Grant v. Racette

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EDWIN GRANT, :

:

Petitioner, : MEMORANDUM AND ORDER

: ADOPTING REPORT AND

-against- : RECOMMENDATION

: 14-cv-3446 (DLI)(ST)

STEVEN RACETTE, Superintendent, :

Clinton Correctional Facility, :

: :

Respondent. :

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DORA L. IRIZARRY, United States District Judge:

Petitioner Edwin Grant (“Petitioner”), timely petitioned for a writ of habeas corpus (the

“Petition”) pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254. See, Pet. for Writ of Habeas Corpus (“Pet.”), Dkt. Entry No. 1. On June 2, 2016,

the Court granted Petitioner’s motion to stay the proceedings so that he could exhaust his state

court remedies. See, Consent Mot. to Stay Proceedings Pending Pet’r’s Exhaustion of State

Remedies, Dkt. Entry No. 11; Electronic Order dated June 2, 2016. On April 12, 2017, after

receiving a status report concerning Petitioner’s state court proceedings, the Court referred the

Petition to the Honorable Steven Tiscione, U.S. Magistrate Judge, for a Report and

Recommendation (“R & R”). See, Electronic Order dated April 12, 2017.

By letter dated May 15, 2017, Petitioner, with Respondent Steven Racette’s

(“Respondent”) consent, requested a stay of the R & R pending his further exhaustion of state

remedies. See, Dkt. Entry No. 13. Accordingly, on June 12, 2017, this Court granted the stay,

unreferred the case from the magistrate judge, and requested status reports from Petitioner. See,

Electronic Order dated June 12, 2017. After receiving several status reports from Petitioner, on

April 10, 2018, the Petition was again referred to Magistrate Judge Tiscione for an R & R. See,

Dkt. Entry Nos. 14–17; Electronic Order dated April 10, 2018.

On March 4, 2019, the magistrate judge issued an R & R recommending that the Petition

be denied. See, R & R, Dkt. Entry No. 18. Petitioner timely objected to the R & R. See, Obj. to

R & R (“Obj.”), Dkt. Entry No. 19. Respondent responded to Petitioner’s objections. See, Reply

in Opp’n re Obj. to R & R (“Opp’n to Obj.”), Dkt. Entry No. 20. For the reasons set forth below,

the objections are overruled, the R & R is adopted in its entirety, and the Petition is denied.

BACKGROUND1

Petitioner is serving an aggregate 55-year prison sentence imposed in the Criminal Term

of New York State Supreme Court, Kings County on February 27, 2008. Pet. at ¶¶ 1-3. Petitioner

was tried before a jury for a shooting and attempted robbery that occurred on May 10, 2006 in

Crown Heights, Brooklyn. R & R at 1-6. At Petitioner’s trial, the trial court allowed testimony

from a prosecution witness and excluded testimony from two defense witnesses. Id. at 6.

For the prosecution, Thomas Swann (“Swann”), who was “present at the scene of the

crime,” testified. Id. Prior to trial, Swann had participated in a police line-up where he had failed

to identify Petitioner. Id. At trial, Swann testified that making an identification at the line-up had

been difficult because the men were wearing hats and sitting down and, therefore, he had not been

able to “get a good look at them.” Id. at 7. Swann testified that there were two perpetrators, one

with dark skin and one with light skin, and that he had had a “back- and side-view” of the light

skinned perpetrator and a “better” view of the dark skinned perpetrator. Id. at 6. He further

testified that there was a three-foot high dumpster between himself and the perpetrators, and he

could see them only from the waist up. Id. Swann estimated that the perpetrator was roughly 5’9”

1 In light of the thorough recitation of facts in the R & R, only the facts relevant to the issues before the Court

are set forth here.

or 5’10” tall, had a medium frame, was about 23 to 24 years old, and wielded a black gun that

looked like a nine-millimeter. Id. at 7. Over defense counsel’s objection, the prosecutor asked

Swann if anyone in the courtroom had the same skin complexion as the light skinned perpetrator.

