Opinion
02 Civ. 6257 (HB)(DFE)
October 31, 2003
OPINION AND ORDER
Petitioner Ulysses Bias (hereinafter referred to as "Bias" or "petitioner" or "Hector") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis that his due process rights were violated during his state court criminal proceeding. Bias challenges the propriety of his conviction on the following two grounds: (1) that identification testimony should not have been admitted because it was based on a line-up that was impermissibly suggestive, and (2) that he was wrongly denied access to bench conferences during jury selection as he did not intend to waive his right to be present. For the following reasons, this Court finds that neither assertion amounts to a denial of due process, and therefore Bias' habeas corpus petition must be denied.
I. BACKGROUND
A. Factual Background
On September 2, 1998, a jury in New York Supreme Court, Bronx County found Bias guilty of second-degree murder and second-degree attempted murder for the shooting of Sandra and Kevin Williams.
The Williams' shooting was the culmination of a feud between the Williams and Negron families — both residents of the Pelham Parkway Houses. The fight began on September 6, 1995, and continued into the following day, when the Negrons (Valerie, her "common-law" husband Jonny Rosa ("Jonny"), her mother, and her step-father), with assistance from a friend named Joanna Morales ("Joey") and her boyfriend, "Hector" (known in this action as Bias), drove to the Pelham Parkway Houses, where they confronted the Williams'. It is important to note that upon meeting Hector for the first time, and after spending several minutes with Hector in Joey's apartment and then driving in the same car with him for approximately twenty to twenty-five minutes, Jonny noticed that Hector had a scar on his left cheek. 8/4/98 Tr. 118, 123. Quarrels with the Williams' escalated, leading to gunfire, and culminating with Kevin's being shot in the leg and Sandra's receiving a fatal gunshot wound. Jonny testified that while the shooter was having difficulty cocking his gun, he noticed that the shooter was missing some, fingers on one of his hands. 8/4/98 Trial Transcript ("Tr.") 128. Jonny and Valerie Negron both testified that Hector was the gunman. Kevin and Tiffany Williams, though not able affirmatively to identify the gunman, testified that the gunman could not have been Jonny because the gunman was significantly shorter than Jonny's 6'2" stature.
Though the gunman initially had some trouble with his weapon, he eventually managed to cock the gun and begin shooting.
Approximately two hours after the shootings, Valerie Negron called the police and reported the incident. In response, the police took Jonny, Valerie and Valerie's mother to the station, and questioned them all separately. Each reported that "Hector" was the gunman. Jonny provided some physical characteristics of "Hector," noting that he was missing some fingers and had a scar on his face. That evening, several officers arrested Hector.
The next day, September 8, 1995, less than thirty hours after the shooting, Detective Harold Pogeweit conducted a lineup with Bias and five "fillers." In the lineup, all of the participants were seated, with white sheets covering all but their heads. Therefore, viewers could not see the participants' clothing or their hands. Viewers were seated 19 feet from the lineup participants. Because of the particular seat that Bias chose, his face was turned slightly to one side — so as to make his scar less visible to the viewers. At 7:15, 7:23 and 7:26 p.m., Jonny, Valerie, and Valeria's mother separately identified Bias as the shooter.
At the Wade hearing held in the New York State Supreme Court, Bronx County, presiding Justice John P. Collins, who was seated approximately 19 feet from Bias — the same distance that the viewers were from the lineup participants — noted that from his vantage point, Bias' facial scar was not visible. Justice Collins stated on the record that he did not see Bias' scar until Bias' counsel directed his attention thereto. 1/7/98 Tr. 52.
The purpose of a Wade hearing is to determine whether identification testimony based on a lineup should be suppressed. The usual issue is whether the lineup was unduly suggestive. See United States v. Wade, 388 U.S. 218(1967).
As a result of his own difficulty seeing Bias' facial scar and the fact that Bias' scar was not perceptible in Bias' arrest photograph, which happen to be in color, Justice Collins found that the lineup was not unduly suggestive, and therefore did not violate due process. Id. at 99. In deciding to admit the lineup into evidence, Justice Collins articulated the legal principles as follows:
As to identification, the People must initially show that the pretrial identification procedure was not constitutionally impermissible. If such procedure is shown to be improper, the People then have the burden of proving by clear and convincing evidence that the prospective in-Court identification testimony rather than, stemming from the unfair pretrial confrontation, has an independent source.
