443 F.3d 238 (2nd Cir. 2006), 04-6280, Lynn v. Bliden

Docket Nº:04-6280 PR.
Citation:443 F.3d 238
Party Name:Arnold LYNN, Petitioner-Appellee, v. Dennis BLIDEN, First Deputy Supt., Respondent-Appellant.
Case Date:March 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 238

443 F.3d 238 (2nd Cir. 2006)

Arnold LYNN, Petitioner-Appellee,

v.

Dennis BLIDEN, First Deputy Supt., Respondent-Appellant.

No. 04-6280 PR.

United States Court of Appeals, Second Circuit.

March 30, 2006

Argued: September 12, 2005

Appeal from a judgment entered in the United States District Court for the Southern District of New York (Wood, J.) granting petitioner-appellee's application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, where the District Court found that the state court's application of Strickland v. Washington, 466 U.S. 668 (1994), was objectively unreasonable, the state court having rejected petitioner's Sixth Amendment challenge based on trial counsel's failure (a) to move to reopen a Wade hearing after learning that one eyewitness had failed to identify the petitioner when first shown a photo array; (b) to cross-examine another eyewitness about a previous statement in which the eyewitness claimed that he "couldn't recognize" the culprit; and (c) to successfully argue for admission, under New York's business records hearsay exception, of those portions of a police report containing the reporting officer's own observations.

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SUSAN M. DAMPLO, The Legal Aid Society, Criminal Appeals Bureau, Ardsley, N.Y., for Petitioner-Appellee.

STANLEY R. KAPLAN, Assistant District Attorney, Bronx County (Joseph N. Ferdenzi, Assistant District Attorney, on the brief; Robert T. Johnson, District Attorney, Bronx County), Bronx, N.Y., for Respondent-Appellant.

Before: MINER, RAGGI, Circuit Judges, and KARAS, District Judge. [*]

MINER, Circuit Judge:

The question presented here is whether the District Court improperly concluded under AEDPA review that the state court's application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was objectively unreasonable for having rejected a Sixth Amendment challenge based on various alleged failures of trial counsel.

Respondent-appellant First Deputy Superintendent Dennis Bliden (hereinafter the "State") appeals from a judgment entered September 28, 2004, in the United States District Court for the Southern District of New York (Wood, J.) granting the application of the petitioner-appellee Arnold Lynn ("Lynn" or "Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lynn was convicted for Murder in the Second Degree, pursuant to N.Y. Penal Law § 125.25(1), and Attempted Murder in the Second Degree, pursuant to N.Y. Penal Law §§ 110.00, 125.25(1), in the Supreme Court of the State of New York, Bronx County (Collins, Justice). Lynn is serving concurrent indeterminate terms of imprisonment of twenty years to life and six years to twelve years, respectively. At the time of the commencement of this action, Bliden was the acting First Deputy Superintendent of the Green Haven Correctional Facility, the prison where Lynn is confined.

The District Court found that the state court's application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994), was objectively unreasonable, the state court having rejected Lynn's Sixth Amendment challenge based on trial counsel's failure (a) to move to reopen a Wade hearing after learning that one eyewitness had failed to identify the Petitioner when first shown a photo array; (b) to cross-examine another eyewitness about a previous statement in which the eyewitness claimed that he "couldn't recognize" the culprit; and (c) to successfully argue for admission, under New York's business records exception to the hearsay rule, of those portions of a police report containing the reporting officer's own observations.

For the reasons that follow, we hold that the state court's application of clearly established federal law, as determined by the United States Supreme Court, was objectively reasonable in this case, and, accordingly, that the application for a writ of habeas corpus should have been denied.

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BACKGROUND

At approximately 5:30 p.m. on February 7, 1992, two men approached Jermaine Seippio ("Seippio") and Kendrick Chandler ("Chandler") outside of their residence at 115 Marcy Place in the Bronx. One of the approaching men argued loudly with Seippio and Chandler. Seippio questioned this man: "[H]ow can you tell me I cannot sell my drugs around here. Who [] do you think you are?" After a pushing contest with Seippio, the man removed a gun from his coat and fired what sounded like three shots at Seippio and Chandler. The shooter and his companion ran off. Chandler fell dead. Seippio, with the help of a neighbor who was present at the scene, Toby Patterson ("Patterson"), limped inside 115 Marcy Place. Seippio later was hospitalized. Luis Quinones ("Quinones"), a resident of the neighborhood, observed the shooting from his mother's apartment at 108 Marcy Place.