Id. Swann replied that Petitioner “looks like him.” Id. (internal quotation marks and citation

omitted).

Defense counsel objected to Swann’s in-court identification of Petitioner, arguing that

Swann’s inability to identify Petitioner at the line-up should preclude the identification. Id. The

trial court overruled the objection, stating: “There is nothing improper about the district attorney

bringing out the fact that the defendant on trial has the same complexion and stature of the

individual he observed on the scene and he has absolutely every right to try to explain to this jury

why the witness was unable to make an identification during a line-up.” Id. (internal quotation

marks and citation omitted).

Additionally, defense counsel sought to introduce an expert witness and a fact witness,

both of whom the trial court excluded. Id. at 7-9. Prior to trial, defense counsel had made an

application to introduce expert testimony concerning the reliability of eyewitness identifications.

Id. at 7. The trial court initially ruled that the defense would not be permitted to introduce this

expert testimony, but subsequently modified the ruling to permit defense counsel to renew the

application at the close of the prosecution’s case. Id. at 8. Defense counsel did not renew the

application at that time. Id.

The fact witness was Petitioner’s friend, Delon Duncan (“Duncan”). Id. Duncan provided

testimony regarding Petitioner’s whereabouts on the day of the crime, to which the prosecution

objected. Id. The trial court expressed concern that Duncan, who had not been noticed as an alibi

witness as required by New York law, was an impermissible alibi witness. Id. at 8-9; See also, Id.

at 8, n.2. Defense counsel explained that, while Duncan and Petitioner had arranged to meet on

the day of the crime, Duncan had missed the meeting and, therefore, he did not qualify as an alibi

witness. Id. at 9. The trial court ruled that Duncan’s proffered testimony was “absolutely

irrelevant,” and instructed the jury to disregard it. Id. (internal quotation marks and citation

omitted).

The jury found Petitioner guilty of attempted murder, attempted robbery in the first degree,

aggravated assault upon a police officer, and criminal possession of a weapon in the second degree.

Id. at 6 (citing People v. Grant, 94 A.D.3d 1139, 1139 (2d Dep’t 2012)). Petitioner appealed to

the New York Supreme Court, Appellate Division, Second Department (“Appellate Division”),

raising, as relevant here, challenges to three alleged errors at trial: (1) the admission of Swann’s

in-court identification; (2) the exclusion of the testimony of the expert witness and Duncan; and

(3) ineffective assistance of counsel based on trial counsel’s failure to object, on constitutional

grounds, to the exclusion of the expert witness and Duncan. See, Mem. of Law in Supp. of Pet.

for a Writ of Habeas Corpus (“Pet. Mem.”), Dkt. Entry No. 1-2, at 23. The Appellate Division

affirmed Petitioner’s conviction. R & R at 9 (citing Grant, 94 A.D.3d 1139). Leave to appeal to

the New York State Court of Appeals was denied. See, People v. Grant, 20 N.Y.3d 1099 (2013).

As to Swann’s in-court identification, the Appellate Division upheld the trial court’s

admission of the identification, holding: “Although the witness could not positively identify the

defendant during a pretrial lineup, the witness’s inability in that regard related to the weight of his

in-court identification, not its admissibility.” Grant, 94 A.D.3d at 1140 (citations omitted). The

Appellate Division did not directly address Petitioner’s argument regarding the exclusion of the

expert witness, but instead stated at the end of the decision that the “‘remaining contentions are

unpreserved for appellate review and, in any event, without merit.’” R & R at 19 (quoting Grant,

94 A.D.3d at 1142). As to the exclusion of Duncan’s testimony, the Appellate Division held that

the trial court’s decision to preclude the testimony “was not an abuse of discretion under the New

York Rules of Evidence.” Id. at 22 (citing Grant, 94 A.D.3d at 1141). Finally, with respect to

Petitioner’s argument regarding ineffective assistance of counsel, the Appellate Division held that

“[c]onsidering the totality of the evidence, the law, and the circumstances of the case, trial counsel

provided meaningful representation[.]” Grant, 94 A.D.3d at 1141 (citation omitted).

