     09-3471-pr
     Bennett v. Miller

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1 st day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PIERRE N. LEVAL,
 9                REENA RAGGI,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LARRY BENNETT,
14
15                    Petitioner-Appellant,
16
17                    -v.-                                         09-3471-pr
18
19       DAVID MILLER, Superintendent, Eastern
20       Correctional Facility, ANDREW M.
21       CUOMO, New York State Attorney
22       General,
23
24                    Respondents-Appellees.
25
26       - - - - - - - - - - - - - - - - - - - -X
27


                                                  1
 1   APPEARING FOR APPELLANT:   KYLE W. K. MOONEY (Jamie A.
 2                              Levitt and Michael Gerard, on
 3                              the brief), Morrison & Foerster,
 4                              L.L.P., New York, NY.
 5
 6   APPEARING FOR APPELLEES:   SHOLOM J. TWERSKY, Assistant
 7                              District Attorney (Leonard
 8                              Joblove, Assistant District
 9                              Attorney, on the brief), for
10                              Charles J. Hynes, District
11                              Attorney for Kings County,
12                              Brooklyn, NY.
13
14        Appeal from a judgment of the United States District
15   Court for the Eastern District of New York (Townes, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21        Pursuant to a certificate of appealability, petitioner-
22   appellant Larry Bennett appeals from the denial of his
23   petition for habeas relief under 28 U.S.C. § 2254 by the
24   United States District Court for the Eastern District of New
25   York (Townes, J.) . We assume the parties’ familiarity with
26   the underlying facts, the procedural history, and the issues
27   presented for review.
28
29        A state’s resolution of a claim is entitled to
30   deference under the Antiterrorism and Effective Death
31   Penalty Act of 1996 (“AEDPA”) if it “was adjudicated on the
32   merits in State court proceedings.” See 28 U.S.C.
33   § 2254(d). The Appellate Division, Second Department,
34   affirmed Bennett’s convictions for the counts at issue in
35   this petition on the ground that they “ either [we]re
36   unpreserved for appellate review, without merit, or d[id]
37   not require reversal.” People v. Bennett, 785 N.Y.S.2d 526,
38   527 (2d Dep’t 2004) (citation omitted). The New York Court
39   of Appeals denied Bennett leave to appeal, rendering final
40   the decision by the Second Department. 4 N.Y.3d 796 (2005).
41   The Second Department’s decision is entitled to AEDPA
42   deference, because an “‘either/or’ decision is deemed to
43   rest on the merits of the federal claim . . . because there
44   is no plain statement to the contrary.” Jimenez v. Walker,
45   458 F.3d 130, 146 (2d Cir. 2006).


                                  2
 1        In reviewing the merits, we consider whether the Second
 2   Department’s rejection of Bennett’s claims “resulted in a
 3   decision that was contrary to, or involved an unreasonable
 4   application of, clearly established Federal law, as
 5   determined by the Supreme Court.” § 2254(d)(1).
 6   “[D]etermined by the Supreme Court” refers to “the holdings,
 7   as opposed to the dicta, of th[e Supreme] Court’s decisions
 8   as of the time of the relevant state-court decision.”
 9   Williams v. Taylor, 529 U.S. 362, 412 (2000).
10
11   [1] Bennett argues that the admission of Ellis’s in-court
12   identification was an unreasonable application of Manson v.
13   Brathwaite, 432 U.S. 98 (1977), and Neil v. Biggers, 409
14   U.S. 188 (1972). The first inquiry is whether the
15   identification procedure was “unnecessarily suggestive,”
16   Biggers, 409 U.S. at 198; the second, whether “under the
17   ‘totality of the circumstances’ the identification was
18   reliable even though the confrontation procedure was
19   suggestive.” Id. at 199.
20
21        The circumstances surrounding Ellis’s identification
22   were extremely suggestive. Ellis never identified Bennett
23   prior to trial; he twice failed to make an in-court
24   identification while on the stand; and only after he watched
25   from the galley when the prosecutor identified Bennett as
26   the shooter did Ellis undertake to make an in-court
27   identification. These circumstances made it “all but
28   inevitable that [Ellis] would identify [Bennett].” Foster
29   v. California, 394 U.S. 440, 443 (1969).
30
31        “[R]eliability is the linchpin in determining the
32   admissibility of identification testimony,” Manson, 432 U.S.
33   at 114; even an unduly suggestive identification may satisfy
34   due process if it was nevertheless reliable. The
35   reliability factors in Biggers guide the inquiry, see
36   Biggers, 409 U.S. at 199-200, even though they are not the
37   only hallmarks of due process, see Brisco v. Ercole, 565
38   F.3d 80, 94 (2d Cir. 2009). As a bouncer, Ellis had a good
39   vantage point and a duty to be attentive; but these factors
40   are outweighed by [1] the vague description of the young men
41   he gave to officers on the night of the shooting, [2] the
42   one-year gap between the shooting and the identification he
43   made at trial, [3] his inability to make an identification
44   during his first appearance on the stand, and [4] the
45   “corrupting effect of the suggestive identification itself.”
46   Manson, 432 U.S. at 114.

