John v. Griffen, No. 1:2013cv00922 - Document 15 (S.D.N.Y. 2014)
Court Description: OPINION. For the foregoing reasons, Petitioner's petition for writ of habeas corpus is denied. (Signed by Judge Robert W. Sweet on 2/28/2014) (rjm)
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Superintendent Green reasons set forth low, Petitioner's motion is In this application Petitioner alleges For the ed. r a writ of habeas co (l) that he was denied due process of law e of an unduly suggestive show-up identification; the trial court improperly tt a lay witness to expert testimony regarding cell phone site data; Petitioner was deprived of due (2) that (3) ss when the trial court allowed the jury to view a video of his co-defendant's arrest; and (4) s sentence was excessive. I. Prior Proceedings Pet conviction ente ioner's state custody arises from a jud on July 9, 2009, 1 t New York County of Supreme Court following a jury trial of Robbe Degree (New York Penal Law Law" ~Penal the Second Degree (Penal Law § 265.03(2)), and Cr De (Penal Law § 160.15(2)), Robberv in 160.10(1)), two counts of Second Degree (Penal Law Criminal Possession of a Weapon in § § in the First Possession of Marijuana in the 221.10). court sent fth Petitioner to an aggregate term of imprisonment of fifteen years, to be followed by five years of post-release On November 17, 2011, rvision. Appellate Division, rst Department, affirmed Petitioner's conviction, see People v. John, 89 A.D. 3d. 552 (2011), and leave to appeal to the New York Court of Appeals was denied on February 2, 2012, v. John, see People 18 N.Y. 3d 925 (2012). On February 5, 2013, Petitioner submitted a writ of habeas corpus. On July 8, 2013, Petitioner requestea an extension until September 11, 2013 to file his br grant f, which was The Petitioner's motion was heard on submission and marked fully submitted on October 23, 2013. 2 II. Facts Petitioner's robbery committed on ying conviction arises out of a y 25, 2008. A. The July 25, 2008 Underlying Robberies and Subsequent Arrests of Petitioner and Co-Defendant Levon Pratt 8:50 p.m., Police Officer On July 25, 2008, at Asim Sheikh ("Sheikh") was on patrol in t Street and Tenth Avenue in Manhattan. cinity of Dyckman (Pre Trial Hearing Transcript, "H."; 14-18, 24 25, 35.) As he t onto Tenth Avenue, Sheikh saw Levon Pratt ("Pratt") ur standing by a tan Yukon sports utility whi i e. (H. 18-20, 32, 35-36, 45-46.) The Yukon had a vanity license "BRYAN" and, displayed in the rear window, a temporary license ate iss by either Virginia or Tennessee. "T."; 35-37, (Trial Trans 40-41, 47-51, 58-59, 64, 70, 72-73, 75.) as Sheikh over and Pratt what he was doing there, and Pratt was waiting for his aunt, who lived in a housing across the street. (H. 18-21, 36-37, 54.) Sheik approached cle and saw Petitioner sitting in the front passenger seat. He asked Petitioner to lower the car's stereo, which was pI 3 ng loudly. (H. 21-22, 33, 37, 54-55.) Sheikh then issued Pratt public urination and excessive noise. summonses (H. 21 24, 36-39, 46-56.) At roughly the same time, Kental Shillingford ("Shillingford H) was 1 ng the Harlem rtment he shared his parents and grandmother, and took a livery th to the cinity of Academy Street and Sherman Avenue in Washlnqton Heights to buy marijuana. 1 (T. 77-85, 89-90, 149-50, 154-55, 180 85, 216-17, 220-22.) Shillingford smoked marijuana about every other day, but had not done so that day. Typically, he bought marijuana in his neighborhood but, "once or twice every coup of weeks,H he went to Washington Heights to purchase a "high grade H marijuana known as "Haze. H (T. 85-88, 113, 159.) Although Shillingford intended to buy only $40 to $50 worth of marijuana, he took about $520 or $530 in cash because, later that night, he s brother I s birthday. intended to go out to celebrate (T. 90, 152, 155, 159, 217-19, 222-23.) Initially, Shill provided oral a~d written statements to the police that he had gone to 584 Academy Street to meet a woma~ named Simone. Shortly thereafter, Shilli~gford met with an assistant district a~d admitted that he had to buy ua~a. (T. 149-52, 166-67, 185-86, 204, 5ll, 524-25.) Shillingford also admitted that, on 19, 2000, he was arrested for possessio~ of two bags of uana and later pled guilty to a violation, and that, on November 12, 1997, he sold crack cocai~e to an undercover police officer, and '.,.,ras arrested. (T. 81-83,155-57,224.) 4 At around 9:20 p.m., Shillingford arr on Sherman Avenue near Academy Street, and looked for a dealer from whom he had ously purchased marijuana, but could not find him. (T. 91 92, 179-80, 204.) He then walked to Academy Street, between Sherman and Post Avenues. Although he had not bought marijuana there fore, Shillingford had seen people gathe building on the street, and suspect drugs. outside a that they were purchasing (T. 91- 93, 152 54.) Shillingford entered the lobby of 584 Academy Street, wh was about 10 by 15 feet in si ze. (T. 93 94, 113, 185-86, 190-93.) There Shilli Petitioner, a tall on saw two Hispanic men talking to rican-American man w who wore a black t-shirt. "decent[ly]" lit and mens' s. ~dark brown" skin (T. 94-95, 168, 204-05.) The lobby was illingford had no difficulty seeing the (T. 99. ) Petitioner was hoI ng a "big" bag of marijuana that would have cost between $400 and $500. 15759.) 5 (T. 96, For about two or t the far si minutes, Shilli waited on of the lobby. He was not paying close attention to one of the men say the conversation, although he something to same thing effect of "that's yesterday." (T. 95-99.) Eventually, the "tone" of the conversation voice. "mean" and Petit (T. 99-100, 189-90.) had a black pistol at Shillingford r began to saw that Pet Shill shand. se his (T. 100.) Petitioner po the ordered him to come across the lobby. (T. 100-01, 187-89, 216.) When Shill complied, Petitioner told him men to "empty [their] pockets" and "get down t floor." Shillingford handed Petitioner $520 or $525 in cash; t cell s. down on empt two men also handed Petitioner ir (T. 101-02, 178-79, 196-98, 213.) Shillingford floor and rd people coming down a stairwell in the lobby. Petitioner then orde stand up. s cell phone and the victims to (T. 102, 107, 190, 196-201.) When Shillingford s up, he saw Pratt standing directly in front of him; he was wearing a red t-shirt and was a 6 "Ii t tIe lighter skinned" and "stockier" than Petitioner. (T. 103 04, 107-08, 168.) Shill ew of Pratt's face. (T. Pratt told Shillingford, "[GJive me 104.) everything you got," and t 168-69, 209.) Pratt pull s pocket and was ho Shillingford was "99 top of a gun 3 ¢ passed through t The (T. 104, Shillingford's pocket his hand halfway out of his right "something shiny [and] si rcent sure" that Pratt was (T. 10405, 173, 207.) behind his back as t with Pratt. had an unobstructed Petitioner or four people came down lobby, and then walked out of r." aying the S gun stairs and building (T. 107-09, 213-14.) ctims followed Petitioner they got into a "light-colored" Yukon Pratt outside as th a black license plate At trial, Shillingford initially testified that, when Pratt tapped his s, it was the only time one of the robbers touched him. However, after being confronted with his grand jury t , Shillingford stated that Petitioner grabbed him by the arm or wrist when he first called him across the lobby. (1'. 