Sims v. Artus

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK FILED IN CLERK'S OFFICE U.S, DISTRICT COURT E.D.N.Y. *& AUG 072 * N° 17-CV-6187 (JFB) 07 □□□□ TO LONG ISLAND OFFICE SHIROIDE SIMS, Petitioner, VERSUS DALE ARTUS, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, Respondent. MEMORANDUM AND ORDER August 7, 2019 JOSEPH F. BIANCO, Circuit Judge (sitting by law. For the reasons discussed below, designation): petitioner’s request for a writ of habeas corpus is denied. Shiroide Sims (“petitioner”), proceeding pro se, petitions this Court for a writ of habeas I. BACKGROUND corpus, pursuant to 28 U.S.C. § 2254 , A. Facts challenging his conviction in New York state court. On January 23, 2014, petitioner pled The following facts are adduced from the guilty to a reduced charge of manslaughter in instant petition and underlying record. the first degree, in y iolation of N.Y. Penal Law On November 20, 2010, petitioner was in § 125.20, a class “B” felony. Petitioner was oe . . North Amityville, New York with Ronald thereafter sentenced to a determinate term of “« . te . Lee-Lee” Woolridge. (P. 7-8.)' The two had eighteen years’ imprisonment with five years he sale of ics bef of post-release supervision an argument over the sale of narcotics before petitioner shot and killed Woolridge with a In the instant habeas petition, petitioner semi-automatic 40 caliber handgun. (P. 8-9.) challenges his conviction on the grounds that his conviction was illegal and unauthorized by ' Citations to “P.” refer to the minutes from the plea proceedings held on January 23, 2014, (ECF No. 10-5.) objection, the court held that the original : identifying witness’s identity was irrelevant B. Procedural History and barred defense counsel from asking Det. 1. State Court Proceedings Frendo about it. (ECF No. 10-4 at 38-40.) The On N ber 30. 2010. vetiti trial court then held that the identification n November ov, » pelitioner was rocedures in this case were not undul indicted for one count of murder in the second cppestive. (ECF No. 10-2 at 39.) degree, in violation of N.Y. Penal Law . § 125.25, a class “A” felony, two counts of b. Plea and Sentencing criminal possession of a weapon in the second O sae □ : eas n January 23, 2014, petitioner pled guilty degree, in violation of N.Y. Penal Law □ $2633, class °C" nics and onecoun at ‘(2 CD¥MS Cou, Sue Com, smi posseon of a cron inthe hid egies cla “Bln. (ECE No 05) 5265 02 a class “D” felony in connection Petitioner was sentenced on April 16, 2014. ah. : ve (ECF No. 10-6.) During the sentencing the shooting and eng of on ee proceeding, the prosecutor recommended that No 0 at 2 3 november £u, - ¢ the maximum period of incarceration be 0. 10-2 at 2-3.) imposed, a determinate term of imprisonment a. Pretrial Wade Hearing of twenty-five years plus five years of postes release supervision. (/d. at 4.) The court then On June 6, 2011, petitioner’s attorney filed sentenced petitioner to a determinate term of a ny meen In com, rout Suffolk eighteen years’ imprisonment with five years ounty, requesting a Wade hearing to of post-release supervision, a fine of five determine the propriety of the identification thousand dollars, and a mandatory surcharge and identification □□□ No implemented 3) of three hundred and seventy-five dollars. aw enforcement. o. 10-2 at 16-19. Td. at 9. During that hearing, held on July 11, 2012, ¢ ) Detective Philip Frendo (“Det. Frendo”), of the c. Appeal Suffolk County Police Department, testified On July 1, 2016, petitioner appealed to the that a witness provided him with a description Appellate Divisi on Second Department, of the person who allegedly committed the arguing that: (1) the Wade court erred in mureer an then, using this information, es overruling defense counsel’s objection to the ft : . fie . prosecution’s failure to call as witnesses the a eeettton enging wines and te artexive we, . _ arranged the photospread; e Wade court ta ee tene Srdin dying tos couse seq tt to three different witnesses id.) Prior to the identity of the original identifying wilness showing each witness the hotos Det Frendo be revealed; (3) petitioner’s waiver of right to read a oa raph at the bp ttom 5 f the arra appeal was ineffective and, therefore, the ex lainin oe. the perpetrator of the rites sentence was harsh and excessive; and (4) the m or may not