id. at 260, 276-277.) Detective Litwin testified that he and Detective
Potenza then left to secure a search warrant, but failed to properly secure the apartment. When
Detective Litwin returned to the apartment on August 4, all of the items had been removed. (Id.
On August 5, 2005, Detective Potenza and Detective Marage searched Kelly's other
residence with the permission of Kelly's wife. Detective Potenza testified that he found a pair of
sneakers at the second apartment, which were identical to the pair that went missing from the
first apartment. (Id. at 437.) OL corroborated this testimony, testifying that the sneakers found
at Kelly's apartment were identical to those worn by one of her rapists. (Id. at 264-65.)
At the conclusion of the trial, the jury convicted Kelly of four counts of Rape in the First
Degree, N.Y. Penal Law §130.35(1), seven counts of Criminal Sexual Act in the First Degree,
N.Y. Penal Law§ 130.50(1), two counts of Robbery in the Second Degree, P.L. § 160.10(1), and
seven counts of Petit Larceny, N.Y. Penal Law§ 155.25.
Kelly was sentenced on February 2, 2007. The trial court found that, pursuant to New
York Penal Law§ 70.08, Kelly was a persistent violent felony offender based on two of his
previous convictions: a 1982 conviction for Robbery in the First Degree and a 1987 conviction
for Rape in the First Degree. (Feb. 2, 2007 Hr'g Tr. at 4-5.) Accordingly, the trial court was
required to impose an indeterminate sentence of imprisonment, with a maximum term of life
imprisonment. N.Y. Penal Law§ 70.08(2). Kelly was sentenced to consecutive indeterminate
prison terms of25 years to life on each count of rape, criminal sexual act, and robbery, and a!year prison term on each of the petit larceny counts. (Feb. 2, 2007 Hr'g Tr. at 14.)
II. Direct Appeal
Kelly timely appealed his conviction to the Appellate Division, Second Department and
raised four arguments on appeal. First, he claimed that the trial court denied him due process
when, based on Detective Litwin's testimony during the pre-trial hearing, it ruled that Johnson
was so well acquainted with Kelly that her photo array identification was merely confirmatory,
and accordingly did not hold ahearing pursuant to United States v. Wade, 388 U.S. 218 (1967).
Second, Kelly argued that he was denied due process and the right to a fair trial when Detective
Litwin testified at trial that Kelly was one of the individuals in the photographs derived from the
7-Eleven surveillance video. Third, Kelly argued that he was denied effective assistance of
counsel when his trial attorney failed to make objections on these two grounds at trial. Fourth,
Kelly argued that the enhancement of his sentence pursuant to New York's persistent violent
felony offender statute violated his right to a jury under Apprendi v. New Jersey, 530 U.S. 466
(2000). (See App. Br., D.E. # 7-1.)
On November 4, 2009, the Appellate Division affirmed Kelly's judgment of conviction.
People v. Kelly. 67 A.D.3d 706 (2d Dep't 2009). The Appellate Division found three of Kelly's
four claims to be unpreserved and, in any event, without merit. The only claim the Appellate
Division did not reject as unpreserved was Kelly's ineffective assistance of counsel claim; the
court denied this claim on the basis that Kelly received meaningful representation at trial. Id. at
707. The New York Court of Appeals denied petitioner's application for leave to appeal on
March 29, 2010. People v. Kelly, 14 N.Y.3d 802 (2010).
On June 30, 2011, Kelly filed this timely petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 seeking to vacate his conviction on largely the same grounds he raised on
direct appeal. Specifically, Kelly argues in his § 2254 petition that (1) the trial court violated his
due process rights by denying him a Wade hearing; (2) he was denied due process and a fair trial
when Detective Litwin identified Kelly as one of the individuals in photographs derived from the
7-Eleven surveillance video; (3) he received ineffective assistance of counsel when his trial
counsel failed to object to Detective Litwin's trial testimony identifying Kelly in one of the
photographs; and (4) the enhancement of his sentence under the persistent violent felony
offender statute violated his right to ajury under Apprendi. (See Habeas Pet., D.E. # 1.) For the
reasons set forth below, Kelly's habeas petition is denied.