168-71, 197-98, 215-16.) 2 25th, Shillingford told the police that Pratt had had a "silver" or gun, although he did not recall if he included the detail in his written statement. (T. 201-02, 205-06, 212 13, 222-23.) Before the grand jury, Shillingford testified that he did not see "exactly" what the object was that Pratt displayed. (T. 206-07.) On 7 spelled out "BRYAN.,,4 (T. 110 20, 134 with white letter 35, 159-65, 214.) Shillingford and the other men as it drove onto Ac the SUV Street and then onto Post Avenue. A video camera mounted on driving by and Shilli Street recorded the Yukon rd and two men running pursuit. 116-17, 130-33, 208-09; Pe e's Exh. 5 [video].) At Post Avenue, the other victims up the chase, but Shilli (T. cont 1 rd to run to Dyckman Street, where he flagged down a rv cab. (T. 117, 120-22, 130.) Yukon was still the dr sight, and Shilling r to follow the Yukon to call the police. 135, 173-75.) In the cab, Shill the FOR asked (T. 121, llowed the Yukon towa ve. He lost sight of Yukon for "about two seconds" as it had turned onto Post Avenue and for "three or four" seconds as it had turned onto otherwise had t outside 584 kman Street, but Yukon in view from the time he saw the SUV Street. (T. 116-17, 122, 125-26, 130-31, 179, 214-15, 245 46.) Initially, Shil thought that the SOV was a uTahoe." (T. 120, 135, 163-67, 509-10, 513-14, 531 32.' Yukons and Tahoes have the "same body" and look "exactly alike." (T. 120, 135, 163-67,244,301,347,351-53.) Shillingford also initial told police that the Yukon had a "unique U license plate, but in his written statement, Shill did not record the license (T. 167, 20102, 509-10, 513-14, 531-32.' 4 8 At about 9:40 p.m., Passarella was conducting a traf kman Street when c stop on Harlem River Drive near he was "just Kental Shillingford ran up to him and said robbed" at gunpoint by two black men. 105-09.) (H. 64-66, 90-94, 100, red suv about 45 Shillingford pointed to a 1 feet away that was turning south onto Harlem River Drive. 65-68, (H. 93-94, 117-18, 122-27.) Passarella got in his marked police car and began to pursue additional units. , while radioing for Yu (H. 67-70, 95-96, 110.) Officer Passarella never st sight of the Yukon as he followed it south. He began his pursuit 100 to 200 hundred yards behind the Yukon, and sed to within six or seven car lengths. (T. 246-48, 279-80, 309 10, 291, 330 31.) The Yukon had a vanity license plate "BRYAN" in white lettering on a black background. (T. 279 80.) police cars Between joined the officers cars and, suspects St r e e t 0 "the at his least f f - ramp. car 1 s and "the forties," two more While still "in the forties, pursuit. on over 60s" emergency lights and sirens of t "PA system," Passarella (T. 2 4 9 - 52 , 2 91- 92 , 9 303 , 330 , ir orde ee times to exit the highway at the 34 3 - 4 5 .) I II 34 the suspects continued south with direct them to exit the highway. Passarella continuing The Yukon exited at the "23rd reet" off-ramp and pulled over on East 25th 53, 291, 304, 332.) A video of the pur sui t, the video being entered into evidence. had Passa la. ssed (H. 82.) 110-11.) the iver's 11ed over, about eight to ten had first Several police officers shorts. 14.) (T. Two passenger jeans. Passarella and another of seat; 253-54; other seat; of Pratt was wearing People's Exhs. cers removed Petitioner was 8 (T. d not object to got out cars and ordered the occupants to exit the Yukon. 78, 252 (T. 285.) illingford since (T. r the jury. Petitioner 283-90; People's Exh. 14 [video].) By the time the Yukon reet. which was captured by the camera in Passarella's car, was played minutes to approached of their (H. 71-72, 76 cer removed Pratt from a red shirt and kha [photograph of Pratt] Petitioner wearing a from the and front black shirt and blue (T. 254-55; People's Exh. 9 [photograph of Petitioner].) Of weapons. cers (H. 78-80, handcuf 101, and 111-12.) frisked the suspects for After searching Petitioner, Passa la recovered $446 pocket, and a wallet containing $106 in Petitioner's left jeans cash from Petitioner's right jeans 10 pocket. 70; (T. 25 People IS Highway 61, Exh. 265-66, 19 di vis ion IS "stopped advis t 379-81, [currency].) spatcher, ic to 305-08, " and 470-72, 653-56, 668 Passarella then radioed the reported asked that the that bring Shillingford to East the 34th 25th officers Precinct Street. (H. had be 80 82, 116. ) During this time in Washington Heights, Shillingford had found a "call box" on Tenth Avenue and called 911. 27, 137-39; later, People's police Exh. officers ("Ramirez"), 382-85, 358-61, told the of cers [911 Franny and Anthony 40, 6 Nunez Pinzone 445-48, that, tape].) (" 508, about zone"), to black men had robbed him at gunpoint, and about $ 500 in cash. (H. 136- 37.) Nerys ar minutes Ramirez ved. 662 65.) 20 (T. 139 Shillingford minutes and ta 126 five ("Nunez"), 648, 15 About (T. earlier, two his cell phone He told the officers that one of the robbers had a black handgun and that one wore a red shirt, \\ un i que (H. ff 138), and that the men b 1 a c k 1 ice n s e plate. fled ( T . 3 90 , in a 448- 49, tan truck with a 50 9, 515 , 531 - 3 2 , 648.) Nunez was in pursuit radioed his dispatcher and provided the to determine information 11 what unit from Shillingford, including that one of the suspects wore a red shirt and the type of vehicle in which the suspects fled. About three or four minutes later, suspects Drive, had been stopped on (H. 138-39, Nunez received a report that East 25th Street 196-98, vehicle had 211, 214-15.) been stopped would Shillingfo accompany the occupants 5 ¢ (H. at Nunez East them told 25th to if he in the back of radio was later. on, but and 139-40, that asked could the pat Nunez and Ramirez drove him to East 25th Street, minutes (H. Shillingford Street see Riverside a if identi 140, 184-86, 199-200, 216-21.) Shillingford got 10 and and was directed to bring Shillingford there. 