Opinion
00 Civ. 9294 (SHS) (JCF)
February 11, 2002
REPORT AND RECOMMENDATION
Lenin Fernandez, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for burglary in the first degree, robbery in the first degree, and unlawful imprisonment in the first degree. First, he argues that he was denied a fair trial because a "circus atmosphere" was created by counsel and the trial judge. Second, he asserts that it was error for police officers to testify about identification of him by the eyewitnesses at the scene of the crime. Third, he contends that identification evidence derived from the show-up should have been suppressed. Finally, the petitioner claims that the sentence imposed was excessive and disproportionate to the offense. For the reasons that follow, I recommend that his petition be denied.
Background
A. Trial Testimony
This case arose out of a push-in robbery that occurred on June 11, 1994. On that evening at approximately 9:00 p.m., Juan Aragones entered the elevator of his apartment building at 1860 Grand Concourse in the Bronx and rode to the fifth floor with a woman who lived in the building and four strangers. (Tr. 653-56, 665-66). When he reached apartment 5-F where he lived with his brother, Leonicio Aragones, his sister-in-law, Bienvenida Prieto, and their son, Smith Aragones, one of the robbers hit him on the head with a gun. (Tr. 653-54, 668). Smith Aragones, who was looking through the peephole in the apartment door, saw his uncle being accosted and left by the fire-escape to call the police. (Tr. 1072, 1096). When Ms. Prieto opened the door for Mr. Aragones, the robbers forced their way into the apartment. (Tr. 671; P. Tr. 8).
"Tr." refers to the state trial transcript for March 20 through April 18, 1996.
"P. Tr." refers to the separate transcript of the testimony of Ms. Prieto.
Once inside the apartment, the female and two of the male perpetrators took Mr. Aragones to the living room and then to a bedroom where they threatened him with a gun and a knife, kicked him in the head, bound him, and stole an envelope containing $280.00 in cash. (Tr. 671-74, 676). In the meantime, the remaining perpetrator, whom Ms. Prieto identified as Mr. Fernandez, held her in the dining room and threatened her with a knife. (P. Tr. 36-39, 218-19). Although the petitioner forced her face to the wall, Ms. Prieto was able to see his face for several seconds in close proximity. (P. Tr. 36-38). The three male robbers then left the apartment, leaving their female accomplice behind. (Tr. 679-80). Mr. Aragones also caught quick glimpses of the robbers during this time. (Tr. 869).
In the meantime, police officers responded to a call of a robbery in progress. (Tr. 1288-89). No description of the robbers had been provided to the officers. (Tr. 1295). As the police arrived at the building, three Hispanic men and one African-American man entered the lobby from the staircase. (Tr. 1290-94). Alcides Lopez-Roque, the male in the lead, seemed surprised and nervous upon seeing the officers. (Tr. 1292, 1555). When he was questioned by police officer John Anasa, he admitted that he did not live in the building and was unable to provide a good reason for his presence there. (Tr. 1308, 1554). When Mr. Lopez-Roque was asked to raise his hands, Sergeant Paul McCormack, one of the officers, noticed a bulge on the right side of his waistband. (Tr. 1305). The three Hispanic men were then lined up against the wall and frisked, and a gun was recovered from Mr. Lopez-Roque while a knife was found on the petitioner. (Tr. 1307, 1310, 1568). In addition, Mr. Fernandez was carrying a metal strongbox later identified by Mr. Aragones and Ms. Prieto as having been taken from the apartment. (Tr. 722, 727-28, 1294; P. Tr. 61). The Hispanic men were then handcuffed. (Tr. 1310). The African-American male was able to provide proof of residence in the building, and although he also was detained, he apparently was not handcuffed. (Tr. 1567, 1861).
