Daniels v. Royce

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANTHONY DANIELS,

Petitioner, MEMORANDUM & ORDER

19-CV-6603(EK)(LB)

-against-

MARK ROYCE,

Respondent.

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I. Background................................................ 4

A. Pre-Trial Hearing ....................................... 4

B. Trial .................................................. 11

1. State’s Case-in-Chief ................................. 11

2. Defense Case .......................................... 15

3. State’s Rebuttal Case ................................. 16

4. Conviction and Sentencing ............................. 17

C. Appeals and Collateral Proceedings ..................... 18

II. Legal Standards.......................................... 19

III. Discussion............................................... 21

A. Identification Procedures and Evidence ................. 21

1. The Photo Array Shown to Officer Hughes ............... 21

2. The Lineup ............................................ 25

3. Insufficient Evidence to Convict ...................... 27

B. Prosecutorial Misconduct ............................... 30

1. Brady v. Maryland ..................................... 31

a. The Handbag Claim ................................... 31

b. The Surveillance Video Claim ........................ 33

2. Use of False Testimony ................................ 35

3. False Statements in Summation ......................... 37

C. Ineffective Assistance of Counsel ...................... 41

1. The Affirmative Defense Under Section 160.15(4) ....... 42

2. Other IAC Claims ...................................... 46

D. Double Jeopardy ........................................ 48

E. Lack of Probable Cause ................................. 49

F. Actual Innocence Based on “New Evidence” ............... 52

IV. Daniels’ Motion for Discovery............................ 53

V. Conclusion............................................... 54

Anthony Daniels, proceeding pro se, petitions this

Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petition, ECF No. 1 (“Pet.”). Daniels challenges his

convictions for two robberies committed six days apart in April

2012 in Brooklyn. In both incidents, a partially masked man

followed a woman into her apartment building and robbed her.

The first robbery was witnessed only by the victim. Police

officers quickly responded to the second, however, and got a

look at the suspect. They also recovered items he had

discarded, including the metal object he had used to threaten

the victim — a crude facsimile of a gun. Days later, one of the

responding officers viewed a photo array and identified Anthony

Daniels as the suspect. That officer and both victims then

identified Daniels in a lineup, at which point he was charged.

Following a bench trial in 2014, Daniels was convicted

of two counts of Robbery in the First Degree and one count each

of Attempted Assault in the Second and Third Degree.1 He is

currently in the custody of Green Haven Correctional Facility in

Dutchess County, New York.

I construe Daniels’ petition liberally, as is required

for pro se litigants. E.g., Johnson v. Fogg, 653 F.2d 750, 753

(2d Cir. 1981). On that basis, I read him to assert the

1 The judge declined to consider an additional count – for third-degree

robbery – after convicting Daniels of first-degree robbery. Trial Transcript

(“T.”) 390:9-11, ECF No. 16-3.

following claims: (1) the photo array and lineup violated the

Due Process Clause of the Fourteenth Amendment because they were

conducted in a suggestive manner; (2) he was convicted on the

basis of insufficient evidence, also in violation of due

process; (3) the prosecution violated its obligations under

Brady v. Maryland, 373 U.S. 82 (1967), by failing to produce

certain exculpatory evidence, and committed prosecutorial

misconduct by failing to correct false testimony; (4) trial

counsel was constitutionally ineffective because, among other

things, he failed to assert an affirmative defense under state

law that the weapon used in the first robbery was inoperable;

(5) the convictions for first- and third-degree robbery violated

the Double Jeopardy Clause; (6) there was no probable cause for

Daniels’ arrest; and (7) he is actually innocent, as shown by

certain newly discovered evidence.

None of these claims has merit. For the reasons set

forth below, the petition is denied.

I. Background

A. Pre-Trial Hearing

Prior to trial, Daniels moved under Wade v. United

States, 388 U.S. 218 (1967), to suppress any testimony at trial

concerning the photo array and lineup as unduly suggestive.

Hearing Transcript (“H.”) 54:23–56:17, ECF No. 16-1. He also

argued a second basis to suppress the lineup identifications:

that the police lacked probable cause to arrest him, and

therefore he should not have appeared in that lineup in the

first place. See H. 34:19–21 (citing Dunaway v. New York, 442

U.S. 200 (1979)). State Supreme Court Justice Jon Firetog

conducted a hearing on the Wade and Dunaway motions on December

4, 2013; the prosecution called the investigating agent,

Detective Marisol Bonilla of the 90th Precinct, as its sole

witness. Bonilla testified about the statements she took from

the victims and responding officers and the identification

procedures she conducted.

Bonilla’s testimony began with the second robbery (of

Taylor Westfall). Bonilla and her partner took a statement from

Westfall on the night of that incident – April 12, 2012. Id. at

38:8-11. Westfall reported that at approximately 9:50 p.m., she

was walking into the vestibule of her apartment building – at

155 Manhattan Avenue in Williamsburg, Brooklyn – when a man

entered behind her and tried to grab her purse. Id. at 5:6-10,

5:21-24. When she would not let go of it, he hit her over the

head four to five times with what appeared to be a firearm. Id.

at 5:10-13. Westfall fell to the ground, and the suspect kicked

her. Id. at 5:14-16. The suspect ran out of the building with

her purse and fled by bicycle. Id. at 5:16-17. She followed

him into the street, screaming for help, id. at 6:1-3, and an

unmarked police vehicle pulled up. Id. at 6:4-5, 10:21. She

told the occupants — Officer Arias2 and Sergeant Angel Taveras —

what happened, and they gave chase. Id. at 6:6-7. Westfall

later described the suspect to Bonilla as “male[,] black, in his

40s[,] about five ten, 185 pounds, wearing a brown hoodie and a

black sweater over it.” Id. at 6:20-22.

The officers spotted a suspect but lost sight of him

shortly thereafter. Id. at 10:2-23. They broadcast the

suspect’s description and location over the NYPD radio network.

See id. at 8:22-9:7. Officer Arias told Bonilla that he “never

got to see the [suspect’s] face,” but described the suspect as

“male[,] black[,] wearing a red hoodie sweater . . . [and] a

black jacket over it.” Id. at 10:23-25.

Officer Sean Hughes was also in the vicinity when he

heard the radio call. Id. at 8:20-21. Hughes went immediately

to the location mentioned in the call – the intersection of

Lorimer Street and Throop Avenue – and saw a man on a bicycle

fitting the description. Id. at 9:4-10. The suspect turned

from Throop onto Wallabout Street and threw what appeared to be

a black or silver firearm over a fence at 398 Wallabout. Id. at

9:14-17. Hughes continued pursuit, but the suspect eluded

arrest. Id. at 9:22-23. Hughes described the suspect to

Bonilla as “male[,] black, 40 to 45 years old,” and having

2 Officer Arias’s first name does not appear in the record.

“pocked skin, wearing a black sweater with a rust color hoodie,

sweater underneath.” Id. at 10:7-8.

Arias and Taveras went back to the scene of the

robbery to pick up Westfall. Id. at 11:3-5. They had heard

over the radio that items related to the robbery had been

located and took Westfall to identify them. Id. at 11:8-9.

Westfall identified her purse, which the suspect had discarded

while in flight. Id. at 37:6-10. She identified a hooded

sweatshirt found on the ground as matching the one the suspect

had been wearing. Id. at 37:11-14. She also identified the

weapon the suspect had used. Id. at 37:15-18. And she

identified an abandoned bicycle as the one on which the suspect

had fled. Id. at 37:19-21.

The officers then returned to the 90th Precinct

stationhouse with Westfall, where they met with Detective

Bonilla. Id. at 11:12–18. Bonilla showed Westfall and Hughes

“hundreds” of intake photographs from the NYPD’s “photo manager

system” based on their descriptions of the suspect, but they

were unable to make an identification. Id. at 11:21-25, 41:24-

43:5.

The following week, a sergeant from a neighboring

precinct contacted Bonilla to inform her of a case from a few

years earlier that involved a similar robbery committed by an

individual who was similarly described by an eyewitness. Id. at

12:5-11. The sergeant told Bonilla that Daniels had been

investigated for the offense. Id. at 12:8-20. Bonilla looked

up Daniels in New York State’s criminal records database and saw

that he “fit the description” of her suspect – a black male

between forty and forty-five years old, and around 5’8”.3 Id. at

12:12-13:2. Bonilla pulled Daniels’ photo and compiled a photo

array with five “filler” photos from the database. Id. at

12:20-14:8. On April 18, she showed the array to Officer

Hughes, who identified Daniels as the suspect. Id. at 15:1-9.

