Morgan v. Bradt et al

Filing 10

-CLERK TO FOLLOW UP- DECISION AND ORDER dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/15/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NICHOLAS MORGAN,
Petitioner,

No. 6:13-CV-6643(MAT)
DECISION AND ORDER

-vsMARK BRADT, as the Superintendent of
Attica Correctional Facility, and
ERIC SCHNEIDERMAN, New York State
Attorney General,
Respondents.

I.

Introduction
Represented by counsel, Nicholas Morgan (“Petitioner”) seeks

a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis
he is being unconstitutionally detained in Respondents’ custody.
Petitioner is incarcerated pursuant to a judgment entered on
May 24, 2006, in New York State Supreme Court, Monroe County
(Valentino, J.), following a jury verdict convicting him of Murder
in the Second Degree (depraved indifference murder) (New York Penal
Law “P.L.” § 125.25(2)) and various weapons-possession and drugpossession charges.
II.

Factual Background and Procedural History
Petitioner’s conviction stems from an incident that occurred

on the evening of September 28, 2005, on Bismark Terrace in the
City of Rochester. That day, sixteen-year-old Miquesha Hazzard
(“Hazzard”) was visiting her fifteen-year-old boyfriend, Jamel

Wigington (“Jamel”), and his fourteen-year-old sister, Elizabeth
Chung (“Chung”), at their home at 28 Bismark Terrace. Also at home
were Jamel’s brother, Michael Wigington (“Michael”), Chung’s two
pre-teen nieces, and Chung’s mother’s

boyfriend, Wesley Arline

(“Arline”).
Petitioner’s

sister

and

co-defendant,

Carrie

Fulmore

(“Fulmore”) lived directly across the street at 31 Bismark Terrace
with her teenaged daughters, Ashley Forte, Shana Forte, and Candice
Forte.
During

the

summer

of

2005,

the

teenaged

residents

of

31 Bismark Terrace and their friends had been feuding with the
teenaged residents of 28 Bismark Terrace and their friends. At
around 5:00 or 6:00 p.m., the animosities resumed when Ashley
Forte’s sixteen-year-old boyfriend, Jose Jimenez (“Jimenez”), asked
Hazzard, “What the fuck are you looking at, you bitch?” T.859-63.
After Hazzard and Chung related Jimenez’s comment to Jamel and
Michael, the brothers confronted Jimenez, who pulled up his shirt
to display a handgun in his waistband. Saying, “Oh I be back, I be
back,” Jimenez walked away.
When Michael made a comment about Jimenez to Ashley Forte, an
argument ensued between Fulmore and Michael which quickly escalated
into a melee in the street. Fulmore and her three daughters were on
one side, with the Wigington brothers, Chung, and Hazzard on the

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other. Chung got hit in the head with a shovel by Fulmore and
Fulmore was punched in the eye.
Eventually, Arline, who was inside the house at 28 Bismark
Terrace, came out broke up the fight. As the participants were
dispersing, a witness heard Fulmore say, “You all going to get it
tonight.” Minutes later, Chung observed Fulmore standing on her
porch yelling into a cordless telephone. Chung presumed Fulmore was
calling the police. Fulmore did call 911 at 6:45 p.m. and told the
operator, “No we ain’t fighting now, but ya’all need to come
because they gonna get fucked up, I’m serious.” T.1138-1139,
869-871, 1112-1113. At 6:51 p.m., however, Fulmore called the phone
number registered to the address at which her father (Willie
Morgan) and Petitioner resided. Arline could hear Fulmore on her
cordless phone saying to someone, “Come over here and shoot up this
motherfucking

house.”

T.1601-1614,

1145.

Within

minutes

of

Fulmore’s call to Willie Morgan’s house, a man identified by two
eye-witnesses
Petitioner,

(Chung

arrived

and
on

the

Brandon
scene.