Mr. Aragones and Ms. Prieto were brought downstairs and asked to view the four men, one at a time, in order to identify them as the perpetrators. (Tr. 1319; P. Tr. 53). The victims had previously identified Mildred Santiago, who had remained in the apartment, as one of the robbers. (Tr. 722, 1956; P. Tr. 48-49). Ms. Prieto went first. She said that the African-American male was not one of the perpetrators, but she was able to positively identify the other three men. (Tr. 1660, 1908; P. Tr. 55). Upon viewing the first of the Hispanic men, she screamed "That's him!" and then promptly identified the other assailants. (Tr. 1660-62, 1990-93, 2012, 2031-32; P. Tr. 56, 58-59). After Ms. Prieto had finished, Mr. Aragones was able to positively identify only Mr. Lopez-Roque, the man who had pistol-whipped him, though he did recognize the others, including the petitioner, by their clothing. (Tr. 726). He also stated that the African-American man was not involved in the crime. (Tr. 725).
B. Procedural History
Lenin Fernandez and his three co-defendants, Mildred Santiago, Richard Rivera, and Alcides Lopez-Roque, were indicted in a 23-count indictment on July 11, 1994, for various charges including burglary and robbery. (Petitioner's Appellate Brief ("Pet. App. Br."), attached as Exh. 1 to Affidavit of Nisha M. Desai dated May 3, 2001 ("Desai Aff."), at 5); Respondent's Appellate Brief ("Resp. App. Br."), attached as Exh. 2 to Desai Aff., at 3). The co-defendants all pled guilty prior to trial. (Pet. App. Br. at 5). Ms. Santiago received a sentence of four to twelve years, Mr. Rivera a sentence of six to eighteen years, and Mr. Lopez-Roque a sentence of nine to eighteen years. (Pet. App. Br. at 5; Resp. App. Br. at 3 n. 1).
On May 23, May 24, May 31, and June 1, 1995, a combined Mapp, Dunaway, and Wade hearing was held before the Honorable John E. H. Stackhouse in New York Supreme Court, Bronx County. The defense argued at this hearing that the identification testimony stemming from the show-up in the lobby should not be admitted. The hearing court determined that since the show-ups were not group identifications and the complainants viewed each suspect separately, the procedures employed did not create an unduly suggestive identification. (Resp. App. Br. at 52 (quoting Judgement Roll, opinion dated July 28, 1995)).
A Mapp hearing is held pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether evidence was obtained in violation of the Fourth Amendment right to be free from unreasonable search and seizure. At a Dunaway hearing, the court determines whether there is probable cause for the defendant's arrest and whether evidence seized at the time of arrest is admissible. Dunaway v. New York, 442 U.S. 200 (1979). A Wade hearing is a proceeding held pursuant to United States v. Wade, 388 U.S. 218 (1967), to determine whether an identification procedure was unduly suggestive or unreliable.
The transcript of this hearing has apparently been lost. However, the respondent has satisfactorily demonstrated that the description of the evidence presented at that hearing as set forth in the prosecution's appellate brief is consistent with the facts as presented in the petitioner's brief on appeal. (Affidavit of Nisha M. Desai dated Jan. 31, 2002 ("2002 Desai Aff.") ¶ 3). To the extent that the parties' characterizations of the evidence differ at all, I have adopted the petitioner's version for purposes of this analysis.
Jury selection for Mr. Fernandez' trial began on March 20, 1996, and the trial commenced on March 27, 1996, before Justice Stackhouse. During the trial there were numerous outbursts by defense counsel and a series of extremely contentious exchanges between the defense counsel and the prosecutor as well as with the judge. These exchanges often began in front of the jury or were continued in sidebars visible to the jurors, although for the most part the jury was dismissed during the longer discussions. The defense attorney accused the prosecutor of signaling answers to the witnesses, and the trial judge noted that defense counsel had insulted every witness. (Tr. 778-79, 1116, 1407). Defense counsel further complained that the judge was favoring the prosecution and trying to intimidate the defense by threatening to hold him in contempt. (Tr. 1396-1402). The court attempted to minimize these confrontations by ordering the two attorneys not to speak directly to each other. (Tr. 923). The court also offered several times to grant a mistrial, but this relief was refused by defense counsel. (Tr. 1690, 2016). On April 26, 1996, the jury found Mr. Fernandez guilty of burglary in the first degree, N.Y. Penal Law § 140.30, robbery in the first degree, N.Y. Penal Law § 160.15, and unlawful imprisonment in the first degree, N.Y. Penal Law § 135.10. (Second Tr. 605-06). Mr. Fernandez was sentenced to a term of imprisonment of from twelve and one-half to twenty-five years for burglary, to be served concurrently with a term of twelve and one-half to twenty-five years for robbery. These sentences were to run consecutively to a term of imprisonment of from one and one-third to four years for unlawful imprisonment. (Sent. Tr. 24-25).
