Opinion
99-CV-0323 (JBW), 03-MISC-0066.
June 10, 2003.
MEMORANDUM ORDER
The petitioner was granted a hearing. Petitioner was present by telephone. Based upon the papers received in this matter, the court intended to issue the following opinion of which petitioner and respondent were advised:
The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. This memorandum briefly addresses each of petitioner's claims.
Petitioner. 16 years old at the time, was arrested at his home after allegedly robbing a mattress store and shooting the store's owner twice in the leg and three times in the groin and abdomen. At the station house, he was held for eight hours — he alleges without food — before making a statement in writing and later by videotape in which he acknowledged being at the crime scene but not having committed the crime. He was charged with attempted murder, assault, robbery, and criminal possession of a weapon.
At trial, two witnesses testified against him, one an eyewitness to the robbery. The eyewitness chose petitioner and one other suspect from a photo array as possibly the assailant. This eyewitness subsequently chose petitioner from a line up.
At a pretrial hearing the trial court denied motions to suppress the witness identifications and the confessions, which the court found not to have been coerces.
Petitioner was acquitted on the attempted murder charge and convicted on the remaining charges. He was sentenced to 5 to 15 years in prison.
In his petition for a writ of habeas corpus, petitioner claims that the admission into evidence of his confessions was unconstitutional and that the evidence presented at trial was insufficient to sustain the verdict.
I. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(I) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
II. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
III. Claims
Petitioner first claims that the admission into evidence of his confessions was unconstitutional. This claim was properly exhausted after being presented to the Appellate Division and the Court of Appeals. The Appellate Division held that there was no evidence that petitioner was denied food or counsel:
[T]here is no merit to the defendant's contention that his statements were involuntary. It is undisputed that the defendant was not threatened, abused, or otherwise mistreated by the police. There is no evidence that the defendant requested an attorney at any time, that he was deprived of food or drink, or that he was subjected to persistent and overbearing interrogation or deception so fundamentally unfair as to deny due process. Additionally, the hearing court found that the defendant had twice been advised of his Miranda rights and had voluntarily waived them prior to making both his oral and videotaped statements.
People v. Dowrin, 244 A.D.2d 567 (N.Y.App.Div. 1997). There is no evidence in the record, and petitioner has produced no evidence de hors the record aside from his conclusory assertions, that he was denied sustenance; in fact, he conceded that he never asked for any food. Appellate Division Brief for Defendant-Appellant at 35. In addition, petitioner was allowed to make phone calls from the station and his mother knew that he was there. Although petitioner's age is a factor that may enter into a court's determination of whether a confession was coerced, even taking into account petitioner's age at the time of his interrogation, the circumstance here do not require a finding of coercion. Cf. Gallegos v. Colorado, 370 U.S. 49 (1962) (14 year old boy in custody kept from mother for a week); Haley v. Ohio, 332 U.S. 596 (1948) (15 year old boy in custody kept from midnight to five a.m. without access to lawyer or mother). The state courts' findings of fact and conclusions of law are reasonable. Granting of the writ is not warranted on these claims.
Petitioner next claims that the evidence presented at trial was insufficient to sustain the verdict, "especially on the . . . element of identity." This claim is exhausted because it was raised on direct appeal, even though the Appellate Division found that it had been procedurally defaulted because it was not raised during the trial. The Appellate Division did address the claim on the merits and found it to be unsustained.
The fact that the state court held that the claim was procedurally barred prevents this court from entertaining the claim absent a showing of cause for the procedural default. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Glenn v. Barlett, 98 F.3d 721, 724 (2d Cir. 1996). Petitioner has not set forth any explanation for the default.
In any event, on the merits it could not be sustained in this court. Viewing the evidence in the light most favorable to the prosecution a rational trier of fact could find all the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Petitioner asserts that the eyewitness identification of him as the assailant was suspect. He was given an opportunity to cross examine the eyewitness about the inability to positively identify defendant from a photo array, see Tr. at 79-83, but the jury appears to have credited the testimony of the witness. Evidence at trial included testimony from another witness that he had seen defendant — whom he knew — in the area around the time of the assault. Petitioner also acknowledged that he was in the area of the crime. The Appellate Division's determination on the merits that there was sufficient evidence to sustain the verdict was not an unreasonable determination of the facts, nor was it contrary to clearly established Supreme Court precedent.
This case is troubling because there was a rather suggestive approach utilized by the police to achieve an eyewitness identification. It is plausible that petitioner was at the scene of the shooting but that he was just an "innocent bystander." Absent this eyewitness testimony a conviction was improbable. Nonetheless, there was sufficient evidence to sustain the verdict, and the writ should be denied. The petition is deemed amended to include a suggestibility claim.
IV. Conclusion
The petition for a writ of habeas corpus is dismissed. A certificate of appealability is granted on the issue of lack of adequate identification.
At oral argument, petitioner raised issues of fact and evidence that had not been presented to state courts. Accordingly, by consent of petitioner, respondent, and the court, the petition is stayed and ordered administratively closed so that petitioner can pursue his chosen course of exhausting the new claims in the state court system.
SO ORDERED.