Case Information
*1
J OSEPH F. B IANCO , District Judge: legally insufficient to establish his guilt of
burglary in the second degree; (3) his On February 18, 2016, Lawton High statement was taken illegally because police (“petitioner” or “High”) petitioned this Court lacked probable cause for an arrest; and for a writ of habeas corpus, pursuant to 28 (4) he was denied effective assistance of trial U.S.C. § 2254, challenging his conviction in counsel. (Pet., ECF No. 1, at 19-23.) For the New York State Court. On July 24, 2012, reasons discussed below, the petition is following a jury trial, petitioner was denied in its entirety.
convicted of burglary in the second degree
(N.Y. Penal Law § 140.25[2]). (T. 537.) [1] I. B ACKGROUND Petitioner [1] was sentenced to a definite period
of incarceration of eight years followed by A. Facts five years of post-release supervision. (S.
6.) [2] [2] The following facts are adduced from the
petition, respondent’s memorandum in In this habeas petition, petitioner opposition (ECF No. 6), petitioner’s reply challenges his conviction on the following (ECF No. 8), and the underlying record (ECF grounds: (1) the show-up identification was Nos. 6-1 to 6-16).
unduly suggestive; (2) the evidence was
On March 18, 2011, petitioner and Joseph pulled up, he witnessed petitioner throw a Marone (“Marone”) went to 115 Hilton Ave, plastic bag into a nearby bush. ( Id. at 340.) a private residence in Garden City, New Officer Buonaiuto then ordered petitioner York, and stayed there overnight without and Marone to the ground. ( Id. at 340-41.) permission or knowledge by the owner. (T. Police Officer Kevin Reilly (“Officer 374, 417-18.) No one lived in the home as Reilly”) arrived shortly thereafter and placed Jeffrey Psaki (“Psaki”), the homeowner, was petitioner and Marone in handcuffs. ( Id. at temporarily living in London at this time. ( Id. 341-42.) At the direction of Officer at 372-73.) While Psaki was away his Buonaiuto, Officer Reilly then proceeded to stepfather, James Costello (“Costello”), retrieve the discarded plastic bag in the periodically checked on Psaki’s home. ( Id. at bushes, which Officer Buonaiuto discovered 379.) Neither Psaki nor Costello knew or had contained copper piping. ( Id. at 342.) given petitioner or Marone permission to
enter the residence. ( Id. at 374.) On March Police Officer Rocco Marceda (“Officer 18, 2011, a representative from Psaki’s home Marceda”) arrived, and Costello told Officer security system notified Costello that a silent Marceda that he saw Marone inside the boiler alarm was triggered indicating there was low room and saw petitioner as he exited the Id. at 378.) The next water in the boiler. ( home with Marone. ( [3] at 358; H. 69.) Id. [3] A morning Costello went to Psaki’s home, walk-through of the house was then entered through the rear door, and discovered conducted. (H. 69.) The officers and Marone crouched under the stairs in the Costello did not see any copper piping boiler room. ( Id. at 379-80.) Costello asked missing, but observed a toilet in the basement Marone what he was doing there and if he filled to capacity (signifying the water had was alone. ( Id. at 380-81.) Marone indicated been turned off), sleeping bags, and pillows. he came to escape the cold and was not alone. (T. 357-58, 384.) After leaving the house, ( Id .) At this time, Costello told Marone to get Officer Marceda performed a show-up his friend and leave the home. ( Id. ) Costello identification with Costello sitting in the then proceeded outside via the rear door to passenger seat of Officer Marceda’s call the police. ( Id. at 381.) Once outside, unmarked police car. (H. 69-70.) Petitioner Costello watched Marone and an African- and Marone stood a few feet apart from each American male, later identified as petitioner, other on the sidewalk with two officers exit through the front of the house and never standing nearby. ( Id. at 70-71.) Officer lost sight of petitioner and Marone until the Marceda drove past petitioner and Marone police detained them. ( Id. at 381-82.) twice so Costello could have an unobstructed
view of them. ( Id. at 70.) Costello identified Garden City Police Officer Michael petitioner and Marone as the two men in the Buonaiuto (“Officer Buonaiuto”) responded house and said he witnessed petitioner run to Costello’s 911 call and arrived at 115 out of the house. (T. 383.) Hilton Avenue at approximately 7:45 a.m.
