Hathaway v. Burge
Filing
14
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 6/28/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CHARLES E. HATHAWAY,
DECISION AND ORDER
No. 09-CV-0738T
Petitioner,
-vsJOHN BURGE,
SUPERINTENDENT
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Charles E. Hathaway(“Petitioner”) has filed
a timely petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging the constitutionality of his custody pursuant to
a judgment entered November 23, 2004, in New York State, Supreme
Court, Monroe County (Joseph D. Valentino, J.), convicting him,
after a jury trial, of Murder in the Second Degree (N.Y. Penal Law
(“Penal Law”) § 125.25 [1]) and Criminal Possession of a Weapon in
the Second Degree (Penal Law former § 265.03 [2]).
Petitioner was
sentenced to an indeterminate term of imprisonment of twenty-five
years to life.
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
II.
Factual Background and Procedural History
The charges arise from a shooting incident that occurred on
September 22, 2002 near 700 South Plymouth Avenue in Rochester,
-1-
New York, wherein Bruce Coley (“Coley”) was killed by a gunshot
wound to the head.
Sakin Mohamed (“Mohamed”), the sole eyewitness to the crime,
testified that on September 22, 2002, at approximately 1:10 a.m.,
he was sitting on the balcony above the store where he worked at
675 South Plymouth.
Trial Trans. [T.T.] 635, 637.
From this
vantage point, he could see the parking lot of a Sunoco gas station
where Coley, whom he knew as “Dees,” was riding a bicycle.
639, 640, 722.
T.T.
Mohamed saw Petitioner come from between two
buildings and begin shooting at Coley.
T.T. 641, 643.
Coley tried
to escape in a van that was at the gas station, but he was shot
while in the van.
T.T. 643-644.
Coley then got out of the van, at
which point he was shot once again and fell to the ground.
644.
T.T.
Mohamed recognized Petitioner as a customer at his store,
whom he knew as “7-Up.”
T.T. 650, 722-723.
On the day of the crime, Rochester Police Investigator John
Dianni
met
procedures.
with
Hr’g
Mohamed
and
Mins.
[H.M.]
conducted
of
two
05/19/04
identification
18-19.1
First,
Investigator Dianni performed a “general MoRIS query,” whereby he
entered the suspect’s description into a computer system that then,
one at a time, displayed images of people who had been arrested and
1
A Wade/Huntley hearing was held over the course of several days
starting on May 19, 2004 and continuing to June 22, 2004. Developments, which
are discussed in further detail below, relating to Mohamed’s identification
between then and the trial resulted in additional hearing proceedings in
October 2004.
-2-
who matched that description. H.M. of 05/19/04 19. Mohamed viewed
approximately 200 photographs in the MoRIS query, but did not
identify the perpetrator in any of them.
H.M. of 05/19/04 19, 30.
Mohamed then told Investigator Dianni that the perpetrator was
a customer at the store where he worked, whom he knew as “7-Up.”
H.M. of 05/19/04 20, 32, 37.
Investigator Dianni then searched
another database for the moniker “7-Up,” obtained the name of a
possible suspect, and then included that person’s photograph into
a photo array.
H.M. of 05/19/04 20, 33.
Investigator Dianni
showed Mohamed the array, telling him that the person he saw shoot
Coley “may or may not be within the array, but just look at it.”
H.M. of 05/19/04 21.
The array had six photographs, matching the
description of a “male black, 6'3”, approximately 250” in the range
of 20-25 years old.
H.M. of 05/19/04 21.
Investigator Dianni did
not speak to Mohamed as he viewed the array or suggest which
photograph Mohammed should pick.
H.M. of 05/19/04 22.
Mohammed
picked out Petitioner’s photograph and stated that he was “7-Up,”
the man he saw shoot Cooley.
H.M. of 05/19/04 22-23, 36.
When Petitioner was brought in for questioning almost one year
later, on August 8, 2003, he waived his Miranda rights and spoke
with investigators.
15.
H.M. of 05/19/04 67-68;
H.M. of 06/22/04 13-
Petitioner gave a written statement to police in which he
admitted that, at approximately 11:00 p.m. the night before the
shooting, he had an argument with Coley because they were both
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selling marijuana in the area.