be Oath array and that an non-negotiated fee of five thousand dollars individual’s appearance may change as a result ECRNe sar ) n the interest of justice. of hair and beard changes. (/d.) Each witness , , went on to identify petitioner and circled On January 11, 2017, the Second petitioner’s photograph before initialing and Department modified petitioner’s judgment dating the form. (/d.) Over defense counsel’s and affirmed his conviction. People v. Sims, 45 N.Y.S.3d 491 (2d Dep’t 2017). The court its opposition, arguing that petitioner’s claims rejected petitioner’s argument that the are both unexhausted and without merit. prosecution was required to present other (Opp., ECF No. 10-1.) witnesses for testimony. /d. at 821. Ata Wade . □□ hearing, the prosecution has the initial burden The Court has fully considered the parties of production “to establish the reasonableness submissions, as well as the underlying record. of the police conduct and the lack of any undue Il. STANDARD OF REVIEW suggestiveness.” Jd. at 820 (quoting People v. □ □□ Chipp, 75 N.Y .2d 327, 335 (1990)). The court ‘To determine whether a petitioner is found that the prosecution met this initial entitled to a writ of habeas corpus, a federal burden “through the testimony of the police court must apply the standard of review set officer who conducted the photo array. . . and forth in 28 U.S.C. § 2254 , as amended by the through admission into evidence of the photo Antiterrorism and Effective Death Penalty Act array.” Jd. Because the prosecution met its (“AEDPA”), which provides, in relevant part: initial burden, “it was not necessary for them to (d) An application for a writ of habeas present testimony from one of the identifying corpus on behalf of a person in witnesses and the police officer who compiled custody pursuant to the judgment of a the photo array [.]” Jd. Finally, in response to State court shall not be granted with the contention that the five thousand dollar fine respect to any claim that was was not negotiated for, nor mentioned as part adjudicated on the merits in State of the plea agreement, the court found that the court proceedings unless _ the issue was unpreserved for appellate review. Jd. adjudication of the claim — Nonetheless, the court vacated the fine in the interest of justice, as the fine had not been (1) resulted in a decision that was included in the guilty plea negotiation. Jd. contrary to, or involved a . unreasonable application of, New wen applies Appeals to On april 00 clearly established Federal a as 2017, the Court of Appeals denied his of the | United States: one eu application. (ECF No. 10-3 at 55.) □ (2) resulted in a decision that was 2. The Instant Petition based on an _ unreasonable On October 17, 2017, petitioner filed a pro determination of the facts in light se petition before this Court for a writ of of the evidence presented in the habeas corpus, pursuant to 28 U.S.C. § 2254 , State court proceeding. on the ground that his conviction was illegal 28 U.S.C. § 2254 . “Clearly established and unauthorized by law.” (Pet., ECF No. 1.) Federal law’ means ‘the holdings, as opposed Specifically, petitioner argued that the trial to the dicta, of [the Supreme] Court’s judge had no authority to preside over the case decisions as of the time of the relevant stateas he failed to file his oath of office and that court decision.’” Green v. Travis, 414 F.3d there were Batson, Molineux, Bruton, and 288, 296 (2d Cir. 2005) (quoting Williams v. Rosario violations during the trial. (/d. at 22- Taylor, 529 U.S. 362, 412 (2000)). 23,25.) On January 18, 2018, respondent filed ? Petitioner requested that the Court vacate his conviction and order a new trial. (Pet. at 6.) A decision is “contrary to” clearly meritless. For the following reasons, the Court established federal law, as determined by the concludes that petitioner is not entitled to Supreme Court, “if the state court arrives at a habeas relief and denies the instant petition. conclusion opposite to that reached by [the . Supreme Court] on a question of law or if the A, Procedural Requirements state court decides a case differently than [the 1. Exhaustion Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at a. Legal Standard 412-13, A decision is an “unreasonable As a threshold matter, a district court shall application of clearly established federal law not review a habeas petition unless “the state court “identifies the correct governing applicant has exhausted the remedies available legal principle from [the Supreme Court's] in the courts of the State.” 