( at 337.) Upon arriving, Officer At this time, no arrest was made as Buonaiuto saw petitioner and Marone, Costello did not want to press charges (H. standing in the driveway of 113 Hilton 198; T. 365.) The plastic bag was also Avenue, the residence next to 115 Hilton returned to petitioner. (T. 344.) Avenue. ( at 338.) As Officer Buonaiuto
*3 Detective Angelo Barone (“Detective B. Procedural History
Barone”) became involved in this matter the
next day, March 20, 2011, to investigate State Court Proceedings criminal trespass, but marked the case as not
needing a follow-up. (H. 84, 116.) Costello a. Pre-Trial Hearing ultimately reversed his decision and decided
to cooperate with the police investigation. On June 18, 2012, the Supreme Court of ( Id. at 198.) the State of New York, Nassau County, held
a pre-trial hearing to determine: (1) the On April 29, 2011, Detective Barone admissibility and testimony of the plastic bag advised Marone of his Miranda rights and containing copper piping under Mapp v. took his written confession. ( Id. at 88-89.) Ohio , 367 U.S. 643 (1961); (2) the Marone ultimately confessed that he and admissibility of petitioner’s written statement petitioner knowingly entered 115 Hilton subsequent to his arrest under People v. Avenue without permission with Huntley , 15 N.Y.2d 72 (1965); (3) whether intention to stay overnight and steal copper the police had probable cause to arrest piping in the morning. ( Id. at 96-97.) petitioner on June 6, 2011 regarding the Marone stated petitioner turned off the water March 19, 2011 incident under Dunaway v. main triggering the silent alarm. ( Id. at 97.) New York , 442 U.S. 200 (1979); and After Costello entered the basement, Marone (4) whether the show-up identification was and petitioner ran out of the house where they unduly suggestive and therefore should be were immediately stopped by police. ( Id. ) suppressed under U.S. v. Wade , 388 U.S. 218 Marone stated Petitioner found copper in the (1967). (H. 3-7.) home’s backyard, which he and petitioner
took and sold. ( Id. at 97-98.) With respect to the Mapp issue, the court
ruled that the People could elicit testimony On June 6, 2011, Detective Barone concerning the bag with copper piping arrested petitioner in connection with this because probable cause existed. ( Id. at 269.) incident and advised him of his Miranda In any event, the police could offer testimony rights. (T. 407-08.) Petitioner signed a as to the bag with copper piping because written confession stating he entered 115 petitioner and Marone abandoned the bag. Hilton Avenue on March 18, 2011 with ( Id. at 269-70.) Marone to sleep for the night with the
intention to steal copper piping in the On the Huntley issue, the court concluded morning, and the following morning he shut petitioner was read his Miranda rights, off the water main to take the copper. ( at understood them, waived them, and 417-18.) Petitioner admitted to taking one voluntarily provided a statement. ( Id. at piece of copper from outside the house, 271.)
which he then sold. ( at 418.)
As to the Dunaway issue, the hearing court concluded that Costello’s testimony was credible and that probable cause existed for the arrest. ( Id. at 267-69.) Costello saw petitioner leaving the home, never lost sight of him until the police arrived, and accurately identified petitioner as the African-American *4 male in the show-up identification. ( Id. at the great weight of the evidence; (3) the trial 268-69.) In addition, Costello had a valid court erred in finding petitioner’s arrest was independent basis to have identified supported by probable cause; and petitioner. ( Id. at 272.) The fact that no arrest (4) petitioner was denied effective assistance was made on March 19 did not diminish of trial counsel. On July 30, 2014, the probable cause for the police to make an Supreme Court, Appellate Division, Second arrest at a later time. ( Id. at 269.) Department, unanimously affirmed
petitioner’s conviction. People v. High Finally, on the Wade issue, the court held N.Y.S.2d 873, 873 (N.Y. App. Div. 2014).
that the show-up identification was not
unduly suggestive and Costello had an The court rejected petitioner’s first and independent basis to identify petitioner. ( Id. second arguments relating to the sufficiency at 270, 272.) of the evidence. First, the court held,
pursuant to N.Y. Criminal Procedural Law b. Trial and Sentencing § 470.05[2], that petitioner failed to preserve for appellate review his challenge to the legal After pleading not guilty to burglary in sufficiency of the evidence. Id at 874. “In
the second degree (N.Y. Penal Law any event, viewing the evidence in the light § 140.25[2]), petitioner proceeded to trial by most favorable to the prosecution,” the court jury in the Supreme Court, Nassau County on found that it was legally sufficient to July 16, 2012. At the close of the establish petitioner’s “guilt of burglary in the prosecution’s case, both sides rested. (T. 453- second degree beyond a reasonable doubt.” 54.) Defense counsel then made a general Id. Furthermore, when conducting its review “application to move for a trial order of of the weight of the evidence the court dismissal,” regarding the sufficiency of the “accord[ed] great deference to the People’s case. ( Id. at 455.) The court denied factfinder’s opportunity to view this motion. ( Id. ) Counsel subsequently witnesses, hear the testimony, and observe moved to dismiss the entire case, which the demeanor.” Id . In doing so, the court court also denied. ( ) Counsel provided no concluded the guilty verdict was not against specifics for either trial motion. ( ) the weight of the evidence. Id .
On July 24, 2012, the jury found In rejecting petitioner’s third argument petitioner guilty of burglary in the second that the trial court erred in finding petitioner’s degree. ( Id. at 537.) On September 20, 2012, arrest was supported by probable cause, the petitioner, as a second felony offender, was Appellate Division held that the “Supreme sentenced to incarceration for eight years Court properly denied the suppression of followed by five years of post-release [petitioner’s] statements to law enforcement supervision. (S. 6.) officials” because “the evidence established
that, on the date of the incident, police had c. Appeals probable cause to arrest petitioner and, therefore, probable cause existed when the Petitioner appealed his conviction to the complainant later cooperated with [police] in Supreme Court, Appellate Division, Second the apprehension and prosecution of Department, arguing that: (1) the People [petitioner].” Id . at 873-74. Specifically, the failed to prove petitioner’s guilt beyond a court found that the police had probable reasonable doubt; (2) the verdict was against cause because the “complainant identified *5 [petitioner] as one of the intruders, . . . the court must apply the standard of review set police observed [petitioner] throw a bag into forth in 28 U.S.C. § 2254, as amended by the the bushes near the house,” and the police Antiterrorism and Effective Death Penalty discovered copper piping in the bag. Id . at Act (“AEDPA”), which provides, in relevant 873. part:
Finally, the court rejected petitioner’s (d) An application for a writ of habeas fourth argument that he was denied effective corpus on behalf of a person in custody assistance of trial counsel. Id . at 874. “Since pursuant to the judgment of a State court [petitioner’s] conviction was supported by shall not be granted with respect to any legally sufficient evidence” the court claim that was adjudicated on the merits concluded that this claim, “based solely [on in State court proceedings unless the petitioner’s] counsel’s failure to preserve his adjudication of the claim – legal insufficiency contention,” lacked merit. (1) resulted in a decision that was
contrary to, or involved an unreasonable Petitioner applied for leave to appeal to application of, clearly established Federal the New York State Court of Appeals, which law, as determined by the Supreme Court the court denied on November 24, 2014. See of the United States; or People v. High , 24 N.Y.3d 1044 (2014).
