Cheeks v. Griffin
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. I decline to issue a certificate of appealability. Ordered by Judge Edward R. Korman on 6/20/2017. (Kolodin, Zachary)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM & ORDER
– against –
On December 12, 2009, Kevin Cheeks entered the Shiniki Nail Salon in Queens, New
York, announced that he had a gun, and ordered all employees and customers to hand over the
valuables in their possession. The salon’s surveillance camera captured a sharp image of the
articles of clothing Cheeks wore, later recovered from his home, and recorded the time that the
robbery occurred: approximately 12:52 PM to 12:57 PM. Two patrons from a nearby diner were
informed of the robbery and pursued Cheeks as he fled the scene. Both patrons saw Cheeks drive
away erratically in an ambulette, later identified as Cheeks’s assigned work vehicle. The GPS
tracking device in Cheeks’s ambulette shows that at about 12:50 PM, two minutes before the
robbery, the ambulette parked at the intersection in front of the nail salon. The driver turned the
ignition back on at 12:56 PM and the ambulette sped off at 78 miles per hour. Within three hours
of the robbery, Cheeks was arrested.
Following a jury trial, Cheeks was found guilty of three counts of First-Degree Robbery
and was sentenced as a persistent violent felony offender to three concurrent terms of incarceration
of 25 years to life. The Appellate Division affirmed. People v. Cheeks, 107 A.D.3d 1013, 1014
(App. Div. 2013). In his pro se petition for a writ of habeas corpus, Cheeks asserts three grounds
for relief. Each is without merit.
I. Allegedly Suggestive Lineup
On the night of the robbery, the officer assigned to the case, Detective Walter, conducted
a lineup with six individuals, including Cheeks. Tr. Min. 496:15. To avoid an unfairly suggestive
lineup, the police sought individuals that shared certain characteristics with the defendant. Tr. Min.
497:2-9. Because Cheeks is missing at least one tooth and a witness told the detective that the
robber did not have all his teeth, Tr. Min. 14:15-17, when looking for these individuals (also known
as “fillers”), Detective Walter found five men around Cheeks’s height and weight, with a similar
skin color, and he “believed all five” selected were missing teeth. Tr. Min. 502:3-21. The detective
did not memorialize in writing that the fillers did not have teeth nor is there a clear photograph of
all fillers with their mouths wide open. Tr. Min. 14:2-7. Sheng Ying Yu, a customer at the nail
salon, positively identified Cheeks after she asked all members of the lineup to stand up and open
their mouths. Tr. 311:13-21. Although Yu was unsure whether Cheeks’s missing teeth were on the
top or bottom of his mouth, she testified that she could have identified Cheeks in the lineup without
requesting that the fillers open their mouths. Tr. Min. 333:10-13.
Prior to trial, Cheeks’s counsel moved to suppress the lineup identification made by Yu,
arguing that the lineup became suggestive when Yu asked the participants to show their teeth. Tr.
Min. 23:6-13. Specifically, he argued that the evidence failed to confirm that the other fillers shared
Cheeks’s distinctive characteristic and that the lineup was too suggestive if the fillers were not
missing teeth. Tr. Min. 23:14-24. At the hearing, only Detective Walter testified and only four
photographs of the lineup were placed into evidence. SR. 42. The photographs captured Cheeks
and the five fillers from different angles, but in each photograph, all of their mouths remained shut.
SR. 42. Relying on Detective Walter’s testimony, which was found to be credible, Tr. Min. 24:1112, and the four photographs of the fillers with their mouths closed, the trial judge denied the
motion to suppress Yu’s identification. Specifically, he held that “the lineup was not so suggestive
as to result in the likelihood of irreparable misidentification at trial.” Tr. Min. 26:17-20.