On federal habeas review, Petitioner again raised the same constitutional challenges to the

trial court’s purported errors that had been upheld by the Appellate Division. See, Pet. Mem. at

26-54. Respondent responded to the Petition and filed the state court record. See, Response to

Order to Show Cause (“Resp.”), Dkt. Entry No. 8. Petitioner replied. See, Reply in Supp. of Pet.

for a Writ of Habeas Corpus (“Reply”), Dkt. Entry No. 10. The magistrate judge recommended

that the Petition be denied. See, generally, R & R.

LEGAL STANDARD

When a party objects to a Report and Recommendation, a district judge must make a de

novo determination with respect to those portions of the Report and Recommendation to which the

party objects. See, Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 72(b)(3); 28 U.S.C. §

636(b)(1); See also, United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (citation

omitted). If, however, a party makes conclusory or general objections, or attempts to relitigate the

party’s original arguments, the court will review the Report and Recommendation for clear error.

See, Robinson v. Superintendent, Green Haven Corr. Facility, 2012 WL 123263, at *1 (E.D.N.Y.

Jan. 17, 2012) (internal quotation marks and citation omitted). Even upon de novo review, the

court does not “consider arguments, case law and/or evidentiary material which could have been,

but were not, presented to the magistrate judge in the first instance.” E. Sav. Bank, FSB v. Johnson,

2020 WL 1452461, at *1 (E.D.N.Y. Mar. 25, 2020) (internal quotation marks and citations

omitted). After its review, the district court may then “accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge with

instructions.” Fed. R. Civ. P. 72(b)(3); See also, 28 U.S.C. § 636(b)(1).

DISCUSSION

Petitioner devotes the majority of his objections to the magistrate judge’s recommendation

regarding the admission of Swann’s in-court identification. See, Obj. at 1-5. With respect to the

recommendations regarding the exclusion of the defense witnesses and the ineffective assistance

of counsel claim, Petitioner simply “relies upon the arguments made in his briefings to this Court”

in the Petition. Id. at 5.

I. Admission of Swann’s In-Court Identification

In his Petition, Petitioner argued that “Swann’s in-court identification was so unreliable

that it violated his right to due process under the Fourteenth Amendment and that the Appellate

Division’s decision upholding its admission was an unreasonable application of clearly established

Supreme Court precedent.” R & R at 10. The magistrate judge found that the Appellate Division’s

decision to affirm the admission of the testimony was not an unreasonable application of Supreme

Court precedent. Id. at 11. This Court concurs with the magistrate judge’s finding.

Relying on Neil v. Biggers, 409 U.S. 188 (1972), which held that due process “requires the

exclusion of identifications engendering a very substantial likelihood of irreparable

misidentification” and set forth factors to evaluate the likelihood of such misidentification, the

magistrate judge found that Swann’s in-court identification may have created an

“unconstitutionally unreliable identification.” Id. at 11-13 (internal quotation marks and citation

omitted). However, recognizing that “[t]his Court . . . does not sit in direct review of the Appellate

Division’s decision[,]” the magistrate judge noted that “AEDPA demands . . . appropriate

deference to the decisionmaking authority of the state courts” and, thus, habeas relief is not

warranted “so long as fairminded jurists could disagree on the correctness of the state court’s

decision.” Id. at 13 (internal quotation marks and citations omitted). Under AEDPA’s deferential

standard, the magistrate judge found that upholding the admission of Swann’s in-court

identification was not unreasonable because “fairminded jurists have disagreed over similar

identifications.” Id. at 14.