(2) resulted in a decision that was based The Instant Petition on an unreasonable determination of the facts in light of the evidence presented in On February 18, 2016, pursuant to 28 the State court proceedings.
U.S.C. § 2254, petitioner filed a pro se
Petition for Writ of Habeas Corpus with this 28 U.S.C. § 2554. ‘“Clearly established Court. (ECF No. 1.) Petitioner raises four Federal law’ means ‘the holdings, as opposed issues: (1) the show-up identification was to the dicta, of [the Supreme] Court’s unduly suggestive; (2) the evidence at trial decisions as of the time of the relevant state- was insufficient to establish petitioner’s guilt court decision.’” Green v. Travis , 414 F.3d of burglary in the second degree; (3) the 288, 296 (2d Cir. 2005) (quoting Williams v. hearing court erred in finding petitioner’s Taylor , 529 U.S. 362, 412 (2000)). arrest was supported by probable cause; and
(4) petitioner received ineffective assistance A decision is “contrary to” clearly of trial counsel. Respondent filed a established federal law, as determined by the memorandum of law in opposition to the Supreme Court, “if the state court arrives at a petition on June 3, 2016. (ECF No. 6.) conclusion opposite to that reached by [the Petitioner submitted a reply to the opposition Supreme Court] on a question of law or if the on June 23, 2016. (ECF No. 7.) The Court state court decides a case differently than [the has fully considered the submissions and Supreme Court] has on a set of materially arguments of the parties. indistinguishable facts.” Williams , 529 U.S.
at 413. A decision is an “unreasonable II. S TANDARD OF R EVIEW application” of clearly established federal law if a state court “identifies the correct To determine whether a petitioner is governing legal principles from [the Supreme entitled to a writ of habeas corpus, a federal Court’s] decisions but unreasonably applies *6 that principle to the facts of [a] prisoner’s Court concludes that they lack merit. The case.” ineffective assistance of trial counsel claim
also fails on its merits.
AEDPA establishes a deferential standard of review: ‘“a federal habeas court A. Wade Claim may not issue the writ simply because the
court concludes in its independent judgment Respondent argues this claim should be that the relevant state-court decision applied dismissed because petitioner did not exhaust clearly established federal law erroneously or this claim by fairly presenting it to the state incorrectly. Rather, that application must courts and that it is procedurally barred. also be unreasonable.’” Gilchrist v. O’Keefe (Opp’n at 24-25.) The Court agrees. 260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams , 529 U.S. at 411). The Second Procedural Bar Circuit added that, while ‘“[s]ome increment
of incorrectness beyond error is required . . . i. Failure to Exhaust the increment need not be great; otherwise, As a threshold matter, a district court
habeas relief would be limited to state court shall not review a habeas petition unless “the decisions so far off the mark as to suggest applicant has exhausted the remedies judicial incompetence.’” Id. (quoting Francis available in the courts of the State.” 28 S. v. Stone , 221 F.3d 100, 111 (2d Cir. 2000)). U.S.C. § 2254(b)(1)(A). Although a state Finally, “if the federal claim was not prisoner need not petition for certiorari to the adjudicated on the merits, ‘AEDPA United States Supreme Court to exhaust his deference is not required, and conclusions of claims, see Lawrence v. Florida , 549 U.S. law and mixed findings of fact and 327, 333 (2007), he still must fairly present conclusions of law are reviewed de novo .’” his federal constitutional claims to the Dolphy v. Mantello , 552 F.3d 236, 238 (2d highest state court having jurisdiction over Cir. 2009) (quoting Spears v. Greiner , 459 them, see Daye v. Attorney Gen. of N.Y. F.3d 200, 203 (2d Cir. 2006)).
F.2d 186, 191 n.3 (2d Cir. 1982) (en banc). Exhaustion of state remedies requires that a III. D ISCUSSION petitioner ‘“fairly presen[t]’ federal claims to the state courts in order to give the State the Petitioner argues: (1) the show-up ‘opportunity to pass upon and correct’ identification was unduly suggestive under alleged violations of its prisoners’ federal Wade , 388 U.S. 218; (2) the evidence at trial rights.” Duncan v. Henry , 513 U.S. 364, 365 was insufficient to establish his guilt of (1995) (quoting Picard v. Connor , 404 U.S. burglary in the second degree; (3) the hearing 270, 275 (1971)) (alteration in original). court erred in finding his arrest was supported by probable cause; and (4) he received However, “it is not sufficient merely that
ineffective assistance of trial counsel. (Pet. at the federal habeas applicant has been through 19-23.)
