08-2828-pr
McKinnon v. Superintendent, Great Meadow Correctional Facility

                              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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 24th day of May, two thousand eleven.

PRESENT:         BARRINGTON D. PARKER,
                 PETER W. HALL,
                 GERARD E. LYNCH,
                                 Circuit Judges.

_______________________________________________________

Dyvon McKinnon,
                                                 Petitioner-Appellant,

                        v.                                                  No. 08-2828-pr

Superintendent, Great Meadow Correctional Facility,
                                          Respondent-Appellee.
________________________________________________________

For Appellant:                  ELEANOR JACKSON PIEL, Law Office of Eleanor Jackson Piel, New
                                York, New York.

For Appellees:                  LISA E. FLEISCHMANN, Assistant Attorney General, for Andrew M.
                                Cuomo, Attorney General of the State of New York, for
                                Respondent-Appellee.

       Appeal from a judgment of the United States District Court for the Northern District of

New York (Singleton, J.), denying appellant’s petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Dyvon McKinnon was convicted after a jury trial in New York State

Supreme Court, Onondaga County, of three counts of sodomy in the first degree (N.Y. Penal

Law § 130.50(1), (4)), four counts of sexual abuse in the first degree (N.Y. Penal Law §

130.65(1)) and three counts of endangering the welfare of a child (N.Y. Penal Law § 260.10(1)).

The Appellate Division, Fourth Department, unanimously affirmed McKinnon’s conviction in

February 2004. People v. McKinnon, 788 N.Y.S.2d 766 (App. Div. 2005). McKinnon sought

leave to appeal to the New York Court of Appeals, which denied his application in May 2005.

People v. McKinnon, 4 N.Y.3d 888 (2005) (Ciparick, Associate Judge).

       In May 2006 McKinnon, pro se, timely filed a petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254 in the district court. That court denied McKinnon’s petition and

declined to grant McKinnon a certificate of appealability (“COA”). McKinnon v. Conway, No.

9:06-cv-00717-JKS, 2008 WL 1945342 (N.D.N.Y. May 1, 2008) (mem.). McKinnon, pro se,

filed a notice of appeal and moved this Court for a COA. On September 28, 2008, a panel of this

Court granted an open-ended COA, and counsel was thereafter assigned to pursue the appeal.

       We review de novo the district court’s denial of McKinnon’s petition for a writ of habeas

corpus. See, e.g., Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009); Clark v. Perez, 510 F.3d

382, 389 (2d Cir. 2008). Under 28 U.S.C. § 2254(d), however, a writ of habeas corpus may not

issue for any claim adjudicated on the merits by a state court unless the state court 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 state court,
                                                 2
id. § 2254(d)(2). Our de novo review is further restricted by certain limiting principles. Acosta,

575 F.3d at 184. Notably, we will not consider claims that have not been exhausted by fair

presentation to the state courts, see 28 U.S.C. § 2254(b)(1), O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999), Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases), unless the petitioner

“can demonstrate cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Acosta, 575 F.3d at 184 (citing Coleman v. Thompson, 501 U.S. 722,

750 (1991)). Applying these principles to this case, we conclude, as did the district court, that

McKinnon is not entitled to habeas relief.

       McKinnon appeals on the following grounds from the district court’s denial of habeas

relief: (1) the state trial court erroneously denied McKinnon’s motion to sever for trial the counts

relating to the two separate attacks; (2) the trial court erroneously admitted into evidence a knife,

a police officer’s testimony, and evidence regarding pretrial identification procedures relating to

the first attack; and (3) the verdict was against the weight of the evidence.1

       McKinnon’s claim for habeas relief based on the trial court’s denial of his motion to

sever the trial of various counts against him is without merit. Improper joinder of charges

against a defendant does not, in itself, amount to a constitutional violation. See United States v.



           1
             McKinnon also argues here for the first time that the cumulative effect of the
   above-claimed errors entitles him to habeas relief from this Court. This claim is procedurally
   barred. See Jimenez v. Walker, 458 F.3d 130, 148-49 (2d Cir. 2006) (denying habeas relief
   where claim of cumulative error was not fairly presented to state courts), cert. denied sub
   nom Jimenez v. Graham, 549 U.S. 1133 (2007). The argument was not put before the
   Appellate Division, the New York Court of Appeals, or the district court. It cannot be put
   before this Court for the first time now. In any event, the cumulation of McKinnon’s claims,
   each of which is without merit, does not lead us to find that his trial was constitutionally
   unfair.
                                                 3
Lane, 474 U.S. 438, 446 n.8 (1986) (stating that erroneous joinder violates the constitution “only

if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair

trial.”); see also Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993) (“Joinder of offenses rises

to the level of a constitutional violation only if it actually render[s] petitioner’s state trial

fundamentally unfair and hence, violative of due process.”) (internal quotation marks omitted).