28 U.S.C. decisions but unreasonably □ applies that § 2254(b)(1)(A). Although a state prisoner principle to the facts of [a] prisoner’s case.” need not petition for certiorari to the United Id. at 413. States Supreme Court to exhaust his claims, AEDPA establishes a deferential standard see Lawrence v. Florida, 549 US. 327, 333 of review: “a federal habeas court may not (2007), petitioner must fairly present his issue the writ simply because that court federal constitutional claims to the highest concludes in its independent judgment that the state court with jurisdiction over them, see relevant state-court decision applied clearly Daye v. Attorney Gen. of N.Y., 696 F.2d 186 , established federal law erroneously or 191 n.3 (2d Cir. 1982) (en banc). Exhaustion incorrectly. Rather, that application must be of state remedies requires that a petitioner unreasonable.” Gilchrist v. O’Keefe, 260 F.3d “fairly presen[t]’ federal claims to the state 87, 93 (2d Cir. 2001) (quoting Williams, 529 courts in order to give the State the U.S. at 411). The Second Circuit added that, ‘opportunity to pass upon and correct’ alleged while “[s]ome increment of incorrectness violations of its prisoners’ federal rights[.]” beyond error is required . . . the increment need Duncan v. Henry, 513 US. 364, 365 (1995) not be great; otherwise, habeas relief would be (alteration in original) (quoting Picard vy. limited to state court decisions so far off the Connor, 404 U.S. 270, 275 (1971). mark as to suggest judicial incompetence.” Id. However, “it is not sufficient merely that (quoting Francis S. v. Stone, 221 F.3d 100 , 111 the federal habeas applicant has been through (2d Cir. 2000)). Finally, “if the federal claim the state courts.” Picard, 404 U.S. at 275-76 . was not adjudicated on the merits, “AEDPA On the contrary, to provide the State with the deference is not required, and conclusions of necessary “opportunity,” the prisoner must law and mixed findings of fact and conclusions fairly present his claims in each appropriate of law are review de novo.” Dolphy v. state court (including a state supreme court Mantello, 552 F.3d 236, 238 (2d Cir. 2009) with powers of discretionary review), alerting (quoting Spears v. Greiner, 459 F.3d 200 , 203 that court to the federal nature of the claim and (2d Cir. 2006)). “giv[ing] the state courts one full opportunity III. DISCUSSION to resolve any constitutional issues by invoking one complete round of the State’s Petitioner argues that he is entitled to established appellate review process.” habeas relief on the ground that his conviction O'Sullivan v. Boerckel, 526 U.S. 838 , 845 was illegal and unauthorized as a matter of (1999); see also Duncan, 513 U.S. at 365-66. law. Respondent contends that petitioner’s “A petitioner has ‘fairly presented’ his claim claims are unexhausted and otherwise only if he has ‘informed the state court of both the factual and legal premises of the claim he Duncan, 513 U.S. at 365 (alteration in asserts in federal court.’” Jones v. Keane, 329 original) (quoting Picard, 404 U.S. at 275 ). F.3d 290, 294-95 (2d Cir. 2003) (quoting . Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. B. Merits 1997)). “Specifically, [petitioner] must have Although petitioner’s claims —_are set forth in state court all of the essential unexhausted, the Court, in an abundance of factual allegations asserted in his federal caution, has nonetheless reviewed the claims, petition; if material factual allegations were finding them meritless.