I. Procedural Default
As an initial matter, with the exception of his ineffective assistance of counsel claim, all
of Kelly's claims are procedurally defaulted. "Ordinarily, a federal habeas court may not reach
the merits ifthe state court's rejection of a federal claim 'rests on a state law ground that is
independent of the federal question and adequate to support the judgment."' Clark v. Perez, 510
F.3d 382, 390 (2d Cir. 2008) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). When
a state court rejects a claim on the basis that petitioner failed to comply with a state procedural
rule, that procedural ground may constitute an independent and adequate state law ground which
bars federal habeas review. See Coleman, 501 U.S. at 729-30, 750. A state procedural bar is
adequate to support the judgment if the state rule "is firmly established and regularly followed."
Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 376
(2002)). However, "in certain limited circumstances, even firmly established and regularly
followed state rules will not foreclose review ofa federal claim ifthe application of the rule in a
particular case is 'exorbitant."' Id. at 713-14 (quoting Lee, 534 U.S. at 376).
Here, the Appellate Division rejected three of the four claims Kelly advances in his
habeas petition because, pursuant to New York's contemporaneous objection rule, they were
unpreserved for appellate review. The contemporaneous objection rule requires that a party
seeking to preserve a claim of error at trial must "protest ... at the time of such ruling or
instruction or any subsequent time when the court had an opportunity of effectively changing the
same." N.Y. Crim. Proc. Law§ 470.05(2); see also Whitley v. Ercole, 642 F.3d 278, 286 (2d
Cir. 2011) (explaining that the contemporaneous objection rule requires "'at the very least, that
any matter which a party wishes' to preserve for appellate review be 'brought to the attention of
the trial court at a time and in a way that gave [it] the opportunity to remedy the problem and
thereby avert reversible error."' (quoting People v. Luperon, 85 N.Y.2d 71, 78 (1995))). Relying
on this rule, the Appellate Division rejected Kelly's claims that (I) the trial court erred in
declining to conduct a Wade hearing, (2) he was denied a fair trial when Detective Litwin
identified Kelly as one of the individuals in the photographs derived from the 7-Eleven
surveillance video, and (3) his adjudication and sentence as a persistent violent felony offender
violated his right to a jury under Apprendi. 2 People v. Kelly, 67 A.D.3d 706, 706-07 (2d Dep't
It is well-established that New York's contemporaneous objection rule is an independent
and adequate state law ground that bars federal habeas review. See Whitley, 642 F.3d at 286-87.
Given that trial counsel never raised these three claims before the trial court, the Appellate
Division properly applied New York's contemporaneous objection rule to these claims and they
are therefore procedurally defaulted. 3 The fact that the Appellate Division found, in the
alternative, that these three claims were without merit does not alter this result. See Galdamez v.
Keane, 394 F.3d 68, 77 (2d Cir. 2005) ("[W]here a state court explicitly says that a particular
claims fails for a procedural reason, but still reaches the merits, that claim remains procedurally
barred."); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 n.4 (2d Cir. 2000).
To overcome this procedural default, Kelly must show (I) "cause for the procedural
default and prejudice resulting therefrom," Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991), or
(2) "that he is actually innocent of the crime for which he has been convicted," Dunham v.
Although the Appellate Division did not cite to a statute or case law in finding Kelly's Apprendi claim
unpreserved, the Court assumes this ruling was based on the contemporaneous objection rule. Kelly did
not raise his Apprendi claim at sentencing, and Apprendi claims are subject to the contemporaneous
objection rule. See Ortiz v. Bradt, No. 13-CV-5420(BMC), 2013 WL 5775695, at *2 (E.D.N.Y. Oct. 25,
2013) (finding habeas petitioner's Apprendi challenge to New York's persistent violent felony offender
statute procedurally defaulted when Appellate Division rejected claim as unpreserved under the
contemporaneous objection rule, which constituted an independent and adequate state law ground).
Moreover, there is no indication that the Appellate Division's ruling on this ground was interwoven with
federal law. See. e.g., Ferguson v. Walsh, No. 09-CV-1575(DLI), 2011WL1527973, at *6 (E.D.N.Y.
Apr. 20, 2011) (finding Appellate Division's determination that Apprendi claim was unpreserved did not
bar federal habeas review because, in making this determination, the Appellate Division cited People v.
Rosen, 96 N.Y.2d 329 (2001), a case in which the procedural ruling was interwoven with the court's
rejection of the federal law claim on the merits).
The Court notes that although trial counsel did initially argue that the trial court should hold a Wade
hearing, (Jan. 4, 2007 Hr'g Tr. at 3, 3 I), trial counsel never objected to the trial court's ruling that the
People had satisfied their burden during the Rodriguez hearing based on Detective Litwin 's testimony,
(id. at 36).
Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).