Where the jury learns of multiple crimes alleged to have been committed by a defendant, “[t]he

defendants’ interests are protected by limiting instructions . . ..” Spencer v. Texas, 385 U.S. 554,

561 (1967).

        McKinnon argues that the introduction of evidence of two different crimes in the same

trial prejudiced him in the eyes of the jury and “well could have . . . persuaded the jury to find

petitioner guilty of all the charges.” In analyzing this claim, the Appellate Division noted,

however, that there was “no substantial difference in the quantum of proof presented with

respect to the separate [attacks]” and that McKinnon did not claim that he “had important

testimony to offer” in his defense regarding one attack but had a “genuine need to refrain from

testifying regarding the [other attack] . . ..” McKinnon, 788 N.Y.S.2d at 766. The court also

noted that the trial court’s curative instruction to the effect that the jury is required to analyze the

evidence applicable to each charged crime separately and return a verdict on each crime based

on the evidence applicable to that crime limited the possibility of prejudice. Id. Based upon our

review of the record, we cannot say that the Appellate Division’s decision with respect to the

severance of claims was “contrary to, or involved an unreasonable application of, clearly

established federal law.” 28 U.S.C. § 2254(d)(1).

        McKinnon also challenges the admission into evidence of a knife and certain police

testimony. Those challenges fail for the reasons that follow. Under Supreme Court
                                                    4
jurisprudence, a state court’s evidentiary rulings, even if erroneous under state law,2 do not

present constitutional issues cognizable under federal habeas review. See Hawkins v. Costello,

460 F.3d 238, 244 (2d Cir. 2006) (citing Crane v. Kentucky, 476 U.S. 683, 689 (1986) (noting

the Court’s “traditional reluctance to impose constitutional constraints on ordinary evidentiary

rulings by state trial courts”)). Therefore, unless the challenged evidentiary rulings in the state

proceedings affect the fundamental fairness of those proceedings, the claims are not properly

reviewable in this context. See DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) (per

curiam) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.”));

Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493

U.S. 342, 352 (1990)) (holding that introduction of improper evidence does not amount to a

violation of due process unless the evidence “is so extremely unfair that its admission violates

fundamental conceptions of justice.”). Such unfairness will only result where:

       [T]he erroneously admitted evidence, viewed objectively in light of the entire
       record before the jury, was sufficiently material to provide the basis for
       conviction or to remove a reasonable doubt that would have existed on the record
       without it. In short it must have been crucial, critical, [and] highly significant.
Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (internal quotation marks omitted).

       On the record before us, we do not find that the admission of either the knife or the police

officer’s testimony, even if error, rises to the standard set forth in Collins. With respect to the

knife, we note that McKinnon was acquitted of the substantive weapons-possession charge for



           2
             Although the district court reviewed these claims de novo, because the Appellate
   Division’s review on direct appeal was a disposition of the arguments on the merits, see
   Jimenez, 458 F.3d at 133, 139-40, we apply “the deferential standard of review established
   by [28 U.S.C. § 2254(d)] . . ..” Wilson v. Mazzuca, 570 F.3d 490, 499 (2d Cir. 2009)
   (internal citation and quotation marks omitted).
                                                5
which that evidence was admitted. We cannot conclude, therefore, that admission of the knife in

evidence resulted in fundamental unfairness and the deprivation of McKinnon’s right to a fair

trial. Regarding the police testimony that, in the testifying officer’s experience, children tend to

overestimate suspects’ heights and ages, the record as a whole demonstrates that it was largely

cumulative because other evidence not challenged by McKinnon proved that McKinnon was the

attacker, and McKinnon cannot demonstrate that the testimony had a substantial and injurious

effect on the verdict. See Fry v. Pliler, 551 U.S. 112, 116 (2007) (citing Brecht v. Abrahamson,

507 U.S. 619, 631 (1993)). Positive DNA evidence linked him to the very attack with respect to

which identification witnesses’ testimony was arguably bolstered by the police officer’s

testimony. Also, during voir dire and again in the charge to the jury, the trial court limited the

possibility of prejudice by instructing the jury that they should determine the credibility of police

witnesses in the same manner as they would with respect to other witnesses and that police

officers’ testimony is not entitled to any greater weight or “believeability” by virtue of the

witness’s status as a police officer. See McKinnon, 2008 WL 1945342, at *6. Thus, in light of

the record and the limited nature of the challenged testimony, we cannot say that admission of

the officer’s testimony was so unfairly prejudicial as to affect the fundamental fairness of the

trial. See Estelle, 502 U.S. at 67-68, 73-75; DiGuglielmo, 366 F.3d at 137. Since any error that

may have occurred does not rise to constitutional dimensions, it is not cognizable under federal

habeas review. See Crane, 476 U.S. at 689; Hawkins, 460 F.3d at 244.

