McGhee v. Uhler
| Decision Date | 18 April 2019 |
| Docket Number | 17-cv-01103 (CM) (SDA) |
| Parties | Isma McGhee, Petitioner, v. Superintendent Donald Uhler, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
INTRODUCTION
Petitioner Isma McGhee ("McGhee" or "Petitioner"), currently incarcerated at Riverview Correctional Facility in New York State, seeks a writ of habeas corpus as authorized by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. A New York County jury convicted McGhee of ten counts of Criminal Sales of a Controlled Substance in the Third Degree. He was sentenced to an aggregate prison term of twelve years, to be followed by three years of post-release supervision. McGhee challenges his conviction on three grounds: (1) the trial court violated his rights to due process and confrontation by precluding him from cross-examining the lead detective about his involvement in prior false arrests that were the subject of federal lawsuits; (2) a pretrial photo array used to identify him was "unduly suggestive;" and (3)he "was incorrectly sentenced" as a second felony drug offender previously convicted of a violent felony. (Pet. for a Writ of Habeas Corpus ("Pet."), ECF No. 1, at 5-9.)
On September 29, 2017, Respondent filed his opposition to the Amended Petition. (Resp. Mem., ECF No. 16-1.) Petitioner filed his reply memorandum on November 6, 2017. (Reply, ECF No. 20.)
For the reasons set forth below, I recommend that the Petition be DENIED in its entirety.
In January 2011, detectives from the Manhattan North Narcotics Command commenced a long-term investigation into drug trafficking at the Abraham Lincoln Houses development in Manhattan ("Lincoln Houses"). (Resp. Mem. at 5; Trial Tr., ECF Nos. 16-10 & 16-11 (hereinafter "Tr."), at 4, 9.) Among the targets of the investigation were McGhee and his brother, Bobby Lane ("Lane"), who were targeted for selling crack cocaine. (Tr. 9-11.) Detective Arnoldo Rivera was the primary detective who was responsible for coordinating the investigation and handling the paperwork, among other responsibilities. (Tr. 3-4, 9, 14, 43-46.) Multiple undercover detectives were employed in the investigation, both as purchasers and "ghosts," whose responsibility was to stay close to the purchasing undercover detectives and communicate with supervisors and the field team. (Tr. 16-17, 89, 118.) Undercover detectives known as UC 76, UC 90, UC 93 and UC 219 acted as purchasing undercovers for the investigation of McGhee and Lane.2 (Tr. 15, 89, 116-17, 326, 376-77, 417.)
During the course of the investigation, the undercover detectives purchased crack cocaine from McGhee on six separate occasions between November 2011 and March 2012. On November 18, 2011, UC 76 and UC 90 were walking on 132nd Street near Madison Avenue when they saw McGhee and told him they "were looking to buy dimes" - or $10 bags - of crack cocaine. (Tr. 120-22, 124, 129, 189-91, 378-80, 402-03.) McGhee agreed, and UC 76 and UC 90 followed him inside 2101 Madison Avenue, a nearby building that is part of the Lincoln Houses. (Tr. 92, 121-22, 126-27, 129, 378, 381.) Inside the lobby, UC 90 told McGhee that he wanted two dimes of crack cocaine and handed McGhee $20. (Tr. 122.) In return, McGee gave UC 90 two orange Ziploc bags of crack cocaine, which he took from "a big clear Ziploc bag." (Tr. 122-23, 127.) UC 76 then purchased three Ziploc bags of crack cocaine for $25. (Tr.122-23, 379-81.) McGhee told UC 90 and UC 76 that his name was "Shorty." (Tr. 128, 187, 387.) After the transactions, UC 90 and UC 76 notified the field team of the positive buys. (Tr. 127, 383.)
On February 1, 2012, UC 90 and UC 213 made two purchases of crack cocaine from McGhee and Lane. (Tr. 130-31.) UC 90 and UC 213 approached Lane in front of 1980 Park Avenue and asked whether "Shorty" was around. (Tr. 22-24, 131-32, 134.) Lane led them inside the building to the tenth floor and called McGhee. (Tr. 132.) McGhee appeared and UC 90 and UC 213 each asked him for two dimes of crack. (Tr. 132-33.) McGhee called someone and stated, "times two." (Tr. 133 .) Lane returned, took $20 from each purchaser and handed each two "little twist[s]" of crack cocaine. (Tr. 133-34, 140-41, 251-55.) McGhee and Lane each gave UC 90 different phone numbers to use to contact them for future transactions. (Tr. 141-42.) Following the transaction, UC 90 notified the field team that there had been a positive buy from two malesellers, whom she described. (Tr. 136.) Among other things, she described Lane as "missing an eye," and described McGhee as "cross-eyed." (Tr. 137, 192-94.)