"Second Tr." refers to the state trial transcript for April 22-26, 1996.
"Sent. Tr." refers to the transcript from the sentencing proceeding held on May 23, 1996.
The petitioner appealed, challenging his conviction on multiple grounds. He argued (1) that the conduct of defense counsel, the prosecutor, and the court deprived him of a fair trial; (2) that the police officers' testimony regarding the eyewitnesses' identifications was improper bolstering; (3) that the show-up was unduly suggestive; and (4) that the sentence imposed by the trial court was excessive and ought to be reduced in the interests of justice. (Pet. App. Br. at 14, 28, 30, 33). The Appellate Division, First Department, affirmed Mr. Fernandez' conviction. People v. Fernandez, 261 A.D.2d 178, 691 N.Y.S.2d 386 (1st Dep't 1999). It held that the trial court had properly denied the petitioner's motion to suppress the identification testimony since the circumstances under which the police encountered the petitioner and his co-defendants provided the "reasonable suspicion of criminal activity required to detain defendant and his companions for show-up purposes." Id. at 178-79, 691 N.Y.S.2d at 387. It further found that "the showup procedure challenged by defendant was proper in all respects." Id. at 179, 691 N.Y.S.2d at 387. The Appellate Division also held that the petitioner's claim that police testimony at trial improperly bolstered the complainants' identification testimony was not preserved. Id. Similarly, the court declined to review Mr. Fernandez' claim that he was denied a fair trial by defense counsel's heated verbal exchanges with the prosecutor and the court because this issue, too, had not been raised at trial. Id. However, the court did state that if it had reviewed either claim, it would have found no basis for reversal. Id. The Appellate Division did modify the petitioner's sentence to the extent of directing that all sentences be served concurrently. Id. at 178, 691 N.Y.S.2d at 386-87. On November 30, 1999, the New York State Court of Appeals denied the petitioner's application for leave to appeal. People v. Fernandez, 94 N.Y.2d 822, 702 N.Y.S.2d 592 (1999). Mr. Fernandez then filed his petition in this Court seeking a writ of habeas corpus on the same grounds that he raised on direct appeal.
Discussion
A. Procedural Default
The respondent asserts that two of Mr. Fernandez' claims — that he was denied a fair trial by the conduct of counsel and the trial court and that the officers' testimony unfairly bolstered the identification testimony from the show-up — were rejected by the state appellate court on procedural grounds. (Respondent's Memorandum of Law, at 5). Concerns of comity and federalism require that a federal court respect a state court's decision to reject a federal claim based on "adequate and independent state grounds," whether these grounds are substantive or procedural. Wainwright v. Sykes, 433 U.S. 72, 81-3 (1977); see also Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Specifically, the Supreme Court has instructed that
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred 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. A state procedural default will be considered an independent and adequate state ground, where "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation and citation omitted); see also Jones, 126 F.3d at 414; Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). Moreover, where the "last reasoned opinion on the claim explicitly imposes a procedural default," it will be presumed that later, unexplained orders upholding that opinion "did not silently disregard that bar and consider the merits." Y1st v. Nunnemaker, 501 U.S. 797, 803 (1991).