Parrish
The

(“Parrish”))

witnesses

watched

as
as

Petitioner walked down Bismark Terrace on foot, holding a black
handgun in his hand. Petitioner stopped in front of Fulmore’s house
and asked, “[W]hich house are you talking about?” Fulmore, who was
standing in her front yard, pointed across the street and said,
“That house right there.” Petitioner raised the handgun he was
carrying

and

fired

at

least

twelve

-3-

times

at

the

house

at

28 Bismarck Terrace. The shooting stopped when Arline grabbed his
rifle and fired one shot out the front door of 28 Bismark Terrace
toward the pavement. One of the multiple bullets fired into the
house at 28 Bismark Terrace struck Hazzard in the chest, causing
fatal injuries. T.873-881, 1035-1037, 1151-1154, 1647.
Parrish, a friend of Jimenez, Ashley Forte’s boyfriend, was
standing outside on Bismark Terrace during the shooting. Parrish
witnessed Petitioner fire his gun at 28 Bismark Terrace and could
hear the sound of a window breaking. After Petitioner fired the
shots, Parrish saw him go back up the street in the same direction
from which he had come.
The

following

day,

the

police

arrested

Petitioner

at

113 Bernard Street, and found him in possession of marijuana and
crack cocaine.1

Fulmore’s stepmother, Judy Morgan, resided at

113 Bernard Street and was married to Petitioner’s father, Willie
Morgan. According to statements by Judy Morgan and by Petitioner at
the time of his arrest, Petitioner lived about a block away at
210 Bernard

Street

with

his

father, Willie

Morgan,

who “was

bouncing back and forth between 210 and 113 Bernard,” but spent
most of the time at 113 Bernard Street.
Later that day, police conducted a search at 113 Bernard
Street

pursuant

to

a

warrant

and

found

a

Taurus

Luger

9mm

1

Fulmore also was arrested and charged with second-degree
murder. Petitioner and Fulmore were tried at the same time but
before separate juries.
-4-

semi-automatic handgun taped underneath a hutch in the dining room.
At trial, a ballistics expert testified that the handgun seized by
the police fired the casings and projectiles recovered by police at
the crime scene. T.1316, 1384-86, 1402-16, 1425-28, 1648-85.
The jury returned a verdict convicting Petitioner of Murder in
the Second Degree (P.L. § 125.25(2)), Criminal Possession of a
Weapon in the Second Degree (P.L. § 265.03(2)), Criminal Possession
of a Weapon in the Third Degree (P.L. § 265.02(4)), Criminal
Possession of a Controlled Substance in the Third Degree (P.L.
§ 220.16(1)), Criminal Possession of a Controlled Substance in the
Fifth

Degree

(P.L.

§

220.06(5)),

and

Unlawful

Possession

of

Marijuana (P.L. § 221.05). Petitioner was sentenced as a second
felony offender to an aggregate term of imprisonment of twenty-five
years to life.
Represented by new counsel, Petitioner timely filed a notice
of appeal in the Appellate Division, Fourth Department, of New York
State Supreme Court. The direct appeal was held in abeyance pending
the outcome of Petitioner’s counseled motion to vacate the judgment
pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10
filed in Monroe County Supreme Court (Valentino, J.) (“the 440
Court”) and asserting claims of ineffective assistance of trial
counsel. The 440 Court denied the motion on the merits without a
hearing on November 9, 2010, and the Appellate Division denied
leave to appeal.

-5-

On June 8, 2012, the Appellate Division, Fourth Department,
unanimously affirmed the judgment of conviction. People v. Morgan,
96 A.D.3d 1418 (4th Dep’t 2012). On December 4, 2012, the New York
Court

of

Appeals

denied

leave

to

appeal.

People

v.

Morgan,

20 N.Y.3d 987 (2012).
In his timely habeas petition, Petitioner asserts that trial
counsel was ineffective for failing to investigate and present a
defense on the science of firearm and toolmark identification and
that the multiple identification procedures employed by the police
were unduly suggestive. Respondent answered the petition, and
Petitioner filed a reply brief. For the reasons discussed below,
the Court declines to issue a writ of habeas corpus and dismisses
the petition.
IV.

