Alvarez v. Keane

• Decision Date: 11 April 2000
• Docket Number: No. 96-CV-833(FB).,96-CV-833(FB).
• Citation: 92 F.Supp.2d 137
• Parties: Lloyd ALVAREZ, Petitioner, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

92 F.Supp.2d 137

Lloyd ALVAREZ, Petitioner, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.

No. 96-CV-833(FB).

United States District Court, E.D. New York.

April 11, 2000.

COPYRIGHT MATERIAL OMITTED

Roland R. Acevedo, Yonkers, NY, for petitioner.

Charles Hynes, Kings County District Attorney, by Bruce D. Austern, Assistant District Attorney, Brooklyn, NY, for respondent.

MEMORANDUM AND ORDER

BLOCK, District Judge.

By petition dated February 26, 1996, Lloyd Alvarez ("Alvarez") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court referred his petition to Magistrate Judge Marilyn Dolan Go, who issued a Report and Recommendation ("R & R") on January 19, 2000, recommending that the petition be denied.¹ In the R & R, Magistrate Judge Go concluded, inter alia, that 1) the admission of the in-court identifications of Alvarez by Ernest Cameron ("Cameron") did not violate Alvarez's due process rights, and 2) following his retrial after a successful appeal, Alvarez was not sentenced in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which prohibits vindictive sentencing. Alvarez timely filed objections to the R & R, arguing that the R & R should not be adopted because: 1) the trial court erroneously failed to assess the reliability of Cameron's in-court identifications and should not have admitted them into evidence, and 2) he was entitled to a presumption that the second sentencing judge was vindictive, a presumption the government has failed to rebut, because following his second trial he received a greater sentence than he had received after his first trial.

A district court reviewing a magistrate judge's R & R applies the standards in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), which permit the court to adopt those parts of the report to which no specific objection is raised. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. See United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). If neither party objects to the report, the court may adopt the recommendations of the magistrate judge, but is not obligated to do so. See Grassia, 892 F.2d at 19. In light of the fact that Alvarez has only objected to certain portions of the R & R, the Court adopts without review the portions of the R & R to which he has not objected, and conducts a de novo review of those portions which Alvarez challenges.

I. In-court Identifications

Although Alvarez does not object to the Magistrate Judge's conclusion that the pretrial identification procedures were not suggestive, he argues that the state court improperly admitted the allegedly unreliable in-court identifications made by Cameron at the suppression hearing and at the second trial, and that on-the-record comments made by the hearing and trial judges should be considered to be incomplete evaluations of the reliability of the identifications. Specifically, "Petitioner contends that the trial court erred by permitting an in-court identification of Petitioner without first determining whether the identification was independently reliable. Petitioner argues that the hearing or trial court was required to make specific findings on the [] factors before allowing identification." Petitioner's Objections at 2. "Petitioner claims that in addressing the identification issue, the court failed to assess adequately the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), before making its determination, in violation of the Due Process Clause." Petitioner's Objections at 3.

The R & R correctly states the relevant law in that a court is not required to assess the reliability of an identification if the identification procedures were not suggestive. The two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures "`requires a determination of whether the identification process was impermissibly suggestive, and if so, whether it was so suggestive as to raise a very substantial likelihood of irreparable misidentification.'" See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir.1994) (quoting Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir.1978)) (internal quotation marks and citation omitted).

Where the pretrial identification procedures used with a given witness have been impermissibly suggestive, a later in-court identification by that witness will violate due process unless the in-court identification is shown to have reliability independent of those procedures.... On the other hand, if the procedures were not impermissibly suggestive, independent reliability is not a constitutionally required condition of admissibility, ... and the reliability of the identification is simply a question for the jury.

Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir.1986) (citations omitted); see Wong, 40 F.3d at 1359 (quoting Jarrett, 802 F.2d at 42); Bond v. Walker, 68 F.Supp.2d 287, 303-05 (S.D.N.Y.1999) (collecting cases). Since Jarrett, the Second Circuit has reiterated that a reliability analysis is only necessary when the pretrial identification procedures were suggestive; if they were not, the identification is admissible without an evaluation of its reliability. See Sims v. Sullivan, 867 F.2d 142, (2d Cir.1989) ("Because the pretrial procedures in the instant case were not unduly suggestive, and thus did not taint the in-court identification, we need not address the question of the reliability of the [witness]'s identification of [the defendant]."); see also Wray v. Johnson, 202 F.3d 515, 523 (2d Cir.2000) (evaluating reliability analysis "[i]n the context of an identification following a police procedure that was impermissibly suggestive"); Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir.1998) (requiring a reliability analysis "[i]f the pretrial procedures were impermissibly suggestive"); United States v. Ciak, 102 F.3d 38, 42 (2d Cir. 1996) ("[w]here, as here, there is the potential taint of suggestive pre-trial identification procedures," the court must assess the reliability of the identification).

A review of the record supports Magistrate Judge Go's conclusion that the pretrial identification procedures were not suggestive. As a result, the hearing and trial judges were not required to elicit evidence regarding, or assess, the reliability of the identifications. Thus, even if they did make imperfect assessments, their alleged failure does not provide a ground for habeas relief because the assessments were not required.

II. Sentencing

Following his first conviction at trial before Justice John Starkey, Alvarez was sentenced to concurrent terms of imprisonment of twenty years to life on two murder counts and five to fifteen years for a robbery count. After this conviction was reversed on appeal, he was tried again before Justice Herbert Kramer, convicted, and sentenced to concurrent terms of twenty-five years to life for the murder counts, and twelve and one-half to twenty-five years for the robbery count. Alvarez alleges that his sentence following his second conviction violates North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which held that following a reconviction after a successful appeal and a new trial, due process prohibits the imposition of a greater sentence when the sentence increase is motivated by the sentencing judge's vindictiveness. The Court held that under certain conditions the imposition of a more severe sentence after retrial gives rise to a rebuttable presumption of vindictiveness. Id.; United States v. King, 126 F.3d 394, 397 (2d Cir.1997). However, since Pearce, the Court has held that this presumption does not arise when, following the second conviction, the defendant is sentenced by a different judge than his original sentencing judge. See Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); United States v. Atehortva, 69 F.3d 679, 683-84 (2d Cir. 1995) (citing United States v. Coke, 404 F.2d 836, 845 (2d Cir.1968) (en banc)); United States v. Perez, 904 F.2d 142, 146 (2d Cir.1990) ("there is no realistic motive for vindictive sentencing" when prior reversal was based on a ruling by a judge other than the sentencing judge). "At a subsequent trial before a different judge, the evidence might well be presented in a different light, new witnesses might come forward, others might appear more credible or recite additional facts, and the judge might be impressed with items of proof that either escaped notice at the first trial or were discounted by the first trial judge." Perez, 904 F.2d at 145. Thus, when different sentencers impose the varying sentences, a defendant must prove actual vindictiveness on the part of the second sentencer. See id. at 146.

As Magistrate Judge Go determined, the presumption of vindictiveness does not arise in this case because after his second trial Alvarez was sentenced by a different judge than after the first trial. Thus, the burden of proof rests with Alvarez to produce evidence of vindictiveness by Justice Kramer, which he has failed to do. As to any implicit suggestion that Justice Kramer's views were colored by the results of Alvarez's prior trial, Justice Kramer specifically avoided any knowledge of the results of the prior proceedings, except as to the law of the case as raised at trial: "Let the record indicate at this time that the Court has not opened the court file, nor know any information about what is contained therein through any source, and I've directed all the court personnel not to give me the contents, either verbally or in any other fashion." Trial Transcript, at 7. Thus, because Alvarez has failed...