Kelly argues that he has established cause for the procedural default, and resulting prejudice, on
the basis of his ineffective assistance of counsel claim. (Pet' r's Reply, D.E. # 8 at 4.) The Court
notes, however, that Kelly's habeas petition only raises ineffective assistance of counsel with
respect to his trial counsel's failure to object to Detective Litwin's trial testimony in which he
identified Kelly as one of the individuals in the 7-Eleven surveillance video. (See Habeas Pet. at
7 .) He does not argue in his habeas petition that his counsel was ineffective for failing to argue
either that(!) Detective Litwin's testimony at the pre-trial hearing was insufficient to establish
that Johnson's photographic identification of Kelly was merely confirmatory, 4 or (2) Kelly's
adjudication as a persistent violent felony offender was unconstitutional under Apprendi. 5
Accordingly, Kelly has not established cause and prejudice for those two procedurally defaulted
Even to the extent Kelly argues that his counsel was ineffective for failing to object to
Detective Litwin's trial testimony, Kelly has not satisfied the requirements of Strickland v.
Washington, 466 U.S. 668 (1984), to show that he received ineffective assistance of counsel on
this basis, as set forth more fully below. Although ineffective assistance of counsel may
establish cause, "[a]ttomey error short of ineffective assistance of counsel" does not. Murray v.
Kelly, through appellate counsel, made this argument on direct appeal, but he has not raised it in the
instant habeas petition. Indeed, in response to the government's argument that Kelly's Wade claim is
procedurally defaulted, Kelly argues that it is not procedurally defaulted because his counsel did initially
request a Wade hearing, (Pet'r's Reply at 1-2); this argument suggests that Kelly does not believe his
counsel was ineffective during the pre-trial hearing.
Even assuming Kelly argued in his habeas petition that his counsel was ineffective for failing to object
to the enhancement of his sentence based on Apprendi, this would not establish cause for the procedural
default because he did not raise an ineffective assistance of counsel claim on this basis on direct appeal.
See Gibson v. Phillips, 263 F. App'x 78, 80 (2d Cir. 2008) ("[I]neffective assistance ofcounsel 'must be
presented to the state courts as an independent claim before it may be used to establish cause for a
procedural default."' (quoting Edwards v. Carnenter, 529 U.S. 446, 451-52 (2000))).
Carrier, 477 U.S. 478, 492 (1986). Kelly therefore has not established cause for his failure to
contemporaneously object to the admission of Detective Litwin's trial testimony.
Moreover, Kelly has failed to establish that he is "actually innocent" of the crimes for
which he was convicted. A petitioner "asserting innocence as a gateway to defaulted claims
must establish that, in light of new evidence, it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518,
536-37 (2006) (internal quotation marks and citation omitted). "[T]o be credible, a gateway
claim requires new reliable evidence-whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not presented at trial." House, 547
U.S. at 537 (internal quotation marks and citation omitted).
Kelly has presented this Court with no evidence that he is actually innocent. To the
extent Kelly requests a hearing before this Court to present evidence of his actual innocence, (see
Pet'r's Reply at 5), he has provided no description of the alleged evidence of his actual
innocence. Although "courts retain discretion to order an evidentiary hearing to assist in the
development of evidence of actual innocence" that would permit an otherwise procedurally
barred claim to be heard on the merits, "such a hearing is only justified ifthere is 'substantial
support' for [the petitioner's] evidence." Diaz v. Bellnier, 974 F. Supp. 2d 136, 141 (E.D.N.Y.
2013) (citations omitted); see Lopez v. Miller, 906 F. Supp. 2d 42, 53 (E.D.N.Y. 2012) (granting
evidentiary hearing on petitioner's gateway claim of actual innocence when he presented
evidence that the main witness for the prosecution subsequently recanted her testimony; the only
other witness described the perpetrator with characteristics very different from petitioner; and
two people provided alibis for petitioner). Because Kelly's habeas petition and his reply to the
government's opposition contain no support whatsoever for the alleged evidence of his actual
innocence, his request for a hearing is denied. Further, Kelly's failure to provide any support for
his alleged actual innocence, coupled with the evidence of his guilt adduced at trial, forecloses
the conclusion that he is factually innocent of the crimes for which he was convicted. The claims
found unpreserved on direct appeal are therefore barred from habeas review.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "a district court
shall entertain an application for a writ of habeas corpus in behalf of a person ... only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). A district court, moreover, may not grant the writ "with respect to
any claim ... adjudicated on the merits in State court proceedings" unless that ruling is either ( 1)
"contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," or (2) "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)(l)-(2); see also Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Henry v.