* omitted, the state court has not had a fair opportunity to rule on the claim.” Daye, 696 As a threshold matter, a petitioner who F.2d at 191-92 (collecting cases). To that end, pleads guilty forfeits the right to argue issues “(t]he chief purposes of the exhaustion collateral to the guilty plea. Haring v. Prosise, doctrine would be frustrated if the federal 462 U.S. 306, 321 (1983). This is because a habeas court were to rule on a claim whose plea of guilty “conclusively resolves the fundamental legal basis was_ substantially question of factual guilt supporting the different from that asserted in state court.” Jd. conviction, thereby rendering any antecedent at 192. constitutional violation bearing on factual guilt non-issue.” United States v. Gregg, 463 b. Application F.3d 160, 164 (2d Cir. 2006). Thus, once a In his habeas petition, petitioner argues defendant has admitted gu ilt, “he may not that his conviction was unlawful because the thereafter raise independent claims relating to trial judge allegedly failed to take his oath of the deprivation of constitutional rights that office, thereby rendering him without occurred prior to the entry of the guilty authority to preside over his case. (Pet. at 25.) plea.” Tollett v. Henderson, 411 U.S. 258 , 267 Further, petitioner argues that _hiis (1973). Indeed, once there has been an constitutional rights were violated due to admission of guilt, [t]he only proper focus of alleged Batson, Molineux, Bruton, and intelligent chareete, □ of the. guilty ey gs nd intelligent character ui Rosario violations. (/d. at 22-23.) plea.” Amparo v. Henderson, CV 86Petitioner failed, however, to raise any of 4310, 1989 WL 126831 , *2 (E.D.N.Y. Oct.18, these issues in his appeal to the New York 1989) (quoting Jsaraphanich v. United Court of Appeals.? Given that the state courts States, 632 F. Supp. 1531 , = 1533 have thus not been given the “‘opportunity to (S.D.N.Y.1986)). There is no evidence, from pass upon and correct’ [the] alleged violations the court’s review of the transcript of the plea of its prisoners’ federal rights,” these claims proceeding, and petitioner makes no are unexhausted and this court is without argument, that his plea was not voluntary or authority to review this habeas petition. 3 As mentioned earlier, in his appeal, petitioner argued justice; and (4) the non-negotiated fine of five thousand that (1) the Wade court erred when it overruled the dollars should be vacated in the interest of justice. (ECF defense’s objection to the prosecution’s failure to call as No. 10-3 at 2.) witnesses the detective who arranged the photospread and the identifying witness; (2) the Wade court erred $ Courts in this district have correctly held that they when it denied defense counsel’s request that the have the discretion to dismiss unexhausted habeas identity of the original identifying witness be revealed; claims on the merits if they are “patently frivolous” (3) petitioner’s waiver of his right to appeal was and/or fail to raise a federal question. See Wheeler v. ineffective and, thus, the imposed sentence was harsh Phillips, No. 05-CV-4399 (JFB), 2006 WL 2357973 , at and excessive and should be modified in the interest of *5 (E.D.N.Y. Aug. 15, 2006) (collecting cases). intelligent. In any event, as discussed below, McDowell, 159 U.S. at 601-02; see also Ryder petitioner’s claims fail on the merits. v. United States, 515 U.S. 177, 180 (1995) . (finding that the de facto officer doctrine 1. Failure to Take an Oath Claim “confers validity upon acts performed under a. Legal Standard the color of official title even though it is later □□ . discovered that the legality of the actor’s When reviewing habeas petitions, federal appointment or election to office is deficient”). courts must apply a “strong presumption of constitutional regularity in state judicial b. Application proceedings.” Darr v. Burford, 339 U.S. 200 , Petitioner claims that the judse who 218 (1950); see also Peop le v. Velasquez, 1 presided over petitioner’s Wade hearing, N.Y.3d 44 (2003) (presump ton of regularity guilty plea, and sentencing, failed to take his existed when a defendant claimed he was oath of office and, thus, any judicial absent during sidebar conferences); People v. proceeding before him is rendered invalid. Harrison, 85 N.Y.2d 794 (1995) (presump tion (Pet. at 25-28.) Respondent first argues that of regularity app lied when the stenographic petitioner has provided no evidence that the record was missing portions of the jury voir judge failed to take his oath and then contends ns eee oy copulanty, that even such a failure would not necessarily evidence to the contrary.” People v. Cruz, 14 strip him of authority. (Opp. at 7-9.) N.Y.3d 814, 816-18 (2010) (holding the The Court agrees with respondent. presumption was overcome with evidence that Petitioner has not presented any evidence “there was a_ significant, unexplained suggesting that the judge failed to take his oath