Reaves v. Superintendent, 16-cv-2221 (BMC)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtCOGAN, District Judge.
PartiesKEVIN REAVES, Petitioner, v. SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY, Respondent.
Decision Date15 June 2016
Docket Number16-cv-2221 (BMC)

KEVIN REAVES, Petitioner,
v.
SUPERINTENDENT,
FIVE POINTS CORRECTIONAL FACILITY, Respondent.

16-cv-2221 (BMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 15, 2016


MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254 on his state court conviction for second degree attempted murder and second degree criminal weapons possession, for which he was sentenced to concurrent terms of imprisonment totaling 21 years. The facts will be set forth below as necessary to address each of petitioner's points of error but, to summarize, this was a gang-related shooting in which petitioner shot and severely wounded a former member of a rival gang, Iesa Britt, recognizable by his gang tattoos, for intruding on the turf of petitioner's gang. Although Britt got a good look at petitioner prior to being shot, Britt initially declined to cooperate with the police. Nevertheless, a couple of months after the shooting, he picked petitioner's picture out of a mug book and then identified petitioner in a lineup and subsequently at trial.

Each of the claims raised in the petition is addressed below. None of them have merit and the petition is therefore denied.

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I. Claims Rejected on Direct Appeal

A. Photographic Identification and Resulting Lineup

1. Background

Petitioner asserted in pretrial proceedings and on direct appeal that the prosecution had failed to meet its burden1 of showing that Britt's identification of his picture in the mug book was not unduly suggestive because: (a) at the suppression hearing, the prosecution had produced only petitioner's mugshot, not the entire mug book; and (b) his mugshot was marked "Clarkson Ave Flat/Bedford" ("Flat" likely referring to Flatbush Avenue), which was near the location of the shooting; and (c) his mugshot was marked "marihuana," indicating that he had previously been arrested for a crime involving marijuana. Because Britt's identification of petitioner's mugshot was only two weeks before his identification of petitioner in the lineup, petitioner contended that Britt's lineup and in-court identification of him should have been suppressed.

In rejecting this argument, the suppression court noted that, according to the unrebutted testimony at the suppression hearing: (a) there were between 50-100 mugshots in the book when Britt reviewed it, about half of which were African-American (as is petitioner), far more than the generally-used 6 picture photo array; (b) all of the mugshots were marked to show the prior crime, some for felonies and some misdemeanors, for which the subject had been arrested; (c) the mugshots in the book were frequently changed, so it could not be produced at the hearing in the same condition it was in at the time Britt saw it; (d) all of the mugshots showed the location

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of the arrest within or near the precinct, and the Britt shooting did not occur on Clarkson Avenue, but on Parkside Avenue and Flatbush; (e) petitioner was not the only person that Britt identified; he first identified another mugshot as "Castro," a person he said "hung out" with the person who had shot him, who he subsequently picked out as petitioner; (f) there was no evidence that the detective before whom Britt reviewed the mug book, who was not the detective investigating the Britt shooting, had done anything to suggest which of the 50-100 pictures Britt should select; and (g) there was no evidence that Britt knew petitioner's name, so there was no basis to find that the pedigree information on the picture, which was present on all of the mugshots, would have assisted Britt. Accordingly, the suppression court held that the prosecution had met its burden of demonstrating that the photographic identification was not unduly suggestive.

Petitioner also contended at his suppression hearing that the lineup identification should have been suppressed independently because, of the six subjects in the lineup, including him, only he was wearing a blue bandana; the rest were green, which rendered the lineup unduly suggestive. (The police had put bandannas on all of the subjects because petitioner had dreadlocks.) After reviewing color photographs of the lineup, the suppression court rejected this as well:

Although defense counsel has argued that the defendant's bandana in the lineup was a different color from the fillers' bandanas, it appears that the defendant, filler four, and filler six are all wearing blue bandanas, and fillers two, three, and five are wearing green bandanas. Thus, there was nothing particularly distinctive about the defendant's bandana.

Based on the ruling of the suppression court, Britt was permitted to testify at trial that he recognized petitioner and that he had identified him out of the lineup.

The Appellate Division affirmed the suppression court's ruling, holding:

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Upon our review of the record of the hearing, we find that the photographic array was not suggestive. As to the lineup, there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance. Here, the alleged variations in appearance between the fillers and the defendant were not so substantial as to render the lineup impermissibly suggestive.

People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228, 229 (2d Dep't 2013) (citations and quotation marks omitted), leave to app. denied, 22 N.Y.3d 1202, 986 N.Y.S.2d 422 (2014) (table).

2. Analysis

Because the Appellate Division decided this point on the merits, its decision attracts the provisions of 28 U.S.C. § 2254(d)(1). That statute requires petitioner to demonstrate that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The decision of a state court is "contrary" to clearly established federal law within the meaning of § 2254(d)(1) if it is "diametrically different" from, "opposite in character or nature" or "mutually opposed" to the relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000) (internal quotation marks omitted). A state court decision involves "an unreasonable application" of clearly established federal law if the state court applies federal law to the facts of the case "in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1439 (2005). The Supreme Court has made clear that the Antiterrorism and Effective Death Penalty Act ("AEDPA") standard of review is extremely narrow, and is intended only as "a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal . . . ." Ryan v. Gonzales, ___ U.S. ___, 133 S. Ct. 696, 708 (2013) (internal quotation marks omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as

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'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149 (2004)). Since Harrington, the Supreme Court has repeatedly admonished Circuit Courts for not affording sufficient deference to state court determinations. See, e.g., White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460 (2015) ("This Court, time and again, has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, 'erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.'" (quoting Burt v. Titlow, 571 U. S. ___, 134 S. Ct. 10, 16 (2013))). Moreover, with regard to factual determinations, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

"In general, a pretrial photographic identification procedure used by law enforcement officials violates due process if the procedure 'is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Jarrett v. Headley, 802 F.2d 34, 40-41 (2d Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1969)). "It is the likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381-82 (1972). There is "no requirement . . . that photos in an array present only individuals who match petitioner's appearance in every detail." Velazquez v. Poole, 614 F. Supp. 2d 284, 300-01 (E.D.N.Y. 2007). Instead, the Second Circuit merely requires that "[t]he array must not be so limited that the defendant is the only one to match the witness's description of the perpetrator." United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990).

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Here, the Appellate Division affirmed the trial judge's determination, which included a factual finding as to the colors of the bandanas in the lineup. This factual determination is entitled to great deference which "must be sustained unless it is clearly erroneous." Felkner v. Jackson, 562 U.S. 594, 598, 131 S. Ct. 1305, 1307 (2011) (internal quotation marks omitted). Indeed, "[o]n federal habeas review, AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Id. (internal quotation marks omitted).

With regard to the mug book, Britt picked petitioner's photograph out of a minimum of 50 and as many as 100 photographs, about half of which were African-Americans. As the suppression court observed, the sheer number of photographs and the absence of any suggestive influence from the police were sufficient indicators of non-suggestiveness. The suppression court's...

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