Substantive Predicates to Habeas Relief
Under the amendments to the federal habeas statute contained

in the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 110 Stat. 1214, if a petition includes a claim that has
been “adjudicated on the merits in State court proceedings,” 28
U.S.C. § 2254(d), the federal court may not grant relief unless
that adjudication “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
AEDPA’s standard is “difficult to meet,” Harrington v. Richter, 562
U.S. ––––, ––––, 131 S.Ct. 770, 786 (2011), and “demands that

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state-court decisions be given the benefit of the doubt,” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and
internal quotation marks omitted).
V.

Merits of the Petition
A.

Ineffective Assistance of Counsel

Petitioner

asserts,

as he

did

in

support

of

his

C.P.L.

§ 440.10 motion and on direct appeal, that he was deprived of the
effective assistance of trial counsel because counsel did not
cross-examine the prosecution’s ballistics expert regarding his
testimony that the gun found at Petitioner’s stepmother’s house was
the gun that fired the casings and projectiles found at the scene
of the crime, and failed to counsel failed to call a rebuttal
expert to counter the ballistics expert’s conclusions. A brief
summary of the state court proceedings and ruling follows.
1.
At

Background

trial,

the

prosecution’s

firearms

and

toolmark

identification expert, John Clark (“Clark”), testified that it was
“possible to determine if a spent shell casing has been fired from
a particular semiautomatic handgun to the exclusion of all other
handguns[,]” T.1652; that he was able to conclude, in this case,
that “all 12 of the fired cartridge cases were fired in the Taurus
pistol to the exclusion of all other firearms[,]” T.1665; and that
it was “possible to determine if a particular spent bullet was
fired from a particular firearm to the exclusion of all other
-7-

firearms[.]” T.1654. In support of his argument that trial counsel
unreasonably erred in failing to cross-examine Clark or retain a
rebuttal expert, Petitioner submitted two affidavits from purported
firearms and toolmark expert Adina Schwartz (“Schwartz”), opining
that the evidence given by Clark should have been inadmissible
because the field of firearms and toolmark identification is not
generally accepted in the relevant scientific community. Schwartz
asserted that firearms and toolmark examiners have known since at
least 1935 that absolute identification claims, such as those made
by Clark, are unwarranted because identification conclusions are
inherently probabilistic. See, e.g., Supplemental Affidavit of
Adina Schwartz (“Schwartz Supp. Aff.”) ¶¶ 9 & nn. 1, 2 (SR.153154). Schwartz criticized Clark for, inter alia, failing to take
into account the possibility of subclass characteristics, which
created a risk of misidentifications resulting from the examiner
confusing subclass characteristics shared by toolmarks produced by
more than one tool with individual characteristics produced by one
tool only. Id. ¶¶ 12-13 Schwartz averred that had defense counsel
consulted with, and called her as an expert witness, she would have
testified, for example, that the distinction between individual and
subclass characteristics is subjective and there is no defined
protocol for making the distinction. Id. ¶ 31 & n. 10. Petitioner
also faulted trial counsel for failing to cross-examine Clark.
According

to

Petitioner,

“[d]espite

-8-

the

many

credible

and

well-documented criticisms of toolmark identification, defense
counsel failed to identify to the jury even one of the many faulty
assumptions upon which toolmark identification is based, nor did
defense counsel question the methodology used by the firearm
examiner in this particular case.”
The 440 Court denied the motion without a hearing, noting that
since it was clear that trial counsel did not cross-examine the
prosecutor’s

expert

or

call

his

own

expert,

Petitioner’s

ineffective claim was a “matter of record and no hearing [was]
warranted.”

SR.279.2

ineffective

assistance

After

reciting

claims

as

the

set

federal

forth

in

standard

for

Strickland

v.

Washington, 466 U.S. 668 (1984), and the New York state standard as
set forth in People v. Baldi, 54 N.Y.2d 137 (1981), the trial court
found that even if Petitioner proved that trial counsel did not
investigate the scientific criticisms of firearms and toolmark
evidence, “such failure does not rise to the level of ineffective
assistance

of

counsel.”