the state courts.” Picard , 404 U.S. at 275-76. To provide the State with the necessary For the reasons discussed below, the “opportunity,” the prisoner must “fairly Court denies petitioner habeas relief. present” his claims in each appropriate state Petitioner’s Wade , insufficiency of the court (including a state supreme court with evidence, and lack of probable cause claims powers of discretionary review), alerting that are procedurally barred, and, in any event, the
court to the federal nature of the claim and *7 “giv[ing] the state courts one full opportunity ii. Procedural Default to resolve any constitutional issues by Like the failure to exhaust a claim, the
invoking one complete round of the State’s failure to satisfy the state’s procedural established appellate review process.” requirements deprives the state courts of an O’Sullivan v. Boerckel , 526 U.S. 838, 845 opportunity to address federal (1999); see also Duncan , 513 U.S. at 365-66. constitutional or statutory issues in a “A petitioner has ‘fairly presented’ his claim petitioner’s claim. See Coleman v. only if he has ‘informed the state court of Thompson , 501 U.S. 722, 731-32 (1991). both the factual and legal premises of the “[A] claim is procedurally defaulted for the claim he asserts in federal court.’” Jones v. purposes of federal habeas review where ‘the Keane , 329 F.3d 290, 294-95 (2d Cir. 2003) petitioner failed to exhaust state remedies and (quoting Dorsey v. Kelly , 112 F.3d 50, 52 (2d the court to which the petitioner would be Cir. 1997)). “Specifically, [petitioner] must required to present his claims in order to meet have set forth in state court all of the essential the exhaustion requirement would now find factual allegations asserted in his federal the claims procedurally barred.’” Reyes v. petition.” Daye , 696 F.2d at 191-92 (citing Keane , 118 F.3d 136, 140 (2d Cir. 1997) Picard , 404 U.S. at 276; United States ex rel. (quoting Coleman , 501 U.S. at 735) Cleveland v. Casscles , 479 F.2d 15, 19-20 (emphasis omitted). Where the petitioner (2d Cir. 1973)). To that end, “[t]he chief “can no longer obtain state-court review of purposes of the exhaustion doctrine would be his present claims on account of his frustrated if the federal habeas court were to procedural default, those claims are now to be rule on a claim whose fundamental legal deemed exhausted.” DiGuglielmo v. Smith , basis was substantially different from that 366 F.3d 130, 135 (2d Cir. 2004) (citing asserted in state court.” Id. at 192 (footnote Harris v. Reed , 489 U.S. 255, 263 n.9 (1989); omitted).
Grey v. Hoke , 933 F.2d 117, 120 (2d Cir. Here, petitioner failed to exhaust this 1991)). Therefore, “[f]or exhaustion claim because he failed to raise the Wade purposes, ‘a federal habeas court need not issue on appeal with the Appellate Division require that a federal claim be presented to a or the New York State Court of Appeals. At state court if it is clear that the state court the trial level, the court held a Wade hearing would hold the claim procedurally barred.’” to resolve this issue in the first instance. As Keane , 118 F.3d at 139 (quoting Hoke such, the record of this hearing, if petitioner F.2d at 120).
had raised this claim on appeal, would have
made this claim easily reviewable. By failing However, “exhaustion in this sense does to raise this claim, petitioner denied the state not automatically entitle the habeas petitioner courts the opportunity to resolve this to litigate his or her claims in federal court. constitutional issue. Since petitioner did not Instead, if the petitioner procedurally fairly present this claim to the appropriate defaulted [on] those claims, the prisoner New York State courts “in order to give the generally is barred from asserting those State the ‘opportunity to pass upon and claims in a federal habeas proceedings.” correct’ alleged violations of its prisoners’ Woodford v. Ngo , 548 U.S. 81, 93 (2006) federal rights,” this claim is unexhausted. (citing Gray v. Netherland , 518 U.S. 152, 162 Duncan , 513 U.S. at 365 (quoting Picard (1996); Coleman , 501 U.S. at 744-51). 404 U.S. at 275).
The procedural bar rule in the review of applications for writs of habeas corpus is *8 based on the comity and respect that state barring federal habeas review). Thus, it is judgments must be accorded. See House v. only reviewable if he can show cause and Bell , 547 U.S. 518, 536 (2006). Petitioner’s prejudice or that failure to consider his claim federal claims also may be procedurally will result in manifest injustice. See barred from habeas corpus review if they Coleman , 501 U.S. at 750.
were decided at the state level on adequate
and independent grounds. See Coleman , 501 Petitioner has not demonstrated cause and U.S. at 729-33. prejudice resulting from this procedural
default, nor a miscarriage of justice. First, Once it is determined that a claim is petitioner fails to offer an explanation for procedurally barred under state rules, a why he failed to raise his claim on direct federal court may still review such a claim on review. In any event, petitioner cannot show its merits if the petitioner can demonstrate prejudice, much less a manifest injustice, both cause for the default and prejudice because, as discussed below, the show-up resulting therefrom, or if he can demonstrate identification was properly admitted and the that the failure to consider the claim will evidence, including the show-up result in a miscarriage of justice. at 750 identification, was sufficient to prove (citations omitted). A miscarriage of justice petitioner’s guilt. For these reasons, is demonstrated in extraordinary cases, such petitioner’s Wade claim is procedurally as where a constitutional violation results in barred.
the conviction of an individual who is
actually innocent. Murray v. Carrier , 477 Merits U.S. 478, 496 (1986).
Petitioner claims the show-up identification was unduly suggestive because Here, petitioner no longer has any state Costello observed petitioner in handcuffs. remedies available to him with respect to the (Pet. at 19.) Even assuming this claim is not Wade claim because New York’s procedural procedurally barred, this Court concludes the rules prevent him from raising it in a New claim lacks merit. York State court. See Moss v. New York , No.