After Bonilla issued a “wanted poster,” Daniels’ attorney

arranged for him to self-surrender on April 26. Id. at 16:6-7,

33:8-18.

Also on April 26, Bonilla took a statement from Ashley

Reardon, the victim of a recent, similar robbery. Id. at 33:19-

20. Reardon told Bonilla that she was entering her building

around 7:00 a.m. on April 6 — about a week before the Westfall

robbery — when she noticed a man behind her. Id. at 17:11-21.

The man told Reardon to get in the elevator, not to scream, and

that he was not going to hurt her. Id. at 17:25-18:2. He was

holding a “shiny chrome colored object that [Reardon] described

as [having] a long cylinder shape,” though Reardon was unsure

whether it was a firearm. Id. at 18:17-19. The perpetrator

3 Daniels’ date of birth is April 23, 1967, so he was 44 years old at

the time of the robberies. T. 3:19, ECF No. 16-1. Daniels is 5’9” tall.

Pet.’s Pre-Appeal Mot. to Vacate Conviction 15, ECF No. 16-4.

demanded that Reardon give him money, but Reardon replied that

she had only a cell phone. Id. at 18:3-5. The man searched

her, took the phone, and fled. Id. at 18:5-21. Reardon

described the man as approximately six feet tall, “light skinned

black or dark skinned Hispanic,” wearing a camouflage hooded

sweatshirt, black vest, and tan cargo pants. Id. at 18:23-19:2.

After taking Reardon’s statement (and after Daniels

had self-surrendered), Bonilla conducted a lineup at the 90th

Precinct. Three people viewed the lineup: Reardon, Westfall,

and Officer Hughes. The lineup included Daniels and five

“fillers.” Id. at 20:20-24. The fillers were generally similar

to Daniels in appearance: “all male[,] black[], bald [like

Daniels], between . . . five six to five nine, approximately 150

to 185 pounds.” Id. at 21:3-9. All six men wore the same color

t-shirt. Id. at 21:10-18. Daniels chose a seat, and his

attorney was present. Id. at 21:22-22:7.

Reardon, Westfall, and Hughes each arrived at the

precinct separately and were isolated in separate rooms prior to

the lineup. Id. at 22:13-16. They were instructed to take

their time and to let Bonilla know whether they recognized

anyone. Id. at 24:1-5 (Reardon), 26:9-11 (Westfall), 28:22-25

(Hughes). Each witness viewed the lineup separately, and each

identified Daniels. Id. at 24:16-19, 26:21-24, 29:4-9. Bonilla

testified that Reardon “started to cry” when she saw Daniels and

said, “He robbed me.” Id. at 24:2-23. Westfall, likewise,

said, “[T]hat’s the guy who mugged [me].” Id. at 26:25-2.

Hughes stated that Daniels “was the guy he chased during

the . . . robbery.” Id. at 29:9-10.

In cross-examining Detective Bonilla, Daniels’ counsel

sought to establish that the witnesses could not have recognized

the perpetrator because his face was covered by a mask. Bonilla

testified, however, that neither Westfall nor Officer Hughes had

actually told her that the suspect’s face was covered. Id. at

35:19-36:2, 39:10-12. When Daniels’ counsel asked Bonilla if

she knew that “Westfall testified in the Grand Jury . . . that

[the suspect] was wearing a mask the entire time,” Bonilla

testified that she had not been aware of that testimony and did

not recall asking Westfall whether the suspect had worn a mask.

Id. at 38:22-39:6.4

At the conclusion of the hearing, Justice Firetog

denied Daniels’ motions. He denied the Wade motion upon finding

that the photographic array and lineup were not suggestive and

4 The grand jury testimony that was the subject of counsel’s question is

not in the record. Nevertheless, by Daniels’ own account, Westfall testified

to the grand jury that although the perpetrator was masked, she was able to

identify him “by his height, build, eyes, complexion, and how hard he hit

[her].” Pet. 26. Westfall’s trial testimony regarding this issue, as

discussed below, is consistent with Daniels’ account of her grand jury

testimony. Indeed, had Westfall’s trial testimony been at odds with her

grand jury testimony on this point, Daniels’ counsel might have been expected

to address the discrepancy on cross-examination, but he did not do so –

despite probing other elements of her grand jury testimony. See T. 62:21-

64:20, ECF No. 16-1.

that the procedures used in conducting them were permissible.

Id. at 55:22-56:17. Given that finding, he then also denied the

Dunaway motion to suppress evidence from the lineup, which was

predicated on the same argument. Id. at 56:18-19.

B. Trial

Daniels waived his right to a jury trial, and a bench

trial was held over five days in May 2014 before Justice Albert

Tomei.

1. State’s Case-in-Chief

The State put on seven witnesses: the two victims,

Westfall and Reardon; Officer Hughes and Sergeant Taveras;

Detective Bonilla; Officer Jerry St. Louis, who recovered the

weapon; and Samantha Rappa-Jiovagnoli of the New York City

Office of Chief Medical Examiner, a forensic specialist who

conducted DNA testing on certain evidence.

Reardon, Westfall, and Hughes testified to the

robberies and their aftermath. Reardon testified that after she

entered her apartment building on the morning of April 6, she

heard “murmuring” and noticed that someone had caught the door

behind her. T. 5:12-15, ECF No. 16-1. She “looked at the

person and tried to figure out who it was,” thinking it might be

the new superintendent. Id. at 5:16-20. When the intruder

first entered the building, he was wearing a hoodie with the

hood up, but nothing covered his face. Id. at 6:14-19, 25:18-

21. Reardon confirmed that she was able to see the individual’s

face at that time. Id. at 6:14–16. It was a “bright, sunny,

spring day” and the lighting in the lobby, which had two glass

doors, was “very bright.” Id. at 6:20-24. She told him that he

did not belong there. Id. at 25:5-20. The intruder then told

Reardon to “get into the elevator.” Id. at 10:3-5, 25:22-26:6.

At that point, he “pulled a mask over his face from somewhere

around his neck.” Id. at 10:3-5. The mask covered his face to

the “nose area,” but it “didn’t cover his eyes.” Id. at 28:1-2.

Westfall, in turn, testified to being robbed on April

12. When she saw the suspect, he was wearing a “brown hoody”

and “ski mask.” Id. at 39:2-4, 40:1-3. Westfall testified

that the mask went “up to his nose” but that it was not covering

his eyes. Id. at 39:8-15. When asked whether she could see

part of his face, Westfall replied, “Yes.” Id. at 39:16-18.

She could also “tell his height . . . [and] build.” Id. at

40:1-3. The vestibule in her building, too, was brightly lit.

Id. at 40:6-12.

Sergeant Taveras testified to the immediate aftermath

of the Westfall robbery. Taveras was in an unmarked car with

Officer Arias, stopped at a red light, when they “heard a female

screaming.” Id. at 69:12-20. “Soon after,” they saw a man pass

them on a small, purple bicycle with “a female purse on the bar

of the bike.” Id. at 70:1-14. A “couple of people and the

female” pointed towards him. Id. at 70:22–23. Sergeant Taveras

described the man as being “covered up” and wearing a sweatshirt

that “at that time . . . looked red,” but that he later saw as

“brown,” and a “black jacket.” Id. at 70:3–71:4. They followed

the man and put out a radio alert regarding a “male[,] black,

red sweatshirt” and his location. Id. at 73:1-2.

Officer Hughes testified that he heard the radio

alert, and then – approximately twenty or thirty seconds later –

saw a man who fit the description turning onto Wallabout Street.

T. 97:7-25, ECF No. 16-2. Following the suspect in his vehicle,

and while about “two car lengths away,” Hughes “saw [the

suspect] go into his waistband,” take a “metallic” object, and

“throw it over the fence” of a tire shop at 398 Wallabout

Street. Id. at 100:1-6, 101:14-17. Officer Hughes then “jumped

the curb” to “try to block” him. Id. at 98:8-12. At that

point, he saw the suspect’s face “very quickly.” Id. at 116:16-

17, 118:3 (Hughes got a “[f]leeting glimpse of his face”). The

suspect was wearing the hood up, but his face was not

“completely conceal[ed].” Id. at 116:21-24. Hughes testified

that when he jumped the curb, the suspect looked him “right into

the face with a sheer mask of terror,” likely because he thought

Hughes was going to run him over. Id. at 119:4-6. Hughes

testified that the street was “very well-lit.” Id. at 125:6.

Reardon, Westfall, and Hughes all identified Daniels

in court. See T. 89:17-23 (Reardon), ECF No. 16-1; id. at

40:13-16 (Westfall); T. 99:12-13 (Hughes), ECF No. 16-2. Other

witnesses testified about evidence recovered — the brown hoodie

and black sweater, the weapon, and the bicycle. Officer St.