184 85, 210-15.) (H. Nunez 140-41.) During received no the further car, and arriving about drive, reports the police about the incident and did not recall any conversation with Shillingford. (H. 141-42, 178, 201-03, 210 11.) On cross-examination, the defense attorneys asked Nunez whether he had informed Shill ford that the s were black, that one of the suspec~s wore a red shirt, and that the stopped vehicle ma~ched ~he ion Shillingford had ; Nunez answered, "Yes" to these questions. (H. 186, 198-200.) On re-direct examination, Nunez refreshed his recollection with a report summarizing his communications with the , and testified that he had not received a description of the suspects or the vehicle that had been stopped at East 25th Street. He stated that he had been mistaken on cross-examination, and that he did not convey any description of the individuals or the car to Shi'lingford. (H. 211-22.) 12 As parked, they drove down the Shillingford spontaneously said, that's the car." (H. 142, about ten minutes s and to 18 20 to standing. officer" away Yukon was "[ OJ h that's At this point, Shillingford 82-83, from 103, 113.) where suspects. had the car, it had been first and No approached Nunez pulled up about Petitioner Passarella 145). stood with the suspects, (H. (H. since (H. feet 20 187 88.) the the officers had pulled over the Yukon minutes Officer Passarel 15 off ramp where and Pratt "[pJossibly one was were one other holding onto the and none of the officers in the area had a gun drawn. 83-85, 101, 114 15, 143 45, 188.) Petitioner and Pratt were facing the patrol car "head on" and there were no obstructions between them and the patrol car. Officer 193.) area was "well lit" by streetlights and headlights, and ~ne Nunez At could about Shillingford if clear ly 9:50 those p.m., were see their either the faces. Nunez men (H. or who 84-85, Ramirez had 146, asked robbed him. Shillingford "duck[edJ down" behind the seat in front of him and said, "[YJ es those are [theJ guys that robbed me.,,6 (H. 147-50, 177-78, 188-89.) 6 At trial, Shillingford testified that the area was y bright" because of the lights of the police cars and Shillingford was "100 percent sure" that 13 Passarella and Ramirez searched the Yukon and noticed that an odor of marijuana permeated the vehicle. center console plastic cup marijuana. 98, between holder. (T. 265-79, 458 59, People's 479-87, the front Ramirez seats, console Ins 306-07, 325-28, 501-03, 521 From the top of were 369-76, removed a bags of two 385 87, 392, 531, 2, nine 657-59; 557-64, black 397 2 [marijuana].) Beneath Beretta the marijuana semi-automatic pistol revolver with a brown handle. were and a a silver millimeter caliber .38 Taurus Both weapons were loaded and both the weapons and the ammunition proved operable. Furthermore, the serial number of the revolver had been "scratched off." (T. 268 69, 277-79, 372-73, 413-19, 657-59; police procedure at the Evidence Collection Unit, not dusted 38, People's Exhs. 594-96, were 43 for 3 time, 459, 487-93, [pistol], Officer 532-33, [revolver].)7 Per 12 Tammy Allen, "swabbed" the guns for fingerprints due to t 570-82, DNA. of The guns unlikelihood that the men being held were the men who had robbed him. (T. 142-48, 262-63, 333 34, 366-69, 391, 451-55, 512-14, 523-24, 649-51, 664.) 7 In a crirdnal complaint, Nunez mista averred that the Evidence Collection Unit had recovered the marijuana as well the guns, but Nunez actually recovered the mar uana himself. 478 79, 487-500, 503-05, 521-22, 530-31.) 14 (T. 406-09, 416-26, 430-36, 439-41, prints 40 could be 09, recovered 416-26, Subsequently, Medical 430-36, after ("OCME" ) DNA profiles (T. were 478-79, swabbed. 487-500, (T. 530 31.) Criminalist Susan Horan of the Office of the Chief Examiner the time. weapons 439-41, examined the testing. contained sufficient DNA develop the In 2008, from gun 700-11, 716-19; swabs swabs, neither OCME was able to only about People's Exhs. but ten percent 16, 17 [swabs], 29 [report] .) Meanwhile, Officer Sheikh had received a radio transmission to report to East 25th Street to transport Pratt to the 34th Precinct. in handcuffs, night. he saw Petitioner and Pratt and the same tan Yukon he had seen earlier in the (H. 24-28, 47.) Pinzone whi When he arrived, other Shillingford. then officers (T. 42 43, drove the Yukon transported 146, 378, to the 34th Petitioner, 461-62, 470, Pratt, 651-52, While Sheik was transporting Pratt to the precinct, him what was going on and stated that could have someone pick up the Yukon. precinct , 29- 32, Pratt decl ined to answer questions. 91.) 15 659-60.) see if he 46-48.) (H. and Pratt asked to he want (H. Precinct, At the 163 68, 190 At about 2:40 a.m., on July 26th, Officer Nunez and Detective Bubb spo to Pet ioner at the 34th Precinct. Petitioner waived his Miranda rights and provided oral and written statements. Later, at about 7:00 p.m. that night, Petitioner again waived his Miranda rights and provided a videotaped statement to an assistant district attorney. Pet ioner said that had come from Brooklyn with his friend "LV" to drop off LV's aunt at the Dyckman Houses. On the way back to Brooklyn, the men had been stopped by the police, who now claimed that there had en guns and drugs the car. Petitioner said that he did not know the name of LV's aunt and that Yukon belonged to LV's cousin. (H. 151-63, 168-71, 190 92, 205 06; People's Hearing Exhibits 3 [Miranda card], 4 [written statement], and 7 [videotape].) At t precinct, Pinzone recovered a cell phone from Petitioner, which was designated at trial as CP2. The cell phone number was 347-743-2387, which was the telephone number Petitioner had provided to the Criminal Justice Agency. 