In the instant case, the Appellate Division held that the petitioner's claim that he received an unfair trial due to the "circus atmosphere" created by the behavior of counsel and the judge during the trial was unpreserved for appellate review. Fernandez, 261 A.D.2d at 179, 691 N.Y.S.2d at 387. Similarly, it found that the petitioner's complaint that police officers were improperly allowed to testify that they observed eyewitnesses identify the petitioner at a show-up procedure was also procedurally forfeited. Id., 691 N.Y.S.2d at 387. New York State employs a contemporaneous objection rule that bars appeal of issues where the defendant did not lodge an objection at trial, as was the case with these two claims. N.Y. Crim. Proc. Law § 470.05(2). As the last "reasoned" opinion in the petitioner's case, the court explicitly imposed a procedural bar, and federal habeas review of these claims is prohibited, absent a showing of cause for the default and actual prejudice as a result of the alleged violation of federal law, or a finding that the failure to consider the claims will result in a fundamental miscarriage of justice.
In order to demonstrate "cause," the petitioner must show that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Such factors might include, for example, a showing that "the factual or legal basis for a claim was not reasonably available" or that some interference by the government made compliance with the procedural rule impracticable. McClesky, 499 U.S. at 494 (internal quotation and citation omitted). The petitioner has made no such showing with respect to either claim. While it is somewhat problematic to expect defense counsel to have raised an objection to his own behavior, the petitioner has never argued — on direct appeal, in any collateral motion, or in the instant petition — ineffective assistance of counsel. In addition, the defense was offered several opportunities to move for a mistrial during the petitioner's trial and declined. (Tr. 1690, 2016).
Even if the petitioner were able to show cause, he still must show "actual prejudice," McCleskey, 499 U.S. at 494; United States v. Frady, 456 U.S. 152, 168 (1982), meaning that the error of which he complains worked to his substantial disadvantage. See Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). However, the Appellate Division found that:
Were we to review [this claim], we would find no basis for reversal, since the court protected the integrity of the proceedings by ensuring that most of the colloquy was conducted outside the presence of the jury, and since the court repeatedly instructed the jury to disregard those portions of the colloquy that occurred in the jury's presence.
Fernandez, 261 A.D.2d at 179, 691 N.Y.S.2d at 387 (citation omitted). This holding is fully supported by the record.
Finally, if errors have caused a fundamental miscarriage of justice, the court may excuse a procedural default even without a showing of cause and prejudice. Carrier, 477 U.S. at 495-96; Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). However, such a miscarriage of justice will be found only where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496; see also, Washington, 996 F.2d at 1447. The petitioner has the burden of demonstrating, through new, exculpatory evidence, that there is a "fair probability that . . . the trier of the facts would have entertained a reasonable doubt of his guilt." Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 455 n. 17 (1986)). The petitioner has made no such showing here.
B. Identification Procedure
The petitioner claims that the show-up procedure through which the robbery victims identified him was impermissibly suggestive. The admission of identification evidence violates the Due Process Clause of the Fourteenth Amendment if "under all the circumstances of [the] case there is `a very substantial likelihood of irreparable misidentification.'" Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (citation omitted); see Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998). Because there was not a substantial likelihood of irreparable misidentification here, this claim should be rejected.
The constitutional validity of identification testimony is analyzed according to a two-step process. First, the court must determine whether the procedure by which the initial identification has obtained was impermissibly suggestive, i.e., whether the suspect's guilt was suggested by the identification process. United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994); Bond v. Walker, 68 F. Supp.2d 287, 301-02 (S.D.N.Y. 1999), aff'd, 242 F.3d 364 (2d Cir. 2000). If it was, the admission of the evidence will nevertheless satisfy constitutional standards if the identification was independently reliable. Dunnigan, 137 F.3d at 128; Wong, 40 F.3d at 1359; see also Brathwaite, 432 U.S. at 114 ("reliability is the linchpin in determining the admissibility of identification testimony."). In order to make that determination, the court must examine factors including:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972); see Brathwaite, 432 U.S. at 114 (applying Biggers factors to both in-court and out-of-court identifications); see also Dunnigan, 137 F.3d at 128.