Louis testified about recovering the weapon, which was actually

a “simulated firearm” made from a cylindrical pipe with “two

screwdrivers inside of a [black] sock” with a “purple band

around it” to simulate a handle. T. 136:19-23, ECF No. 16-2.

The parties stipulated that Nagy Bekhit from the NYPD’s

criminalistics section would have testified that the weapon had

become contaminated in police custody, and that Detective

Cynthia Ramirez from the NYPD’s latent print section would have

testified that no recovered fingerprints matched Daniels’. Id.

at 204:9-205:6, 205:24–206:9. Rappa-Jiovagnoli testified that

Daniels’ DNA was found on the brown “sweater” that officers

recovered on the ground and on both bicycle handlebars. Id. at

241:12-21. She also stated that there was “very strong” support

for a determination that Daniels was a DNA contributor to the

black sweater and the two socks. Id. at 241:10-21.

At the conclusion of the State’s case-in-chief,

Daniels’ counsel moved for dismissal, alleging that the State

had failed “to prove a prima facie case.” T. 255:3-6, ECF No.

16-3. Justice Tomei denied the motion. Id. at 255:7.

2. Defense Case

Daniels was the only defense witness; he denied

involvement in either robbery. He testified on direct

examination that he “guess[ed]” he had been home on the morning

of April 6, 2012, when the Reardon robbery occurred. Id. at

259:25–260:2. During cross-examination, however, he

acknowledged having testified to the grand jury that he had been

installing air conditioners for “Miss Mimi,” the mother of his

then-girlfriend Vicky Moffitt, that morning. Id. at 272:8-12.

Daniels then took the position during cross-examination that he

had, in fact, been at Miss Mimi’s on the morning of April 6th.

Id. at 274:6-11.

Daniels also testified to the events of April 12,

2012, the night of the Westfall robbery. He stated that at

around 9:00 p.m., he was in the apartment of his upstairs

neighbor, Stephanie Simon. Id. at 261:5-262:1. Daniels claimed

to have been doing contracting work for Simon, which he finished

around 9:30 or 9:45 p.m. Id. at 265:21-23. When he left, he

headed towards a McDonald’s on Broadway, which would have been

about a twenty-minute walk. Id. at 266:1–10. Daniels testified

that in the vicinity of Wallabout Street and Flushing Avenue, he

saw a man “peeking out” from between parked cars, who suddenly

“jump[ed] out,” dropped a bicycle on the sidewalk, and ran off.

Id. at 266:11-24. Daniels said that he walked over to the

bicycle and picked it up, thinking that he might be able to fix

it up for his daughter. Id. at 309:20-310:22. As he picked it

up, a piece of the bike fell off; it was a “weird” object that

looked like a pipe – the exhibit that the State later

introduced. Id. at 267:4-6. Daniels testified that, thinking

nothing of the object, he threw it over a fence and started to

ride the bicycle. Id. at 267:10–11. Within a few minutes, a

police car drove up, cut him off on the sidewalk, and yelled for

him to “freeze.” Id. at 267:11-14. Daniels testified that he

fled on the bicycle, believing he might be in trouble for taking

it. Id. at 267:15–17. He then discarded the bicycle and walked

home. Id. at 318:3–319:18. Daniels recalled wearing

construction clothing that night, including a blue jacket, a

brown hoodie, and dark blue pants. Id. at 268:4-6.

3. State’s Rebuttal Case

In rebuttal, the State introduced the audio recordings

of two phone calls that Daniels made while incarcerated at

Rikers Island to Vicky Moffitt.5 Daniels was heard on the

recordings asking Moffitt to convince Stephanie Simon, a woman

5 Transcripts of Daniels’ calls do not appear in the record. The trial

transcript indicates that the audio recordings were played in court, but the

court reporter did not transcribe the calls. See T. 355:13, ECF No. 16-3

(“Whereupon, an audiotape [of the April 29, 2012 call] was played.”); id. at

357:20 (“Whereupon, an audiotape [of the May 2, 2012 call] was played.”).

Daniels does not question the accuracy of the State’s representations of the

contents of those calls.

named Danielle,6 and Miss Mimi to testify in his defense at

trial. Aff. in Opp’n to Pet. (“Opp’n Br.”) ¶¶ 28-30, ECF No.

16.7 During the April 29, 2012 call, Moffitt stated that Daniels

was asking Simon to “lie in court” because Daniels was not, in

fact, at Simon’s home on April 12. Id. ¶ 28. Daniels replied,

“I know, but I need her, I need her.” Id. On the recording of

the May 2, 2012 call, Moffitt was heard saying that Miss Mimi,

too, was afraid that she and Danielle would “get caught out

there with perjury” if questioned about when Daniels was in her

home. Id. ¶ 29. Daniels responded that Miss Mimi and Danielle

would not get in trouble because nobody had seen him, and “them

people lie every day.” Id. In that call, Daniels also told

Moffitt that Simon did not need to give an exact time that he

left her apartment – just that he left before 10 p.m., because

the incident occurred at around 9:45 p.m. Id. ¶ 30.

4. Conviction and Sentencing

The bench trial concluded on May 19, 2014. That same

day, Justice Tomei found Daniels guilty of two counts of Robbery

in the First Degree — one each for the Reardon and Westfall

robberies – and one count each of Attempted Assault in the

6 Danielle’s last name does not appear in the record.

7 In his reply to the State’s opposition brief, Daniels does not contest

the State’s account of the call recordings that the State played at trial.

See generally Pet. Reply, ECF No. 17.

Second and Third Degrees for Westfall.8 T. 390:4-25, ECF No. 16-

3. Daniels was sentenced on June 11, 2014. Justice Tomei found

that Daniels qualified as a “second violent felony offender”

under Article 70 of the New York Penal Code due to his prior

convictions for Robbery in the Third Degree and Robbery in the

First Degree. Sentencing Transcript (“S.”) 2:9-3:19, 4:18–19,

ECF No. 16-3. In light of this designation, the judge sentenced

Daniels to twenty years’ imprisonment and five years’ post-

release supervision on each of the two Robbery counts, two-to-

four years’ imprisonment on the Attempted Assault in the Second

Degree conviction, and a conditional discharge on the conviction

for Attempted Assault in the Third Degree. Id. at 7:3-24. All

sentences were to run concurrently. Id.

C. Appeals and Collateral Proceedings

Daniels filed a pre-appeal motion to vacate the

judgment of conviction under C.P.L.R. § 440.10, see Mot. to

Vacate, ECF No. 16-4, which Justice Tomei denied. See Order

Denying Mot. to Vacate, ECF No. 16-6. Daniels then appealed his

convictions to the Appellate Division, Second Department. That

8 Although Attempted Assault in the Third Degree is a lesser-included

offense of Attempted Assault in the Second Degree, see People v. Santos,

982 N.Y.S.2d 183, 184 (App. Div. 2d Dep’t 2014), Daniels does not raise a

double jeopardy argument on this point. In any event, habeas relief would be

unavailable on such a claim because his sentences are running concurrently.

See Kassir v. United States, 3 F.4th 556, 569 (2d Cir. 2021) (“Courts may

decline to consider collateral challenges to a conviction’s validity if the

petitioner is concurrently serving an equal or longer sentence on another

valid count of conviction.”).

court affirmed the conviction and sentence. See People v.

Daniels, 78 N.Y.S.3d 678 (App. Div. 2d Dep’t 2018). Daniels

then sought leave to appeal to the New York Court of Appeals,

which was denied; the conviction therefore became final on

November 30, 2018. See People v. Daniels, 115 N.E.3d 633 (N.Y.

2018). Daniels also filed two additional motions to vacate the

judgment of conviction under C.P.L.R. § 440.10 – one in 2018 and

another in 2019. See 2018 Mot. to Vacate, ECF No. 16-13; 2019

Mot. to Vacate, ECF No. 16-17. The state Supreme Court denied

both motions. See 2018 Order Denying Mot. to Vacate, ECF No.

16-15; 2019 Order Denying Mot. to Vacate, ECF No. 16-19. And

the Appellate Division denied leave to appeal those decisions.

See 2018 Order Denying Leave to Appeal, ECF No. 16-16; 2020

Order Denying Leave to Appeal, ECF No. 16-20.

This petition was filed on November 20, 2019, within

the one-year statute of limitations set out by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See

28 U.S.C. § 2244(d)(1). The respondent acknowledges that

Daniels’ claims have been fully exhausted. Opp’n Br. ¶ 2.