irregularity in the proceedings”). Moreover, of office. Under the presumption of regularity, “(u]nder this ‘presumption of regularity’ the and in the absence of any contrary evidence, it law further presumes that no official or person is assumed that the judge properly carried out acting under an oath of office will do anything his duties. See Dominique, 90 N.Y.2d at 991; contrary to his duty or omit anything which his see also Mena v. Heath, No. 11-CV-03681 official duty requires to be done.” People v. (ALC) (FM), 2017 WL 167915 at *1 Dominique, 90 N.Y.2d 880, 881 (1997). (S.D.N.Y. Jan. 13, 2017) (holding that, even if «ee the testifying officer was not duly sworn, it is A . merely technical defect of statutory assumed, in the absence of contrary evidence, authority” does not necessarily strip a judge of that he testified truthfully). In any case, as authority; instead, the Supreme Court has noted above, the “de facto officer doctrine found that, in such cases, “a judge’s actions confers validity upon acts performed by a [are found] to be valid de facto.” Nguyen v. person acting under the color of official title United States, 539 US. 69, 77 (2003); see also even though it is later discovered that the McDowell v. United States, 159 U.S. 596 legality of that person's appointment or (1895) (declining to invalidate a judgment for election to office is deficient.” Ryder, 515 alleged irregularities in the way a circuit judge U.S. at 180. Therefore, failure to properly take appointed a temporary district judge to another his oath of office would not strip the judge in district). Further, under the de facto officer petitioner’s case of his authority and is not doctrine, it “is well settled that where there is srounds for a new trial or habeas relief. See an office to be filled and one acting under color Maunsell v. WCAX TV, 477 F. App’x 845 , 845 of authority fills the office and discharges its (2d Cir. 2012) (rej ecting defendant’s claim duties, his actions are those of an officer de using the de facto officer doctrine, that he is facto and binding upon the public.” unable to obtain relief in Vermont courts because the oaths of some identified public selection process, there could have been no officials may have been defective). Batson violation. (Opp. at 15.) 2. Batson Claim Petitioner had a Wade hearing before a judge and subsequently pled guilty before a a. Legal Standard judge. (ECF No. 10-5.) There was no jury “[W]hen reviewing a Batson challenge in trial and, thus, no jury selection process during the context of a habeas petition, a trial court’s which a Batson objection could have been conclusion that a peremptory challenge was made to a suspect peremptory challenge. See not exercised in a discriminatory manner is Richardson v. Greene, 497 F.3d 212, 214 (2d entitled to a presumption of correctness, Cir. 2007) (“A Batson objection may be except, inter alia, to the extent that the trial lodged when a party perceives a pattern of court did not resolve the factual issues discrimination in the use of peremptory strikes involved in the challenge or if the finding is during the voir dire ....”). Therefore, given not fairly supported by the record.” Galarza that there could be no Batson violation in this v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). In case, petitioner is not entitled to habeas relief Batson, the Supreme Court set forth a three- on this claim. part test for a trial court evaluating whether 3. Molineux Claim peremptory challenges were exercised in a discriminatory manner: (1) “a trial court must a. Legal Standard decide whether the party challenging the strike “« . has made a prima facie showing that the Under New York law, “Lal trial court may circumstances give rise to an inference that a admit into evidence uncharged crimes when member of the venire was struck because of the evidence is relevant to a pertinent issue in his or her race”; (2) “[iJf the party making the the case other than a defendan’'s criminal on cha : . : propensity to commit the crime oa the nenge establishes a arice the charged.” People v, Till, 87 N.Y 2d 835, 836 nonmoving party to proffer a race-neutral (1995). However, [elven then, such evidence explanation for striking the potential juror”; 18 admissible only upon a trial court finding and (3) “if the non-moving party proffers a that its