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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 day of April, two thousand eleven. st

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 REENA RAGGI,

10 Circuit Judges.

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13 LARRY BENNETT,

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15 Petitioner-Appellant,

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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.

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2

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, petitioner22 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).
3

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.
 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 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 *
5

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. 

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10

11 FOR THE COURT:

12 CATHERINE O’HAGAN WOLFE, CLERK

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