Petitioner claimed that Coley hit
him from behind, causing him to fall to the ground and lose
consciousness.
T.T. 795.
According to Petitioner, after he
regained consciousness, he left, went home to bed, and woke up the
next morning.
Indiana.
T.T. 795-796.
The next day, he left for Gary,
Petitioner claimed that he was not involved in the
shooting and that he avoided contact with the police because he
“thought [he] had a warrant for a child custody issue.”
T.T. 796.
At trial, Mohamed identified Petitioner in court as the
shooter.
T.T. 651.
However, between his original identification
of Petitioner as the perpetrator on the date of the shooting and
his identification of Petitioner at trial, Mohamed vacillated, as
discussed below, with respect to Petitioner’s identity as the
shooter.
The April 16, 2004 Letter to ADA Splain
By letter dated April 16, 2004, Mohamed told ADA Kristin
Splain “that he wasn’t sure anymore about who did the shooting.
And then, upon further questioning with Ms. Splain, he indicated he
was scared.”
Mins. of 10/7/04 3; see also Resp’t App. C at 45.
Thereafter, ADA Splain requested a protective order to prevent
disclosure to the defense of Mohamed’s personal information on the
basis that he was “petrified” of Petitioner.
H.M. of 05/19/04 8, 13.
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T.T. of 05/11/04 14;
The October 5, 2004 Discussion with ADA Chase
On October 5, 2004, Mohamed came to the office of Assistant
District Attorney Ann Chase, who had taken over the prosecution
from ADA Splain, to discuss the upcoming trial.
Mohamed told ADA
Chase that the perpetrator had come into his store four days
earlier and the person he identified in the photo array looked like
the perpetrator but was not him because the perpetrator was not in
jail.
T.T. of 10/7/04 4;
see also Resp’t App. C at 46.
The October 8, 2004 Line-Up
On October 8, 2004, ADA Chase arranged for Mohamed to view
a lineup that included Petitioner.
T.T. of 10/8/04 7.
not pick anyone out of the lineup.
Mohamed did
T.T. of 10/12/04 2.
On
October 12, 2004, the People requested an adjournment of one day to
discuss the matter with Mohamed on the basis that Mohamed was
“indicating that the reason he gave the information last week in
connection with the interview with Ms. Chase and the line-up was
that he was scared.
He’s currently indicating that [Petitioner]
was, in fact, the individual he saw do the killing.”
10/12/04 9.
The court granted the adjournment.
T.T. of
T.T. of 10/12/04
13.
The Events Following the October 8, 2004 Lineup
On October 13, 2004, in open court, the prosecutor stated,
“last night we spent time
with the witness, Sakin Mohamed, as well
as with an Arabic interpreter.
This is the first time that an
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Arabic interpreter has been used in conversations with Mr. Mohamed.
Based on conversations with Mr. Mohamed through the interpreter, we
are confident that the witness is telling the truth about what
happened on September 22, 2002.”
T.T. of 10/13/04 3-4.
The
defense then requested an extension of the Wade hearing to address
the contact between Mohamed and law enforcement after the line-up.
T.T. of 10/13/04 13.
The Supplemental Wade Hearing
At
the
supplemental
Wade
hearing,
Investigator
Weather
testified that he was present on October 8, 2004, when Mohamed
viewed a line-up at the Sheriff’s Office.
H.M. of 10/13/04 6-7.
Each of six individuals approached the one-way glass, “making
quarter turns until they completed a full turn and then returned to
their position in line.”
H.M. of 10/13/04 8-9.
Mohamed viewed the
lineup and then asked for Number 2 to come forward again.
10/13/04 10.
H.M. of
Investigator Galetta asked if Mohamed recognized
anyone in the lineup and Mohamed said “no, not really.”
H.M. of
10/13/04 10.
H.M. of
Petitioner was Number 3 in the lineup.
10/13/04 10, 11.
unduly suggestive.
The defense stipulated that the lineup was not
H.M. of 10/13/04 57.