probative value for the jury outweighs race-neutral explanation, the trial court must the risk of undue P rejudice to the determine whether the moving party has defendant. Id. (citations omitted). In People carried his or her burden of proving that the v. Molineux, the New York Court of Appeals strike was motivated by purposeful stated that discrimination.” Jd. at 635-36 (citing Batson Generally speaking, evidence of other v. Kentucky, 476 U.S. 79, 96-98 (1986)). crimes is competent to prove the att specific crime charged when it tends to b. Application establish (1) motive; (2) intent; (3) the Petitioner claims his “constitutional absence of mistake or accident; (4) a federal rights were impinged on by the State common scheme or plan embracing Court’s decisions . . . when his Batson was the commission of two or more crimes never made and so when it was—the court so related to each other that proof of accepted the People’s pretextual reasons for one tends to establish the others; (5) their exercise of peremptory challenges.” (Pet. the identity of the person charged with at 22.) Respondent contends that given the the commission of the crime on trial. absence of a jury trial and corresponding jury 168 N.Y. 264, 294 (1901) (citation omitted). However, this list is “illustrative and 547 U.S. 813, 821 (2006) (“It is the testimonial not exhaustive,” People v. Rojas, 97 N.Y.2d character of the statement that separates it 32, 37 (2001) (citations omitted), and evidence from other hearsay that, while subject to of uncharged crimes that is necessary to traditional limitations upon hearsay evidence, provide “background material” or to is not subject to the Confrontation “complete the narrative of the episode” may Clause.”), The Supreme Court in Bruton y. also be admissible. Till, 87 N.Y.2d at 837 United States, 391 U.S. 123 (1968), held that a (citations omitted). defendant’s Confrontation Clause rights are violated when a non-testifying codefendant’s b. Application statement incriminating the defendant is Petitioner argues that his Sixth and admitted into evidence. A limiting instruction Fourteenth Amendment rights were violated to the jury is insufficient to combat the “when his Molinex [sic] was never entered to violation, id. at 136 ; however, it can be the court (or was never allowed by the court).” avoided if the statement is “redacted to (Pet. at 22.) Respondent contends that, given eliminate not only the defendant’s name, but that there was no trial, there could not have any reference to his or her existence,” been a Molineux violation. (Opp. at 15.) The Richardson v. Marsh, 481 U.S. 200 , 211 Court agrees. A Molineux ruling occurs when (1987), and does not have any “obvious the prosecution wants to admit evidence of indications of deletion,” “such as a blank space defendant’s uncharged crimes before the [or] the word “deleted,” Gray v. Maryland, court. See Molineux, 168 N.Y. at 264 ; see also 523 U.S. 185, 192 (1998). Ramirez v. Attorney Gen. of State of N.Y., 280 The Supreme Court has further made clear F.3d 87 (2d Cir. 2001). When, as here, a that there is “an absolute bar to statements that defend ant pleads guilty instead of proceeding are testimonial, absent a prior opportunity to to trial, there is no opportunity for the cross-examine,” Crawford, 541 U.S. at 61, prosecution to make such a request. and “[w]here testimonial evidence is at issue, Therefore, the Molineux claim is meritless and _.. the Sixth Amendment demands what the does not warrant habeas relief. common law required: unavailability and a 4. Bruton Claim prior opportunity for cross-examination.” Jd. at 68. Crawford, however, declined “to spell a. Legal Standard out a comprehensive definition of “The Confrontation Clause of the Sixth ‘testimonial,”” stating that, “[w]hatever else Amendment, . . . which applies to the states [the term] covers, it applies at a minimum to through the Fourteenth Amendment, prior testimony at a preliminary hearing, guarantees the defendant in a criminal before a gr and jury, or at a former trial; and to prosecution the right to confront the witnesses Police interrogations.” /d. against him.” Henry v. Speckard, 22 F.3d b. Application 1209, 1214 (2d Cir. 1994) (internal citation omitted). Accordingly, the Confrontation Petitioner asserts there was a Bruton Clause prohibits the prosecution from