SR.279.

The

trial

court

opined

that

“considering the eyewitness testimony, the defense strategy to
attack the identification and pursue lesser included offenses was
reasonable[.]” SR.280 (citing People v. Lopez, 14 Misc. 3d 1223(A),
2006 WL 3960256, at *9 (N.Y. Sup. Ct. Dec. 21, 2006)).

2

Petitioner’s appellate counsel indicated in his supporting
affirmation that trial counsel died on or about August 15, 2010,
several weeks before the filing of the C.P.L. § 440.10 motion.
SR.295.
-9-

Then, on direct appeal, Petitioner again asserted that trial
counsel

was

prosecution’s

ineffective
firearms

for
and

declining
toolmark

to

cross-examine

examiner.

The

the

Appellate

Division held that Petitioner “failed to establish that there was
no legitimate or strategic reason for defense counsel’s alleged
error” in

declining to cross-examine Clark. Morgan, 96 A.D.3d at

1419 (quotation and citations omitted). According to the Appellate
Division, “viewing the evidence, the law and circumstances of this
case in totality and as of the time of the representation,”
Petitioner “received meaningful representation[.]” Id. (citing
Baldi, 54 N.Y.2d at 144). The New York Court of Appeals denied
leave to appeal.
2.
Here,

Analysis

both

state

courts

to

have

considered

Petitioner’s

allegations of ineffective assistance ruled on the merits of the
claim. That the last-reasoned decision by a state court only
applied Baldi, a state law case, does not prevent a finding that
the claim was “adjudicated on the merits[,]” 28 U.S.C. § 2254(d),
such that this Court’s review of the claim is governed by AEDPA.
See, e.g., Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001).
Because “the New York state standard for ineffective assistance of
counsel is not contrary to [federal law],” Rosario v. Ercole, 601
F.3d 118, 126 (2d Cir. 2010), “[t]he only avenue of reprieve
available to [Petitioner] . . . is to establish that the state

-10-

court unreasonably applied Strickland.” Id. (citing 28 U.S.C.
§ 2254(d)(1)).
Strickland requires that to succeed on a claim of ineffective
assistance,

a

petitioner

performance

of

his

must

counsel

demonstrate

was

both

objectively

(1)

that

the

unreasonable,

and

(2) that there is a reasonable probability that, but for his
counsel’s deficient performance, the result of the proceeding would
have been different. 466 U.S. at 687–88, 694. The Supreme Court has
repeatedly

cautioned

against

“second-guess[ing]

counsel’s

assistance after conviction or adverse sentence[,]” Strickland, 466
U.S. at 689; rather, the reviewing court must confine itself to the
question of “whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Harrington v.
Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at
690).
Petitioner’s
Strickland’s
counsel’s

attacks

instructions

performance

on
that

“‘fell

counsel’s
when
below

performance

assessing
an

whether

objective

ignore
or

standard

not
of

reasonableness . . . under prevailing professional norms,’” the
Court must “consider the circumstances counsel faced at the time of
the relevant conduct and . . . evaluate the conduct from counsel’s
point of view.”
(quoting

Davis v. Greiner, 428 F.3d 81, 88 (2d Cir. 2005)

Strickland,

466

U.S.

at

-11-

688-89)

(first

ellipsis

in

original; emphasis supplied)).

For instance, Petitioner and his

proposed expert cite United States v. Willock, 696 F. Supp.2d 536
(D. Md. 2010), and