10–CV–5840 (SJF), 2014 WL 585928, at *9 As noted above, in order to succeed on
(E.D.N.Y. Feb. 12, 2014) (citing C.P.L. the merits, the state court’s adjudication of § 440.10(2)(c) (barring review of claims that the claim must have “resulted in a decision could have been raised on direct appeal); St. that was contrary to, or involved an Helen v. Senkowski , 374 F.3d 181, 183 (2d unreasonable application of, clearly Cir. 2004) (“[T]he failure to have raised the established Federal law” or “was based on an claim on direct review now forecloses further unreasonable determination of the facts in collateral review in state court.”); Aparico v. light of the evidence presented by the State Artuz , 269 F.3d 27, 91 (2d Cir. 2001) (“New court proceedings.” 28 U.S.C. § 2554. York does not otherwise permit collateral attacks on a conviction when the defendant The Supreme Court has established a
unjustifiably failed to raise the issue on direct two-step inquiry for evaluating appeal.”)). Therefore, even though petitioner admissibility of a pre-trial identification. has not exhausted his Wade claim, he has Neil v. Biggers , 409 U.S. 188, 196-97 (1972). procedurally defaulted on it. See Moss Under this inquiry, the court must determine WL 585928, at * 9 (failing to raise claims on if the pre-trial “identification process was direct appeal resulted in procedural default,
impermissibly suggestive, and if so, whether *9 it was so suggestive as to raise a very suggestive” because they are “necessary substantial likelihood of irreparable incidents of an on-the-scene identification.” identification.” U.S. v. Wong , 40 F.3d 1347, U.S. v. Bautista , 23 F.3d 726, 730 (2d Cir. 1359 (2d Cir. 1994) (internal citation 1994).
omitted). If the court finds the identification
process impermissibly suggestive, In this case, the hearing court correctly identification can nonetheless be admitted concluded that the show-up identification into testimony if the court determines the was not impermissibly suggestive. identification to be independently reliable. “Consistent with good police work,” the Id. The court looks to five factors to police conducted an on-the-scene determine if an identification is identification with Costello to ensure that the independently reliable: “(1) the opportunity individuals detained were the ones Costello of the witness to view the criminal at the time witnessed leaving the residence. Zelker , 455 of the crime; (2) the witness’ degree of F.2d at 716. Nothing in the record suggests attention; (3) the accuracy of the witness’ that the procedures were unduly suggestive. prior description of the criminal; (4) the level Costello sat in the passenger seat of the police of certainty demonstrated by the witness at car, which drove past petitioner and Marone the confrontation; and (5) the length of time twice so that Costello had an unobstructed between the crime and the confrontation.” view of both men to make an accurate Neil , 409 U.S. at 199-200. ‘“In sum, the identification. (H. 70.) From this, Costello identification evidence will be admissible if accurately identified petitioner as the man (a) the procedures were not [unnecessarily] who ran out of the house. ( ; T. 383.) suggestive or (b) the identification has Petitioner’s assertion that the identification independent reliability.”’ Brisco v. Ercole procedure was unduly suggestive because 565 F.3d 80, 88 (2d Cir. 2009) (quoting police allowed Costello to observe petitioner Raheem v. Kelly , 257 F.3d 122, 133 (2d Cir. in handcuffs is contrary to established federal 2001)) (alteration in original). law. See Bautista , 23 F.3d at 730 (“The fact
that the suspects were handcuffed, in the Even though a show-up procedure is custody of law enforcement officers, and inherently suggestive, it is not inherently illuminated by flashlights [] did not render unconstitutional. Id. To violate due process, the pre-trial identification procedure the show-up identification, viewed in unnecessarily suggestive.”); U.S. v. Diaz “totality of the circumstances,” must be F. App’x 551, 555 (3d Cir. 2011) (stating that “unnecessarily suggestive.” (quoting the fact that a “suspect is handcuffed and Stovall v. Denno , 388 U.S. 293, 302 (1967)). surrounded by police officers during an on- Accordingly, “prompt on-the-scene scene show-up” identification does not confrontation is ‘consistent with good police automatically make the show-up unduly work’” and is preferred to ensure “the release suggestive). During this process, petitioner of an innocent suspect.” United States ex rel. stood near the police officers, who did not Cummings v. Zelker , 455 F.2d 714, 716 (2d make any indications to influence Costello’s Cir. 1972) (quoting U.S. v. Sanchez , 422 F.2d identification of petitioner. (H. 16, 71-72.) 1198, 1200 (2d Cir. 1970)). The fact that a
show-up identification was conducted while
the individual was in handcuffs or police
custody does “not render the pre-trial
identification procedure unnecessarily
In light of this, the show-up procedure was (2d Cir. 2007) (quoting Garvey v. Duncan not unduly suggestive. [4] [4] 485 F.3d 709, 714 (2d Cir. 2007)). Since the
Appellate Division relied on an independent As the show-up identification was not and adequate state procedural rule to reject impermissibly suggestive, the Court this claim, petitioner’s federal habeas review concludes this claim lacks merit. is barred.
B. Insufficiency of the Evidence Claim Furthermore, petitioner has not
demonstrated cause and prejudice resulting Respondent argues this claim (1) is from this procedural default, nor a procedurally barred because petitioner failed miscarriage of justice. Regardless, as to preserve this challenge for appellate discussed below, neither prejudice nor a review, and, in any event, (2) is without miscarriage of justice is present because the merit. (Opp’n at 13-17.) The Court agrees. evidence is sufficient to support his
conviction. Therefore, petitioner’s 1. Procedural Bar insufficiency of the evidence claim is procedurally barred.
Like the Wade claim, this claim is also barred based on procedural default. Merits Petitioner unsuccessfully raised this claim on
direct appeal to the Appellate Division, and Even if this claim was not procedurally the New York State Court of Appeals denied barred, it nonetheless lacks merit. Petitioner petitioner’s leave to appeal. See High , 24 claims that the evidence presented at trial was N.Y.3d 1044; High , 989 N.Y.S.2d at 874. As legally insufficient to establish his guilt such, petitioner has adequately exhausted his beyond a reasonable doubt because on March state remedies regarding this claim. 19, 2011 no arrest was made, the police did However, this claim is procedurally barred not find anything missing, and there were no from habeas corpus review. signs of forced entry. (Pet. at 20.)