violation when he was improperly denied the introducing “testimonial” statements by a non- right to question a “cooperating non-party” testifying declarant unless the declarant is whose “double-hearsay statements” were unavailable to testify and the defendant had a entered at the Wade hearing through Det. prior opportunity to cross-examine the Frendo. (Pet. at 23.) Respondent contends declarant. See Crawford v. Washington, 541 that, without a trial, there was no opportunity U.S. 36, 53-54 (2004); Davis v. Washington, for a Bruton issue to arise. (Opp. at 15.) Moreover, respondent argues that, although [before] the trial whether pretrial identification there was a Wade hearing during which procedures have been so_ improperly petitioner was denied the opportunity to suggestive as to taint an in-court question the detective who administered the identification.” Twitty v. Smith, 614 F.2d 325 , photo-array about his basis for including 333 (2d Cir. 1979) (citing United States petitioner’s photo, the inquiry could only have v. Wade, 388 U.S. 218 (1967)). Therefore, at bearing on probable cause and was unrelated such a hearing, the “defendant’s guilt is not to the suggestiveness of the identification being assessed” as at trial. People y. procedures. (/d.) DiTommaso, 2 N.Y.S.3d 494, 505 (1st Dep’t . Loe . 2015); see also People v. Hoehne, 610 Bruton applies only in joint trials where a N.Y.S.2d 579, 580 (1994) (holding that non-testifying codefendant’s statements during a Wa de hearing, the court “properly implicating the defendant are admitted into prevented defense counsel from crossevidence. See 391 U.S. at 123 . In the present examining the People’s witnesses regarding case, petitioner is the only defendant and, thus, the eyewitnesses’ descriptions of the robber, there are no codefendants whose statements finding that the issue before it was whether the could be used to incriminate him. Altho ugh array was unduly suggestive, and not whether Bruton is inapplicable here, the Court, in an the photographs matched the description of the abundance of caution, _ has examined perpetrator-an issue more properly left for petitioner’s claim under the Confrontation trial”) (citations omitted)). Moreover, Clause. challenges to identification testimony are only During the Wade hearing, evaluating the applicable to a witness who actually propriety of the process for petitioner’s participated in an identification procedure, and identification, Det. Frendo testified about the “not to one who has simply provided a photo array and his interactions with the three description not used at trial.” Silent v. identifying witnesses. (ECF No. 10-4.) Perlmann, No. 07-CV-4524 (JFB), 2008 WL During this testimony, Det. Frendo referred to 5113418, at *11 (E.D.N.Y. Nov. 25, 2008). information he received from an individual Finally, even assuming arguendo that who identified p ctitioner as a P otential petitioner’s Confrontation Clause rights were suspect. (Jd. at 28-29.) This information, in violated during the Wade hearing, such a turn, led Suffolk County detectives to put violation is subject to harmless error review, petitioner's photograph in the photo array. See, e.g., United States v. McClain, 377 F.3d (Id.) Det. Frendo was also cross-examined by 219, 392 (2d Cir. 2004). Here, any error was defense counsel. (id. at 27-40.) Defense harmless given the fact that three individuals counsel questioned Det, Frendo as to th 1S identified petitioner as the murderer in the individual's ide ntity, but the prosecution photo array, and there is no basis to conclude objected, claiming it was irrelevant, and the that questioning the witnesses involved in the court sustained the objection. (dd. at 38-40.) initial identification of petitioner as a likely The denial of the opportunity to cross- suspect (leading to his photo’s placement in examine or identify this individual did not the array) would have had any impact at the violate petitioner’s rights under the Wade hearing. Moreover, as noted supra, Confrontation Clause because the hearing was focused on whether the array was unduly suggestive and was not meant to establish defendant’s guilt (i.e., “testimonial”). “The purpose of a Wade hearing is to determine petitioner pled guilty to the charge prior to United States, 353 U.S. 657, 672 (1957). trial. (P. 8-9.) However, the Jencks