United States v. Glynn, 578 F. Supp.2d 567

(S.D.N.Y. 2008), in which the trial court limited the testimony of
ballistic and firearms experts based, in part, upon the concerns
expressed in a 2008 National Academy of Sciences report, see
SR.359-368, regarding the reliability of the Association of Firearm
and Tool Mark Examiners (“AFTE”) theory of identification used by
Clark in Petitioner’s case. As the 440 Court observed, “the vast
majority”

of

the

cases

and

articles

cited

by

Schwartz

and

Petitioner post-date Petitioner’s trial. SR.279. Thus, “[i]t defies
logic to fault trial counsel for not knowing in 2006 that a
ballistics opinion at least in one case in 2008 would be limited to
being stated in terms of ‘“more likely than not” but nothing
more[.]’” Id. (quoting United States v. Glynn, 578 F. Supp.2d 567,
575 (S.D.N.Y. 2008))3. Contrary to Petitioner’s assertion that the
concerns expressed by his proposed expert were well-established at
the time of his trial, “[f]or decades . . . admission of the type
of firearm identification testimony challenged by the defendants
has been semi-automatic; indeed, no federal court has yet deemed it

3

In Glynn, the trial court ruled after a hearing that the
expert’s methodology was sufficiently reliable that he could give
an opinion that it was at least “more likely than not” that the
bullet and casings came from the guns in question. 578 F. Supp.2d
at 568-69 (citation omitted).
-12-

inadmissible.” United States v. Monteiro, 407 F. Supp.2d 351, 364
(D. Mass. 2006) (citing, inter alia, United States v. Hicks, 389
F.3d 514, 526 (5th Cir. 2004) (“We have not been pointed to a
single case in this or any other circuit suggesting that the
methodology [of matching of spent shell casings to the weapon that
fired them] . . . is unreliable.”)).
It is well established that because an counsel’s performance
under Strickland is measured by the state of the law at the time of
the challenged conduct, “[a]n attorney is not required to “forecast
changes or advances in the law.” Sellan v. Kuhlman, 261 F.3d 303,
315 (2d Cir. 2001) (quotation omitted). Indeed, Petitioner has not
established that there in fact has been a significant or widespread
change

in

the

law

regarding

the

admissibility

of

firearms

identification evidence since his trial. See, e.g., United States
v. Casey, 928 F. Supp.2d 397, 400 (D. P.R. 2013) (“[T]he Court
declines to follow sister courts who have limited expert testimony
based upon the 2008 and 2009 NAS reports and, instead, remains
faithful to the long-standing tradition of allowing the unfettered
testimony of qualified ballistics experts.”) (citations omitted).4
4

In Casey, the government produced a sworn statement from
chairperson of the group that produced 2008 NAS report stating that
the report’s purpose “was not to pass judgment on the admissibility
of ballistics evidence in legal proceedings, but, rather, to assess
the feasibility of creating a ballistics data base,” and that
“group did not actually evaluate the fundamental assumptions of
firearms and toolmark identification that underlay many courts’
allowance of ballistics and firearm expert testimony.” 928 F.
Supp.2d at 399-400. The district court observed that the
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The respondent further argues that Mr. Morgan cannot be
granted habeas relief on the basis of Gersten v Senkowski because
that case “does not constitute clearly established Supreme Court
law” and “petitioner points to no Supreme Court case holding that
an attorney is ineffective for failing to present a rebuttal to
expert ballistics evidence” (RB at 24; 426 F3d 588 [2d Cir 2005]).
As a preliminary matter, it is entirely appropriate to rely upon
cases interpreting clearly established Supreme Court precedent.
Gersten expounds upon Strickland’s central holding that “the Sixth
Amendment

imposes

on

counsel

a

duty

to

investigate,

because

reasonably effective assistance must be based on
professional decisions and informed legal choices can be made only
after investigation of options” (Strickland v Washington, 466 US
668, 680 [1984
B.

Unduly Suggestive Pre-Trial Identifications

Petitioner asserts, as he did on direct appeal, that the
County

court

identifications

erred

in

by

Chung

refusing
and

to

Parrish

suppress

the

eyewitness

because

the

successive

identification procedures (a photo array followed by a line-up)
were unduly suggestive.

chairperson’s statements “greatly undermine[d] the portions of the
NAS report” relied upon by, e.g., Glynn and Willock. Casey, 928 F.
Supp.2d at 400.
-14-

1.