Cheeks argues that trial counsel provided ineffective assistance because, in the pre-trial
suppression hearing, he did not offer the photographs of the lineup members smiling. These
photographs were admitted into evidence during the trial. Because they depicted only Cheeks and
one other filler with noticeably missing teeth, Cheeks argues that this array undermined the finding
of the trial judge. The argument that counsel was ineffective for failing to offer the photographs at
the suppression hearing was one of those which the Appellate Division expressly rejected direct
appeal. SR 146. And that holding is entitled to AEDPA deference. Moreover, it fails even without
such deference. Assuming that the failure to introduce this array of photographs satisfies the first
prong of the two-pronged test when determining whether a defendant has been deprived of
effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 687 (1984), the failure to
offer the photographs in question at the suppression hearing does not satisfy the second prong of
Strickland, namely, “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the [trial] would have been different.” Id. at 694. It is hardly clear that the lineup in which
at least two of the six participants were missing teeth would have rendered it so impermissibly
suggestive as to require the suppression of either lineup or the eyewitness identification. Indeed,
in addressing a similar question, the Second Circuit has held that, “it is not required . . . that all of
the photographs in [an] array be uniform with respect to a given characteristic.” Jarret v. Headly,
802 F.2d 34, 40 (citing United States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984)). Thus, in
United States ex rel. Cannon v. Montanye, it observed that “if ‘one or two’ others in [a] five-person
lineup had also worn a shirt of the color the attacker wore, ‘the inference [of undue suggestion]
would weaken very considerably.’” 486 F.2d 263, 268 (2d Cir. 1973).
Moreover, even assuming that Yu’s identification of Cheeks would have been suppressed
had his trial counsel offered the photographic array at issue, there is not a reasonable probability
that a jury would have found him not guilty. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Indeed, the record reveals just the opposite. The evidence at trial was overwhelming. Passing over
the three eyewitness identifications made in court, two eyewitnesses testified to specific and
unique details regarding Cheeks’s getaway vehicle, including the exact text on the ambulette and
its identifying number. Tr. Min. 415:15, 560:22-24. The prosecution presented evidence showing
that Cheeks’s employer assigned Cheeks to be the sole driver of that particular vehicle. Tr. Min.
575:6-9. A GPS tracking device in the ambulette placed the vehicle in a one-block radius of the
salon during the time frame that is virtually identical to the time the salon’s camera recorded the
robbery, Tr. Min. 624:6-15. The tracking device corroborated the eyewitnesses’ claim that the
vehicle sped away erratically from the scene shortly before 1:00 PM. Tr. Min. 625:7-12. The
clothing worn by Cheeks during the robbery, captured by the salon’s security camera, matched
clothing seized in a search of Cheeks’s residence. Tr. Min. 512:17, 517:3-6. Indeed, the
photographic array admitted at trial, and which showed that Cheeks was missing a tooth, provided
yet additional evidence that he was the one who committed the robbery.
II. Alleged Brady/Rosario Violation
A. Ineffective Assistance of Trial Counsel
In a petition pursuant to CPL § 440.10, Cheeks argued that trial counsel provided
ineffective assistance when he ignored an alleged Brady/Rosario violation. See Brady v. Maryland,
373 U.S. 83 (1963); see also People v. Rosario, 9 N.Y.2d 286 (App. Div. 1961). During re-cross
examination of Detective Walter, counsel asked the detective if he made any “scrap notes” while
preparing witness interviews or the follow-up report. Tr. Min. 549:4-5. The detective testified that
he did create “scrap notes,” prompting trial counsel to request to see them. Tr. Min. 549:11. The
prosecution objected to the line of questioning relating to the “scrap notes” as improper re-cross,
and the judge held a sidebar discussion off the record. Tr. Min. 549:12-17. Immediately following
the sidebar discussion, the trial judge asked the assistant district attorney if she had “a copy of that
material that was turned over” to the defense to which the assistant district attorney responded:
“Absolutely, your honor.” Tr. Min. 549:18-20. Defense counsel then withdrew his request and
stated that he had no further questions. Tr. Min. 549:21-24. Neither the assistant district attorney
nor defense counsel mentioned the “scrap notes” during the rest of the trial. This colloquy suggests
that the “scrap notes” were turned over.
Not surprisingly, the alleged failure of the prosecutor to turn over the “scrap notes” was
not raised on direct appeal. The reason was explained to Cheeks in a letter that his appellate lawyer
sent him. The letter stated that, due to an incomplete record, she did not view the prosecutor’s
alleged failure to turn over the detective’s notes – a claim that Cheeks wanted her to pursue – as a
viable issue on appeal. SR. 173. Moreover, she stated that she had spoken with trial counsel who
“believed he either found the scrap notes or the DA gave him the scrap notes.” SR. 173. On this
basis, she decided not to raise the Brady/Rosario claim on direct appeal. Nevertheless, Cheeks
claimed, in a post-trial collateral attack on the judgment of conviction brought pursuant to CPL §
440.10, that his trial counsel was ineffective for being aware of and failing to obtain the “scrap
notes.” SR. 164. The state court judge found “no reasonable possibility” that the assistant district
attorney withheld the “scrap notes.” SR. 247. This finding was based on the trial minutes and the
letter to Cheeks from his appellate counsel. Such a finding can only be rejected by a showing of
“clear and convincing evidence” to the contrary. 28 U.S.C. § 2254(e)(1). Cheeks has not presented
any affirmative evidence to show that the assistant district attorney withheld the notes. Indeed, his
claim now appears to acknowledge that, at the very least, they were turned over at trial.