The magistrate judge further found that, even if the Appellate Division’s holding had been

unreasonable, the admission of Swann’s in-court identification was harmless error. Id. at 15. The

magistrate judge reached this conclusion by assessing the importance of the purportedly wrongly

admitted testimony, taking into consideration “whether the testimony ‘bore on an issue that is

plainly critical to the jury’s decision; whether that testimony was material to the establishment of

the critical fact or whether it was instead corroborated and cumulative; and whether the wrongly

admitted evidence was emphasized in arguments to the jury.’” Id. at 16 (quoting Wray v. Johnson,

202 F.3d 515, 526 (2d Cir. 2000)).

At trial, there had been “overwhelming” evidence of Petitioner’s guilt, including: (1)

testimony from the prosecution’s “main witness,” Detective Young, who “unequivocally [had]

identified Petitioner as the shooter” approximately fifteen minutes after the shooting and again in

court; (2) testimony from “several eyewitnesses,” who identified the car that had fled the scene of

the crime, which was owned by Petitioner’s mother and in which Petitioner previously had been

pulled over while driving; and (3) eye witness testimony that the perpetrator had been wounded

before entering the front passenger side of the car; and (4) DNA test results confirming that the

blood found on the front passenger seat of the car was Petitioner’s. Id. at 16-17. Moreover, the

prosecution had not relied on Swann’s in-court identification in its summation. Id. at 17.

Accordingly, the magistrate judge concluded that, based on the “overwhelming physical and

circumstantial evidence[,]” even if no fairminded jurist could agree with the Appellate Division’s

decision, the admission of Swann’s in-court identification was harmless error. Id. at 18.

Petitioner contends that the magistrate judge should not have applied the deferential

AEDPA standard of review to the Appellate Division’s decision because the Appellate Division

did not apply the proper constitutional standard when it upheld the admission of Swann’s in-court

identification. Obj. at 2. According to Petitioner, the Appellate Division did not properly apply

the factors set forth in Biggers to determine whether there was a substantial likelihood of

misidentification, such that due process required the exclusion of the identification. Id. Thus,

Petitioner concludes that the Appellate Division’s adjudication of the claim was “contrary to, or

involved an unreasonable application of, clearly established [f]ederal law” and, therefore, was not

entitled to AEDPA deference. Id. The Court disagrees.

That the Appellate Division did not explicitly mention the Biggers factors does not mean

that it did not consider them and adjudicate Petitioner’s due process claim. A state court need not

make explicit reference to a federal claim in order to adjudicate it on the merits. As the Second

Circuit has held:

For the purposes of AEDPA deference, a state court “adjudicate[s]” a state

prisoner’s federal claim on the merits when it (1) disposes of the claim “on the

merits,” and (2) reduces its disposition to judgment. When a state court does so, a

federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1)

to the state court’s decision on the federal claim—even if the state court does not

explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (quotation marks in original).

Here, Petitioner argued before the Appellate Division that the trial court’s admission of

Swann’s in-court identification had violated both state evidentiary rules and the Due Process

Clause of the Fourteenth Amendment. See, Pet. Appellate Division Br., Dkt. Entry Nos. 8-18 – 8-

19, at 57-60. In deciding the admissibility of Swann’s in-court identification, the Appellate

Division referenced only Petitioner’s evidentiary claim. See, Grant, 94 A.D.3d at 1140.

However, the Appellate Division is not required to “use particular language in every case

in which a state prisoner presents a federal claim[.]” Sellan, 261 F.3d at 312 (internal quotation

marks and citation omitted). The magistrate judge correctly refrained from imposing upon the

Appellate Division the responsibility of explicitly addressing Petitioner’s Due Process arguments.

See, Id. (“The Supreme Court has pointedly instructed us that we have no power to tell state courts

how they must write their opinions.”) (internal quotation marks and citations omitted). The

Appellate Division’s lack of explicit reference to Petitioner’s federal claim does not mean that it

applied the wrong standard and, therefore, the magistrate judge correctly applied AEDPA

deference in his decision. Accordingly, Petitioner’s first objection is overruled.