Background

On September 29, 2005, Rochester Police Department (“RPD”)
Investigator Naser Zenelovic (“Inv. Zenelovic”) met with Parrish at
the Public Safety Building and showed him a “six-pack” photo array
containing one photograph of Petitioner, located in the number
three slot. Inv. Zenelovic told Parrish to take his time and to
look at each photograph to see if he recognized anyone. According
to

Inv.

Zenelovic,

upon

viewing

the

photo

array,

Parrish

“immediately stared” at photo number three for about five to ten
seconds. Parrish then stated that he “wasn’t sure if he could
identify anybody.” H.10. Inv. Zenelovic “asked him if he recognized
anybody on that piece of paper[,]” and Parrish “[p]ointed to the
Photo Number 3 and said he recognized that person.” Id. The
investigator asked from where he recognized him, and Parrish
replied,

“from the North Street area.” Id. Parrish became quiet

and started to cry, telling Inv. Zenelovic that he was afraid of
what he was doing. H.11. Inv. Zenelovic asked Parrish whether,
prior to the incident, he had seen the individual who had shot into
the

house

on

Bismark

Terrace.

Parrish

replied

affirmatively,

explaining that he knew the person from the North Street Recreation
Center and from around the neighborhood, and that this individual’s
nickname was “Poo.” Id. Inv. Zenelovic asked Parrish if the man who
shot

into

the

house

on

Bismark

Terrace

was

in

any

of

the

photographs, and Parrish replied affirmatively, pointing to photo

-15-

number three. Id. At that point, Inv. Zenelovic informed Parrish
that the man depicted in photo number three was Petitioner.
Meanwhile, RPD Investigator John Penkitis (“Inv. Penkitis”)
met with Chung at her home and showed her a six-pack photo array.
After viewing the photos for a “little bit,” Chung pointed to
numbers three and four and said that the shooter looked like either
one

of

the

two

men

depicted

in

those

photos

(Petitioner’s

photograph was number four). Inv. Penkitis thanked Chung for her
time and asked her if she remembered anything else about what
happened the night before.
Later that day, Parrish and Chung participated, separately, in
viewing a line-up identification procedure coordinated by RPD
Investigator Gary Galetta (“Inv. Galetta”). Prior to the line-up,
Chung and Parrish did not speak with each other or any other
witnesses present. Inv. Galetta read them instructions from a
pre-printed form, and asked if they could identify anyone from the
line-up. One at a time, the witnesses viewed the line-up, which
consisted

of

six

black

males

with

similar

appearance

and

descriptions, each dressed in an orange jumpsuit. Each of the
subjects held a card with a number on it; Petitioner held card
number two. Each of the line-up subjects was asked to step forward
individually, face the glass, make quarter turns until a full
rotation was completed, and then step back into his position in the
line-up.

-16-

Parrish viewed the line-up at approximately 10:18 p.m. After
each of the subjects came forward and turned around, Inv. Galetta
asked Parrish if he wanted to see anyone again, and Parrish
declined. Parrish indicated that he recognized subject number two.
When asked how he recognized number two, Parrish replied that he
recognized the subject “[f]rom the shootings.” SR.691. Chung viewed
the line-up at 10:35 p.m., and the same procedures were applied.
Chung asked to see number two once more. After doing so, Chung
stated, “I think I had seen him when [Hazzard] got shot.” SR.692.
In a written decision dated March 21, 2006, SR.688-693, the
Monroe County Court (Marks, J.) (“the Suppression Court”) found
that each identification procedure was “conducted in a manner
consistent with [Petitioner’s] rights.” SR.693. The Suppression
Court found no evidence of undue suggestiveness in the photo arrays
or the line-ups, and held that is was not suggestive for the police
to have had the witnesses view Petitioner in a corporeal line-up
after having selected him in a photo array. Id.
On direct appeal, the Appellate Division held that “[e]ven
assuming, arguendo, that [Petitioner]’s contention is preserved for
our review, . . . it is without merit.” Morgan, 96 A.D.3d at 1419
(citations omitted). Commenting that it was “well settled” that
multiple pretrial identification procedures are “not inherently
suggestive[,]” id. (quotation and citations omitted), the Appellate
Division found that “[t]here was nothing unduly suggestive about

-17-

having [the first witness in question] view defendant in a lineup
after [he] had already selected [defendant’s] photograph from an
array[.]”

