RAYMOND J. DEARIE, District Judge.
Petitioner Darren Bossett was convicted, following a jury trial before Justice John Latella in New York Supreme Court (Queens County) of multiple counts of first-degree robbery, possession of stolen property and related weapons charges, and sentenced principally to multiple, concurrent terms of 21 years. The Appellate Division affirmed petitioner's conviction,
For the reasons set forth below, the application is denied and the petition is dismissed.
The requirements for habeas relief under the Antiterrorism and Death Penalty Act of 1996 ("AEDPA"), as elucidated by recent Supreme Court holdings, are well-established and fonnidable.
130 S. Ct. at 1862 (all internal quotations and citations omitted). The Court's post-
As discussed below, petitioner has not made these extraordinary showings with respect to any of his six claims.
Petitioner's first claim is an abstract invocation of his due process right to be convicted by proof beyond a reasonable doubt. Petitioner, however, failed to exhaust this claim by first raising it on direct appeal, and has made no attempt to excuse the procedural default by interposing an ineffective assistance of counsel claim here or in state court. Accordingly, petitioner's sufficiency claim is not a basis for habeas relief.
In any event, the claim is frivolous. Although petitioner uses words such as "failure of proof," he does not attempt to identify any particular shortcoming in the case against him. Further, although not presented with an express sufficiency claim, the Appellate Division nevertheless found, for purposes of declaring a different claim of error to be harmless, that the evidence of petitioner's guilt was "overwhelming."
More particularly, the testimony established that petitioner was wearing a distinctive jacket (described by witnesses as black leather with either white stripes or the American flag on the back) when, accompanied by his brother and a third man, he approached a crowd outside a pizzeria. At gunpoint, petitioner and his accomplices stole the victims' jewelry and electronics. Happening upon the crime in progress while on routine surveillance, three officers witnessed petitioner's flight, pursued him, and within less than half an hour, apprehended him only a block from the scene of the crime and in possession of several of the items reported as stolen. Petitioner's distinctive jacket was later found in a yard from which he had emerged in the course of the chase. In a promptly conducted showup, all six robbed individuals immediately identified petitioner. All six also testified at trial two years later, where two could again identify petitioner as the robber wearing the distinctive jacket. One of the victims also testified that petitioner had held a gun to his forehead during the robbery.
Petitioner cannot show that it was objectively unreasonable for the Appellate Division to have concluded that, viewing this evidence in the light most favorable to the prosecution, it would satisfy a rational jury, beyond a reasonable doubt, that petitioner committed the crimes for which he was convicted. The sufficiency claim, therefore, is not a basis for habeas relief.
Petitioner next claims that the prosecutor's conduct on summation and during re-direct examination of a state witness denied him a fair trial.
a) Summation. Petitioner complains that assistant district attorney Joseph Brogan made numerous inappropriate remarks during his summation. Among other things, Mr. Brogan called petitioner "stupid," described the police as "valiant and competent," said that the identification witnesses were "reliable" and "truthful," told the jury that petitioner and his brother "knew they were guilty," and argued that the "wicked flee." The trial court sustained many ofthe defense objections to Mr. Brogan's remarks and instructed the jury to disregard what Mr. Brogan had just said, and at one point the court even warned the prosecutor not to "attempt in any way to shift the burden of proof." Before Mr. Brogan had completed his summation-although after he had been speaking for a full hour—the Court stated, "Mr. Brogan, I think you are finished." The defense then moved for a mistrial on the basis of the summation. The court denied the motion, noting that (i) with respect to certain remarks, "Counsel objected, the Court sustained the objections and instructed the jury to disregard those comments," (ii) certain other comments "were not inappropriate as they were responsive to arguments made by defense counsel," (iii) in any event the court had "g[iven] instructions to the jury to disregard the inappropriate remarks of Mr. Brogan,"and (iv) the court had also "reminded the jury that the burden of proof is on the People and that Mr. Brogan was not to vouch for the credibility of his witnesses." The following day, the prosecution asked that "the People be given an opportunity to finish their summation," which the court denied, noting that Mr. Brogan "had certainly an hour, perhaps even more than an hour, to make [his] argument," and that, "[t]he reason the court [felt it] necessary to put a constraint on the closing was ... because [it] was more concerned with the fairness of th[e] proceeding." Tr. at 1650.