Poole, 409 F.3d 48, 67 (2d Cir. 2005). Courts consider a claim "adjudicated on the merits" when
the state court found the claim to be unpreserved and, in any event, without merit. See Zarvela v.
Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (finding state court's alternative holding on the merits
entitled to AEDPA deference).
A ruling on the merits is "contrary to" clearly established Supreme Court precedent "if it
arrives at a conclusion opposite to that reached by th[ e] Court on a question oflaw ... or decides
a case differently than th[ e] Court has on a set of materially indistinguishable facts." Williams,
529 U.S. at 412-13. An "unreasonable application" of clearly established Supreme Court
precedent occurs when "the state court identifies the correct governing legal principle from th[e]
Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
at 413. In determining whether an application is unreasonable, "the question is not whether a
federal court believes the state court's determination was incorrect but whether that
determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550
U.S. 465, 473 (2007); see also Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009).
Although the Court finds that the majority of Kelly's claims are barred by the procedural
default rule, these claims, as well as his ineffective assistance of counsel claim, are also without
merit as set forth below.
A. Trial Court's Denial of Kelly's Request for a Wade Hearing
Kelly alleges that the trial court denied him due process by (I) relying on Detective
Litwin's testimony in determining that Johnson's familiarity with Kelly rendered her pre-trial
identification of Kelly merely confirmatory; and (2) based on this testimony, declining to hold a
Wade hearing with respect to Johnson's pre-trial identification of Kelly. (Habeas Pet. at 6.)
In United States v. Wade, the Supreme Court recognized the "grave potential for
prejudice" in pre-trial eyewitness identifications. 388 U.S. 218, 236-237 (1967). The Supreme
Court has emphasized, however, "that due process concerns arise only when law enforcement
officers use an identification procedure that is both suggestive and unnecessary." Perrv v. New
Hampshire, 132 S. Ct. 716, 724 (2012) (citing Manson v. Brathwaite, 432 U.S. 98, 107 (1977)).
Accordingly, "[t]he purpose of a Wade hearing is to determine ... whether pre-trial
identification procedures have been so improperly suggestive as to taint an in-court
identification." Twitty v. Smith, 614 F.2d 325, 333 (2d Cir. 1979) (citing Wade, 388 U.S. at
242). Under New York law, a Wade hearing is not necessary for pre-trial identifications in
which "the protagonists are known to one another" because, in this situation, "suggestiveness is
not a concern," and the identification is "merely confirmatory." People v. Rodriguez, 79 N.Y.2d
445, 452 (1992). If the government alleges that no Wade hearing is necessary on this basis, "[a]
Rodriguez hearing is held to determine whether ... the witness had sufficient familiarity with the
defendant to eliminate the issue of police suggestiveness in the identification process." Allan v.
Conway. No. 08-CV-4894(JFB), 2012 WL 70839, at *23 (E.D.N.Y. Jan. 10, 2012) (citation
Here, during the pre-trial hearing, the People argued that a Wade hearing was
unnecessary because Johnson was sufficiently familiar with Kelly from the apartment complex
where they both resided, rendering her identification of Kelly during the photo array merely
confirmatory. (Jan. 4, 2007 Hr'g Tr. at 2-3.) The trial court subsequently held what was
effectively a Rodriguez hearing, although it did not explicitly state that it was doing so, and
heard testimony from Detective Litwin regarding Johnson's statements about her familiarity with
Kelly. (Id. at 32-36.) During Detective Litwin's pre-trial hearing testimony, the People also
introduced the photo array itself. (Id. at 34-35.) The trial court determined that the People had
satisfied their burden as to "the Wade portion of the hearing," (iQ, at 36), and Johnson then
identified Kelly at trial as one of the individuals she saw on July 30, 2005 near the maintenance
room around the time OL was assaulted.