74, were 476-78, four 506-07, other designated CPl, 611; Stipulation: cell phones CP3, CP4, found and CPS. 16 840; on the (T. Court Exh. floor of (T. 1.) that 472 There the Yukon, 476-78,506-07.) CP3's number, 631-805-8614, provided to the was the Criminal telephone Justice number Agency8. that Pratt 617-19, (T. had 639; ipulation: 839 40; Court Exh. 1.) Jeff Strohm ("Strohm"), Nextel Telecommunications, between calls, Exh. 12:24 most 36.) p.m. 48 3:55 Between 9:13 9:24 p.m., which was on the (T. [map].) Between 9:53 p.m. the vic CP2 on and July CP3 (T. 25, 2008, exchanged 758-63; six People's seven calls to and from tted from a celltower that Sprint records listed Post Avenue, were p.m., that, to voicemail. and Street. C testified of which went CP2 were tran at and a records custodian for Sprint 763-68, routed 815 826; through same block as People's Exhs. and 10:17 p.m., a cell tower at 35, 36 584 Academy [records], 39 five calls to or from 25 Watersi Plaza, ty of East 25th Street. (People's Exhs. 35-36, 39.) Between p.m. in calls to or from 9:04 and 9:08 on July 25, 2008, three llingford's cell phone were routed through a CP2 was subscribed to Erica Abraham at 480 Montgomery Street in Brooklyn. (T. 757 58; Peo~le's Exh. 30.) One of t.he contact numbers was "L.V." at CP3's number. (1'. 612-13.) CP3 contained a cont.act for "Rambo" at CP2's number and for "Bleep" at 646-896-6204, which was the number of CPl. (1'. 619-24, 635 41.) CPl was a account subscribed to "Mario " at 70 Avenue, New York, New York. (T. 726-27, 73435; People's Exh. 32.) No number could be determined for CP4, but it did have CP2's number on its contact list under "Karen I" and missed calls from that number. (T. 626-30, 638.) CPS was (1'. 729-30; People's Exh. subscribed to Dolores White of ~ewnan, 31.) 8 17 celltower near East 141st Street in Manhattan. At 9:22 p.m., a call was initially routed through a celltower near Seaman Avenue and Dyckman Street. Between 9:22 and 9:26 p.m., three calls were routed through the cell tower at 584 Academy Street. (T. 727 773, 780-81, 808-15; People's Exhs. 33, 35, 37-38.) By New York County Indictment Number 3829/08, Petitioner and Pratt were each charged with three counts of first and second degree robbery, two counts of second-degree weapon possession, one count of third-degree weapon possession, and one count of fth-degree marijuana possession. B. The Pre-Trial Hearing On May 13, 14, and 18, 2009, a joint Wade / Huntl hearing was held to determine the admissibil y of Shillingford's identification testimony and the co post-arrest statements to the police. 388 U.S. 218 Uni fendants' States v. Wa (1967); People v. Huntley, 15 N.Y.2d 72 (1965). 18 9, Neither Petitioner nor Pratt presented any evidence at the ring. With court ruled regard to the Wade that Shillingford would and Petitioner Pratt trial, at identification "almost classic [in] time and in space." With be rmi tted aring, identify the finding to show-up that it was done promptly in to the discrepancy in Officer Nunez's court found that the People had refreshed Nunez's recollection with the the Sprint suspects procedure. to reports of the and Shillingford court found that, description suspects that prior Nunez to had not show-up even if Nunez had recounted a to Shillingford, identification was not unduly suggestive. he the (H. 244-45.) regard testimony, scribed portion of the (H. 244-45.) show-up The court further that Officer Sheikh's viewing of Defendants at East 25th Street had not been an arranged i Sheikh would be trial. allowed to identification thus, (H. 245). With respect to t offer ification and, testimony Huntley portion of the hearing, the court ruled that all of the post-arrest statements would be 19 at admissible at t a l , because Pratt's statements on t way to the precinct had been "volunteered" and because Petitioner's rmal statements had been made a Miranda rights. er valid waivers of his (H. 244.) C. The Trial At trial, Shillingford identified Petitioner and Pratt as the men who had robbed him. photographs fled. (T. of t 134 35 i Yukon as (T. the People's Exh. 144-45.) He also identi SUV in which the robbers ed had Officer Passarella testified 1.) that he was "[0] ne hundred percent certain" that the Yukon was the SUV Shillingford had pointed out to him. Shillingford further testified recovered from the Yukon "look[ wielded during the robbery (T. 294.) that the Beretta ]" like the gun Petitioner had and that the bags of marijuana recovered from the SUV were the same size as the bag he had seen Petitioner holding inside 584 Academy Avenue. 172-73; People's Exhs. 2 [ma Petitioner's testified that (T. 96-98, 105-06, juana], 3 [pistol].) girlfriend, Helena Boyd ("Boyd") , titioner was known in some quarters as "Rambo" 20 and was friendly "L.V.1f (T. with 854-57.) Levon Pratt, However, t who men went did by not t nickname spend much together and Boyd had met Pratt only "once or twice. time (T. 854 which was If 58.) Petitioner regularly recovered from him upon his sister, Abraham Erica because he did not used arrest. the The phone belonged to his ("Abraham") , have to pay Petitioner but bill Yukon as could not a prepaid cell phone 844, 847-51, Petitioner us remember the telephone number. (T. 860 floor but 842-44, 848, she 858 Petitioner had this second phone because Abraham would be "angry" if he us On "get (T. Boyd recognized one of the cell phones found on t of the 60.) used and because the phone had free calling on nights and weekends. .) phone cell July some money daughter's Petit 853-54. ) r up first 24, nutes." r "allowed 2008, and some Petitioner a stuff" birthday. (T. (T. 862.) came to Boyd's party celebrating 845 46, 852-53.) $200 to buy decorations and "party stuff. though the girl's birthday was and Petitioner "didn I t buy party favors. want to wait (T. 845, 852-53.) 21 home until Boyd to ir gave (T. 846, September 14th, Boyd the fI last minute" to Peti tioner' smother, t Cecilia John she gave Petitioner $200 to $400, access to one of her bank accounts. John had an income of payments and savings. roughly (T. and that (T. $1,000 895-97.) ("John"), month ed Petitioner had 863-67, a testi 892, from 899-901.) disability She also owned a store in St. Maarten, but was not sure how much she earned from it. She would wire proceeds from St. Martin to Petitioner in New York for him to behalf. pay pension bills in St. on her 896-901.) (T. John Maarten pension and her "kids down there also." (T. Ini tially, 897, John also Subsequently, she her] money wired money from 900.) testified that she said had done so in July 2008. resided that she could in Brooklyn Maarten in December. Pratt (T. 872-77, (T. for almost 900.) all 865-73, remember how testified on his own 2008. unaware Yukon, any that She testifi of 2008, going to St. 880-82, 887-89.) committing any robbery on July 25, of not (T. had wired Petitioner money and admitted that she many times s she a [gave St. Maarten to Petitioner in January and March 2008. 