Petitioner’s counsel failed to preserve this The law governing habeas relief from a claim for appeal by failing to make a motion state conviction based on insufficiency of the to dismiss on specific alleged errors, instead evidence is well established. A petitioner making a general motion to dismiss. (T. ‘“bears a very heavy burden”’ when 455.) As such, on direct appeal the Appellate challenging evidentiary sufficiency in a writ Division held this issue was not preserved for of habeas corpus. Einaugler v. Supreme appellate review pursuant to N.Y. C.P.L. Court of N.Y. , 109 F.3d 836, 840 (2d Cir. § 470.05[2]. High , 989 N.Y.S.2d at 874. It 1997) (quoting Quirama v. Michele is established that under N.Y. C.P.L. F.2d 12, 14 (2d Cir. 1993)). A criminal § 470.05[2] ‘“a general objection is not conviction in state court will not be reversed sufficient to preserve an issue’” for appeal, if, “after viewing the evidence in the light and this rule constitutes an independent and most favorable to the prosecution, any adequate state grounds to deny relief. rational trier of fact could have found the Richardson v. Green , 497 F.3d 212, 218, 220 essential elements of the crime beyond a *11 reasonable doubt.” Jackson v. Virginia , 443 that the Appellate Division’s ruling was not U.S. 307, 319 (1979); see also Policano v. contrary to, or an unreasonable application Herbert , 507 F.3d 111, 115–16 (2d Cir. of, clearly established federal law. Nor was 2007) (stating that “[i]n a challenge to a state it an unreasonable determination of the facts. criminal conviction brought under 28 U.S.C.
§ 2254 . . . the applicant is entitled to habeas In New York, “[a] person is guilty of corpus relief if it is found that upon the record burglary in the second degree when he evidence adduced at the trial no rational trier knowingly enters or remains unlawfully in a of fact could have found proof of guilt building with intent to commit a crime beyond a reasonable doubt” therein, and . . . [t]he building is a dwelling.” (quoting Jackson , 443 U.S. at 324)). Even N.Y. Penal Law § 140.25[2]. The New York when ‘“faced with a record of historical facts Court of Appeals has held that burglary is that supports conflicting inferences [a court] completed when an individual enters a must presume—even if it does not dwelling with the “intent to commit a crime.” affirmatively appear in the record—that the People v. Frazier , 16 N.Y.3d 36, 41 (2010). trier of fact resolved any such conflicts in Contrary to petitioner’s contention, burglary favor of the prosecution, and must defer to in the second degree can be charged even that resolution.”’ Wheel v. Robinson , 34 F.3d absent forced entry. See People v. Melendez 60, 66 (2d Cir. 1994) (quoting Jackson 613 N.Y.S.2d 867, 867-68 (N.Y. App. Div. U.S. at 326). 1994) (affirming defendant’s conviction of
second-degree burglary even though Petitioner cannot prevail on a claim of defendant contended that the People did not legally insufficient evidence unless he can prove that defendant’s entry into the home show that, viewing the evidence in the light was unlawful because “there was no evidence most favorable to the prosecution, ‘“no of forced entry”); People v. Cooper , 571 rational trier of fact could have found proof N.Y.S.2d 114, 115-16 (N.Y. App. Div. 1991) of guilt beyond a reasonable doubt.”’ (affirming defendant’s conviction of burglary Flowers v. Fisher , 296 F. App’x 208, 210 (2d in the second degree when no signs of forced Cir. 2008 (quoting Jackson , 433 U.S. at 324). entry into the residence existed).
When considering the sufficiency of the
evidence of a state conviction, “[a] federal The evidence here is sufficient to support court must look to state law to determine the petitioner’s conviction. First, petitioner’s elements of the crime.” Quartararo v. confession supports his conviction as he Hanslmaier , 186 F.3d 91, 97 (2d Cir. 1999). admitted to entering the dwelling of 115
Hilton Avenue and possessed the intent to In this case, petitioner argues that his commit a crime. (T. 417-18.) He also conviction was not based on legally sufficient admitted that he entered 115 Hilton Avenue, evidence. (Pet. at 20.) The Appellate a private residence, without permission and, Division rejected this claim on the merits, while inside, decided to steal copper piping. holding that, “viewing the evidence in the ( at 371, 374, 417-18.) Second, Costello’s light most favorable to the prosecution, we identification of petitioner as the individual find that [the evidence] was legally sufficient leaving the home with Marone corroborated to establish [petitioner’s] guilt of burglary in petitioner’s confession. ( at 383.) Costello the second degree beyond a reasonable provided a credible identification of doubt.” High , 989 N.Y.S.2d at 874. For the petitioner as he watched petitioner and reasons set forth below, the Court concludes Marone leave 115 Hilton Avenue and never *12 lost sight of both men until police detained unreasonably application of, clearly them. ( Id. at 381-83.) Finally, police established federal law. See 28 U.S.C. witnessed petitioner discard a plastic bag § 2254(d)(1).