Notably, the record of the pre-trial hearing does not indicate that counsel for Kelly argued
that the photo array was somehow suggestive, (id. at 3-4, 30-32), and Kelly has not advanced any
argument regarding suggestiveness in his habeas petition, nor did he raise this argument in his
direct appeal to the Appellate Division. Rather, he argues that the trial court denied him due
process when it relied on Detective Litwin's testimony to establish Johnson's familiarity with
Kelly, instead of requiring testimony directly from Johnson. This argument is meritless. It is
well-established under federal law that hearsay is admissible during pre-trial suppression
hearings. 6 See United States v. Matlock, 415 U.S. 164, 172-73 (1974) ("[T]he rules of evidence
normally applicable in criminal trials do not operate with full force at hearings before the judge
to determine the admissibility of evidence."); see also Barnes v. Burge, No. 03-CV-1475(NGG),
2008 WL 4646172, at *4 (E.D.N.Y. Oct. 20, 2008) (finding that habeas petitioner's "claim
regarding hearsay statements improperly admitted at the pre-trial Wade hearing must be denied
because hearsay is generally admissible at pre-trial hearings to determine the admissibility of
evidence."); Espinal v. Duncan, No. OO-CV-4844(RWS), 2000 WL 1774960, at *3 n.l (S.D.N.Y.
Dec. 4, 2000) (stating that habeas petitioner's claim that hearsay was improperly admitted during
a Wade hearing, although unexhausted, was also "erroneous as a matter of law because hearsay
is admissible in suppression proceedings").
Further, Kelly argues generally that the trial court denied him due process in declining to
hold a Wade hearing. Although a Wade hearing "may often be advisable," the Supreme Court
has stated that there is no per se constitutional rule requiring a pre-trial Wade hearing. Watkins
v. Sowders, 449 U.S. 341, 349 (1981); see also Dunnigan v. Keane, 137 F.3d 117, 128-29 (2d
Cir. 1998) ("Where there is a contention that the pretrial identification was the result of
impermissibly suggestive procedures, a Wade hearing is advisable; but the Supreme Court has
made it clear that there is no 'per se rule compelling such a [hearing] in every case."' (abrogated
on other grounds by Perry v. New Hampshire, 132 S. Ct. 716 (2012)) (quoting Watkins, 449 U.S.
at 349)); Alvarez v. Fischer, 170 F. Supp. 2d 379, 385 (S.D.N.Y. 2001) ("[T]he Wade hearing
does not derive from mandatory constitutional rule but rather is a discretionary procedure
Although on federal habeas review, courts will not determine whether the state court properly applied
state law, the Court notes that hearsay is also admissible during pre-trial hearings under New York state
Jaw. See N.Y. Crim. Proc. Law§ 710.60(4).
grounded on the reliability of the identification evidence at issue."). Accordingly, Kelly's
argument that the trial court denied him due process in declining to hold a Wade hearing fails.
Even assuming Kelly alleged that the photo array was impermissibly suggestive and
Johnson's in-court identification of Kelly therefore denied him due process, this argument would
be similarly unavailing. As an initial matter, the Appellate Division found that Kelly's claim that
the trial court erred in not holding a Wade hearing was meritless because "the record of the
Rodriguez hearing ... supports the hearing court's determination that the witness was
sufficiently familiar with the defendant so that her photographic identification of the defendant
was merely confirmatory." People v. Kelly. 67 A.D.3d 706, 706-07 (2d Dep't 2009). This
ruling constitutes adjudication on the merits, and this Court's review is therefore limited to
whether the Appellate Division's ruling was contrary to, or an unreasonable application of,
clearly established federal law. 7
"Supreme Court precedent clearly identifies 'reliability' as 'the linchpin in determining
the admissibility of identification testimony."' Wiggins v. Greiner, 132 F. App'x 861, 864 (2d
Cir. 2005) (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). The reliability inquiry
proceeds in two steps: (1) "[t]he court must first determine whether the pre-trial identification
procedures unduly and unnecessarily suggested that the defendant was the perpetrator"; and (2)
ifthe court finds that the procedures were unnecessarily suggestive, "it must then determine
whether the identification was nonetheless independently reliable." Brisco v. Ercole, 565 F.3d
80, 88 (2d Cir. 2009) (citations omitted).
To the extent Kelly attempts to argue that the state court erred in finding that the prosecution had
established at the pre-trial hearing that Johnson's identification was "merely confirmatory" pursuant to
People v. Rodriguez, 79 N.Y.2d 445 (1992), this issue of state law is not cognizable on federal habeas
review. See Wiggins v. Greiner, 132 F. App'x 861, 865 n.3 (2d Cir. 2005)("Whether the challenged
photo display in this case clearly qualifies as a confirmatory identification is an issue of state law not
relevant to our habeas review." (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991))). The Court
therefore focuses on the relevant standards under federal law.
