Morgan v. Bradt et al
Filing
16
DECISION AND ORDER AMENDED denying the petition for a writ of habeas corpus and declining to issue a certificate of appealability. Signed by Hon. Michael A. Telesca on 3/28/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICHOLAS MORGAN,
Petitioner,
No. 6:13-CV-6643(MAT)
-vs-
DECISION AND ORDER
MARK BRADT, as the Superintendent of
Attica Correctional Facility, and
ERIC SCHNEIDERMAN, New York State
Attorney General,
AMENDED
Respondents.
I.
Introduction
Represented by counsel, Nicholas Morgan (“Petitioner”) seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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 drug-possession
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,
16-year-old
Miquesha
Hazzard
(“Hazzard”) was visiting her 15-year-old boyfriend, Jamel Wigington
(“Jamel”), and his 14-year-old sister, Elizabeth Chung (“Chung”),
at their home at 28 Bismark Terrace. Also at home were Jamel’s
brother,
Michael
Wigington
nieces, and Chung’s mother’s
Petitioner’s
sister
(“Michael”),
Chung’s
two
pre-teen
boyfriend, Wesley Arline (“Arline”).
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 16-year-old boyfriend, Jose Jimenez (“Jimenez”), asked
Hazzard, “What the fuck are you looking at, you bitch?” T.859-63.1
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
an
all-out
brawl
in
the
street.
Fulmore
and
her
three
daughters were on one side, with the Wigington brothers, Chung, and
Hazzard on the other. Eventually, Arline, who was inside the house
at 28 Bismark Terrace, came out broke up the fight.
1
Numerals preceded by “T.” refer to pages from the transcript of
Petitioner’s trial, attached as Exhibits N to EE and HH to the Petition (Dkt #1)
and submitted in paper form by Respondent with his Response (Dkt #6).
-2-
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.1138-39,
869-71,
1112-13.
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.1601-14, 1145.
Within minutes of Fulmore’s call to Willie Morgan’s house, a man
identified by two eye-witnesses (Chung and Brandon Parrish) as
Petitioner,
arrived
on
the
scene.
The
witnesses
watched
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 times at the house at 28
Bismarck Terrace. One of these bullets struck Hazzard in the chest,
causing fatal injuries. T.873-81, 1035-37, 1151-54, 1647. The
shooting stopped when Arline grabbed his rifle and fired one shot
out the front door of 28 Bismark Terrace toward the pavement.
-3-
Brandon Parrish (“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
Petitioner2
at
113 Bernard Street, the home of his and Fulmore’s stepmother, Judy
Morgan, who was married to Willie Morgan (Petitioner’s father).
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 Willie Morgan, who “was bouncing back and
forth between 210 and 113 Bernard,” but Petitioner spent most of
his time at 113 Bernard Street. In addition to being charged with
murder
and
weapons-possession,
Petitioner
was
charged
with
possession of marijuana and crack cocaine.
The police conducted a search at 113 Bernard Street pursuant
to a warrant and found a Taurus Luger 9mm 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
2
Fulmore also was arrested and charged with second-degree murder. Petitioner
and Fulmore were tried at the same time but before separate juries. Fulmore was
convicted of second degree murder, but her conviction was reversed due to a
change in the substantive law governing depraved indifference during the pendency
of her appeal. People v. Fulmore, 64 a.D.3d 1146 (4th Dep’t 2009).
-4-
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. With regard to the direct appeal, on June 8, 2012,
the
Appellate
Division
unanimously
affirmed
the
judgment
of
conviction. People v. Morgan, 96 A.D.3d 1418 (4th Dep’t 2012). On
-5-
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.
III. 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, 131
S.Ct. 770, 786 (2011), and “demands that 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).
-6-
IV.
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
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
-7-
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.15354).3 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
the
many
credible
and
well-documented criticisms of toolmark identification, defense
3
Numerals preceded by “SR.” refer to pages from the record on appeal,
attached to Respondent’s Response (Dkt #6).
-8-
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.279.4
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 (citation omitted).
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
4
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-
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
court unreasonably applied Strickland.” Id. (citing 28 U.S.C.
§ 2254(d)(1)).
-10-
Strickland requires that to succeed on a claim of ineffective
assistance,
a
performance
of
petitioner
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
688-89)
(first
ellipsis
in
original; emphasis supplied)). However, as the 440 Court observed,
“the vast majority” of the cases and articles cited by Schwartz and
-11-
Petitioner post-date Petitioner’s trial. SR.279. 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),5 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, “[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[.]’” SR.279 (quoting Glynn, 578 F. Supp.2d at
575).