containing copper piping, which petitioner
later confessed came from the residence. ( Id. C. Lack of Probable Clause Claim at 342, 418.) Altogether, this evidence was
plainly sufficient to support the conviction. Respondent argues the “lack of probable See People v. Calcaterra , 512 N.Y.S.2d 173, cause” claim should be dismissed because it 173-174 (N.Y. App. Div. 1987) (affirming is procedurally barred and meritless, and, conviction of burglary in the first degree again, the Court agrees. (Opp’n at 19-24.) where defendant was “positively identified
by an eyewitness [and] ultimately gave the Procedural Bar police oral and written statements confessing
to the crime” after he voluntarily waived his It is well-settled that Fourth Amendment Miranda rights). habeas claims are evaluated using the
procedural standard set forth in Stone v. Petitioner argues that, since there were no Powell , 428 U.S. 465 (1976). Under this signs of forced entry and Costello decided not standard, “where the State has provided an to press charges on the day of the incident, opportunity for full and fair litigation of a the evidence was insufficient for a Fourth Amendment claim, a state prisoner conviction. (Pet. at 20.) However, as noted may not be granted federal habeas corpus above, burglary in the second degree does not relief on the ground that evidence obtained in require the presence of forced entry. See an unconstitutional search or seizure was Cooper , 571 N.Y.S.2d at 115-16. Moreover, introduced at his trial.” at 494. The even though the police officers had probable Second Circuit has further explained that, cause to arrest petitioner on March 19, under Powell , “review of fourth amendment nothing required them to make an arrest at claims in habeas petitions would be that moment. See Cornett v. Brown , No. undertaken in only one of two instances: (a) 04CV0754(DGT)(LB), 2006 WL 845568, at if the state has provided no corrective *8 (E.D.N.Y. Mar. 30, 2006) (stating there is procedures at all to redress the alleged fourth no “requirement that complaints be sworn or amendment violations; or (b) if the state has acted upon promptly . . . there does not appear provided a corrective mechanism, but the to be a bar to relying on stale complaints in defendant was precluded from using that forming probable cause”). In addition, the mechanism because of an unconscionable fact that they did not immediately arrest him breakdown in the underlying process.” does not detract from the sufficiency of the Capellan v. Riley , 975 F.2d 67, 70 (2d Cir. evidence discussed above. 1992). Such a breakdown occurs when the
state court “failed to conduct a reasoned In sum, the Court concludes that the method of inquiry into relevant questions of evidence was legally sufficient to establish fact and law.” at 71 (citation omitted). that a rational trier could find petitioner
guilty of burglary in the second degree Petitioner had a full and fair opportunity beyond a reasonable doubt. Therefore, the to litigate this claim in state court. The Court finds that petitioner’s sufficiency of the Second Circuit has already established that evidence claim is without merit, and thus, the that New York has adequate corrective state court’s ruling was not contrary to, or an procedures for litigating Fourth Amendment *13 claims, which are set forth in N.Y. C.P.L. of the incident. High , 989 N.Y.S.2d at 873. § 710.10 et seq . See, e.g., Capellan Therefore, the record clearly establishes that F.2d at 70 n.1 (“[T]he ‘federal courts have the state court conducted a reasoned and approved New York’s procedure for thorough method of inquiry into the relevant litigating Fourth Amendment claims . . . as facts. In short, having fully availed himself being facially adequate.’” (quoting Holmes v. of New York’s corrective procedures Scully , 706 F. Supp. 195, 201 (E.D.N.Y. regarding his Fourth Amendment claim, 1989))); Blagrove v. Mantello , 104 F.3d 350, petitioner had an opportunity for full and fair 350 (2d Cir. 1996) (holding that where litigation of the claim and may not raise it on defendant’s “Fourth Amendment issues were federal habeas review. Powell , 428 U.S. at raised before the trial court in the suppression 494.
hearing and before the Appellate Division in
[his] pro se brief,” defendant’s “Fourth Merits Amendment argument is barred [from
federal habeas review] because the issue was Even if petitioner could assert this claim, fully and fairly litigated in the state the Court concludes that it lacks merit. The courts”); see also McPhail v. Warden, Attica testimony elicited at the pre-trial evidentiary Corr. Facility , 707 F.2d 67, 69 (2d Cir. 1983) hearing supports the state court’s decision (holding that New York’s procedure for that the police had probable cause to arrest litigating a Fourth Amendment claim in a petitioner. Specifically, Costello accurately criminal trial complied with requirement that identified petitioner as the African-American a state provide an opportunity to litigate such male exiting 115 Hilton Avenue to police. claims). (H. 14-16, 195-198) Costello never lost sight
of petitioner from the time petitioner exited Since New York State provides a facially the home until the police arrived. ( at 195- adequate statutory mechanism for review of 98.) This independent reliable identification Fourth Amendment claims, petitioner must of petitioner provided the police officers with show that an “unconscionable breakdown” probable cause to arrest him. See Keith v. occurred. Here, there is no evidence of an City of New York , 641 F. App’x 63, 65-66 (2d unconscionable breakdown in the underlying Cir. 2016) (holding police officers had process. Petitioner was granted a pre-trial probable cause to arrest suspect based solely evidentiary hearing to determine if probable on a single eyewitness identification); cause existed. Testimony elicited at the Stansbury v. Wertman , 721 F.3d 84, 90 (2d hearing supported the court’s decision that Cir. 2013) (‘“[A]bsent circumstances that the police had probable cause to arrest raise doubts as to the victim’s veracity,’ a petitioner and the resulting evidence was victim’s identification is typically sufficient admissible at trial. (H. 268-271.) to provide probable cause.”) (quoting Singer Additionally, petitioner raised his Fourth v. Fulton Cty. Sheriff , 63 F.3d 110, 119 (2d Amendment claim on direct appeal to the Cir. 1995)); Carson v. Lewis , 35 F. Supp. 2d Appellate Division, which affirmed the lower 250, 260 (E.D.N.Y. 1999) (“[U]nequivocal court’s ruling, expressly finding that the identification of a suspect received by police “Supreme Court properly denied from a victim or eyewitness can provide suppression of [petitioner’s] statements to probable cause.”). When police later arrested law enforcement officials” because the petitioner, an officer explained his Miranda evidence established that the police had rights to petitioner, who understood these probable cause to arrest petitioner on the date