II. Legal Standards

28 U.S.C. § 2254, as amended by AEDPA, governs an

application for a writ of habeas corpus for a person in custody

pursuant to the judgment of a state court. Under AEDPA, a

petitioner challenging a determination that was “adjudicated on

the merits” in state court must demonstrate that the state

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or was “based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” Id. § 2254(d)(2). The state court’s findings of

fact are “presumed to be correct,” and the petitioner can rebut

this presumption only “by clear and convincing evidence.” Id.

§ 2254(e)(1).

A legal conclusion is “contrary to” clearly

established federal law if it “contradicts the governing law set

forth in” the Supreme Court’s cases or “confronts a set of facts

that are materially indistinguishable from a decision” of the

Supreme Court, yet “arrives at a result different from [that]

precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003).9 And a

decision involves an “unreasonable application” of federal law

“if the state court identifies the correct governing legal

principle” in the Supreme Court’s decisions but “unreasonably

applies that principle to the facts of the prisoner’s case.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). It is the

9 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

petitioner’s burden to show that the state court applied the

governing principle in an objectively unreasonable manner.

Price, 538 U.S. at 641.

It is not enough that the federal court conclude, in

its independent judgment, that the state court’s decision was

incorrect or erroneous: “[A] state court decision must be not

only erroneous but also unreasonable. Some increment of

incorrectness beyond error is required.” Francis S. v. Stone,

221 F.3d 100, 111 (2d Cir. 2000).

III. Discussion

A. Identification Procedures and Evidence

Liberally construed, the petition makes two claims

related to the identification of Daniels: (1) the pretrial

identification procedures – both the photo array and the lineup

– were unduly suggestive; and (2) the identification evidence at

trial was insufficient to convict.

1. The Photo Array Shown to Officer Hughes

The Due Process Clause of the Fourteenth Amendment

forbids identification procedures that are “so impermissibly

suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.” Simmons v. United States,

390 U.S. 377, 384 (1968). “For both pretrial and in-court

identifications, the linchpin of admissibility is reliability.”

United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994). Even

“[i]f pretrial procedures have been unduly suggestive, a court

may nonetheless admit in-court identification testimony if the

court determines it to be independently reliable.” Id.

Independent reliability is assessed on the basis of “the

opportunity of the witness to view the criminal at the time of

the crime, the witness’ degree of attention, the accuracy of the

witness’ prior description of the criminal, the level of

certainty demonstrated at the confrontation, and the time

between the crime and the confrontation.” Id. If, however, no

impermissibly suggestive procedures have been employed, then

“independent reliability is not a constitutionally required

condition of admissibility, and the reliability of the

identification is simply a question for the jury.” Id. at 1359.

Daniels asserts that the pretrial identification

procedures were suggestive only in connection with Officer

Hughes’ identification – not the victim-witnesses’. Pet. 29.

He claims that Hughes “did not select petitioner based on his

description,” but instead because “petitioner’s photo background

was the only photo with a light background that made his photo

standout” in the six-photo array. Id.

Daniels raised this claim on direct appeal, so it is

properly exhausted. The Appellate Division found that the array

was not suggestive because “the participants were sufficiently

similar in appearance such that there was little likelihood that

the defendant would be singled out for identification based on

particular characteristics,” and “the fact that the background

of [Daniels’] photograph was lighter than the backgrounds of the

others did not orient the viewer toward [Daniels] as the

perpetrator.” Daniels, 78 N.Y.S.3d at 679.

This conclusion was not an unreasonable application of

clearly established federal law. In Simmons, the Court upheld

the conviction of petitioner Thomas Simmons even though he had

appeared in a disproportionate number of photos in the array,

which primarily consisted of group photographs, and where the

police had declined to conduct a subsequent lineup to

corroborate the photo identification. 390 U.S. at 384-86. The

Appellate Division did not unreasonably apply this law in ruling

that the comparatively lighter background of Daniels’ photo “did

not orient the viewer toward [Daniels] as the perpetrator.”

Daniels, 78 N.Y.S.3d at 679.

I have reviewed a color copy of the photo array and

cannot find that the array was impermissibly suggestive.

Daniels’ photograph did not stand out in any way as to telegraph

his identity to the viewer. The photographs all depict men who

are black, bald, and around roughly the same age, and the

background of each is a shade of gray. Although the background

of Daniels’ photo is marginally lighter than the others, see

Daniels, 78 N.Y.S.3d 678, the gray hues of the others are not

all uniform, either. For these reasons, I cannot say that

Daniels’ photo is an outlier. See United States v. Douglas, 525

F.3d 225, 243 (2d Cir. 2008) (no suggestiveness where all “head-

shot photographs, all of brown-skinned, non-bespectacled men in

roughly the same age group, with short-cropped hair, non-

receding hairlines, and thin or trimmed mustaches”). Applying

AEDPA’s deferential standard, Daniels’ claim cannot succeed.

See Velazquez v. Poole, 614 F. Supp. 2d 284, 301 (E.D.N.Y. 2007)

(reviewing a black-and-white copy of the challenged photo array

and holding that the state courts did not contravene Simmons by

concluding that the array was not unconstitutionally

suggestive).

Moreover, even if the background did somehow render

the array suggestive, there were independent indicia of

reliability such that the trial court could properly have

admitted Hughes’ in-court identification. See Wong, 40 F.3d at

1359. Hughes was “close enough to see [the suspect’s] face” for

a “couple of seconds” in a “very well-lit area.”10 T. 98:20,

116:12-17, ECF No. 16-2. And Hughes had a direct line of sight

because the suspect “looked [Hughes] right into the face” from

10 Daniels has not said – at least explicitly – that it was improper to

permit an in-court identification based on the allegedly suggestive

identification procedures. Regardless, that claim would be denied because he

has not established that the pretrial identification procedures were unduly

suggestive to begin with.

about “[a] foot” away. Id. at 98:17, 119:4-5. In Wong, the

Second Circuit explicitly held that a clear view of a suspect’s

face for as little as “two to three seconds” is “sufficient for

identification.” 40 F.3d at 1360. Accordingly, the facts in

the trial record provide a sufficient basis to conclude that

Hughes’ “pretrial identification was independently reliable and

thus admissible.” Id.

2. The Lineup

Daniels does not argue that the lineup shown to

Hughes, Reardon, and Westfall was suggestive. He argues instead

that none of the three should have participated in any

identification procedure in the first place, because they had

not seen the suspect’s face. Daniels appears to base this

argument on (a) Reardon’s call to 911 minutes after the robbery

in which Reardon said the assailant was wearing a mask,11 and (b)

Westfall’s grand jury testimony that the assailant was masked.12

Pet. 2. He alleges that Bonilla should have learned from

Westfall that “the suspect was wearing a mask the entire time”

and asserts that Westfall testified that she “only remember[ed]

11 There is no transcript of Reardon’s 911 call in the record. As with

Daniels’ Rikers Island calls, the trial transcript indicates that the audio

recording was played in court, but the court reporter did not transcribe the

call. See T. 19:11, ECF No. 16-1 (“Whereupon, the audio [of the 911 call] is

played in open Court.”). At trial, Reardon testified that she told the 911

operator that the perpetrator “pulled [a] mask over his face.” Id. at 19:25-

20:1. She explained, however, that she “did see him when he came in from the

second door, including after [seeing him in] the lobby.” Id. at 20:1-2.

12 See supra n.4.

[Daniels] from the line-up.” Id. at 20, 31-32. Daniels

attempts to buttress this argument about the unreliability of

the lineup by pointing to instances in which the witnesses

allegedly mischaracterized his appearance. See, e.g., id. at

27-28 (contending that “Petitioner did not fit the primary

‘light skinned’ nor ‘pocked skinned’ distinguishing

characteristics initially given by witnesses”).

This argument is contradicted by the witnesses’ trial

testimony. Each of the witnesses testified that they saw at

least part of the perpetrator’s face. See T. 6:16 (Reardon),

ECF No. 16-1; id. at 39:18 (Westfall); T. 98:25 (Hughes), ECF

No. 16-2. Reardon stated she was able to see the perpetrator’s

face when he first followed her into the building unmasked.

T. 6:16, ECF No. 16-1. She later clarified why she had

described the perpetrator to the 911 operator as having been

masked. She explained that she “did see him [unmasked] when he

came in from the second door” of the entrance to the building

and that it was only later that he “pulled the mask over his

face.” Id. at 20:1-2.

Westfall, as noted above, testified that she saw the

upper portion of the perpetrator’s face, including his eyes,

because his mask went only “up to his nose.” Id. at 39:2-23.