Id. at 95. Justice Collins underscored that Bias' facial scar was not noticeable enough to cause a viewer to select Bias rather than one of the fillers, on such grounds. Id. at 99.
At trial, although Kevin and Tiffany Williams were unable to identify Bias as the shooter, both testified that because of his height, Jonny could not have been the shooter. Both Kevin and Tiffany had seen or interacted with Jonny before the date of the trial. Despite this testimony, Bias' attorney alleged that Jonny was the gunman and asserted that the Negrons were framing Bias to free their family.
B. Procedural History
After his trial in New York Supreme Court, Bronx County, Bias was convicted of one count each of second-degree murder and second-degree attempted murder. Bias was convicted in September 1998, and sentenced to 25 years to life for the murder count, and 10 to 20 years for the attempted murder. Bias appealed his conviction to the Appellate Division, First Department, asserting that his lineup was unduly suggestive and that he had intended his Antommarchi waiver to be of a limited nature. The Appellate Division affirmed Bias' conviction, on the grounds that Bias' "barely noticeable" scar did not render the lineup unduly suggestive, and that "[t]he record establishes that defendant waived his right to be present at sidebar conferences during jury selection." See People v. Bias, 728 N.Y.S.2d 125 (1st Dep't 2001). The New York Court of Appeals denied Bias' petition for leave to appeal. People v. Bias, 730 N.Y.S.2d 795 (2001).
Bias filed his petition for habeas corpus in this Court on August 6, 2002. I referred the matter to Magistrate Judge Douglas F. Eaton for a Report and Recommendation. On April 30, 2003, Magistrate Judge Eaton issued a Report and Recommendation, denying Bias' petition on grounds that (a) the lineup was not unduly suggestive, and (b) Blas' objections to his Antommarchi waiver were without merit. Bias filed objections to both of Magistrate Judge Baton's findings on May 19, 2003.
If a defendant makes an Antommarchi waiver, he forfeits his right (personally) to attend sidebar voir dire conferences with prospective jurors. See Sanchez v. Duncan, 282 F.3d 78, 79 (2d Cir. 2002), citing People v. Antommarchi, 590 N.Y.S.2d 33 (1992).
II. DISCUSSION
Bias challenges his conviction, claiming that his due process rights were violated on two grounds. First, Bias asserts that the afore-mentioned lineup was unduly suggestive because Blas was the only participant with a facial scar. Second, Blas claims that the Antommarchi waiver he signed did not reflect his true intent, as he only intended to consent to a limited waiver of the right to be present at bench conferences with prospective jurors.
A. Standard of Review
Federal habeas corpus relief for petitioners convicted in state court proceedings, may be granted only if the state court's 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). A state court's determination will be deemed "contrary to" established federal law only if the state court (1) applied a rule different from the governing law set forth by the Supreme Court, or (2) decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See William v. Taylor, 529 U.S. 362, 404-05 (2000). The state court determination is an "unreasonable application" of federal law if the state court correctly identified the governing principle from Supreme Court decisions but unreasonably applied that principle to the facts of the case. Id at 407-08. The focus of the "unreasonable" clause is not whether the state court incorrectly applied the facts, but whether the court's application of clearly established federal law is objectively unreasonable.
Additionally, in a habeas corpus proceeding, "a determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Id. Therefore, this Court "presumes that the factual findings of the New York courts are correct and will not set aside those findings unless `the material facts were not adequately developed at the State court hearing' or the court's factual determinations are not fairly supported by the record." Bohan v. Kuhlmann, 234 F. Supp.2d 231, 243 (S.D.N.Y. 2000), citing Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999).
A petitioner challenging his custody pursuant to a state court conviction must first exhaust all state remedies unless "it appears that . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). In this case, Blas has properly and fully exhausted his remedies in state court. See People v. Blas, 728 N.Y.S.2d 125 (1st Dep't 2001); People v. Blas, 730 N.Y.S.2d 795 (2001).
This Court reviews a Magistrate Judge's Report and Recommendation for clear error (Fed.R.Civ.P. § 72(b)), but reviews de novo those portions of the Report and Recommendation to which the petitioner objects. 28 U.S.C.A. § 636(b)(1)(c). In this case, Blas has filed objections to both of Magistrate Judge Baton's findings, namely (1) that the lineup in which Blas was identified was not unduly suggestive, and (2)that Blas' arguments concerning the Antommarchi waiver were without merit. As these findings reflect the entirety of Blas' petition, this Court must review the petition de novo.