At approximately 5:45 p.m., Detective William Martinez arrived at the scene and observed a large crowd standing around Chandler's body. Pedro Arriaga ("Arriaga") soon was arrested as the shooter, apparently based on statements made to the police by two bystanders who claimed to be eyewitnesses. Arriaga was apprehended and arrested by Detective Beers after being assaulted by a crowd and then trying to hide under a car a block or two away from Marcy Place. Detective Beers "pulled [Arriaga] out from under the rear of the car, while [Arriaga was] being assaulted by the crowd."

Neither Patterson nor Quinones initially told the police what he had observed. Patterson was interviewed several times by the police but said that he was initially "too scared" to come forward with the information until September of 1992. Quinones said that he did not want to "get involved" because he feared for the safety of his family. Quinones originally lied to the police about witnessing the crime and told Detective Martinez on February 20, 1992, that he could not recognize the shooter.

While Arriaga's case was pending before the grand jury, Quinones told a friend of his, who was also a friend of Arriaga, that Arriaga was innocent. That mutual friend, Mark Falu ("Falu"), implored Quinones to report what he saw to the police. It appears that Falu's brother had been arrested at about the same time as Arriaga. At first, Quinones refused to go to the police. It was not until Arriaga's mother visited Quinones, at which time he saw that she was "suffering," that Quinones agreed to contact Arriaga's lawyer. Quinones also spoke with an assistant district attorney and Detective Martinez. The police reopened the investigation and re-interviewed several witnesses.1 On motion by the People on September 14, 1992, the charges against Arriaga were dismissed.2

On September 16, 1992, Detective Martinez held a recorded meeting with Patterson in a police car, where he showed Patterson

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an array of six photographs, one of which was of Lynn. Patterson identified Lynn as the shooter, and Lynn was arrested two days later.

Approximately one week after Detective Martinez showed Patterson the photo array in the police car, Detective Martinez showed Quinones the same photo array that he showed Patterson, and Quinones also identified Lynn as the shooter. On September 24, 1992, Patterson and Quinones separately viewed lineups at the Bronx County District Attorney's Office. Each identified Lynn as the shooter.

By Indictment filed on October 8, 1992, the Bronx County Grand Jury charged Lynn with various crimes, including Murder in the Second Degree and Attempted Murder in the Second Degree. Following the Indictment, Lynn's trial attorney, Arthur F. X. Henriksen ("Henriksen"), filed a pre-trial motion to suppress the identifications made by Patterson and Quinones. On February 8, 1995, the trial court judge, the Honorable John P. Collins, Supreme Court of New York, 12th Judicial District (Bronx County), conducted a Wade hearing. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). At that hearing Detective Martinez testified, inter alia, about the circumstances surrounding the presentation of the photo array to Patterson on September 16, 1992, and to Quinones about a week later, as well as the procedure followed during the subsequent line-ups on September 24 of that year. The trial judge determined that all of the police procedures were proper and that the identifications were admissible.

A trial jury was selected on February 16, 1995. On Friday, February 17, not a scheduled trial day, the Assistant District Attorney ("ADA") spoke to Patterson and reviewed some police reports in preparation for trial. It was then that the prosecutor discovered that Patterson had been shown the photo array on two separate occasions. The first time that Patterson had been shown a photo array — about a week before the September 16 photo array — Patterson had not identified Lynn. Detective Martinez testified only about the second photo array at the Wade hearing.3 The ADA immediately contacted Henriksen by telephone.

On February 21, before the jury was called into the courtroom, the ADA informed Justice Collins about the earlier photo array and stated that he had only learned of it on February 17. The ADA stated that, upon learning of the earlier array, he had questioned Patterson about it. According to the ADA, Patterson responded that he had recognized Lynn as the shooter "in his own mind" when he first saw the photo array but did not identify Lynn to the police at that time because "he was too afraid to say who did it." Henriksen said nothing to the trial judge regarding the identifications or the Wade hearing.4 Opening statements began later that day.

At trial, no physical evidence was offered that linked Lynn to the shootings. The only evidence that implicated Lynn

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consisted of the eyewitness accounts of Patterson and Quinones, both of whom made courtroom identifications of Lynn as the shooter. The police...

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