Moreover, 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
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
5
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-
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.”)).
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).6
Petitioner also relies heavily on a line of Second Circuit
cases, such as Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005),
in which the failure to consult with an expert witness has been
6
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 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.
-13-
found to constitute ineffective assistance. Respondent argues that
consideration of Second Circuit cases such as Gersten is precluded
because they do not constitute clearly established Supreme Court
law for purposes of Section 2254(d)(1). See, e.g., Renico v. Lett,
559 U.S. 766, 778-79 (2010). The Second Circuit rejected that
argument by the government in Gersten, observing that the district
court “was bound to apply [the Circuit’s] precedents governing when
applications of Strickland are ‘unreasonable,’ and in doing so did
not violate, but rather, effectuated the AEDPA standard of review.”
Gersten, 426 F.3d at 607 n. 1. Assuming arguendo the Court may
consider
Gersten
in
determining
whether
the
state
courts
unreasonably applied Strickland in Petitioner’s case, that case and
other Second Circuit cases interpreting Strickland in the context
of sexual abuse prosecutions are clearly distinguishable and do not
compel the granting of relief here.
In Gersten, the Second Circuit applied the following gloss on
the Strickland standard in sexual abuse cases:
“[B]ecause of the
centrality of medical testimony [in sexual abuse prosecutions], the
failure
to
consult
with
or
call
a
medical
expert
is
often
indicative of ineffective assistance of counsel[.]” Id. at 607
(collecting Second Circuit cases). This is “particularly” true,
according to the Circuit, where “where the prosecution’s case,
beyond the purported medical evidence of abuse, rests on the
credibility of the alleged victim, as opposed to direct physical
-14-
evidence such as DNA, or third party eyewitness testimony[.]”
Id. (citing Eze v. Senkowski, 321 F.3d 110, 128 (2d Cir. 2003);
other citation omitted). Gersten involved the alleged sexual abuse
of a child over the course of several years, and the victim and the
petitioner were the only witnesses to the crime. See 426 F.3d at
608. Gersten was a “credibility contest” which hinged almost
entirely on whether to believe the victim or the perpetrator, and
the “medical testimony was central not only because it constituted
the most extensive corroboration that any crime occurred, but
because to undermine it would undermine the alleged victim’s
credibility
and
thus
the
entire
prosecution
case
as
to
all
charges.” Id. Here, in contrast to Gersten, there was third-party
eyewitness
testimony
and
other
circumstantial
evidence
of
Petitioner’s culpability, apart from the firearms and toolmark
identification evidence that Petitioner urges should have been
subjected to scrutiny by a defense expert. Because Gersten and the
other Circuit decisions cited therein presented vastly different
factual scenarios than Petitioner’s case, they do not alter this
Court’s conclusion that the state courts did not unreasonably apply
Strickland
in
rejecting
Petitioner’s
claims
of
ineffective
assistance of trial counsel.
B.
Unduly Suggestive Pre-Trial Identifications
Petitioner asserts, as he did on direct appeal, that the
County
court
erred
in
refusing
-15-
to
suppress
the
eyewitness
identifications
by
Chung
and
Parrish
because
the
successive
identification procedures (a photo array followed by a line-up)
were unduly suggestive.
1.
Background
On September 29, 2005, Rochester Police Department (“RPD”)
Investigator Naser Zenelovic (“Inv. Zenelovic”) met with Parrish
and showed him a “six-pack” photo array containing one photograph
of Petitioner, located in the number three slot. Inv. Zenelovic
told Parrish to look at each photograph to see if he recognized
anyone. According to Inv. Zenelovic, 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.10.7
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
7
Numerals preceded by “H.” refer to the transcript of the Wade hearing held
on February 10, 2006, submitted as Exhibit M to the Petition.
-16-
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 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 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 did not ask her to
look any further at the photo array.
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.
-17-
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
-18-
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
-19-
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)). Petitioner contends that
his case is on
analogous to Foster, supra.
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
-20-
lineup.” Id. (citation omitted). After this second lineup, the
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 each
witness viewing a photo array containing 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, unlike Foster, the police here did not conduct “oneto-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,
-21-
physical line-up is “preferable procedure”) (citation omitted).
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)).
The
successive
identification procedures used here were quite different to those
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
-22-
were
not
impermissibly
suggestive, . . . the reliability of the identification is simply
a
question
for
the
jury[.]”)
(internal
and
other
citations
omitted).
V.
Conclusion
For the reasons set forth above, the petition for a writ of
habeas corpus is denied. The Court declines to issue a certificate
of appealability, as Petitioner has not “made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
March 28, 2016
-23-
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