Investigator Weather met with Mohamed on October 12, 2004, in
ADA Chase’s Office. H.M. of 10/13/04 12. Investigator Weather had
been told that, earlier that day, Mohamed had given “conflicting
accounts of some information regarding the line-up.”
-6-
H.M. of
10/13/04 12.
Investigator Weather “explained to [Mohamed] that he
needed to be completely honest with both [ADA Chase and him] and be
truthful.
It didn’t matter what the truth was; [they] just need to
hear from him what he actually knew about this case.”
10/13/04 12.
H.M. of
Mohamed then “admit[ted] that he asked to see Number
2 again, but that he thought it might be Number 3.”
H.M. of
10/13/04 13.
Later that evening, Investigator Weather met Mohamed again at
the Public Safety Building.
H.M. of 10/13/04 13.
Through an
interpreter, Investigator Weather explained to Mohamed that he was
“unable to ascertain the reasons he was vacillating from his
original account of what had happened until [sic] the account from
yesterday that [they] learned.”
H.M. of 10/13/04 14.
Through the
interpreter, Mohamed said that he had lied about two things: “that
he saw [sic] the individual he identified earlier in his store four
days prior to the lineup, and that he told us that he didn’t
recognize anyone in the lineup.
3; I knew it all along.
He said, to his God, it was Number
That he was scared to tell [them].
He was
afraid that this individual was going to come to his store with his
friends or have his friends come to the store and harm him or his
family.”
H.M. of 10/13/04 15-16.
Mohamed testified that he had no further conversation about
the October 8, 2004 lineup after it took place.
34.
H.M. of 10/14/04
On October 9, 10, and 11, he did not speak with anyone from
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law enforcement about the lineup or about the case.
10/14/04 35-36.
H.M. of
On October 12, 2004, he was brought to the police
station by a man who indicated to Mohamed that he knew nothing
about the case.
H.M. of 10/14/04 37.
The only other conversation
he recalled having with this man about the case consisted of him
admitting to the man that he was “anxious” and “a lot tense” about
the approaching trial, but that he was “here now to say everything
and the truth.”
H.M. of 10/14/04
37, 51.
Mohamed then met with
ADA Chase and Investigator Weather at ADA Chase’s office.
10/14/04 40-41.
H.M. of
At that time, Mohamed told Investigator Weather
that, although he said it was Number 2 in the October 8, 2004
lineup, it was really Number 3.
H.M. of 10/14/04 Vol. 4 41-42.
When asked why he had said this, he explained that he was “very,
very tense and anxious with the line-up.”
H.M. of 10/14/04 42.
Mohamed testified that he further explained to Investigator Weather
that, when he realized that he was the only witness who had come
forward, his religious duty as a Muslim demanded that he witness
it.
H.M. of 10/14/04 43, 53-54, 62.
Later that day, Investigator Weather took Mohamed back to the
police department and they spoke through an interpreter.
10/14/04 44-45.
H.M. of
Investigator Weather explained that he wanted
Mohamed “to say only the truth.”
H.M. of 10/14/04 45.
Mohamed
again explained that he had misidentified Number 2 in the lineup
and “did it on purpose.”
H.M. of 10/14/04 45.
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Mohamed testified
that he was never threatened in any way to change his mind about
what he had seen in the lineup.
H.M. of 10/14/04 46.
At the close of the supplemental Wade hearing, the court
determined that there was no undue suggestiveness and therefore
denied
Petitioner’s
identification.
motion
to
preclude
Mohamed’s
in-court
H.M. of 10/14/04 70.
A jury trial was conducted before Judge Valentino over the
course of a six-day period.
At the close of the trial, Petitioner
was found guilty of Murder in the Second Degree and Criminal
Possession
of
a
Weapon
in
the
Second
Degree.
T.T.
1014.
Petitioner was sentenced to an indeterminate term of imprisonment
of twenty-five years to life on the murder conviction, and a
determinate term of fifteen years with five years of post-release
supervision on the weapons conviction. Sentencing Mins. [S.M.] 1617.
Petitioner
Appellate
appealed
Division,
his
Fourth
judgment
of
Department,
affirmed on October 3, 2008.
conviction
which
was
to
the
unanimously
People v. Hathaway, 55 A.D.3d 1286
(4th Dep’t 2008); lv. denied, 11 N.Y.3d 925 (2009).