Petitioner further argues that, even under AEDPA’s deferential standard, the Appellate

Division’s decision to uphold the admissibility of Swann’s in-court identification was

unreasonable. Obj. at 2-3. Petitioner objects to the magistrate judge’s finding that fairminded

jurists could disagree as to the identification’s admissibility, notwithstanding the fact that, when

he weighed the Biggers factors, he determined that they suggested an unreliable identification. Id.

at 3.

The magistrate judge correctly noted that this Court does not sit in direct review of the

Appellate Division’s decision and, thus, the relevant inquiry is not whether he would have ruled

as the Appellate Division did, but whether fairminded jurists could have reached different

conclusions regarding the admissibility of Swann’s identification. See, R & R at 13-14. He

concluded that fairminded jurists could have reached the same conclusion that the Appellate

Division did by considering several cases, similar to the instant one, where an eyewitness who had

failed to identify the defendant prior to trial offered a satisfactory explanation for this failure and,

therefore, was permitted to make an in-court identification. Id. at 14-15 (citing cases). The

magistrate judge’s analysis on this point was thorough and well reasoned. Accordingly,

Petitioner’s second objection is overruled.

Finally, Petitioner objects to the magistrate judge’s finding that, even if admission of the

in-court identification was in error, the overwhelming evidence of guilt at trial renders the error

harmless. Obj. at 3-5. Petitioner contends that there were “numerous weaknesses in the

prosecutor’s case” and provides details about the purported deficiencies with the evidence

presented at trial. Id. at 4-5.

The Court need not consider the issue of whether the admission constituted harmless error,

given that it agrees with the magistrate judge’s finding that the Appellate Division’s adjudication

of the admission of Swann’s in-court identification was not unreasonable. However, even if the

Court were to reach this issue, it would find that the error was harmless. The evidence contested

now by Petitioner is only a portion of the evidence presented against him at trial. As set forth

above, the magistrate judge detailed the extensive eye witness testimony, physical and scientific

evidence against Petitioner. See, R & R at 16-17. In light of the overwhelming evidence presented

at trial, the admission of Swann’s in-court identification, if in error, would have been harmless.

As such, this objection is overruled. See, Wray, 202 F.3d at 525 (“[T]he erroneous admission of

unreliable identification testimony does not warrant relief from the conviction if the error was

harmless.”) (citations omitted).

II. Exclusion of Defense Witness Testimony and Ineffective Assistance of Counsel Claim

Petitioner also objects to the magistrate judge’s recommendation regarding: (1) the

Appellate Division’s finding that the trial court properly had excluded the testimony of the

defense’s two witnesses, the expert and Duncan; and (2) the Appellate Division’s finding that

counsel’s failure to object to the exclusion of these witnesses did not support a claim for ineffective

assistance of counsel. See, Obj. at 5. Rather than articulating new arguments in support of these

objections, Petitioner summarily directs the Court to his Petition. Id.

“Merely referring the court to previously filed papers or arguments does not constitute an

adequate objection under” Rule 72. Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.

2002). Accordingly, these objections are not entitled to de novo review. See, Benitez v. Palmer,

654 F. App’x 502, 503-04 (2d Cir. 2016) (summary order) (holding that “general objection” to R

& R “was insufficient to obtain de novo review by the district court”). The Court, therefore,

reviews this portion of the R & R for clear error and finding none, adopts the magistrate judge’s

recommendation regarding the exclusion of the two defense witnesses and Petitioner’s claim for

ineffective assistance of counsel.

[Remainder of the page intentionally left blank.]

CONCLUSION

For the reasons set forth above, the R & R is adopted in its entirety. Accordingly, the claim

for habeas corpus relief pursuant to 28 U.S.C. § 2254 is denied. As to Petitioner’s request for a

certificate of appealability, that request is denied, as he has failed to make a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); See, Fed. R. App. P. 22(b); Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003); Luciadore v. N.Y. State Div. of Parole, 209 F.3d 107,

112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from

this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for

purpose of an appeal. See, Coppedge v. U.S., 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: Brooklyn, New York

July 2, 2021

/s/

DORA L. IRIZARRY

United States District Judge