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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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EDWIN MALDONADO, 

 Petitioner, 07 Civ. 5735 (RJH) 

- against - MEMORANDUM OPINION

 AND ORDER 

 

JOHN BURGE, Superintendent, 

Elmira Correctional Facility, 

 Respondent. 

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Petitioner Edwin Maldonado objects to Magistrate Judge Katz’s Report and 

Recommendation [17] (the “Report”), which recommended that petitioner’s petition for a writ of 

habeas corpus be denied. Respondent also objects to portions of the Report. After reviewing the 

record, the Report, and the relevant legal authorities, the Court concludes that petitioner’s request 

for a writ of habeas corpus should be denied. 

BACKGROUND 

The background and relevant procedural history are set forth in more detail in the Report, 

familiarity with which is assumed. 

The Robberies 

On May 3, 2002, while German Guzman was stopped at a red light in his taxi in the 

Bronx, he felt someone reach into his shirt pocket and take his money. (See Trial Tr. Vol. 2, 

Sept. 11, 2003 (“Tr. B”) at 118-19.) Mr. Guzman saw the robber’s hand, but not his face. (Id. at 

120-21.) After the robbery, Mr. Guzman told the officers called to the scene that the robber had 

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worn a yellow jacket and blue jeans and that he believed the robber to be Hispanic. (Id. at 130, 

132-33, 136-37.) 

Melinda Barcene, stopped at the same red light, witnessed the robbery. (Trial Tr. Vol. 1, 

Sept. 10, 2003 (“Tr. A”) at 12-14.) At one point, the robber crossed directly in front of her, and 

she was able to get a close, unobstructed view of his face. (Id. at 28.) A few days later, Ms. 

Barcene described the robber to Detective Benny Lucchese as a Hispanic male, 5’9 to 5’10 in 

height, about thirty years old, in need of a haircut, and with a scar on the right side of his mouth. 

(Tr. B at 169-70; Tr. A at 46-47.) Ms. Barcene also gave a clothing description of the robber that 

matched Mr. Guzman’s. (Id.) From this description, and considering the location of the robbery, 

Detective Lucchese suspected petitioner of the robbery. (See Wade Hearing Tr. Vol.1, Sept. 3, 

2003 (“Wade A”) at 85-86, 103.) Detective Lucchese compiled a six photo spread consisting of 

petitioner and five other similarly featured men and showed it to Ms. Barcene. (Id. at 88-89.) 

Ms. Barcene identified petitioner as the man who committed the May 3, 2002 robbery. (See 

Wade Hearing Tr. Vol. 2, Sept. 8, 2003 (“Wade B”) at 172.) 

On May 21, 2002, a second robbery occurred. Tanya Simpson had paid her taxi fare and 

was waiting for change when a man approached the driver’s window and snatched the money 

from the driver’s front pocket. (Tr. B at 144-46, 149.) The robber then climbed into the taxi 

beside Ms. Simpson, held a pistol to her head, grabbed a chain from her neck, and took her 

wallet. (Id. at 145, 147.) The robber’s unobstructed face was about two feet from Ms. 

Simpson’s face during the robbery. (Id. at 150.) The driver never reported the robbery, but Ms. 

Simpson called 911 shortly after leaving the taxi. (Id. at 157-58, 225.) She met with police 

officers later in the day and described the robber as a light-skinned black or Hispanic male, about 

5’7” in height, about thirty years old, weighing about 140 pounds, with a scar next to his mouth, 

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and with black hair in a high “afro” hairstyle. (Id. at 158-60.) She also stated that he had been 

wearing a blue and red jacket, a blue tee shirt and blue jeans. (Id.) Ms. Simpson looked through 

a photo book with approximately seventy photos, including twenty-two Hispanic males, and after 

about twenty-five minutes, she picked petitioner out of the book. (See Wade A at 6-7, 42.) 