       As a fourth ground for habeas relief McKinnon challenges the use at trial of pretrial

identifications in which witnesses identified him as the perpetrator of the first attack. He argues

that his identification shortly after the first attack occurred and his subsequent identification in a

photo array were so unduly suggestive as to violate due process. That challenge is without merit.
                                                  6
As recently articulated by this Court, “[w]hile a showup procedure is inherently suggestive . . .

and has accordingly been widely condemned, a claimed violation of due process in the conduct

of a confrontation depends on the totality of the circumstances . . ..” Brisco v. Ercole, 565 F.3d

80, 88 (2d Cir. 2009) (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other

grounds by Griffith v. Kentucky, 479 U.S. 314 (1987)) (internal citation and quotation marks

omitted). It is clearly established federal law that an identification procedure may be unduly or

unnecessarily suggestive if it created “a very substantial likelihood of irreparable

misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968); see also Brisco, 565

F.3d at 88 (quoting Stovall, 388 U.S. at 302) (“[A] showup identification violates due process

only if it is an ‘unnecessarily suggestive’ procedure.”). Identification evidence is admissible if

the pretrial identification procedure was not unnecessarily suggestive or if the identification is

independently reliable. Brisco, 565 F.3d at 88 (citing Raheem v. Kelly, 257 F.3d 122, 133-34 (2d

Cir. 2001)). Moreover, “[e]xigent circumstances generally weigh in favor of concluding that a

showup identification procedure was not unnecessarily suggestive, because a showup procedure

may be necessary . . . to quickly confirm the identity of a suspect, or to ensure the release of an

innocent suspect.” Brisco, 565 F.3d at 88.

       Here, the challenged showup identification occurred within minutes of the attack after the

police took the two victims of the first attack, separately, to the area identified by one of the

victims as the location where he had previously seen his attacker. C.f. Brisco, 565 F.3d at 88-89.

That victim identified McKinnon’s house, which prompted the police officer at the scene to ask

McKinnon to stand outside for identification. This identification was prompted by the victim,

not by any suggestion from the police. Moreover, the victims, both of whom were adolescents,

were uncertain of their identifications at first—a fact that was fully explored on cross
                                                  7
examination at trial. Several hours after the showup, the victims, separately, were shown a photo

lineup containing five pictures including McKinnon’s. Both of them identified McKinnon as the

attacker from the photo array, though one of them stated that he was only 65% certain of his

identification from the photo array. At trial the court instructed the jury with respect to the

nature of the identifications, telling them to consider carefully a host of factors including the

circumstances of the identifications and whether the identifications were free of suggestion.

Successive identification procedures are not per se unduly suggestive, even where the accused is

the only common denominator among them. See United States v. Concepcion, 983 F.2d 369,

379 (2d Cir. 1992) (finding that placement of a suspect’s picture in a second photo array after a

witness failed to select anyone from the first array does not make the second array unduly

suggestive or create a substantial likelihood of misidentification). Finally, in light of the positive

DNA match also linking McKinnon to the first attack, McKinnon fails to demonstrate that the

challenged identification procedures were so unreliable as to have affected the fundamental

fairness of the trial, Simmons, 390 U.S. at 384; Brisco, 565 F.3d at 88, or to have had a

substantial and injurious effect on the verdict. See Fry, 551 U.S. at 116.

       McKinnon also argues that the verdict was against the weight of the evidence. The

district court addressed this claim on the merits, and we do not disagree with that court’s

analysis. We note, however, that a federal court must first consider whether a habeas petitioner

has adequately exhausted state remedies by fairly presenting both the factual and legal premises

for his federal claim to the appropriate state courts. See 28 U.S.C. § 2254(b)(1); Baldwin, 541

U.S. at 29. Because McKinnon failed to raise this claim before the New York Court of Appeals,

it was not preserved for review by the federal courts. See O’Sullivan, 526 U.S. at 845; Morgan

v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.
                                                  8
1991) (holding that merely including an appellate brief with a leave application that discussed

some but not all of the claims addressed in that brief is insufficient to inform the New York

Court of Appeals that leave is being sought with respect to claims other than those mentioned in

the letter seeking leave to appeal to the Court of Appeals)). McKinnon offers no argument to

demonstrate either cause for failure to have raised the argument and resulting prejudice from

violation of federal law, nor that a miscarriage of justice will result if we do not consider this

claim. See Coleman, 501 U.S. at 750. Additionally, the argument that a verdict is against the

weight of the evidence states a claim under state law, which is not cognizable on habeas corpus,

see, e.g., Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001), Douglas v. Portuondo,

232 F.Supp. 2d 106, 116 (S.D.N.Y. 2002); see also Estelle, 502 U.S. at 67-68, and as a matter of

federal constitutional law a jury’s verdict may only be overturned if the evidence is insufficient

to permit any rational juror to find guilt beyond a reasonable doubt, Jackson v. Virginia, 443

U.S. 307, 324 (1979), Policano v. Herbert, 507 F.3d 111, 116 (2d Cir. 2007).

                                          CONCLUSION

       For the reasons stated above, the judgment of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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