The show-up in the instant case was conducted immediately following the robbery in the lobby of the building where it had occurred, and the victims knew that these men had been stopped by police in the lobby. The men were handcuffed at the time of the show-up. (2002 Desai Aff. at ¶ 3(c); Pet. App. Br. at 8). Ms. Prieto's emotional outbursts upon recognizing the men were clearly heard by Mr. Aragones before his turn came to identify the perpetrators. (2002 Desai Aff. at ¶ 3(c); Pet. App. Br. at 7-8). None of these factors, however, made the show-up unduly suggestive.
Neither the presence of police officers nor indications that the person is in police custody renders the identification process improper. See, e.g., United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994) (identification of a handcuffed defendant illuminated by flashlights of officers not "unnecessarily suggestive"); United States v. Ortiz, No. 99 Cr. 532, 2000 WL 37998, at *1 (S.D.N.Y. Jan. 18, 2000) (not unduly suggestive where "defendants [were] in handcuffs, standing beside a marked police car, and accompanied by uniformed police officers"); Jones v. Strack, No. 99 Civ. 1270, 1999 WL 983871, at *11 (S.D.N.Y. Oct. 29, 1999) (prompt on-the-scene show-up with the defendant "surrounded by police, with lights flashing, within a few blocks of the incident" not impermissibly suggestive). In addition, courts have found that show-ups held immediately after a crime and near the scene of the crime are constitutionally permitted and not unduly suggestive. See, e.g., United States v. Butler, 970 F.2d 1017, 1021 (2d Cir. 1992); Jones, 1999 WL 983871, at *12; Santiago v. People, No. 97 Civ. 5076, 1998 WL 803414, at *3 (S.D.N.Y. Oct. 13, 1998). Finally, the fact that Mr. Aragones heard Ms. Prieto make her identifications clearly did not influence his judgment, since he positively identified only one of the three suspects. Accordingly, the petitioner's challenge to the show-up should be rejected.
C. Eighth Amendment Claim
The petitioner claims that, in imposing sentence, the trial court failed to take into account certain mitigating factors, such as the absence of any criminal history, the lack of injury to the complainants, and his allegedly minor role in the crime. On this ground, Mr. Fernandez claims that his sentence was excessive and disproportionate to the offense in violation of the Eighth Amendment's ban on cruel and unusual punishment.
If a petitioner's sentence falls within the state's statutory limits, it generally does not present a federal constitutional issue, and habeas corpus relief is not available. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Only a sentence that is grossly excessive or illegal under state law violates the United States Constitution and warrants habeas corpus review. See Solem v. Helm, 463 U.S. 277, 303-04 (1983) (finding life sentence for passing $100 bad check unconstitutional); Wills v. Andrews, 903 F. Supp. 318, 320 (N.D.N.Y. 1995); see also Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987). When a defendant's sentence falls within the statutory range, habeas relief is available only under "extraordinary circumstances." Herrera v. Artuz, No. 99 Civ. 2425, 2001 WL 392553, at *4 (S.D.N.Y. April 17, 2001) (citation omitted). In addition, a sentencing court has broad discretion to impose penalties at or below the statutory maximum, and its decision is entitled to substantial deference. See United States v. Bonnet, 769 F.2d 68, 71 (2d Cir. 1985); Salcedo v. Artuz, 107 F. Supp.2d 405, 414 (S.D.N.Y. 2000). In this case, the trial court exercised its discretion and sentenced Mr. Fernandez to the maximum allowable sentence for each of his convictions (twelve and one-half to twenty-five years each for first-degree robbery and burglary, both class "B" felonies, and one and one-third to four years for first-degree unlawful imprisonment, a class "E" felony) pursuant to New York Penal Law § 70.00(2)(b), (2)(e), (3)(b). Even though the sentence imposed was severe, it is within the permissible range for the crimes of which Mr. Fernandez was convicted. Furthermore, the petitioner has not demonstrated that the sentences imposed were disproportionate to the offenses or that any extraordinary circumstances existed meriting habeas relief. Therefore, the petitioner has failed to demonstrate a violation of the Eighth Amendment.
Conclusion
For the reasons set forth above, I recommend that Mr. Fernandez' application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, Room 1010, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.