The Appellate Division found that:
Petitioner cannot show that the Appellate Division's conclusions require federal habeas relief. First, the portion of the Appellate Division's decision that finds the prosecutor's remarks to be improper relies solely on New York law; the determination that any such error was harmless is, likewise, is a question of state law.
Alternatively, to the extent the Appellate Division's detennination may be read as rejecting an implicit claim that the prosecutor's summation rendered the trial fundamentally unfair, petitioner likewise cannot show that determination to be an objective unreasonable application of the Supreme Court's trial fairness holdings, which require, for an error to be of constitutional dimensions, a level of prejudice not present here.
Petitioner's claim that he was denied a fair trial because a single, non-crucial prosecutorial question may have exceeded the scope of re-direct is frivolous and has no place in a habeas petition. Indeed, the gravamen of petitioner's grievance is not entirely clear: he reiterates the undisputed fact that, after the defense extensively cross-examined one of the victim-witnesses about what he saw during the robbery, the state, on re-direct, asked the witness if he noticed petitioner making any gestures toward him during the commission of crime, and the witness replied that petitioner had nodded at him.
In any event, the Appellate Division found that, "[a]ny alleged error regarding the prosecutor's going beyond the proper scope of redirect examination in his questioning of one of the complainants regarding the defendant's nodding at him during the robbery was harmless in light of the overwhelming evidence of the defendant's guilt and the absence of a significant probability that the jury would have acquitted the defendant had it not been for this error."
Petitioner argues that a showup is inherently suggestive, and that his was especially so because he was handcuffed, "flanked by numerous uniformed police officers," and "awashed in flood lights set up by police emergency services units," and also because the police had brief access to the victims before the showup. (The extent of this access is not clear from the record: officers escorted the victims in their vehicle from the scene of the crime to the scene of the showup, but that appears to have been a distance of approximately a single block). Petitioner further argues that the "collective viewing" (by a group of several victims) "resulted in a collective identification, which may have influenced the witnesses who might not have been sure who robbed them[] and fortified the certainty of otherwise tentative identification."
Petitioner's suggestive identification claim is barred from habeas review because the Appellate Division expressly rejected the claim as unpreserved. The Appellate Division concluded that "[t]he defendant's contention, raised in his supplemental pro se brief, that the showup identification was unduly suggestive because of certain circumstances, is unpreserved for appellate review since he failed to raise this specific argument at the Wade hearing." Bossett, 45 A.D.3d at 694. The state appellate court also "decline[d] to reach [the claim] in the exercise of [its] interest of justice jurisdiction."
The state court's rejection of petitioner's suggestive-identification claim on an independent and adequate state procedural ground bars that claim from habeas review.
In any event, petitioner's suggestive-showup claim would not entitle him to habeas relief. As the hearing court concluded, the showup was not unduly suggestive because it was part of "one unbroken chain of events — crime, pursuit, apprehension, and identification," and the collective identification was reasonable under the circumstances.
Assuming that petitioner's confrontation clause challenge to the admission of the recordings of two 911 calls is even properly before this Court, it is wholly meritless.
Petitioner complains that the trial court's charge to the jury failed to instruct on acting in concert. He argues that the alleged omission amounted to a constructive amendment of indictment, which included an acting in concert theory in the robbery counts. The claim is frivolous: a correct statement of the law of acting in concert appears in the charge.
Petitioner cannot conceivably show that the Appellate Division's silent rejection of this claim reflects an unreasonable application of
Petitioner lists four alleged deficiencies: he faults counsel for failing to preserve a sufficiency claim, failing to challenge the admission of the 911 tapes, failing to request a missing witness charge, and failing to have a trial strategy or present a defense. Petitioner cannot show that the Appellate Division unreasonably applied Supreme Court law in rejecting his ineffectiveness claim because each of his attacks on counsel is wholly meritless: this Court's discussion of the sufficiency and 911 issues disposes of those branches of the claim; petitioner has not shown that there was a legal basis for the missing witness charge; and the record shows that through vigorous cross-examination and in opening and closing arguments, counsel advanced the theory that the victims' testimony was unreliable and that reasonable doubt existed. Further, in light of the strength of the state's case, petitioner could not show that any alleged deficiency in counsel's performance prejudiced him within the meaning of
Petitioner's application for a writ of habeas corpus under 28 U.S.c. § 2254 is denied and the petition is dismissed. Because petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability shall not issue. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith.
SO ORDERED.
