McKinnon v. Superintendent, Great Meadow Correctional Facility, 422 F. App'x 69

McKinnon was convicted in Onondaga County Supreme Court of three counts of first-degree sodomy, four counts of first-degree sexual abuse, and three counts of endangering the welfare of a child; the Appellate Division affirmed in 2004 and the New York Court of Appeals denied leave in 2005.
McKinnon filed a pro se 28 U.S.C. § 2254 petition in May 2006 in the district court; the district court denied relief and declined to issue a COA.
This Court granted an open-ended COA in 2008 and appointed counsel to pursue the appeal.
The petitioner's claims included (1) severance of counts, (2) admission of a knife and certain testimony and pretrial identification procedures, (3) the weight of the evidence.
Under 28 U.S.C. § 2254(d), the court reviews de novo but with deferential review for state court adjudications and requires exhaustion of state remedies; McKinnon had not exhausted the weight-of-the-evidence claim in New York courts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was severance of the counts reversible error?	McKinnon contends improper joinder prejudiced the trial.	Joinder allowed but not inherently unconstitutional; jury instructions mitigated prejudice.	No reversible error; joinder not constitutional defect; severance not required.
Were the knife and police testimony improperly admitted and did they violate due process?	Admission of evidence violated state and federal standards.	Erroneous state-law evidentiary rulings do not automatically violate due process; no substantial unfairness.	No due-process violation; errors not cognizable in habeas review and not, on record, fundamentally unfair.
Were the pretrial identifications unnecessarily suggestive and did they violate due process?	Showup and photo identifications were unduly suggestive and unreliable.	Totality of circumstances and reliability; showup and lineup allowed with cautionary instructions.	Identification procedures were not unduly suggestive; not a due-process violation.
Is the verdict against the weight of the evidence and was the claim exhausted?	Verdict should be set aside as against the weight of the evidence.	Weight-of-the-evidence claim is state-law and not cognizable on habeas review; insufficient evidence standard governs.	Weight-of-the-evidence claim not exhausted; not cognizable; district court correctly analyzed merits; judgment affirmed on other grounds.

Acosta v. Artuz, 575 F.3d 177 (2d Cir. 2009) (de novo review but §2254(d) limits; exhaustion required)
Clark v. Perez, 510 F.3d 382 (2d Cir. 2008) (de novo review with habeas standards)
Estelle v. McGuire, 502 U.S. 62 (1981) (federal habeas does not reexamine state-law evidentiary rulings)
Fry v. Pliler, 551 U.S. 112 (2007) (harms from non-constitutional errors limited by Brecht standard)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (unreasonable result of trial error if not prejudicial)
Collins v. Scully, 755 F.2d 16 (2d Cir. 1985) (evidentiary errors must be sufficiently material to affect verdict)
Brisco v. Ercole, 565 F.3d 80 (2d Cir. 2009) (identification procedures; showups; totality of circumstances)
Simmons v. United States, 390 U.S. 377 (1968) (due process and identification reliability in showups)
Concepcion v. United States, 983 F.2d 369 (2d Cir. 1992) (sequential photo arrays; not inherently unduly suggestive)
Stovall v. Denno, 388 U.S. 293 (1967) (guidance on suggestive procedures and due process)
Griffith v. Kentucky, 479 U.S. 314 (1987) (due process contours of identification and evidence)
Jackson v. Virginia, 443 U.S. 307 (1981) (insufficient evidence standard for habeas review)
O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (fair presentation requirement for habeas review)
Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006) (caution on state-law evidentiary rulings and habeas relief)