888.) had contraband in the 22 b alf and denied He stated that he was and that he did not smell any marijuana in the vehicle. he would not 930, have gotten insi If the had smelled marijuana, vehicle. (T. 911, 923-24, 960 61.} Pratt testified that, wlIe and two children previous nine years, obtained week, a in in Crown y 2008, Heights, lived Brooklyn. th his For the he had worked as a carpenter and had also "plumbing license." Pratt earned $ 7 00 to $1,500 a and his wife worked at a home for the mentally disabled. (T. 909-10.} On June 7, 2004, Pratt was convicted of third-degree weapon possession for possessing a loaded firearm and of fifth degree drug possession of cocaine. 910-11, The convict s arose from separate Davis, asked 2008, incidents. him at about 7: 00 p.m., ive to her and Washington Heights in order to visit a friend. 36, 946.) s aunt called, 500 milligrams (T. 959-60.} On July 25th, Linda for possessing more than Pratt testified that, moved down Pratt's relat south. s her (T. Pratt's aunt, daughter 916-18, to 935 about a week after the robbery, And, could not 23 although she prevail upon "frequently" his aunt to testi because calling from various was "in process of fixing up the house," numbers, call back these numbers. and Pratt's relatives would not (T. 919-20, 94649.) Pratt did not have access to his own car on July 25, 2008. The previous day, July 24th, had been his birthday, but he and his wi had been unable work. (T. 25th, Pratt's "could 916-17, stay celebrate." day, wife in (T. took the 952-53, the house 916-17, 938 40.) she Accordingly, Pratt's could Pratt car get on so off had to July that he early to had gone to work that e at 127th Street and Lenox Avenue (T. subway stop in Pratt's neighborhood, had not ridden the subway "in 13, 14 years." (T. 935.) about 7:30 Pratt p.m., local barber named "Marlon." (T. borrowed 914-16, 924, a Yukon 936-38, from 944, a 947 Pratt had known Marlon for six or seven years, but did not know Ma 33, so to she and got a ride home from an unnamed cousin. There was also a At 50.) 967.) keys 934-36.) taking a cab to a jobs in Manhattan, but 933-34, to celebrate because on's last name or his telephone number. 937. ) Petitioner. After (T. picking 94344.) up t Yukon, (T. Pratt 915, 932 telephoned The two men "h[u]ng out" about "once every two weeks or so" and "play[ed] 24 sketball or something." (T. 918). Petitioner went by "Rambo," while Pratt was (T. "L.V." 958.) Washington going, Pratt picked up Petitioner to accompany him to Heights never ride back. street 41.) alone (T. 916-18, 924, to Heights. Pratt t aunt FDR There, from did not the Drive, the which pulled Dyckman ne a to was strange keep him company on the Houses. men they over on (T. across the followed Tenth 916, to Avenue 920 21, BrooK~yn Washington across 929-30, the 940 Pratt carried a baby seat across the street for his aunt, and told her that he would wa 951.) by the Yukon. (T. 920 21, 929, He was waiting to see if his aunt was staying the night, and because he needed direct ions to get home. 52, where 939-40.) "guided" Pratt know going when and wanted Petitioner to Pratt's Bridge, because traveled neighborhood, known as 961 62.) Petitioner was before. in sight of 918-21, the FDR 951 Drive and he had driven the road a "million which he had just exit times" parked (T. Nonetheless, he was not sure "which way to go back home." (T. 919, 940-42.) While he waited, officer approached unreasonable and noise." Pratt uri nat gave (T. him 920-21, 25 by the Yukon; a police summonses 951.) for After "urinating about 20 to and 25 minutes, Pratt I s aunt came downstairs, told him that she was staying, and revealed that, to get home, he should make a U-turn and return the way he had come. (T. 919, 922-23, 929-30.) Pratt and Petitioner drove south on the FOR Drive and, as they drove past 34th Street, they saw "sirens come on"; Pratt complied with an order from exit as Police soon as officers Shillingford was Pratt he had ever heard police to pullover at the next the handcuffed brought seen to request. Pratt the (T. 926-28, it 956-58.) Petitioner, and scene; Shillingford. (T. was 929 30.) the and first Later, time Officer Sheikh drove Pratt back to the precinct. Pratt asked what he had done, protested that he had not done "anything," and asked if someone could pick up the Yukon. (T. 954-55.) The jury convicted Petitioner of one count of Robbery in the two rst Degree, counts of one count of Robbery in Criminal Possession of a Second Weapon in the Second Degree, and one count of Criminal Possession of Marijuana in the Fifth ree. concurrent convictions (T. terms of f of st- 1135-37. ) Petitioner imprisonment and of fifteen second-degree count of second-degree weapon possession, 26 was robbery sentenced years for and and three months to his each for t marijuana conviction, release supe sion. (S. to be followed by five years of post18.) Pratt was convict of the same crimes and was given the same sentence as Petitioner. D. Direct Appeal Petitioner appealed from the Appellate aring Division, court should identification of rst have him Department. suppressed because procedure was unduly suggestive. court erred in admitting the s judgment of conviction to the He argued Shillingford's show-up that the in-court identification He also claimed that the t al deo of Pratt's arrest, as well as permitting a lay person to testify as an expert concerning cell phone site data. Lastly, excessive. (Exhibit A.) Petitioner argued that his sentence was The People fil a brief in opposition. (Exhibit B.) On unanimously November affirmed 17, 2011, Petitioner's the Appellate judgment of Division conviction, finding that "[tJhe prompt showup was part of an unbroken chain was not unduly suggestive. of exigent events," and that court proper also found that exercises of The the evidentiary rulings made below were discretion, 27 and, in any event, any error regarding those overwhelming held that rulings evidence Petitioner's People v. John, Court of Appeals, below. (Exhibit denied. E) sentence was [1s t sought in guilt. not light Lastly, excessive. of the the court (Exhibit C; De p 't 2011].) leave to appeal to the New York asking the court to review all of the claims (Exhibit and f harmless Petitioner's 89 A.D.3d 5 Petitioner raised of were on D.) The Februa People 2, (Exhibit F; People v. John, opposed 2012, the leave to application appeal was 18 N.Y.3d 925 [2012].) E. The Ins tan t Petition Now, claiming that: Petitioner (1) seeks federal habeas improperly permitted a the cell lay witness phone site (2) process rights were data, violated when which was the 28 testimony used (3) trial the jury to view a video of Pratt's arrest; and was excessive. the trial court to provide expert Petitioner in the vicinity of the crime scene; due relief, he was denied due process of law because of an unduly suggestive show-up identification; regarding corpus (4) to place Petitioner's court allowed his sentence I. STANDARD OF REVIEW AEDPA sets a" de rential standard fficult to meet" and "highly evaluating state-court rulings, whi demands that state-court decisions be given the benefit the doubt." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 786 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 "preserves authority to issue the wr [2002J). AEDPA merely in cases where there is no possibility fair-minded jurists could court's sagree t state ision conflicts with [Supreme CourtJ precedents. It goes no farther." Ri ter, 131 S. Ct. at 786. Indeed, "[28 U.S.C. §J 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in systems, not a substitute appeal." Id. r ordina state criminal justice error correction through (internal quotations and citation omit As to any claim adjudicated on the merits ). state court, Petitioner can only obtain habeas corpus relief by showing that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or was based 29 on "an unreasonable determination of the facts in light of the evidence present 2254(d)(1), in the State court proceeding." 28 U.S.C. § (2). wi respect to the "contrary to" clause, the writ may issue in two circumstances: (1) if the state court decision is contrary to Supreme Court precedent on a question of law; and (2) if the state court decision addresses a set of facts "materially indistinguishable" from a relevant Supreme Court case and arrives at a result different than that reached by the Court. Williams v. Taylor, 529 U.S. 362, 405 (2000); Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006). A state court decision involves an "unreasonable application" of Supreme Court precedent when the state court either "identi es the correct governing legal rule" from the Supreme Court's cases but "unreasonably applies it to the facts" of the case, or "unreasonably extends a legal principle from [the Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, at 407. "The 'unreasonable application' clause requires the state court 30 cision to be more than incorrect or erroneous;" it must be "object ly unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Finally, with respect to factual determinations made by the state courts, a federal reviewing court must apply a \\ sumption correctness," and Petitioner bears the burden of rebutting that 28 U.S.C. § sumption by "clear and convincing evidence." 2254(e) (1); Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001); see Whitaker v. Meachum, 123 F. Cir. 1997) state t (deference 11 714, 715 n.1 (2d given to factual findings by both al and appellate courts). II. The State Court's Deter;mination that the Show-Up Identification Procedure was not Unduly Suggestive was Consistent With and a Reasonable Applicable of Federal Law Petitioner alleges that improper police conduct rendered the show-up identification by Shillingford unduly suggestive, because be re Shillingford made the identification, Nunez told Shillingford that he would be viewing two men who matched the description Shillingford had given police of the 31 perpetrators and that the men had been stopped in a car that matched Shillingford's description of the getaway vehicle. In determining the constitutionality of an in-court identification based on an out-of-court identification procedure, a ewing court should apply a two-part test: rst, Petitioner must establish that the identi cation procedure was unnecessarily suggestive; then, if Petitioner has met that burden, the Court must determine whether the identification remains reliable based on the totality of circumstances. (1977); See Manson v. Bra see also Neil v. ckerson v. Fogg, waite, 432 U.S. 98, 107-14 ggers, 409 U.S. 188, 198 99 (1972); 692 F.2d 238, 244 (2d Cir. 1982). Here, the record demonstrates that the identification conducted was not unnecessarily suggest Petitioner bases on, during his claim on Nunez's testimony on cross exami which Nunez answered SU when asked whet he had formed Shillingford that the suspects were black, that one of the suspects wore a red shirt, and that the stopped vehicle matched the description Shillingford had provided, prior to bringing Shillingford to the show-up. (H. 186, 198-200.) 32 This testimony was not credi by the trial court; rather, the court accepted Nunez's re-direct testimony, in which Nunez refreshed his recollection with a Sprint report summarizing his communications with the precinct, and testified that he had not received a description of the suspects or the vehicle that had been stopped at East 25th Street and as such could not have conveyed any such description of the indi duals or the car to Shillingford he identified Petitioner and Pratt. fore (H. 211-22.) The trial court's finding on this issue was affirmed by the Appellate correctness. vision and is entitled to the presumption of See 28 U.S.C. § 2254(e) (1). Petitioner has not stated any evidence to overcome this presumption. because the trial court found that Nunez Accordingly, d not make any improper comments to Shillingford prior to the show-up, there is no evidence that the identification procedure was unduly suggestive. Even if the t al court's findings of fact were rejected, the identification remains reliable given the totality of the circumstances. Federal Courts have consistently ld that show-up identifications are proper when they are held in 33 ose spatial and temporal proximity to the crime scene for the purpose of determining whether a suspect should be arrested or released. As the Second rcuit held in United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994), [tJhe fact that the suspects were handcuffed, in the custody of law enforcement officers, and illuminated by flashlights also did not render the pre-tr 1 identification procedure unnecessarily suggestive. In this case, handcuffs, custody, and flashlights were all necessary incidents of an on-the-scene identi cation immediately following a night-t narcotics raid. Because the on-the-scene identification was necessary to allow the officers to release the innocent, the incidents of that identification were also necessary. [AJ prompt showing of a detained suspect