Here, the Appellate Division's determination was not contrary to, or an unreasonable
application of, clearly established federal law. Regardless of the procedure used in connection
with the photo array shown to Johnson-the circumstances of which Kelly has not provided to
this Court-Johnson's identification was independently reliable. Detective Litwin testified at the
pre-trial hearing that Johnson had seen Kelly at the apartment complex "numerous times" over
the course of a month prior to the crime. (Jan. 4, 2007 Hr' g Tr. at 34.) It was also established,
by testimony from both Detective Litwin and Johnson, 8 that Johnson knew Kelly by his
nickname "Boo," (id. at 33-34; Trial Tr. at 444)-the same nickname by which both Cochrane
and Voltaire knew Kelly. Further, Johnson testified that she knew Kelly as the brother of her
neighbor in the 1495/1499 East 46th Street apartment complex, where she had lived for five
years. (Trial Tr. at 443-47.) Based this evidence, Johnson's identification of Kelly was
independently reliable in light of her familiarity with Kelly. See Wiggins, 132 F. App'x at 865
(rejecting habeas petitioner's claim that eyewitness's trial identification of petitioner as the
murderer was tainted by suggestive pre-trial display of a single photograph when witness "had
seen [petitioner] in the neighborhood two or three times per week over a period of seven
months," and the witness's "independent ability to identify [petitioner] was demonstrated in an
even more convincing manner: he provided his name."). Accordingly, Johnson's identification
did not violate Kelly's due process rights.
A court may look to the evidence adduced at trial in affirming a court's ruling at a pre-trial hearing even
if that evidence was not presented at the pre-trial hearing, which, here, includes Johnson's trial testimony.
See Wiggins, 132 F. App'x at 865 (concluding "from the totality of the circumstances evidenced by both
the suppression hearing and trial records that the eyewitness had sufficient independent basis for making a
reliable in-court identification"); United States v. Canieso, 470 F.2d 1224, 1226 (2d Cir. 1972) (stating
that "settled law" permitted affirmance of a suppression ruling based on evidence "adduced at trial" but
"not presented at the pretrial hearing").
B. Trial Testimony of Detective Litwin
Kelly further alleges that he was denied due process and a fair trial when Detective
Litwin was permitted to testify at trial that Kelly was one of the individuals in the photographs
derived from the 7-Eleven surveillance video. Kelly argues that Detective Litwin had "no better
basis" than the jury for deciding whether Kelly was in fact the person in the photographs, and
therefore should not have been permitted to give his opinion on this issue. (Habeas Pet. at 7.)
Specifically, Detective Litwin's testimony on this point was as follows:
All right. When you entered into [defendant's apartment at
1495/1499 East 46th Street], what, if anything, did you see?
I saw a box which contained a blue bowling bag and a
bowling ball inside the bag. I saw a digital camera. And I saw a
pair of Nike Jordan sneakers in that box. I also saw a pair of men's
sneakers, which were gray with a black stripe, Puma sneakers. I
also saw a New York Yankees baseball cap. It appeared that the
cap and the sneakers were the items that the defendant wore when
he was depicted in surveillance photos from the 7-Eleven store on
Detective, you had just mentioned surveillance photographs
from a 7-Eleven. Are those blowups of items that you were
Yes, they are.
[Referring to a picture of the sneakers found in Kelly's apartment]
What do you recognize those to be?
I recognize these sneakers to be the sneakers on the defendant's
feet [in the photograph derived from the 7-Eleven surveillance
(Trial Tr. at 277-78.) On direct appeal, the Appellate Division rejected this claim on the basis
that it was unpreserved but, in the alternative, also found it to be without merit because "any
error in permitting that testimony was harmless, as there was overwhelming evidence of the
defendant's guilt, and no significant probability that the defendant would have been acquitted
absent that testimony." People v. Kelly, 67 A.D.3d 706, 707 (2d Dep't 2009).
A state court's evidentiary determinations are generally not cognizable on habeas review,
see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), "unless the challenged evidentiary rulings in
the state proceedings affect the fundamental fairness of those proceedings," McKinnon v.
Superintendent, Great Meadow Corr. Facility, 422 F. App'x 69, 73 (2d Cir. 2011) (citing
DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004)). "The erroneous admission of
evidence rises to a deprivation of due process under the Fourteenth Amendment only if the
evidence in question 'was sufficiently material to provide the basis for conviction or to remove a
reasonable doubt that would have existed on the record without it."' Johnson v. Ross, 955 F.2d
178, 181 (2d Cir. 1992) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1986)).