rule is an evidentiary rule . . . and its violation does not create a Accomng)y this court poneludes ms constitutional concern. See United States v. haben 1s lef €ss and cannot be grounds tor Augenblick, 393 U.S. 348, 356 (1969) (holding apeas reel. that the failure to produce Jencks materials did 5. Rosario Claim not create a case that was a “worthy candidate for consideration at the constitutional level.”); a. Legal Standard see also Bogan, 2017 WL 2913465 , at *5 For the purposes of federal habeas (“The “Court [may not] grant habeas relief on corpus review, a habeas petition can only be an alleged violation of the Jencks rule, given granted to remedy some violation that the Jencks rule is only an evidentiary tule of federal law. Estelle v. McGuire, 502 U.S. and not a constitutional one.”) (citations 62, 67 (1991) (citations omitted) (“[Flederal omitted). Therefore, even if a claim is brought habeas corpus does not lie for errors of state under the federal Jencks rule, habeas relief law. .. . In conducting habeas review, a federal may not be granted. See Augenblick, 393 U.S. court is limited to deciding whether a 348. conviction violated the Constitution, laws, or b. Application treaties of the United States.”) Petitioner finally argues his Sixth and Under New York state law, Rosario Fourteenth Amendment rights were violated material refers to the statements of testifying due to the fact that there was “no ‘Rosario’ and witnesses that must be disclosed to the defense violation thereof.” (Pet. at 23.) Respondent prior to opening statements. People v. argues that such a claim is without merit Rosario, 9 N.Y.2d 286 (1961). Because the because it arises under state law and, therefore, obligation to turn over Rosario material arises cannot be the basis for habeas relief. (Opp. at under state law, to the extent that a claim is 16.) based on a Rosario violation and does not otherwise rise to the level of a federal Petitioner’s claim of Rosario violations constitutional violation, it must fail. See arises only under state law and, even under the Estelle, 502 U.S. at 67. federal equivalent, the Jencks rule, does not . otherwise rise to the level of a federal Federal courts have examined Rosario constitutional violation (given that rule’s claims in habeas petitions under its federal evidentiary nature); therefore, habeas relief counterpart, the Jencks rule. See generally may not be granted on this claim. See Estelle, Bogan v. Bradt, No. 11-CV-1550 (MKB) 502 U.S. at 67; see also Landy v. Costello, 141 (LB), 2017 WL 2913465 (E.D.N.Y. July 6, F.3d 1151 (2d Cir. Mar. 9, 1998) (“To the 2017); Herrera v, Artus, No. 06-CV-1715, extent that this claim is based on 2007 WL 29392 (E.D.N.Y. Jan. 4, 2007); a Rosario violation, it must fail, because a Morrison v. McClellan, 903 F. Supp. 428 , 429 habeas petition can only be granted to remedy (E.D.N.Y. 1995); Boyd v. Hawk, No. 94-CV- some violation of federal law; the obligation 7121, 1996 WL 406680 (S.D.N.Y. May 31, to turn over Rosario material arises under state 1996). The Jencks rule, codified at 18 U.S.C. law.”); Bogan, 2017 WL 2913465 , at *5 (“The § 3500 (2012), requires the government in Court may not grant habeas relief on the basis federal criminal trials to produce all statements and reports related to the subject matter of the government witness’ testimonies. Jencks v. — 10 — of an alleged violation of New York state law as articulated in Rosario.” (citation omitted)). TV. CONCLUSION For the foregoing reasons, this Court finds that petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254 . Accordingly, this petition for a writ of habeas corpus is denied in its entirety. Because petitioner has failed to make a substantial showing of a denial of a constitutional ight, no certificate of appealability shall issue. See 28 U.S.C. § 2253 (c)(2). 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 the purpose of any appeal. See Coppedge v. United States, 369 U.S, 438, 44445 (1962). The Clerk of the Court shall close this case. SO,ORDERED. F. BIANCO United States Circuit Judge (sitting by designation) ‘ Dated: August 7, 2019 Central Islip, New York zs * *& Petitioner is proceeding pro se. Respondent is represented by Glenn Green, Assistant District Attorney, Suffolk County District Attorney’s Office, 200 Center Drive, Riverhead, New York 11901. — 11 —