at the scene of arrest has a very valid function: to prevent the mistaken arrest of innocent persons. Id.; see also United States v. Butler, Cir. 1992) 970 F.2d 1017, 1021 (2d (identification proper where suspects were brought to a victim sting in a police car). Rega ess, t identification was reliable because there is no substantial Ii lihood that Shill ford misidentified Petitioner as one of the men who robbed him. Perry v. New Hampshire, 1 Simmons, 390 U.S. at 384-85) suggest S.Ct. 716, 724 (2012) (quoting (even if a show-up is found unduly , due process requires the courts to assess, on a 34 case-by-case basis, whether improper police conduct created "a very substantial likelihood of misidentification."). hearing evidence demonstrates that the show-up took The p~ace approximately twenty minutes after Shillingford first described the robbers to Passarella, (H. 82-83, 103, 113), and occurred approximately ten miles from the crime scene. Petitioner and Pratt were standing in a well-lit area facing the patrol car where Shillinaford was seated, and there were no obstructions (H. 84-85, 146, 193.) between them and the car. Petitioner and Pratt were with one or two officers, but neither officer was holding onto the suspects and none of t area had a gun drawn. (H. other officers in the 83-85, 101, 114-15, 143-45, 188.) When asked if he recognized the suspects, Shillingford "duck[ed] down" behind the seat in front of him and unequivocally stated, "[Y]es . those are [the] guys that robbed me." 177-78, 188 89.) (H. 147-50, At trial, Shillingford further testified that the area was "pretty bright" because of the lights of the police cars and Shillingford was "100 percent sure" that the men being held were t men who had robbed him. 34, 366-69, 391, 451 55, (T. 142 48, 262-63, 333 512 14, 523-24, 649-51, 664.) 35 In addition, prior to the show-up, Shillingford had provided the police with a description of the robbers 9 , stating that they were two black men, one wearing a red shirt, one wearing a black shirt, and that one of the robbers carried a black gun. (H. 138.) He also pointed out the vehicle in which the robbers fled, a tan SUV. 648.) (T. 390, 448-49, 509, 515, 531-32, Petitioner and Pratt were we shirt, respect ly, were driving a tan SUV, and a black handgun was found in their vehicle. demonstrates that ng a black shirt and a red Taken toget , the evidence re is no substantial likelihood that Shillingford misidentified Petitioner and Pratt as the men who robbed him, and the state court's decision to admit Shillingford's in-court identification at trial was areas application of both state and federal law. III. Petitioner's Claims Regarding the Admission of Evidence, including a Video of Pratt's Arrest and Testimony about Cell Phone Site Data, do not Implicate the Federal Constitution and are Thus not Cognizable on Federal Habeas Review the height or weight of the The fact that Shill did not Defendants does not, as Petitioner maintains, mean that Shillingford did not a ion of the Defendants, or that he was not able to ident the Defendants when he saw them. To the contrary, Shillingford fied the race and clothing of the Defendants, as well as what the make of the car that the Defendants left the crime scene in, and explained that during the robbery, he had an unobstructed view of Defendants (T. 390,448- 9,509,515,531-32,648.) 36 Pet ioner next claims that he was deni of law because (1) due process trial court improperly allowed the jury to view a video of Pratt's arrest and (2) the court erred in allowing a lay witness to provi expert testimony concerning cell phone site datal which the prosecution us Pet ioner near the cr to place scene. The Second Circuit has held that "not all erroneous admissions of [prejudicial] evidence are errors of constitutional dimension." Dunnigan v. Keane, 137 F.3d 1171 125 (2d Cir. 1998). Instead, the introduction of prejudicial does not violate due process unless "is so extremely unIalr that its admission violates fundamental conceptions of justice." (quoting Dowling v. United States, 493 U.S. 342 352 1 110 S.Ct. 668, 107 L. improperly admitted .2d 708 1 (1990)). Put another waYI dence does not violate process unless it is "sufficiently material to provide the basis for conviction or to remove a reasonable doubt record without 1992) II (quoting Coll t would have existed on the Johnson v. Ross, 955 F.2d 178 1 181 (2d s v. Scul r. 755 F.2d 16, 19 (2d Cir. 1985) (holding that courts must review erroneously admitted evidence "in light of the entire record before the jury") 37 ); see also Benjamin v. Greiner, 296 F. Supp. 2d 321, 332 (E.D.N.Y. 2003) (quoting Brecht v. Abrahamson, 507 u.s. 619, 623 (1993)) ("an error of constitutional dimensions will merit habeas relief only if it had a 'substantial and injurious effect or influence in ermining the jury's ve Petitioner ct . ' ils to demonstrate both that the challenged evidentiary ruli a substantial and i If) ¢ s were erroneous, and that they had urious effect determining the jury's verdict. With respect to the video, Petitioner contends that the court erred in admitting a video that depicted several seconds of Pratt's arrest. (H. 282 84, 438-43; T. 285.) There is no indicat which had that admission of the deo, ear probative value, in any way prejudiced the jury against Petitioner. vast majority of which The video, depicted Passarella's chase of the Yukon down the highway, did not depict the Petitioner, and served instead to il rate and corroborate Officer Passarella's testimony about his pursuit of 38 the tan Yukon down the FDR Drive. Only the last few seconds of the video depicted Pratt's arrest, during which Petitioner was not shown. Further, Petitioner did not protest admission of the video prior to or during trial 1o . To the contrary, during Petitioner's opening statement, his attorney told the jury that they would nsee" that, when told to pullover, the co-Defendants "calmly pulled over, stuck their hands out of t didn't try to run away." (T. 21-22.) provide the basis for t ju vehicle, nally, the [and] deo did not verdict, because other evidence, such as Shillingford's identification, t contraband and weapons found in the car, and Petitioner's own statements to the police, overwhelmingly demonstrated his guilt. As a result, Petitioner has admission the video had a nsubstantial and injurious effect or influence" on t Chandler v. Napoli, 2011) (because t had probat iled to show that the jury's decision to convict him. See 2011 WL 4382265, at *4-5 (E.D.N.Y. July 19, video, which did not depict the petitioner value, and "because other evidence, such as Hodge's statements to police implicating Chandler, Chandler's On direct appeal, the People argued that this claim was unpreserved for appellate review. The Appellate Division did not address the preservation argument and denied Petitioner's claim on the merits. 