She testified clearly that she was able to identify Daniels

during the lineup because she remembered his appearance from the

robbery – specifically, from Daniels “beating [her] in [her]

vestibule.” Id. at 56:19-22. Later, on cross-examination, when

asked whether she “identified the defendant here today . . .

based on how he looked at the lineup,” Westfall answered, “Yes.”

Id. at 62:6-9. But this testimony is not inconsistent with her

having recognized him at the lineup as the person who robbed

her. Contrary to Daniels’ assertion, Westfall never testified

that she “only” recognized Daniels from the lineup. See Pet. 26

(alleging “Westfall testified that she ‘only’ remember[ed]

Petitioner from the line-up”).

Hughes, for his part, testified that he saw the

suspect’s face from about “[a] foot” away in a “very well-lit

area” while chasing the suspect from his car. T. 98:13-25, ECF

No. 16-2. Against the backdrop of this testimony, Daniels

identifies no clearly established law that was violated (or

misapplied) by the admission of testimony concerning the lineup,

and points to no objectively unreasonable determination of fact

by the trial court.

3. Insufficient Evidence to Convict

The petition can also be read to challenge the

sufficiency of the State’s trial evidence — specifically, to

assert that without the improper identification testimony, the

remaining evidence was constitutionally insufficient. Pet. 30-

32 (alleging that “the People failed to prove Petitioner’s guilt

beyond a reasonable doubt and the verdict was against the weight

of the evidence”). This claim fails because Daniels’ contention

about the identification evidence is unavailing, as described

above; because Daniels does not challenge the photo array shown

to Westfall as suggestive; and also because the state court

rejected the insufficient evidence contention on the merits and

that rejection was not contrary to, or an unreasonable

application of, clearly established federal law.

The Due Process Clause of the Fourteenth Amendment

requires proof beyond a reasonable doubt for a conviction in

state criminal proceedings. Jackson v. Virginia, 443 U.S. 307,

317 (1979). In analyzing a sufficiency-of-the-evidence claim,

“the relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. at 319. Thus, “in a challenge

to a state criminal conviction brought under 28 U.S.C. § 2254

. . . the applicant is entitled to habeas corpus relief if it is

found that upon the record evidence adduced at the trial no

rational trier of fact could have found proof of guilt beyond a

reasonable doubt.” Id. at 324.

The Appellate Division denied Daniels’ sufficiency

claim on a procedural ground: namely, Daniels’ failure to

preserve the issue for appellate review. The Appellate Division

stated only that “[t]he defendant’s contention, raised in his

main brief and pro se supplemental brief, that the

identification evidence was legally insufficient to support his

convictions of robbery in the first degree, is unpreserved for

appellate review,” citing C.P.L.R. § 470.05(2). Daniels, 78

N.Y.S.3d at 679. That holding is brief and seemingly in tension

with the trial record, which shows Daniels’ counsel moving for

dismissal at the conclusion of the State’s case-in-chief. See

T. 255:3-6, ECF No. 16-3. Nevertheless, the Appellate Division

proceeded to deny the claim on the merits – holding that the

evidence “was legally sufficient to establish the defendant's

identity beyond a reasonable doubt.” Daniels, 78 N.Y.S.3d at

679. This determination is thus entitled to AEDPA deference.

Daniels’ sufficiency challenge fails. For one, I have

already rejected the claim that the identification testimony

should have been suppressed. As noted above, all three

identification witnesses testified that they did see Daniels’

face. Even “where there are conflicts in the testimony,

[federal courts] defer to the jury’s determination of the weight

of the evidence and the credibility of the witnesses.” United

States v. Best, 219 F.3d 192, 200 (2d Cir. 2000); see also

Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)

(“[A]ssessments of the weight of the evidence or the credibility

of witnesses are for the jury and not grounds for reversal on

appeal . . . .”). This deference applies with equal force to a

judge’s credibility determinations in a bench trial. See Vt.

Microsystems, Inc. v. Autodesk, Inc., 88 F.3d 142, 151 (2d Cir.

1996) (“Credibility determinations . . . after a bench trial are

entitled to great deference and will not be overturned on appeal

unless clearly erroneous.”). And for sufficiency claims on

habeas review under Jackson, 443 U.S. 307, “the assessment of

the credibility of witnesses is generally beyond the scope of

review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). Thus, I

find no basis to question Justice Tomei’s credibility

determinations.

Moreover, the State put on a compelling case for

Daniels’ guilt. In particular, three witnesses independently

identified Daniels as the perpetrator, DNA found on items

recovered from the scene matched his, and the Rikers call

recordings revealed him attempting to concoct a false alibi. On

this record, I cannot say that the Appellate Division’s ruling

on the merits was contrary to, or an unreasonable application

of, clearly established law.

B. Prosecutorial Misconduct

Daniels argues next that the prosecution engaged in

misconduct by (1) failing to disclose exculpatory evidence under

Brady v. Maryland, 373 U.S. 82 (1967); (2) failing to correct

false testimony from Bonilla; and (3) misstating the testimony

of certain witnesses in its summation.

1. Brady v. Maryland

Daniels claims that the State violated Brady by

withholding two pieces of evidence. The first was Ms.

Westfall’s bag, which officers recovered on the street and

returned to her that night; it was not produced to the defense

or introduced at trial. The second was a surveillance video

recorded at 398 Wallabout Street on the date of the April 12

robbery, which Bonilla testified showed a police car pursuing a

“a male on a bicycle.” Pet. 39-40; T. 162:8-16, ECF No. 16-2.

The prosecution has a constitutional obligation to

disclose exculpatory evidence that “is material either to guilt

or to punishment.” Brady, 373 U.S. at 87. This obligation

“covers not only exculpatory material, but also information that

could be used to impeach a key government witness.” United

States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001). Exculpatory

evidence is considered “material” “if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

a. The Handbag Claim

The state court rejected Daniels’ claim about the

handbag on the merits. Daniels’ counsel did not raise this in

his appellate brief; instead, Daniels asserted it in his pro se

supplemental brief. Suppl. Pro Se Br. 30, ECF No. 16-11. The

Appellate Division did not specifically discuss the Brady claim

relating to Westfall’s purse, but it did hold that Daniels’

“remaining contentions” — including those “raised in his pro se

supplemental brief” — were “without merit.” Daniels,

78 N.Y.S.3d at 679. The Second Circuit has held that a state

court’s denial of a federal claim as simply “without merit” “is

deemed to rest on the merits of the federal claim . . . because

there is no plain statement to the contrary.” Jimenez v.

Walker, 458 F.3d 130, 133, 146 (2d Cir. 2006). In such cases,

“AEDPA deference applies.” Id. Accordingly, the Appellate

Division’s decision on the Brady claim is accorded AEDPA

deference.

Daniels does not point to any Supreme Court precedent

that the Appellate Division’s judgment allegedly contradicts.

He asserts that the handbag should have been tested for DNA,

which “could have clearly exonerated” him. Pet. 12. But the

Supreme Court’s jurisprudence establishes that a complaint about

the inability to conduct DNA testing is not a Brady claim per

se, given the uncertainty as to whether the results would

actually have been exculpatory. See Skinner v. Switzer,

562 U.S. 521, 536 (2011) (“Unlike DNA testing, which may yield

exculpatory, incriminating, or inconclusive results, a Brady

claim, when successful postconviction, necessarily yields

evidence undermining a conviction . . . .”).

Instead, the Supreme Court has identified a different

(and higher) threshold for allegations that “potentially useful”

evidence has been withheld. Arizona v. Youngblood, 488 U.S. 51,

57–58 (1988). “Potentially useful evidence” means “evidentiary

material of which no more can be said than that it could have

been subjected to tests, the results of which might have

exonerated the defendant.” Id. at 57. The failure to preserve

such evidence – unlike the failure to preserve actual Brady

material – does not violate a defendant’s federal due process

rights “unless a criminal defendant can show bad faith on the

part of the police.” Id. at 58.

Because Daniels has pointed to no evidence of bad

faith, this Brady claim fails on the merits, even absent AEDPA

deference.

b. The Surveillance Video Claim

Daniels did not raise the surveillance video claim

until his second Section 440 motion. See ECF No. 16-17.

Accordingly, the state Supreme Court found it to be procedurally

barred under state law. See ECF No. 16-19. In reaching that

conclusion, the state court cited both C.P.L.R. § 440.10(2)(c),

which precludes collateral review of an issue that the defendant

was in the position to raise on direct appeal, and Section

440.10(3)(c), the rule that Section 440 courts may dismiss

claims not raised in prior Section 440 motions. Id. at 3. The

state procedural defect is an “adequate and independent state

bar” preventing habeas relief on this claim. Aparicio v. Artuz,

269 F.3d 78, 93 (2d Cir. 2001) (state court decision on

petitioner’s claim “rested on an adequate and independent state

bar” where petitioner failed to raise it on direct appeal in

accordance with Section 440.10(2)(c)); Rosario v. Bennett, No.