Id.

(quotation

and

citation

omitted;

brackets

in

original). With respect to the second witness in question, i.e.,
Chung, the Appellate Division “conclude[d] that showing the witness
a photo array followed by a lineup was not unduly suggestive under
the circumstances of this case[.]” Id. (citations omitted).
Because

Petitioner’s

suggestive

identification

claim

was

adjudicated on the merits by the state court, he can obtain relief
only if that ruling was contrary to, or an unreasonable application
of, clearly established Supreme Court precedent.
2.

Analysis

Although the Supreme Court has recognized that “[m]ost
eyewitness identifications involve some element of suggestion[,]”
Perry v. New Hampshire, 132 S. Ct. 716, 727 (2012), it nevertheless
has

declined

to

impose

a

rule

of

automatic

exclusion

for

identifications tainted by improper police influence. Id. at 720.
In Simmons v. United States, 390 U.S. 377, 384 (1968), the Supreme
Court addressed the issue of whether, and under what circumstances,
the showing of a photographic array to an eyewitness taints that
eyewitness’

identification

of

a

suspect

during

a

subsequent

identification procedure. The Supreme Court held that “[i]f there
is

‘a

very

substantial

likelihood

of

irreparable

misidentification,’” Perry, 132 S. Ct. at 720 (quoting Simmons, 390

-18-

U.S.

at

384),

“the

judge

must

disallow

presentation

of

the

[identification] evidence at trial.” 132 S. Ct. at 720. However,
“if the indicia of reliability are strong enough to outweigh the
corrupting effect of the police-arranged suggestive circumstances,
the identification evidence ordinarily will be admitted, and the
jury will ultimately determine its worth.” Id.
Petitioner asserts that he is not arguing that “successive
identification procedures are ipso facto impermissible.” Reply
(Dkt #7) at 7. Rather, Petitioner argues, “it is improper to engage
in successive identification procedures when the participant is
unsure of his/her selection and the police have suggested the
suspect’s identity.” Id. (citing Foster v. California, 394 U.S.
440, 442-43 (1969)).
In Foster, during the first lineup, there were only three
subjects, and the petitioner “stood out from the other two men by
the contrast of his height and by the fact that he was wearing a
leather jacket similar to that worn by the robber.” 394 U.S. at
442 (citation omitted). When this lineup “did not lead to positive
identification,”

the

police

permitted

an

extended

“one-to-one

confrontation” between the petitioner and victim, which still
yielded only a “tentative” identification. Id. at 443. Then, a
third lineup was arranged in which the petitioner “was the only
person in this lineup who had also participated in the first
lineup.” Id. (citation omitted). After this second lineup, the

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victim made a “definite identification.” Id. The Supreme Court
described the facts in Foster as presenting “a compelling example
of unfair lineup procedures.” 394 U.S. at 442.
Here, the first identification procedure consisted of the
witness viewing a “six-pack” photo array with five “fillers” and
one photo of Petitioner. In contrast to Foster, there is no
contention that Petitioner’s photo “stood out” from the fillers in
any way. Furthermore, the police did not conduct “one-to-one”
confrontations between the eyewitnesses and Petitioner.
Although Parrish initially said that he “wasn’t sure” if he
could identify anyone, he made a definite identification during the
same procedure, selecting Petitioner’s photograph as depicting a
person he knew as “Poo” from the North Street area; he also told
Inv. Zenelovic that this was the person who shot into the house at
28 Bismark Terrace. Chung’s identification of Petitioner during the
first

procedure

(the

photo

array)

admittedly

was

tentative.

However, rather than showing her additional photo arrays, and
increasing the likelihood that an identification would result from
the recognition of Petitioner’s photograph, the police conducted a
corporeal

line-up,

the

preferred

procedure.