B. The Lineup
Blas asserts that his pre-trial identification was unduly suggestive, and therefore admission of the identification evidence at trial violated his due process rights. In deciding whether to admit testimony based on pre-trial identification, a court must first determine whether the pre-trial identification was obtained through unnecessarily suggestive procedures. See Moore v. Illinois, 434 U.S. 220, 227 (1977). If the procedures were not unreasonably suggestive, the identification evidence presents no due process obstacle to admissibility (see id.) no further inquiry is required by the court, and the reliability of such properly admitted eyewitness identification becomes a jury determination. See Foster v. California, 394 U.S. 440, 442 n. 2 (1969). Raheem v. Kelly provides guidance as to the meaning of "unduly suggestive," explaining that "[a] lineup is unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness and the other lineup participants obviously do not." Raheem v. Kelly, 257 F.3d 122, 134 (2d Cir. 2001) (emphasis added). Further, lineups in which the defendant is the only individual "matching important elements of the description provided by the victim have been severely criticized as substantially increasing the dangers of misidentification." Id, citing Israel v. Odom, 521 F.2d 1370, 1374 (7th Cir. 1975).
Blas asserts that his lineup was unduly suggestive because he was the only participant with a facial scar — a feature that figured prominently into the identification of him as the perpetrator by eyewitnesses. Blas finds support for this assertion in Raheem, where a lineup was determined to be overly suggestive because the defendant was the only person wearing a black leather coat, when two witnesses had described the perpetrator as being so clothed. 257 F.3d at 122. Though Raheem is clearly on point, it is distinguishable on a critical issue. Blas' scar was nowhere near as visible to a lineup observer as was Raheem's black leather jacket. First of all, during the lineup, Blas was positioned in seat number six, which meant that his face was turned slightly to one side, obfuscating his scar from the viewers. Secondly, even if a viewer had been able to glance at Blas head-on, it is still unlikely that Blas' scar would have been perceptible, as it is wholly imperceptible in the color lineup photographs. Finally, Justice Collins, while sitting on the bench, which happened to place him the same distance from Blas as were the lineup observers, did not notice Blas' scar. 7/29/98 Tr. 52. Also, while witnesses testifying in Raheem stated that the leather jacket was highly determinative in their identification, in this case, witnesses provided no such testimony with regard to Blas' scar. Further, the fact that Jonny, an eyewitness, with close prolonged contact with Blas on the day of the crime, noticed Blas' scar, does not prove that lineup observers, peering at Blas for a short period of time, from approximately nineteen feet away, would have been able to detect Blas' scar. And, Kevin and Tiffany Williams emphasized Blas' short statute, not has facial scar, as his prominent identifying or distinguishing feature. Notably, the other lineup participants were of a similar height, build, and skin tone. Therefore, because Blas did not "obviously" differ in appearance from the "fillers," it is clear that the New York State courts' determination with regard to the admissibility of the lineup identification was neither contrary to, nor an unreasonable application of established federal law.
Although this Court questions the weight of Justice Collins' first-hand observation, as Justice Collins could be terribly near-sighted, the lack of visibility of Blas' scar is corroborated by the fact that Blas' head was turned to the side, whereby shielding his scar from view, and from the color line-up photographs, all that is perceptible is that all participants appear to possess the same general skin tone, hair color, and facial features — Blas' scar is not apparent. Further, the Appellate Division's holding was solidly based on the record, as the court considered Justice Collins' experience at the Wade hearing and the fact that the lineup photos did not reveal Blas' scar. People v. Blas, 728 N.Y.S.2d 125 (1st Dep't 2001). As Blas has not attempted to rebut these findings of fact made by the state court, we must presume that the findings are correct.
Obviously, the closer the "fillers" appear to the defendant, the fairer and more accurate the lineup will be; however, law enforcement need not go to extremes, such as applying make-up to hardly noticeable facial flaws (as proposed by Blas' counsel (1/7/98 Tr. 51)), as that would place law enforcement in the role of finding "fillers" identical to the defendant. Even Blas' counsel understood and conceded that it would be "unrealistic and impractical" to think that that the government to find "fillers" with similar facial scars See, e.g., Neil v. Biggers, 409 U.S. 188, 199 (1972). ("While . . . the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded.").