01-CV-7142, 2002 WL 31852827, at *21 (S.D.N.Y. Dec. 20, 2002)

(“[D]istrict courts in this Circuit have consistently held

that C.P.L.R. § 440.10(3)(c) constitutes an adequate and

independent state ground barring habeas review.”). Accordingly,

the petition cannot succeed on this basis.

Moreover, Daniels has not established that the

surveillance video would actually have been exculpatory. At

most, Daniels’ petition sets forth that the video had the

potential to demonstrate his innocence. Like the handbag claim,

this argument is insufficient to obtain relief under Brady and

is instead evaluated under Youngblood. Daniels does not allege

facts showing that the police acted in bad faith with respect to

the video, either. The claim therefore fails on this ground in

addition to the state procedural bar.

2. Use of False Testimony

Daniels also argues that the State elicited false

testimony at trial regarding Daniels’ identification. These

allegations include that: (1) Officer Hughes “lied about the

clothing description” by testifying at trial that the NYPD radio

call said the suspect was wearing a “brown hoody” after stating

in his incident report that he heard “red hoody,” Pet. 21-22;

and (2) the State allowed Reardon to testify at trial that the

suspect was “African American or dark skinned Latino,” whereas

she had previously told Bonilla that the suspect was “light

skinned black or dark skinned Hispanic,” and Daniels is “dark

skinned.” Pet. 26.

The Appellate Division held that Daniels’ claim

regarding the use of false testimony was “without merit,” and

that was not an unreasonable application of the relevant federal

law. The Supreme Court “has consistently held that a conviction

obtained by the knowing use of perjured testimony is

fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have

affected the judgment of the [trier of fact].” United States v.

Agurs, 427 U.S. 97, 103 (1976). “A witness testifying under

oath or affirmation [commits perjury] if she gives false

testimony concerning a material matter with the willful intent

to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993).

Daniels has not established that the prosecution

elicited any perjured testimony, let alone perjured testimony

that could have affected Justice Tomei’s judgment. He points to

no evidence of willful intent to provide false testimony – or

evidence that the testimony was actually false in the first

place. Instead, he argues that the witnesses lied because they

made statements that were inconsistent with previous statements.

But this is insufficient: “Simple inaccuracies or

inconsistencies in testimony do not rise to the level of

perjury.” United States v. Monteleone, 257 F.3d 210, 219 (2d

Cir. 2001); see also United States v. Sanchez, 969 F.2d 1409,

1415 (2d Cir. 1992) (“Differences in recollection alone do not

add up to perjury.”).

The record provides no basis to conclude that Hughes

or Reardon lied. At trial, Hughes testified that the radio

transmission said that the suspect was wearing a “brown hoody.”

T. 97:7-8, ECF No. 16-2. Although the radio transmission

actually said the hoodie was red, see T. 73:7, ECF No. 16-1, by

Daniels’ own account Hughes had correctly described the

transmission in his incident report. See Pet. 21. In any case,

whether Hughes heard that the hoodie was red or instead brown is

immaterial here. Indeed, Sergeant Taveras testified that the

hoodie recovered at the scene “was brown, but it looked like it

could be mistaken for red. It was like a reddish [color] –

brownish or reddish.” T. 82:25-83:1-2, ECF No. 16-1. This

testimony suggests that even upon close inspection, the color of

the hoodie might reasonably have been described either way.

Thus, to the extent that Hughes’ testimony was inconsistent with

his previous statement, it was of no consequence. And Reardon’s

testimony that her assailant was “African American or more of a

darker skinned Latino” is consistent with her previous

description of the suspect as “light-skinned Black or Hispanic.”

Id. at 6:9-10, 58:9-11. Without more, Daniels’ allegations

suggest – at most – that the witnesses’ testimonies may have

contained minor inconsistencies. Daniels has not, however,

shown that any witness committed perjury. This argument

therefore fails.

3. False Statements in Summation

Daniels also argues that the prosecution marshaled

false statements in summation. He alleges that the prosecutor

falsely stated that: (1) police found Daniels’ clothing

“directly across the street” from the simulated gun and “less

than half a block” from the purse, but the clothing was actually

found in a different location; (2) Officer Hughes “observed

petitioner fleeing 155 Manhattan Avenue,” Westfall’s apartment

building, when Hughes actually testified that he first saw

Daniels on Throop Avenue; and (3) Sergeant Taveras “broadcast” a

description of the suspect as having a “purple bike and red

purse,” when, in fact, Taveras’s radio transmission said “BMX

bicycle” – but did not include the color – and made no mention

of a purse. Pet. 15-16, 23-24 (referring to T. 375:19-20,

378:10-12, 379:1-7, 382:6-8, ECF No. 16-3). The Appellate

Division denied this claim, too, on the basis that it was

“without merit.” Daniels, 78 N.Y.S.3d at 679. This

determination on the merits contravened no clearly established

law and rested on no unreasonable determination of fact.

“A criminal conviction is not to be lightly overturned

on the basis of a prosecutor’s comments standing alone in an

otherwise fair proceeding.” Gonzalez v. Sullivan, 934 F.2d 419,

424 (2d Cir. 1991) (affirming denial of habeas petition). And

“rarely will an attorney’s conduct so infect a trial with undue

prejudice or passion as to require reversal.” Ekukpe v.

Santiago, 823 F. App’x 25, 33 (2d Cir. 2020). “Indeed, where

the jury’s verdict finds substantial support in the evidence,

counsel’s improper statements will frequently be de minimis in

the context of the entire trial.” Id. The Second Circuit

applies a three-factor test in determining the existence of

“substantial prejudice” where a prosecutor’s summation is

challenged: “the severity of the misconduct; the measures

adopted to cure the misconduct; and the certainty of conviction

absent the improper statements.” Floyd v. Meachum, 907 F.2d

347, 348 (2d Cir. 1990). Habeas relief is the proper remedy

only in those “rare cases where the improper comments in a

prosecutor’s summation were so numerous and, in combination, so

prejudicial that a new trial is required.” Id.

The statements challenged by Daniels do not evidence

misconduct at all, let alone the level of egregious misconduct

required to obtain the writ. The statement about where officers

found Daniels’ clothing was not false; instead, the prosecutor

accurately summarized the testimony of Detective Bonilla and

Sergeant Taveras when she said that Daniels’ clothing was found

across the street from where they found the simulated gun and

less than half a block from the purse. See T. 73:22-75:4

(Bonilla), 87:3-88:24 (Taveras), ECF No. 16-1.

The other two statements did exhibit minor

inaccuracies, but they do not approach the level of substantial

prejudice. Daniels is correct that the prosecutor mistakenly

stated that Taveras’s broadcast included the color of the

bicycle and mention of the purse. But Daniels does not say why

these inaccuracies would have mattered, and the materiality does

not appear on the face of the record. There is, for example, no

suggestion that Taveras was referring to a different handbag or

bicycle. And as the prosecutor correctly stated in summation,

Taveras testified in court to the color of both items. See id.

at 70:5-14.

Daniels is correct that the prosecutor referred to

Hughes’ having “identified the defendant . . . as the person

that he observed fleeing 155 Manhattan Avenue” (Westfall’s

address), when in fact Hughes testified that he saw the suspect

on “Throop Avenue . . . one block south of Wallabout.”

T. 97:11-15, ECF No. 16-2. This statement was also immaterial,

however. The testimony at trial established that: (1) Westfall

saw the suspect fleeing from the immediate vicinity of 155

Manhattan Avenue on a “dark-colored BMX bike,” T. 44:11-24, ECF

No. 16-1; (2) soon thereafter Sergeant Taveras and Officer Arias

saw the suspect riding a “purple” bicycle that “looked like a

BMX” on Manhattan Avenue, id. at 69:7-71:18; and (3) then

Officer Hughes saw the suspect riding a “purple” “BMX type”

bicycle on Throop Avenue. T. 97:11-12, ECF No. 16-2. None of

this testimony provides a basis for relief.

In light of all the evidence before the judge, these

two misstatements did not cause substantial prejudice such that

they warrant a new trial. Cf. United States v. George, No. 11-

CR-250, 2012 WL 2564373, at *19 (E.D.N.Y. June 29, 2012)

(“[W]hile the court finds that the government did misstate

testimony, when viewed against the entire argument to the jury

and placed in context of the court’s instructions [to the jury]

and the sufficiency of the evidence, the misstatement was not

plain error or flagrant abuse warranting a new trial.”). As

discussed, the totality of the evidence was substantial.