Later on May 21, 2002, Detective Glenn Godino arrested petitioner, who was wearing a 

distinctive bright red “Phillies” baseball jacket with a blue collar and trim, a blue tee shirt with a 

distinctive caption on the front, and blue jeans. An arrest photo was taken. (See Wade A at 49; 

Cunningham Aff. Ex. 1 (“Arrest Photo”).) Detective Godino frisked petitioner and searched his 

person, but did not find any physical evidence linking him to the robberies. (Tr. B at 257-61, 

278.) The next day, Detective Godino organized a lineup with petitioner and five other Hispanic 

males. (Wade A at 16-17.) All of the men were sitting and wore black stocking caps. (Id. at 18, 

67). A black plastic sheet was placed in front of the men to hide their clothing and thereby avoid 

undue suggestiveness. (Id. at 18, 67, 69.) However, photographs of the lineup reveal that the 

very tops of the men’s shirts could be seen over the black sheet and that a small portion of 

petitioner’s blue shirt was visible. (See Pet. Decl. Ex. B (“Lineup Photo”).) It appears from the 

photo that petitioner’s red “Phillies” jacket had been taken off. (Id.) Both Ms. Barcene and Ms. 

Simpson separately picked petitioner out of the lineup as the robber in the incidents they had 

witnessed. (Wade A at 20-21, 26.) 

The Wade Hearing

On September 3, 4, and 8, 2003, the court held a Wade hearing to determine if any of the 

identification procedures had been unduly suggestive. See United States v. Wade, 388 U.S. 218, 

232 (1967). During the hearing, the witnesses described the events as above, but Detective 

Godino, looking at a complaint report he had not prepared, testified that Ms. Simpson had 

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described the robber as wearing a red shirt, rather than her actual description of him wearing a 

blue tee shirt under his red “Phillies” jacket. (Wade A at 70.) There was some discussion about 

whether Ms. Simpson had described a red or blue shirt, during which time the trial judge stated 

that “[i]f a blue shirt was at any point at all visible during the lineup and the witness has 

described the fact that a blue shirt was worn during the course of the lineup, that may or may not 

relate to the suggestibility of the proceeding.” (Id. at 68-69.) However, Detective Godino 

affirmed that the report referred to a red shirt. (Id. at 71-72.) 

At the conclusion of the Wade hearing, petitioner’s counsel moved to suppress Ms. 

Barcene’s photo-array identification, alleging that the array was tainted because petitioner was 

allegedly the only person in the photos with a scar. (Wade B at 193-95, 198.) The court rejected 

that motion, stating that the procedure was “eminently fair” and that all the photos showed men 

who looked very similar. (Id. at 204.) 

The Trial 

Petitioner’s trial began on September 8, 2003. The prosecution called four witnesses—

Ms. Barcene, Mr. Guzman, Ms. Simpson, and Detective Godino—and relied heavily on the 

eyewitness testimony of Ms. Barcene and Ms. Simpson’s. Report at 13. Both women testified 

that they had a clear look at the robber’s face and both made in-court identifications. (Tr. A at 

16-18; Tr. B at 145-46, 150.) Ms. Simpson testified that the robber wore a blue shirt during the 

robbery, and that she had previously described the shirt as blue, not red—testimony that clearly 

called into question the accuracy of the report that Detective Godino had referred to during the 

Wade hearing. (See Tr. B at 159-61, 178-79.) Ms. Simpson positively identified the arrest photo 

of the defendant, which she was shown for the first time at trial. (See Tr. B at 161-64.) 

Ms. Simpson then testified about the lineup where she had identified the defendant the day after 

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the attack. She testified that during the lineup, all the men were covered up to their necks by a 

black plastic bag and that they were all wearing black hats. (Id. at 167-68.) Ms. Simpson did not 

mention that the tops of the men’s shirts were visible over the black sheet and was not asked 

whether she had noticed this fact. (See id.) 

Petitioner’s trial counsel did not call any of its own witnesses, but relied on crossexamination of the prosecution’s witnesses and a theory of misidentification. (See Report at 14.) 

Counsel pointed to inconsistencies in witnesses’ testimony, and argued to the jury that the 

identification procedures were unfairly suggestive because petitioner was the only one wearing a 

blue shirt in the lineup and the top of the shirt was visible over the plastic sheets. (See id.; Tr. B 

at 361-77.) 

At the conclusion of the trial, petitioner was convicted of two counts of robbery in the 

first degree for the May 3, 2002 robbery, and one count of robbery in the third degree for the 

May 21, 2002 robbery. Thereafter, petitioner’s counsel moved to set aside the two guilty 

verdicts, partly due to the alleged suggestiveness of petitioner’s visible blue shirt at the lineup. 

(See Sentencing Hearing Tr. at 12.) The court denied the motion. (Id. at 13.) Petitioner was 

sentenced as a second violent felony offender to two concurrent terms of twenty-five years and 

one concurrent term of three and one-half to seven years of imprisonment, and to five years of 

post-release supervision. (Report at 15.) 