10 39 confessions, and the .32 caliber gun found at his home proved his guilt," petitioner fail to show that the video had a "substantial and injurious effect or fluence" on jury's decision to convict him). With respect to Petitioner's aim that the court improperly allowed Strohm, a lay witness, to provide expert testimony rega the ju wi ing cell phone s data, Strohm did not provide an expert opinion and in any event the testimony was not "suf ciently material to provide the sis for conviction." Johnson v. Ross, 955 F.2d 178, 181 (2d During the trial, custodian with r. 1992). People called Strohm, a records int Nextel Telecommunications, to testify about the five cell phones recovered after Petitioner's arrest. Strohm testified that, as a custodian of records, part of his job is to testify in court about various telecommunications records, including subscriber in rmation, call detail reports, the duration of calls, whether a call is ingoing or outgoing, and cell site data that indicates the specific cell tower where a subscriber's phone is "pinging off." then identi (T. 722-25.) Strohm ed several exhibits containing subscriber and call 40 detail information that were accept objection. into evidence without (T. 725 38; People's Exhs. 30-34.) Strohm's explanation was not an expert opin as to the significance of the cell site records; rather, he provided the jury with an explanation of how the records are created and what kind of information is recorded from cell towers. Petitioner thoroughly cross-examined Strohm about his qualifications and educational background, and Strohm made it clear to the j t he had no educational background in "[t]elecommunications," that he did not know about the specific receiving capabilities of different celltowers, and that he had not been qualified as an expert " 784, 786-88. 795-96, 799.) this subject matter." (T. Strohm explained that his testimony concerning cell towers and cell phone pinging was bas experience in the records department. (T. 784-85.) on his Bas this record, the Appellate Division correctly concluded t on the trial court's admission of Strohm's testimony comported with New York law. EVen if Strohm's testimony were improperly admitted, Petitioner cannot show that it was sufficiently mater 41 1 as to provide the basis for his conviction. Strohm provided the jury with a summary of certain portions of the phone records, but he was never asked to make any opinions or to draw any conclusions as to where Pet ioner was at the time of the robbery. When asked if he could determine "exactly where a cellphone was tran tting from" by reviewing the cell s test if of d that he could not. (T. 782-84.) records, Strohm imately, Storhm red no testimony, opinion or otherwise, concerning the likelihood that Petitioner was at 584 Academy Street at the time of the robbery. Further, in the context of the overwhelming evidence of Petitioner's guilt, Strohm's testimony, which merely aced Shillingford in the vicinity of the crime, cannot fairly be seen as "sufficiently material to provide the basis Ior conviction or to remove a reasonable doubt that would have existed on the record without it." Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992). Accordingly, neither of Pet the trial court's ioner's complaints about dentiary rulings is cognizable on federal habeas review, or infringed upon his right to a fair trial. See, e.g., Dunni n v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (erroneous admissions of prejudi al evidence are only of constitutional dimension warranting habeas review if the error 42 is "so extremely unfair that its admission conceptions of justice.") (internal lates fundamental ations omitted). IV. Petitioner's Excessive Sentence Claim is not Cognizable on Federal Habeas Review and is Without Merit Pet ioner's final claim, that his sentence was unduly harsh and excessive, is not cognizable on federal habeas review and is in any event without me t. An excessive sentence claim is not a ground for federal habeas corpus relief as long as the sentence is "with t range scribed by state law." (2d Cir. 1996) (quoting White v. Keane, Cir. 1992); see also Al (E.D.N.Y. 2003). authori Ross v. Gavin, 101 F. i 68 969 F.2d 1381, 1383 (2d v. Lord, 245 F. Supp. 2d 493, 502 Petitioner's sentence was within the range, which Pet ioner does not dispute, and in fact was less than the maximum sentence applicable to his offenses. For his conviction of first-degree robbery alone, a class B violent lony offense, Petitioner faced a maximum sentence twenty-five years in prison (see Penal Law § 70.02(3)(a)). 43 Petitioner's aggregate prison sentence for all of his offenses was only fteen years. Petitioner's age or his lack of prior criminal historyll does not alter t vi nature of Petitioner's ent offense, or the fact that his sentence was well beneath the maximum guidelines. See, e.g., Castro v. Sullivan, 662 F.Supp. 745, 753 (S.D.N.Y. 1987) (holding two concurrent terms of twenty-five years to life were not excessive in the case of a twenty-two year old with no prior record who was convicted of second degree murder, first degree robbery, and second degree criminal possession of a weapon; because sentence did not exceed maximum prescribed under the statute, petitioner any constitutional issue); 1248-49 (S.D.N.Y. 1983) iled to se vera v. Quick, 571 F.Supp 1247, (because petitioner's sentence was within the range permitted by state law, s length did not a constitutional issue). Because Petitioner's underlying sentence did not exceed the maximum prescribed, Petitioner's excessive sentence aim is inapprop F. 68 ate for habeas relief. See Ross v. Gavin, 101 (2d Cir. 1996). Petitioner a~leges that this was his first felony offence, but has acknowledged that in 2004 he was adjudicated as a youngful offender for attempted murder. (Attorney General's Brief, "Br,n; Exhibit A, at 50.) 44 V. Conclusion For the foregoing reasons, Petitioner's petition for writ of habeas corpus is denied. It is so ordered. New York, NY i February~, 2014 / ROBERT W. SWEET U.S.D.J. 45
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