No collateral motions were filed.
This habeas corpus petition followed, wherein Petitioner seeks
relief on the basis that “[his] conviction was obtained through
unreliable
and
unnecessarily
suggestive
-9-
prior
identification
procedures and pressure upon the single identification witness,
that violated [his] due process.”
Pet. ¶ 22A (Dkt. No. 1).
III. General Principles Applicable to Habeas Review
A.
The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “resulted in a decision that was contrary to, or
involved
an
Federal
law,
unreasonable
as
application
determined
by
the
of,
clearly
Supreme
established
Court
of
the
United States,” 28 U.S.C. § 2254(d)(1), or if it “was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2).
A state
court 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.”
362, 413 (2000).
Williams v. Taylor, 529 U.S.
The phrase, “clearly established Federal law, as
determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner’s claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision.
Williams, 529 U.S. at 412;
-10-
accord Sevencan
v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540
U.S. 1197 (2004).
A
state
court
decision
is
based
on
an
“unreasonable
application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case.
also id. at 408-10.
Williams, 529 U.S. at 413;
see
“[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.”
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Aparicio v.
Rather, “[t]he state
court’s application must reflect some additional increment of
incorrectness such that it may be said to be unreasonable.”
Id.
This increment “need not be great; otherwise, habeas relief would
be limited to state court decisions so far off the mark as to
suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct.
The [petitioner]
shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1);
see
also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (“The
presumption of correctness is particularly important when reviewing
the trial court’s assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003).
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A state
court’s findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
B.
Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .” 28 U.S.C.
§ 2254(b)(1)(A);
843-44 (1999);
see, e.g., O’Sullivan v. Boerckel, 526 U.S. 838,
accord, e.g., Bossett v. Walker, 41 F.3d 825, 828
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion
requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S.
1048 (1984).
IV.
Petitioner’s Claim
Petitioner contends, as he did on direct appeal, that “[his]
conviction
was
obtained
through
unreliable
and
unnecessarily
suggestive prior identification procedures and pressure upon the
single identification witness, that violated [his] due process.”
Specifically, he claims that the conduct of the police and the
prosecutor
after
the
October
-12-
8,
2004
line-up
was
unduly
suggestive.2
See Pet. ¶ 22A; see also Pet’r Br. on Appeal.
In a
detailed, thorough explanation and review of the record on appeal,
the Appellate Division, Fourth Department rejected this claim on
the merits.
See Hathaway, 55 A.D.3d at 1287-1288.
As discussed
below, this claim is meritless.
A pre-trial identification is only inadmissible as unduly
suggestive if it was so unreliable as to raise “a very substantial
likelihood
of
irreparable
misidentification.”
Brathwaite, 432 U.S. 98, 116 (1977).
Manson
v.
Thus, the admission of
testimony concerning a suggestive identification procedure does not
violate
due
process
so
long
as
sufficient aspects of reliability.
the
identification
Id. at 114.
possesses
Moreover, “[e]ven
an impermissibly suggestive pre-trial identification procedure does
not render an identification inadmissible in court if, considering
the totality of the circumstances, there is sufficient evidence of
reliability apart from the tainted identification.”
Artuz, 113 F. Supp. 2d 327, 337 (E.D.N.Y. 2000).
Ortiz v.
If there is such
evidence, “the identification is admissible independent of the
suggestive nature of the pretrial identification.”
Manson, 432 U.S. 98;
Id., citing
Neil v. Biggers, 409 U.S. 188 (1972); see
Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir. 1982) (“Even grossly
2
Petitioner does not flesh out this claim or cite supporting facts
in the habeas petition. Rather, he attaches the fact portion of his appellate
brief to the habeas petition with a notation to “see statement of facts,
attached.” Pet. ¶ 22A. Liberally construing Petitioner’s pro se pleadings,
the Court understands this to mean that Petitioner wishes to raise the same
claim in the instant habeas petition that he raised on direct appeal.
-13-
suggestive procedures will not require suppression of a witness’[s]
identification testimony if it is clearly reliable, independent of
improper
omitted).
the
procedures.”)