Against this overwhelming evidence of Daniels’ guilt, the

prosecutor’s two misstatements were not material to the verdict.

Moreover, “the risk of prejudice is much less in a

bench trial than in a jury trial; presumably the trial judge is

aware of the inferences he may draw.” Jones v. LeFevre, No. 86-

CV-518, 1987 WL 8404, at *5 (E.D.N.Y. Mar. 4, 1987); see also

United States v. Foley, 871 F.2d 235, 240 (1st Cir. 1989). The

judge is “presumed to have considered only admissible evidence

in making [his] findings.” Bodenburg v. Conway, No. 05-CV-

01119, 2007 WL 2295812, at *10 (E.D.N.Y. Aug. 4, 2007). There

was also no jury to whom the judge could have given a curative

instruction. See id. (“[T]he case was a bench trial, so it was

not a situation where the judge could have attempted to cure any

prejudice by an instruction to the jury.”). For this reason,

too, Daniels’ argument is unavailing.

C. Ineffective Assistance of Counsel

Daniels next asserts various ineffective assistance of

trial counsel claims. Only one of these arguments — relating to

trial counsel’s omission to assert an affirmative defense — was

exhausted before the state courts, which found it meritless.

Daniels’ other ineffective assistance arguments were not

properly presented to the state courts and are thus procedurally

barred.

On habeas review, the question is whether the state

court’s ineffective assistance determination was contrary to, or

an unreasonable application of, Strickland v. Washington,

466 U.S. 668 (1984). See Williams, 529 U.S. at 390. Pursuant

to Strickland, an individual claiming ineffective assistance

(1) “must show that counsel’s performance was deficient,” such

that “in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally

competent assistance,” and (2) “that the deficient performance

prejudiced the defense” in the sense that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Bennett v.

United States, 663 F.3d 71, 84 (2d Cir. 2011). “[C]ounsel is

strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. Combined

with the deference built into AEDPA, habeas review of

ineffective assistance claims becomes “doubly deferential.”

Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

1. The Affirmative Defense Under Section 160.15(4)

On direct appeal, Daniels asserted that his trial

counsel was constitutionally ineffective because he failed to

assert the affirmative defense that the weapon used in one of

the two robberies — the Reardon robbery — was inoperable. Pet.

16. The Appellate Division denied the claim without

elaboration, finding it to be “without merit.” Daniels,

78 N.Y.S.3d at 679. Accordingly, this claim was properly

exhausted under AEDPA, and the Appellate Division’s judgment is

subject to deferential review. See Jimenez, 458 F.3d at 146.

Against that background, Daniels is not entitled to habeas

relief.

As noted above, Daniels was convicted of two counts of

first-degree robbery in violation of N.Y. Penal Law § 160.15 —

one for the Reardon robbery and one for the Westfall robbery.

These convictions were returned under two different subdivisions

of Section 160.15. The judge convicted Daniels under Section

160.15(4) in connection with the Reardon robbery, from which the

weapon the suspect displayed was not recovered. T. 390:4-8, ECF

No. 16-3. Pursuant to Section 160.15(4), a person is guilty of

first-degree robbery if, in the course of “forcibly” stealing

property, he:

Displays what appears to be a pistol, revolver, . . .

or other firearm; except that in any prosecution under

this subdivision, it is an affirmative defense that

such pistol, revolver . . . or other firearm was not a

loaded weapon from which a shot, readily capable of

producing death or other serious physical injury,

could be discharged.

N.Y. Penal Law § 160.15(4) (emphases added). The judge

convicted Daniels under a different provision of the statute –

Section 160.15(3) – in connection with the Westfall robbery,

where the simulated firearm was recovered. Under that

provision, a person commits first-degree robbery when, in the

course of forcibly stealing property, he “[u]ses or threatens

the immediate use of a dangerous instrument.” N.Y. Penal Law

§ 160.15(3).

Thus, Daniels is arguing that his counsel was

constitutionally ineffective for failing to request an

instruction concerning the inoperability of a weapon that was

never recovered. This argument was not necessarily impossible

to make, as the two victims did offer similar descriptions of

the weapons used during the two robberies. T. 11:1, 18:17-19,

41:22-25, 42:1-2, ECF No. 16-1. In essence, Daniels is arguing

that his counsel should have asked the judge to infer that the

Reardon weapon, which they did not have in evidence, was the

same kind of contraption as the Westfall weapon, which the judge

did.

This claim of ineffective assistance fails, however,

for two primary reasons. First, the decision not to pursue this

affirmative defense did not fall “outside the wide range of

professionally competent assistance,” Bennett, 663 F.3d at 84,

because defense counsel could reasonably have concluded that it

would have undermined Daniels’ chances of acquittal. Second,

even if this decision constituted an error, it did not prejudice

Daniels because Justice Tomei sentenced him to concurrent — and

identical — sentences on each of the two robbery counts. Thus,

a victory on the Reardon count would not result in Daniels being

released any earlier than he is currently scheduled to be. See

Kassir, 3 F.4th at 569 (2d Cir. 2021) (declining to reach the

merits of a collateral challenge to a conviction where defendant

who was serving concurrent sentences had “no reasonable prospect

of a shorter time in custody”).

Trial counsel exercised “reasonable professional

judgment” in not raising this defense. Daniels’ theory of the

case was, at bottom, an identity defense: that he was not the

assailant. He testified as much. T. 260:16-22, 269:3-4, ECF

No. 16-3 (denying having ever seen Reardon or Westfall, let

alone having robbed them). And experienced trial counsel know

that the pursuit of alternative defense theories — even if they

are not technically mutually exclusive — can dilute the power of

both. See United States v. Balis, No. 03-CR-1028, 2009 WL

1117274, at *6 (S.D.N.Y. Apr. 24, 2009). In Cruz v. Colvin, a

court in this District held that “counsel’s decision not to

assert the affirmative defense” under N.Y. Penal Law § 160.15(4)

did not constitute ineffective assistance where the defense’s

“theory of the case” was one of “mistaken identity.” No. 17-CV-

3757, 2019 WL 3817136, at *15 (E.D.N.Y. Aug. 14, 2019).

Generally speaking, “competent trial counsel know that

reasonableness is absolutely mandatory if one hopes to achieve

credibility with the [trier of fact],” and that arguing

alternative theories can put this credibility at risk. Williams

v. Walker, 1993 WL 22128, at *6 (S.D.N.Y. Jan. 26, 1993) (trial

counsel not constitutionally deficient for failing to raise

intoxication defense where theory at trial was factual innocence

and mistaken identity).

Further, trial counsel’s alleged error would not have

given rise to Strickland prejudice. A vacatur of the conviction

for the Reardon robbery would not alter Daniels’ position

because he would still be left to serve the concurrent sentence

for the Westfall robbery. Moreover, any potential collateral

consequences of conviction — standing alone — are insufficient

to establish Strickland prejudice under AEDPA. See Tavarez v.

Larkin, 814 F.3d 644, 649 (2d Cir. 2016); Kassir, 3 F.4th at 566

(“Relief from fines, special assessment fees, restitution, and

other noncustodial punishments . . . cannot themselves serve as

bases for collateral relief.”). Therefore, Daniels’ claim on

this point fails.

2. Other IAC Claims

Daniels’ petition levels a number of other ineffective

assistance of counsel claims, but none are properly exhausted.

Daniels argues that trial counsel was ineffective for failing to

(1) request an adverse-inference instruction concerning

Westfall’s purse not being tested for fingerprints or DNA, see

Pet. 12; (2) object that the surveillance videotape was not

produced, see id. at 12, 18-19, 22-23, 39-40; and (3) object to

the “false” identification testimony. See id. at 28-29, 35.

The Second Department denied these ineffective

assistance claims as procedurally barred under both C.P.L.R.

§ 440.10(2)(c), which precludes collateral review where a

defendant could have raised the issue on direct appeal but did

not, and Section 440.10(3)(c), the rule providing that courts

may dismiss claims not raised in prior Section 440 motions.

These decisions are “adequate” to deny relief here because the

procedural bar applies to ineffective assistance claims on

habeas review “where the trial record provided a sufficient

basis” for review on direct appeal. Sweet v. Bennett, 353 F.3d

135, 140 (2d Cir. 2003) (collecting cases). The New York Court

of Appeals has observed that “[g]enerally, the ineffectiveness

of counsel is not demonstrable on the main record,” People v.