On March 9, 2012, UC 90 called McGhee and said that she wanted to purchase more drugs. (Tr. 143-44, 304-05, 388-90.) McGhee arranged to meet her in front of 2101 Madison Avenue. (Tr. 144.) UC 90 and UC 76 met McGhee at that location, and he took them inside near the staircase in the lobby. (Tr. 145, 203-04, 389.) UC 90 handed McGhee $40 in prerecorded buy money, in return for which McGhee handed UC 90 four black Ziploc bags containing crack cocaine. (Tr. 145-46, 149-50, 267-69.) UC 76 purchased three additional dime bags of crack cocaine from McGhee.3 (Tr. 391, 260-63.)
On March 13, 2012, UC 90 again called McGhee and told him that she was looking to buy crack cocaine. (Tr. 150-52, 305-06.) UC 90 and UC 93 met McGhee in front of 1980 Park Avenue and McGhee led them into the building, where he sold each detective four Ziploc bags containing crack cocaine. (Tr. 151-54, 270-72, 285-87, 418-20.)
On March 28, 2012, UC 90 called McGhee to arrange additional drug purchases. (Tr. 156, 306-07, 328-29, 341.) UC 90 and UC 219 met McGhee in front of 2101 Madison Avenue and then followed McGhee into the building. (Tr. 156, 328, 330.) UC 90 purchased five Ziploc bags of crack cocaine from McGhee and UC 219 purchased two bags. (Tr. 156-60; 224-29, 244-45, 328-31.)
On March 30, 2012, UC 90 was acting as a ghost for another undercover detective (targeting a different seller at the Lincoln Houses) when she bumped into McGhee. (Tr. 164-66, 183.) McGhee asked what she was doing there, and UC 90 responded that she was talking tofriends from the neighborhood. (Tr. 165, 167.) Feeling like she had no choice, UC 90 arranged another drug purchase from McGhee, who told her to go in 2140 Madison Avenue, another building in the Lincoln Houses. (Tr. 164-65, 167.) Inside the lobby, UC 90 purchased three bags of crack cocaine for $20. (T165, 169-72, 279-81.) After the transaction, UC 90 notified the field team about her buy from McGhee. (Tr. 170-71.)
On May 8, 2012, Detective Rivera conducted a photo array identification for UC 93 to identify the person who sold her the drugs on March 13, 2012 and she identified McGhee.4 (Hr'g 13-15, 21, 25-26.) On May 11, 2012, McGhee was indicted by a New York grand jury on ten counts of criminal sale of a controlled substance in the third degree. (Indictment, ECF No. 16-3, at SR 187.)
On May 16, 2012, Detective Rivera and two members of the field team arrested McGhee as part of the "take down" in which the police arrested all those from whom they had purchased drugs during their investigation at the Lincoln Houses. (Tr. 40-41.)
Prior to trial, McGhee filed an omnibus motion for, among other things, a Wade hearing to seek suppression of the four photographic identifications made by the purchasing undercover detectives. (Not. of Motion, dated Aug. 21, 2012, ECF No. 16-4, at SR 364; see also People'sVoluntary Disclosure Form, ECF No. 16-3, at SR 213-14.) As relevant here, McGhee argued that the photo array identification made by UC 93 on May 8, 2012, should be suppressed because it was suggestive. (Traub Aff., ECF No. 16-4, at SR 367.)
Justice Edward McLaughlin granted McGhee's motion for a Wade hearing with respect to the photo array identification only. (Decision, dated Sept. 11, 2012, ECF No. 16-4, at SR 382.) The Wade hearing was held before Justice Patricia Nunez on November 20, 2012. (Wade Hr'g Tr. ("Hr'g Tr."), ECF No. 16-10, at 1-31.) Detective Rivera was the only witness to testify at the hearing. (Id.)
Detective Rivera testified regarding the investigation at the Lincoln Houses and the March 13, 2012 sales, which were the only sales involving McGhee for which UC 93 was present. (Hr'g Tr. 9-12.) Detective Rivera personally was not present for the sales and his testimony regarding the March 13, 2012 sales was based on what UC 90 and UC 93 had told him. (Hr'g Tr. 11.) However, he testified that he had been to the building where the sales occurred (1980 Park Avenue) on several occasions and was familiar with the lighting conditions in the lobby. (Hr'g Tr. 11-12.) He testified that there were "plenty" of light fixtures "in the hallways, the elevator and the lobby area" and that "natural light" came through the windows and that it was still daylight at the time of the purchases. (Hr'g Tr. 12.) Detective Rivera further testified that, following the March 13, 2012 transactions, UC 90 and UC 93 both informed him that they had purchased drugs that day, and both referred to McGhee by his nickname, "Shorty." (Hr'g Tr. 19-21.) UC 93 also described the seller as a short, black male with "one eye that's kind of off." (Hr'g Tr. 20.)
Detective Rivera explained that the May 8, 2012 photo array consisted of six photos, including one of McGhee. (Hr'g Tr. 13; see also Photo Array, ECF No. 16-9, at SR 1324.) DetectiveRivera testified that he generated the array by using the "Photo Manager" system. (Hr'g Tr. 22.) Detective Rivera explained that he "had a very good idea" that the person described by UC 93 was McGhee. (Hr'g Tr. 23.) Thus, he input McGhee's NYSID number into the Photo Manager system and the system automatically generated photos of...
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