(citation
and
internal
quotation
marks
Five factors to be considered as independent indicia of
reliability
of
a
witness’s
identification
are:
(1)
the
opportunity of the witness to view the suspect at the time of the
crime; (2) the witness’s degree of attention; (3) the accuracy of
the witness’s prior description of the criminal; (4) the level of
certainty demonstrated at the confrontation; and (5) the time
elapsed between the crime and the confrontation.
at 114.
Manson, 432 U.S.
In addition, prior familiarity of the witness with the
accused is an important indication of the reliability of the
pre-trial identification.
See Ortiz, 113 F. Supp. 2d at 337;
accord Minetos v. Scully, 625 F.Supp. 815, 819 (S.D.N.Y. 1986).
In this case, after conducting a supplemental Wade hearing in
which Investigator Weather and Mohamed testified extensively to the
occurrences of October 8-12, 2004, Judge Valentino determined that
“there was a lack of suggestivity in all instances” and denied
Petitioner’s motion to suppress Mohamed’s in-court identification.
H.M. of 10/14/04 69-70.
On direct appeal, the Appellate Division,
Fourth Department affirmed the suppression court’s determination,
and found, in relevant part, that: “[T]hat the People met their
initial burden of establishing that the actions of the prosecutor
and the police were not unduly suggestive.” Hathaway, 55 A.D.3d at
-14-
1288.
This Court finds no basis to disturb the determination of
the state courts. The testimony from the supplemental Wade hearing
established that Investigator Weather met with Mohamed after the
October 8, 2004 line-up for purposes of understanding why he had
vacillated from his original account.
At that time, Investigator
Weather indicated to Mohamed that he must be honest and truthful,
regardless of what the truth was.
Mohamed testified that he was
not pressured by anyone, that he had lied when he failed to
identify Petitioner at the October 8, 2004 line-up, and that he had
known all along that Petitioner was the killer.
Nothing suggests
that the police or the prosecutor acted improperly or made any
suggestions
whatsoever
perpetrator
of
the
to
crime
Mohamed
after
the
that
Petitioner
October
8,
2004
was
the
line-up.
Rather, their actions after the October 8, 2004 line-up were aimed
at ascertaining why Mohamed had vacillated from his original
account, without suggesting what his answer should be.
Moreover,
the testimony from the supplemental Wade hearing also established
that it was first fear and then a sense of religious obligation to
tell the truth that caused Mohamed to vacillate from his original
account, not, as Petitioner speculates, undue pressure from the
police and the prosecution.
In any event, even if the conduct of the police and the
prosecutor was improperly suggestive –- a finding which this Court
does
not
make
–-
Mohamed’s
identification
-15-
was
independently
reliable.3
The Supreme Court has directed that “the factors to be
considered
in
evaluating
the
likelihood
of
misidentification
include 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, and the
length of time between the crime and the confrontation.”
Biggers,
409 U.S. at 200.
Here, none of the Biggers factors weigh against reliability.
Mohamed had a clear view of the crime and watched it from beginning
to end from an elevated balcony across the street.
T.T. 639-644.
Mohamed was able to give a physical description of the perpetrator
to police and he was also able to identify the perpetrator by his
by his street name (“7-Up”).
Mohamed was presented with the photo
array on the same day that the crime occurred and expressed no
doubt about the identity of Petitioner as the shooter.
When
evaluated in light of the “totality of the circumstances,” the
witness’s identification was reliable.
Biggers, 409 U.S. at
199-200.
Accordingly, Petitioner’s claim provides no basis for habeas
relief.
The state court’s adjudication of this claim did not
3
The Appellate Division, Fourth Department alternatively held that
Mohamed’s prior familiarity with Petitioner, whom Mohamed knew by his street
name as “7-Up,” demonstrated “that there was no risk that any subsequent
action by the prosecutor or the police could lead to a misidentification.”
Hathaway, 55 A.D.3d at 1288.
-16-
contravene or unreasonably apply settled Supreme Court law.
The
claim is therefore dismissed in its entirety.
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
June 28, 2011
Rochester, New York
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