rights and voluntarily waived them before reasonable professional judgment.’” Greiner confessing to the crime. (H. 102-13.) v. Wells , 417 F.3d 305, 319 (2d Cir. 2005)
(quoting Strickland , 466 U.S. at 690). “The Based upon the facts presented at the performance inquiry examines the hearing, there is nothing in the record to reasonableness of trial counsel’s actions indicate that the New York Supreme Court’s under all the circumstances,” keeping in mind or the Appellate Division’s rulings that the that a “fair assessment of attorney police had probable cause to arrest petitioner performance requires that every effort be was contrary to, or an unreasonable made to eliminate the distorting effects of application of, clearly established federal hindsight.” Id. (quoting Rompilla v. Beard , law, nor was it an unreasonable 545 U.S. 374, 408 (2005) (O’Connor, J., determination of the facts in light of the concurring)). “In assessing performance, [a evidence presented in the state court hearing. court] must apply a ‘heavy measure of See 28 U.S.C. § 2254(d)(1). Accordingly, deference to counsel’s judgments.”’ Id. the Court concludes that the Fourth (quoting Strickland , 466 U.S. at 691). “A Amendment claim lacks merit. lawyer’s decision not to pursue a defense
does not constitute deficient performance if, D. Ineffective Assistance of Trial Counsel as is typically the case, the lawyer has
Claim reasonable justification for the decision,” DeLuca v. Lord , 77 F.3d 578, 588 n.3 (2d Cir. Petitioner argues he was denied effective 1996), and “‘strategic choices made after assistance of trial counsel because his thorough investigation of law and facts attorney failed to preserve his legal relevant to plausible options are virtually sufficiency of the evidence claim for appeal. unchallengeable.’” at 588 (quoting (Pet. at 23-34.) The Court disagrees. Strickland , 466 U.S. at 690). Moreover,
‘“strategic choices made after less than Under the standard promulgated by complete investigation are reasonable Strickland v. Washington , 466 U.S. 668 precisely to the extent that reasonable (1984), a petitioner is required to demonstrate professional judgments support the two elements in order to state a successful limitations on investigation.’” Id. (quoting claim for ineffective assistance of counsel: Strickland , 466 U.S. at 690-91).
(1) “counsel’s representation fell below an
objective standard of reasonableness,” and The second prong focuses on prejudice to (2) “there is a reasonable probability that, but the petitioner. The petitioner is required to for counsel’s unprofessional errors, the result show that there is “a reasonable probability of the proceeding would have been that, but for counsel’s unprofessional errors, different.” at 688, 694. the result of the proceeding would have been
different.” Strickland , 466 U.S. at 694. In The first prong requires a showing that this context, “reasonable probability” means counsel’s performance was deficient. that the errors were of a magnitude such that However, “[c]onstitutionally effective they “undermine[] confidence in counsel embraces a ‘wide range of [proceeding’s] outcome.” Pavel v. Hollins professionally competent assistance,’ and 261 F.3d 210, 216 (2d Cir. 2001) (quoting ‘counsel is strongly presumed to have Strickland , 466 U.S. at 694). ‘“[T]he rendered adequate assistance and made all question to be asked in assessing the significant decisions in the exercise of prejudice from counsel’s errors . . . is whether *15 there is a reasonable probability that, absent The Court certifies pursuant to 28 U.S.C. the errors, the factfinder would have had a § 1915(a)(3) that any appeal from this Order reasonable doubt respecting guilt.’” Henry v. would not be taken in good faith and Poole , 409 F.3d 48, 63-64 (2d Cir. 2005) therefore in forma pauperis status is denied (quoting Strickland , 466 U.S. at 695). The for the purpose of any appeal. See Coppedge party alleging ineffective assistance of v. United States , 369 U.S. 438, 444-45 counsel bears the burden of establishing both (1962).
deficient performance and prejudice. United
States v. Birkin , 366 F.3d 95, 100 (2d Cir. SO ORDERED.
2004).
Petitioner’s claim that he received ineffective assistance of trial counsel because ______________________ of counsel’s failure to preserve petitioner’s JOSEPH F. BIANCO legal sufficiency of the evidence challenge United States District Judge for appeal fails to satisfy the second prong of
the Strickland test. As discussed above, the
evidence was sufficient to support Dated: May 2, 2017 petitioner’s conviction for second-degree Central Islip, New York burglary, and, therefore, even if counsel had
properly raised his sufficiency of the *** evidence challenge in state court, that claim Petitioner is proceeding pro se . Respondent would not have succeeded. Accordingly, is represented by Madeline Singas, District there is not “a reasonable probability that, but Attorney, Nassau County District Attorney’s for counsel’s unprofessional errors, the result Office, 262 Old Country Road, Mineola, NY of the proceeding would have been 11501.
different.” Strickland , 466 U.S. at 694. As
such, petitioner’s ineffective assistance of
counsel claim fails.
IV. C ONCLUSION
In sum, petitioner’s claims are all
procedurally barred, without merit, or both.
Thus, this Court concludes that petitioner has
demonstrated no basis for habeas relief under
28 U.S.C. § 2254. Accordingly, the petition
for a writ of habeas corpus is denied in its
entirety.
[1]
[2]
[1] “T.” refers to the trial transcript. (ECF Nos. 6-5 to
[2] “S.” refers to sentencing transcript. (ECF No. 6-10.) 6-9.)
[3]
[3] “H.” refers to the pre-trial hearing transcript. (ECF Nos. 6-1 to 6-4.)
[4]
[4] In any event, the identification is independently brief period of time between the crime and the show- reliable, given Costello’s opportunity to see the up. petitioner, his confidence in the identification, and the