Regardless of whether Detective Litwin's testimony was admissible under New York
evidentiary rules, 9 the testimony, viewed in light of the entire record, was not sufficiently
material to provide the basis for conviction or remove a reasonable doubt that would have
otherwise existed. Aside from Detective Litwin' s testimony that assumed Kelly was one of the
individuals in the photographs derived from the 7-Eleven surveillance video, Voltaire testified
that he went to the 7-Eleven with Kelly and similarly testified that Kelly was one of the
individuals in the photographs. (Trial Tr. at 149, 163-67.) Moreover, the record at trial
contained other evidence linking Kelly's clothing to clothing worn by one of the individuals in
the photographs: a picture of the sneakers recovered from Kelly's apartment was admitted into
The trial court's exclusion of similar testimony from Detective Potenza suggests that, if counsel had
objected to Detective Litwin's testimony, it would have been excluded. (See Trial Tr. at 434 (sustaining
objection to Detective Potenza's testimony that he "saw clothing [in the basement apartment] ... that
seemed to be the same clothing that [he] observed in a surveillance camera video.").)
evidence, which the jurors themselves were able to compare to the 7-Eleven photographs in the
record, (id. at 278, 308-09, 437), and Johnson testified that she saw Kelly wearing a baseball cap
on the morning of July 30, 2005, (id. at 445).
Beyond evidence placing Kelly at the scene of the 7-Eleven where OL's ATM card was
used, Kelly's participation in all of the crimes was amply established by: the testimony of
Cochrane and Voltaire, who both testified as to Kelly's involvement; the testimony of Beverly
Johnson, who saw Kelly near the maintenance room in the basement of the apartment complex
around the time OL was being sexually assaulted on July 30, 2005, (id. at 444); OL's testimony
regarding the shoes worn by one of her assailants, (id. at 264); and the DNA evidence recovered
from in and around the maintenance room, (id. at 325-26, 339). In light of the strength of the
evidence against Kelly, the Court cannot conclude that he was deprived of a fundamentally fair
trial when Detective Litwin identified Kelly as one of the individuals in the photographs derived
from the surveillance video.
C. Ineffective Assistance of Counsel
Related to his claim that Detective Litwin's identification testimony at trial denied him
due process, Kelly argues that his counsel's failure to object to this testimony constituted
ineffective assistance of counsel. (Habeas Pet. at 7.) This claim was also raised on direct appeal
and the Appellate Division rejected it on the merits, finding that Kelly's attorney had provided
meaningful representation. 10 People v. Kelly, 67 A.D.3d 706, 707 (2d Dep't 2009).
On direct appeal, Kelly, through appellate counsel, also argued that trial counsel was ineffective for
failing to object to the court's ruling that no Wade hearing was necessary because Johnson, who identified
Kelly during a photo array, was sufficiently familiar with Kelly. (App. Br. at 39.) Although the
government's opposition to Kelly's habeas petition also addresses this ineffective assistance of counsel
claim, (see Gov't Opp. at 33-35), the Court notes that this claim is not raised in Kelly's habeas petition
and his petition does not incorporate by reference his appellate brief. Although federal courts liberally
construe a prose litigant's filings, the Court will not read into Kelly's habeas petition entire claims he has
not raised, even though they were raised before the Appellate Division. See Beatty v. United States, 293
Claims of ineffective assistance of counsel are governed by the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires that a defendant show (I) that
counsel's representation was deficient, meaning that it "fell below an objective standard of
reasonableness"; and (2) "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 688, 694. Because the Appellate
Division adjudicated the merits of Kelly's ineffective assistance of counsel claim, Kelly must
prove that the state court either applied a rule that contradicts, or constitutes an unreasonable
application of, this clearly established federal law. Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir.
2010). The Appellate Division in the instant case applied the New York state standard for
ineffective assistance of counsel. The first prong of the New York standard tracks the first prong
of Strickland, but the second prong differs from Strickland in that "'prejudice' is examined more
generally in the context of whether defendant received meaningful representation."' Rosario,
601 F.3d at 125 (quoting People v. Benevento, 91N.Y.2d708, 713 (1998)).
The Second Circuit has repeatedly emphasized that the New York standard for ineffective
assistance of counsel is not contrary to Strickland and, accordingly, Kelly can only prevail on
this claim ifhe establishes that the state court unreasonably applied Strickland. See Rosario, 601
F.3d at 126 (citing Henry v. Poole, 409 F.3d 48, 70 (2d Cir. 2005)). In order to show that the
state court unreasonably applied Strickland it is not sufficient to show that the requirements of
Strickland are satisfied . .!knry, 409 F.3d at 67. Rather, there must be "an increment of
incorrectness beyond error." Rosario, 601 F.3d at 126 (internal quotation marks and citation
F.3d 627, 632-33 (2d Cir. 2002) (finding abandoned claims that were initially presented in prose§ 2255
habeas petition, but were not subsequently mentioned in pro se petitioner's affidavits seeking a certificate
of appealability). Even if the Court were to address this omitted ineffective assistance of counsel claim, it
would find it to be without merit for the same reasons Kelly's other ineffective assistance of counsel
claim is denied.