                                  3
 1        However, any error from Ellis’s identification was
 2   harmless because the identification did not have a
 3   “substantial and injurious effect or influence in
 4   determining the jury’s verdict.” Brecht v. Abrahamson, 507
 5   U.S. 619, 623 (1993); see Fry v. Pliler, 551 U.S. 112, 121-
 6   22 (2007). Ellis was not an eyewitness to the shootings,
 7   nor did he ultimately link Bennett to a firearm or the red
 8   van. Furthermore, the other evidence implicating Bennett
 9   was substantial, including testimony by three eyewitnesses
10   who identified Bennett as the shooter at trial (two of whom
11   had identified him shortly after the incident as well),
12   significant discrepancies in Bennett’s account of the
13   evening (as set out in his two statements), and the
14   discovery of Bennett’s identification in the van in which
15   the murder weapon was found.
16
17   [2]  Bennett argues that the prosecution’s knowing use of
18   the false blood-stain evidence was contrary to, or an
19   unreasonable application of, Miller v. Pate, 386 U.S. 1
20   (1967). In Miller, habeas was granted to a man convicted of
21   the murder of an eight-year old girl (who died as a result
22   of a brutal sexual attack), because the prosecution had made
23   “consistent and repeated misrepresentation[s]” that
24   underwear attributed to the defendant was stained with blood
25   that matched the victim’s blood type notwithstanding the
26   prosecution’s knowledge from a chemical microanalysis that
27   the stains were paint, not blood. Id. at 5-6.
28
29        Here, the prosecutor’s behavior was egregious; he is no
30   longer employed by the Kings County District Attorney’s
31   office. Notwithstanding his misconduct, habeas relief is
32   warranted only if there is “any reasonable likelihood that
33   the false testimony could have affected the judgment of the
34   jury.” Drake v. Portuondo, 553 F.3d 230, 241 (2d Cir. 2009)
35   (internal quotation marks omitted). Upon careful review, we
36   see no reasonable likelihood that the prosecutor’s
37   misconduct affected the jury’s verdict. First, the
38   stipulation read to the jury--acknowledging that the stain
39   was not blood--was clear, concise, and easy to follow.
40   Second, the court provided a curative instruction (which
41   operated as a rebuke) immediately following the improper
42   summation argument. * Third, the blood evidence was both

           *
           We need not consider whether this instruction might
     have been more effective if worded differently because no
     such request was made at trial.

                                  4
 1   cumulative and collateral: The prosecution was not required
 2   to prove that Bennett had been in the van; and, in any
 3   event, the recovery of Bennett’s identification (and the
 4   testimony by Christopher Martin) connected him to the van.
 5
 6   We have considered Bennett’s other arguments and conclude
 7   that they lack merit. For the foregoing reasons, we hereby
 8   AFFIRM the judgment of the district court.
 9
10
11                              FOR THE COURT:
12                              CATHERINE O’HAGAN WOLFE, CLERK
13




                                  5