Thus, in an unsuccessful coram nobis proceeding in the Appellate Division, Cheeks argued
that the “DA gave [defense counsel] the scrap notes” at the sidebar which was held off the record.
SR. 289-90. The claim was not that the notes were not turned over at trial, but they should have
been turned over at an earlier point in the trial, SR. 290, namely, before five of prosecution’s
witnesses, to whom the notes presumably related to, testified. This claim was predicated on the
rule that the “prosecution’s failure to turn over the witnesses’ prior statements constitutes per se
reversible error regardless of prejudice to the defendant.” SR. 290 (Pet’r’s Br. citing People v.
Jones, 70 N.Y.2d 547, 551 (1987)). This argument fails for three reasons.
First, the premise that the failure to turn over a witness’s prior statements constitutes “per
se reversible error” was overruled by the Legislature in 2000. See People v. Martinez, 22 N.Y.3d
551, 593 (N.Y. 2014) (New York Criminal Procedure Law § 240.75 “prohibits reversal where a
defendant has been deprived of Rosario material at a trial or other proceeding absent a reasonable
possibility that the nondisclosure materially contributed to the result”). Second, the record contains
documentary evidence showing that the “scrap notes” were turned over to defense counsel prior
to trial. Specifically, during the pre-trial suppression hearing, the assistant district attorney turned
over a typed list titled “People’s List of Rosario/Discovery Material,” Tr. Min. 12:15-18, and on
that list, “Handwritten notes Det Walter” appeared under the heading “Turned Over at Hearing,”
SR. 39. At no time prior to or during the trial did defense counsel suggest that the assistant district
attorney failed to provide each document on the itemized list. Cheeks has not offered clear and
convincing evidence to support his claims that the notes were either withheld or were turned over
too late. Third, the evidence of Cheeks’s guilt was so overwhelming that it is difficult to envision
how the witnesses’ testimony could have been impeached by the “scrap notes” in a way that would
have affected the verdict.
B. Ineffective Assistance of Appellate Counsel
Nor is there any merit to Cheeks’s argument, which was also made in the unsuccessful
coram nobis proceeding, that his appellate counsel provided ineffective assistance when she
decided not to pursue a claim that trial counsel was ineffective for failing to raise the
Brady/Rosario violation at trial. Specifically, the record shows that after working on Cheeks’s case
for several months and contacting his trial lawyer, appellate counsel determined that because the
substantive conversation relating to the alleged violation occurred off the record, other arguments
were more likely to prevail on appeal. SR. 173. Although appellate counsel’s strategy differed
from Cheeks’s preferred approach, an indigent defendant does not have “a constitutional right to
compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a
matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S.
745, 751 (1983). Appellate counsel’s strategic decision to pursue other claims, formulated after
she diligently assessed the case, surpassed the threshold an attorney must meet to provide
Even if the decision to focus on other claims constituted deficient performance, this
appellate strategy did not prejudice the defense because the claim was not meritorious. Although
defense counsel’s request to see the notes during Detective Walter’s re-cross examination may
suggest that they were not turned over, the trial minutes suggest that they were not withheld. Cf.
Mayo v. Henderson, 13 F.3d 528, 530 (2d Cir. 1994) (record unambiguously reveals that the
prosecution did not give an officer’s notes to the defense until mid-trial). Ambiguity in the record
reduced the likelihood that this claim would have prevailed on appeal. Moreover, to the extent that
any confusion was created by the off the record conversation between the attorneys and the trial
judge, that gap was due to petitioner’s failure to clearly develop the record. Finally, although I
have addressed Cheeks’s ineffective assistance of counsel claims without reference to AEDPA
deference, the “double deference,” Harrington v. Richter, 562 U.S. 86, 105 (2011), of the state
court holdings rejecting his ineffective assistance of counsel claims compels the rejection of those
The petition for a writ of habeas corpus is denied and I decline to issue a certificate of
Brooklyn, New York
June 20, 2017
Edward R. Korman
Edward R. Korman
United States District Judge
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