Here, Kelly cannot satisfy the requirements of Strickland, let alone show that there was
some "increment of incorrectness beyond error" that renders the Appellate Division's
determination unreasonable. Even assuming trial counsel's failure to object to Detective
Litwin's trial testimony was objectively unreasonable, there is no reasonable probability that, but
for this error, the result at trial would have been different. As discussed above with respect to
Kelly's claim that Detective Litwin's identification of Kelly in the surveillance video denied him
due process and a fair trial, in light of the other evidence of Kelly's guilt there is not a reasonable
probability that the exclusion of this testimony would have caused the jury to reach a different
result. See Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005) ("[W]here there is
overwhelming evidence of guilt, even serious errors by counsel will not warrant granting a writ
of habeas corpus."). Accordingly, counsel's failure to object to this testimony did not constitute
ineffective assistance of counsel, and the Appellate Division's rejection of Kelly's ineffective
assistance of counsel claim was not an unreasonable application of Strickland.
D. Persistent Violent Felony Offender
Finally, Kelly argues that the enhancement of his sentence pursuant to New York's
persistent violent felony offender statute, New York Penal Law § 70.08, 11 violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), because it was based on findings made by the judge, rather
than a jury. (Habeas Pet. at 9.) The Appellate Division, although finding that this claim was
Section 70.08 mandates an enhanced prison sentence for a persistent violent felony offender, which is
defined as "a person who stands convicted of a violent felony offense ... after having previously been
subjected to two or more predicate violent felony convictions." In determining if an individual has two or
more predicate violent felony convictions, the court must look to section 70.04, which requires that the
sentence for the previous conviction "must have been imposed not more than ten years before
commission of the felony for which the defendant presently stands convicted" and provides that, in
calculating this ten year time period, the period is tolled for "any period of time during which the person
was incarcerated." N.Y. Penal Law§ 70.04(b)(iv)-(v).
unpreserved, also found that "in any event, [it] is without merit." People v. Kelly, 67 A.D.3d
706, 707 (2d Dep't 2009).
The Appellate Division's alternative holding was not contrary to, or an unreasonable
application of, clearly established federal law. Pursuant to Apprendi, "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530
U.S. at 490 (emphasis added). Section 70.08, which imposes an enhanced sentence based solely
on the court's finding of qualifying prior convictions, falls within Apprendi's explicit holding
that the fact of a prior conviction need not be submitted to a jury. Even to the extent the
persistent violent felony offender statute requires the court to make a determination as to whether
the previous convictions occurred within the preceding ten years and, if necessary, to conduct a
tolling analysis, this does not violate clearly established federal law. See United States v.
Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (stating that Apprendi allows a judge to "determine
the 'who, what, when, and where' of a prior conviction"); see also Washington v. Graham, 355
F. App'x 543, 545 (2d Cir. 2009) (rejecting habeas petitioner's claim that section 70.08 violates
Apprendi because adjudication of petitioner as a persistent violent felony offender did not violate
clearly established federal law). Accordingly, Kelly's claim on this basis is denied. 12
The Court notes that courts in this Circuit routinely reject Apprendi challenges to New York's
persistent violent felony offender statute. See. e.g., Chambers v. Conway, No. 09-CV-2175(JGK), 2011
WL 2226956, at *12 (S.D.N.Y. June 8, 2011); Adelman v. Ercole, No. 08-CV-3609(RJD), 2010 WL
3210718, at *5 (E.D.N.Y. Aug. 12, 2010); Boutte v. Poole, No. 07-CV-8412(GEL), 2008 WL 3166696, at
*3 n.5 (S.D.N.Y. Aug. 4, 2008) (collecting cases rejecting Apprendi challenges to section 70.08).
The petition for a writ of habeas corpus is denied. Because Kelly has failed to make a
"substantial showing of the denial of a constitutional right," a Certificate of Appealability shall
not issue. 28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment accordingly
and to close the case.
Dated: September 22, 2014
s/Carol Bagley Amon
ca:oiBaJey ~ --?
Chief United States District Judge
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