In addition to Raheem, several other cases provide guidance in determining whether a lineup is unduly suggestive. For instance, in Israel v. Odom, "where eyeglasses were the outstanding feature of the assailant's appearance to the victim and an integral part of the description provided the police, a lineup in which the defendant was the only person wearing eyeglasses was unnecessarily suggestive." 521 F.2d 1370, 1374 (7th Cir. 1975). It is critical to note that in both Raheem and Israel the distinguishing feature (the black jacket or the eyeglasses) was strikingly more apparent than Blas' facial scar. In these cases, the distinguishing features are clearly noticeable artificial items worn by the defendants. Standing nineteen feet away, or even further, a witness to a crime can most certainly see that the perpetrator is clothed in a black leather jacket or is wearing eyeglasses. The visibility of a facial scar from such a distance is far less certain.
With regard to physical characteristics, the Second Circuit has only found pre-trial identifications suggestive when the other participants possess characteristics far different from the defendant's critical obvious markings. Therefore, I find that the lineup was not unduly suggestive.
C. Waiver of Right to be Present
Blas asserts that, despite making a full Antommarchi waiver, he only intended to waive his right to be present at bench conferences among prospective jurors, the judge, and the attorneys. Despite this aft-asserted intention, it is undisputed that Blas never expressed his desire to make a limited waiver when his attorney read the waiver into the record, or even when the conferences, in which Blas asserts he intended to participate, took place. On July 29, 1998, just before the start of the three-day jury selection process, Blas' attorney (with Blas present) stated on the record that Blas had "completed the [ Antommarchi] waiver." 7/29/98 Tr. 2. Blas' signed waiver states the following: "My counsel has discussed my right as described in the case of People v. Antommarchi, 80 N.Y.2d 247 and I waive my right to be present at bench conferences during jury selection." Opposition to Petition for Habeas Corpus ("Opp.) Exh. 6.
Several factors make Blas' assertion dubious. First, after signing the waiver, Blas did not object to his exclusion from three separate bench conferences in which prospective jurors did not participate. On July 29, 1998, while Blas was present in court, Justice Collins called the attorneys (and did not invite any potential jurors) into his robing room for a conference concerning dismissal of jurors. 7/29/98 Tr. 21. On July 30, 1998, while Blas was present in court, the attorneys had a sidebar conference during jury selection (with no potential jurors present), and Blas did not object to his exclusion. 7/30/98 Tr. 85. Lastly, on August 4, 1998, with Blas again present in court, the judge and the attorneys (without any potential jurors) had a conference at sidebar, where they exercised peremptory challenges. 8/4/98 Tr. 20. At none of these times did Blas raise any objection to his exclusion, nor did he ever inform Justice Collins that his waiver was only intended to cover bench conferences in which a prospective juror was participating. As Blas was present in open court on each of the three days that conferences were heard, saw his attorney confer, and then heard Justice Collins announce the results, either excusing or swearing in jurors. There is no evidence to suggest that Blas was somehow barred or even dissuaded from consulting with his attorney at these times; rather, the transcript reflects several breaks, at which time Blas would have likely had an opportunity to converse with his counsel (7/29/98 Tr. 21; 7/30/98 Tr. 87; 8/4/98 Tr. 20, 23). Therefore, it strains belief that Blas' present partial retraction of his waiver coincides with his understanding and intention during the pre-trial.
More directly, Blas' petition fails because Blas signed a clear waiver with no exceptions, and only asserted that his waiver was of a limited nature on appeal. Blas was present when his lawyer read into the record that he had made an Antommarchi waiver and submitted the signed waiver to the court, and therefore had an opportunity either to (1) retract his waiver, or (2) review and possibly clarify his intent. Blas did neither. Moreover, because there is no Supreme Court precedent granting defendants the general right to be present at all bench conferences, the state court did not rule contrary to or unreasonably apply federal law in upholding his waiver.
III. CONCLUSION
Blas' petition for habeas corpus relief is denied because (1) the lineup in which he was identified was not unduly suggestive as his facial scar was "barely noticeable" to viewers in the lineup, and (2) his absence from bench conferences did not deprive him of a constitutional right as he signed an Antommarchi waiver, forfeiting his right to be present at bench conferences, a right not yet established by the Supreme Court. The Clerk of the Court is instructed to close this petition and any other pending motions and remove this case from my docket. Because petitioner has not "made a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2).