Brown, 382 N.E.2d 1149, 1149 (N.Y. 1978), and in those cases an

exception to the procedural rule applies. See Fulton v. Graham,

802 F.3d 257, 263 (2d Cir. 2015). Nevertheless, a claim for

which there was an adequate record on direct appeal does “not

fall within any of the exceptions [to the procedural bar] noted

by the New York courts.” Sweet, 353 F.3d at 140. Daniels’

claims plainly do not turn on facts outside the record.

Accordingly, the procedural bar applies because Daniels failed

to pursue his ineffective assistance claim on direct appeal

despite having a sufficient record at that time.

D. Double Jeopardy

The indictment charged two counts of Robbery in the

First Degree, N.Y. Penal Law § 160.15(3), 160.15(4), and two

counts of Robbery in the Third Degree, N.Y. Penal Law § 160.05,

a lesser-included offense of first-degree robbery. Daniels was

acquitted of Robbery in the Third Degree and convicted of

Robbery in the First Degree. He argues that his right against

being tried twice for the same crime was violated by (1) the

grand jury’s decision to charge him with both crimes, and

(2) the trial court’s consideration of both.

The state court found these claims to be procedurally

barred from review pursuant to C.P.L.R. 440.10(2)(c), because

they are based entirely on matters appearing within the record

and could have been raised on direct appeal. 2018 Order Denying

Mot. to Vacate 4, ECF No. 16-15. This is an adequate state-law

ground. See Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).

The court found, in the alternative, that the claims were

meritless. This was not an unreasonable application of clearly

established federal law.

Daniels did not face double jeopardy. The test for

determining whether two crimes constitute the same offense for

double jeopardy purposes was set forth by the Supreme Court in

Blockburger v. United States, 284 U.S. 299 (1932). Under

Blockburger, an individual may not be successively prosecuted

for both a greater and lesser-included offense because the

lesser offense requires no proof beyond that which is required

for conviction of the greater offense. See Brown v. Ohio,

432 U.S. 161, 168–69 (1977). But “the State is not prohibited

by the Double Jeopardy Clause from charging respondent with

greater and lesser included offenses and prosecuting those

offenses in a single trial.” Ohio v. Johnson, 467 U.S. 493, 500

(1984). After finding Daniels guilty of Robbery in the First

Degree, Justice Tomei stated that he “[found] it unnecessary to

render a verdict” on the third-degree robbery “in light of [his]

verdict” on the first-degree count. T. 390:4-19, ECF No. 16-3.

This was proper. There is “no violation of the defendant’s

right to be free from double jeopardy” provided that “the court

enter[s] judgment on only one of the multiplicitous counts,”

United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006),

as Justice Tomei did here. Daniels’ argument accordingly fails.

E. Lack of Probable Cause

Daniels argues that “falsely fabricated” accounts of

the suspect’s appearance provided the probable cause for his

arrest. Pet. 35. Daniels states that he self-surrendered to

the police after detectives visited his house in response to an

I-card that Detective Bonilla had issued. Id. at 37. Without

those inaccurate descriptions, he suggests, no I-card would have

been issued, he would not have self-surrendered to the police,

and the lineup that led to his arrest would not have occurred.13

Id. In short, a series of falsehoods – in Daniels’ telling –

constituted the probable cause for his arrest and indictment.

This Fourth Amendment claim is not reviewable on

habeas. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme

Court held that “where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.” Id. at 494. Following

Stone, the Second Circuit limited habeas review of Fourth

Amendment claims to two scenarios: (1) where “the state . . .

provided no corrective procedures at all to redress the alleged

[F]ourth [A]mendment violations” or (2) where “the state . . .

provided a corrective mechanism, but the defendant was precluded

13 Daniels also alleges that “false testimony” before the grand jury

“misle[d] the grand jury” into returning an indictment against him. Pet. 35.

This is not a valid basis for habeas relief. See Lopez v. Riley, 865 F.2d

30, 32 (2d Cir. 1989) (holding that “claims of deficiencies in the state

grand jury proceedings are [not] cognizable in a habeas corpus proceeding”).

from using that mechanism because of an unconscionable breakdown

in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70

(2d Cir. 1992). The first scenario is not present here.

Indeed, “federal courts have approved New York’s procedure for

litigating Fourth Amendment claims . . . .” Id. at 70 n.1.

Nor has Daniels has set forth an unconscionable

breakdown in process. The focus of this inquiry is on “the

existence and application of the corrective procedures

themselves” rather than on the “outcome resulting from the

application of adequate state court corrective procedures.” Id.

at 71. Daniels was accorded a Dunaway hearing prior to trial,

at which Detective Bonilla testified and Daniels’ counsel cross-

examined her. The court then issued a reasoned ruling

addressing Daniels’ claims. Post-trial, Daniels took advantage

of state appeal procedures. Under those circumstances, there

was no unconscionable breakdown of process. See, e.g., Hicks v.

Bellnier, 43 F. Supp. 3d 214, 231 (E.D.N.Y. 2014) (“Petitioner

would be hard-pressed” to establish such “an unconscionable

breakdown” where “the trial court held an evidentiary hearing,

allowed Petitioner to present a case in support of his motion,

and issued a reasoned ruling that there was reasonable suspicion

to stop Petitioner and that the resulting evidence would be

admissible at trial”); Singh v. Miller, 104 F. App’x 770, 772

(2d Cir. 2004) (finding no unconscionable breakdown occurred

where petitioner raised his Fourth Amendment claims at a

suppression hearing and on appeal).

Daniels is therefore not entitled to relief on this

ground.

F. Actual Innocence Based on “New Evidence”

Lastly, Daniels argues that the Court should grant his

petition because he is actually innocent. The Supreme Court has

“never expressly held that a petitioner may qualify for habeas

relief based solely on a showing of actual innocence.” Rivas v.

Fischeri, 687 F.3d 514, 540 (2d Cir. 2012). But it “has

recognized that, in rare cases, an assertion of innocence may

allow a petitioner to have his accompanying constitutional

claims heard despite a procedural bar.” Olivares v. Ercole,

975 F. Supp. 2d 345, 352 (S.D.N.Y. 2013); see also McQuiggin v.

Perkins, 569 U.S. 383, 392 (2013) (“[A] credible showing of

actual innocence may allow a prisoner to pursue his

constitutional claims . . . on the merits notwithstanding the

existence of a procedural bar to relief.”). This “miscarriage-

of-justice exception” recognizes that a sufficient showing of

actual innocence is worthy of excusing procedural default. See

House v. Bell, 547 U.S. 518, 536 (2006).

To meet this standard, petitioners “must establish

that, in light of new evidence, it is more likely than not that

no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Id. at 536–37. In making this showing,

petitioners must present “credible” and “reliable” evidence that

was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324

(1995). Here, the only purported “new” evidence Daniels

presents is trial testimony. He claims that Sergeant Taveras’s

trial testimony revealed that Westfall heard the description of

the suspect’s clothes over the radio in the police car before

giving the police her own description of them. Pet. 7-8, 35.

This is not “new” evidence because it was not discovered after

trial – by its nature, the testimony existed and was presented

to the jury at trial. This is, in any event, not one of those

“rare,” “extraordinary” instances where a claim of actual

innocence excuses default. Calderon v. Thompson, 523 U.S. 538,

558 (1998).

IV. Daniels’ Motion for Discovery

Daniels filed a discovery motion on February 22, 2021.

Mot. for Discovery, ECF No. 18. He contends that he was placed

“under full blown arrest” prior to the lineup. Id. at 4. He

seeks surveillance video from his lawyer’s office — the location

of his self-surrender — and the 90th Precinct from April 26,

2012, which would show him in handcuffs and in the custody of

the police. See id. at 5-6. These claims do not relate to any

ground raised in his habeas petition. In any event, “a habeas

petitioner, unlike the usual civil litigant in federal court, is

not entitled to discovery as a matter of ordinary course.”

Bracy v. Gramley, 520 U.S. 899, 904 (1997). Discovery may only

be granted upon a showing that there is “reason to believe that

the petitioner may, if the facts are fully developed, be able to

demonstrate that he is entitled to relief.” Id. at 908–09.

This motion is therefore denied.

V. Conclusion

For the reasons stated above, I deny Daniels’ claims

as meritless or procedurally barred. Because Daniels has not

made a “substantial showing of the denial of a constitutional

right,” a certificate of appealability will not issue.

28 U.S.C. § 2253. I certify pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal would not be taken in good faith and in forma

pauperis status is therefore denied for purposes of an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Daniels, however, has a right to seek a further certificate of

appealability from the Court of Appeals for the Second Circuit.

See 28 U.S.C. § 2253(c)(1).

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: January 2, 2023

Brooklyn, New York