See,

e.g.,

United States ex rel. Kubat v. Thieret, 679 F. Supp. 788, 801 (N.D.
Ill. 1988) (to avoid possibility of mistaken identification due to
repeated showing of photographs in which single individual recurs,
physical line-up is “preferable procedure”) (citation omitted).

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Petitioner has made no accusation that the line-up procedure itself
was unduly suggestive, e.g., that the subjects were physically
dissimilar from himself (as was the case in Foster).
When analyzing Foster, “courts have repeatedly emphasized the
layers of impropriety . . . underlying the decision-from the
physical discrepancies of the suspects, the identifying clothing,
and particularly the extended one-on-one showup.” Bear v. Halford,
No. C 96-2122 MJM, 2001 WL 34152086, at *10 (N.D. Iowa June 14,
2001) (citing, inter alia, United States v. Donaldson, 978 F.2d
381, 386-87 (7th Cir. 1992) (direct appeal; holding that repetition
of defendant’s picture in multiple identification procedures does
not in itself trigger Foster exclusion)). Here, however, Petitioner
has not established that the successive identification procedures
were analogous to those present in Foster, which were found to have
“so undermined the reliability of the eyewitness identification as
to violate due process[,]” 394 U.S. at 443. On the present record,
the state courts did not apply Supreme Court precedent in an
objectively unreasonable manner when they rejected Petitioner’s due
process challenge to the fairness of the identification procedures.
There accordingly

is

no

need

to

address

whether

Chung’s

and

Parrish’s pretrial identification of Petitioner was independently
reliable despite the effect of any suggestiveness. See, e.g.,
Jarrett v. Headley, 802 F.3d 34, 42 (2d Cir. 1986) (“[I]f the
procedures were not impermissibly suggestive, . . . the reliability

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of the identification is simply a question for the jury[.]”)
(internal and other citations omitted).
Petitioner argues that, as in Foster, the successive
identification procedures “made it all but inevitable,” Foster, 394
U.S. at 443, that the witnesses would identify Petitioner, whether
or not he in fact was the perpetrator. With regard to Parrish,
Petitioner asserts that the first procedure in which Parrish
participated

(the

photo

array)

was

suggestive

Parrish initially did not select anyone,

because,

after

Inv. Zenelovic “told him

to make a selection after the officer speculated that . . . Parrish
was ‘staring’” at Petitioner’s photograph.
has

no

basis

for

characterizing

as

Reply at 7. Petitioner
mere

speculation

the

observations by Inv. Zenelovic of Parrish, who was sitting right in
front of him during the viewing of the photo array. Furthermore, by
characterizing Inv. Zenelovic’s observations as “speculation”,
Petitioner is demanding that this Court to overrule the credibility
assessment made by the suppression court, which had the opportunity
to hear Inv. Zenelovic’s testimony and observe his demeanor. This
is impermissible. Finally, despite Petitioner’s contrary assertion,
Parrish did not incorrectly identify Petitioner or identify him by
the wrong name. Instead, Parrish stated that he knew Petitioner by
his

nickname

(“Poo”)

and

that

he

recognized

“Poo”

from

the

neighborhood recreational facility. It was not until after Parrish

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positively identified Petitioner as the shooter on Bismark Terrace
that Inv. Zenelovic informed him of Petitioner’s given name.
With

regard

to

Chung’s

identification,

contrary

to

Petitioner’s contention, Foster is easily distinguishable from his
case. As an initial matter, Petitioner has mischaracterized Inv.
Zenelovic’s testimony

here asserts that what that is precisely

what happened here. Mr. Parrish initially could not select anyone
and the officer told him to make a selection after the officer
speculated that Mr. Parrish was “staring” at Mr. Morgan’s photo on
a piece of paper the Supreme Court concluded that a photo array
will taint a subsequent identification procedure and cause it to be
set

aside

only

impermissibly

if

the

suggestive

photographic
as to

give

procedure
rise

to

a

used

was

likelihood of

misidentification. No such facts are alleged in this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
June 16, 2015

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so