Petitioner’s’ Direct Appeal 

 Petitioner then appealed on numerous grounds, represented by counsel from the Office of 

the Appellate Defender. (See Report at 16.) As is relevant to the present petition, petitioner 

contended, among other things, that his Sixth Amendment right to the effective assistance of 

counsel had been violated because his trial counsel failed to move to reopen the Wade hearing, as 

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is permitted under N.Y. Crim. Proc. Law. §710.40(4), after learning that Ms. Simpson described 

the robber’s shirt as blue, not red. The Supreme Court, Appellate Division adjudicated the 

appeal on the merits and found that petitioner had not been deprived of effective assistance. 

People v. Maldonado, 25 A.D. 3d. 423, 423-24 (App. Div. 2006). Petitioner sought leave to 

appeal to Court of Appeals, but that application was denied. See id., lv. denied 6 N.Y. 3d 836 

(2006). 

Petition for Habeas Corpus

Petitioner then brought the present petition for habeas corpus, reiterating his claim that 

his Sixth Amendment right to the effective assistance of counsel had been violated because his 

trial counsel failed to move to reopen the Wade hearing after learning that Ms. Simpson 

described the robber’s shirt as blue, not red. Petitioner contends that a reopened Wade hearing 

may have resulted in the suppression of Ms. Simpson’s lineup identification as unduly 

suggestive, which in turn would taint her in-court identification, which in turn would have led to 

a reasonable probability of a different verdict on the May 21, 2002 robbery charge because Ms. 

Simpson’s testimony was the prosecution’s only evidence with respect to that robbery. (See 

Mem. in Supp. of Petition for Habeas Corpus at 29-31; Petitioner’s Objections to the Report (“P. 

Objections”) at 7, 10, 12.) The parties agree that petitioner has exhausted his remedies and that 

the petition is timely. 

The petition was referred to Magistrate Judge Katz, who issued his Report on November 

7, 2008. The Report recommended that the petition be denied because petitioner had not 

established that the Appellate Division’s decision was contrary to or involved an unreasonable 

application of Strickland v. Washington, 466 U.S. 668 (1984), as would be required in order for a 

writ to lie under 28 U.S.C. § 2254(d) of the Anti-Terrorism and Effective Death Penalty Act of 

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1996 (“AEDPA”). Report at 33. In the course of reaching that conclusion, Judge Katz 

independently analyzed whether petitioner had met his burden of satisfying the two-part test set 

by Strickland, which requires a defendant seeking to establish ineffective assistance of counsel to 

prove: (i) that counsel’s representation fell below an objective standard of reasonableness (the 

“performance prong”); and (ii) that the deficient performance prejudiced the defense (the 

“prejudice prong”). 466 U.S. at 687. With respect to the performance prong, Judge Katz noted 

that it was plausible that counsel viewed any attempt to reopen the Wade hearing as “futile,” but 

ultimately found that he could not conclude that counsel’s failure to move to reopen the Wade 

hearing was professionally reasonable. Report at 24, 26. However, Judge Katz held that 

petitioner’s ineffective assistance of counsel claim failed under the prejudice prong because 

petitioner had not demonstrated that there was a reasonable probability that he would have 

succeeded in suppressing the identification had the Wade hearing been reopened, and therefore 

could not show that there was a reasonable probability that the outcome of the trial would have 

been different but for counsel’s errors. Id. at 26, 31-32.1

 

Both petitioner and respondent filed objections to the Report. Petitioner contends that 

Judge Katz applied an erroneous legal standard in reviewing petitioner’s claims for ineffective 

assistance of counsel. In the alternative, petitioner contends that even if Judge Katz applied the 

correct legal standard, that standard was satisfied because there is a reasonable probability that 

the lineup identification would have been suppressed at a reopened hearing. (P. Objections at 

10-12.). Respondent objects to Judge Katz’s finding that petitioner’s counsel’s performance may 

have been professionally unreasonable, but agrees with his conclusion that even if it was, 

petitioner was not prejudiced in any way. (Respondent’s Objections to the Report at 2.) 

 

1

 The Report further recommended that no certificate of appealability be issued and that the court certify, pursuant to 

28 U.S.C. § 1915(a)(3), that any appeal from its order would not be taken in good faith. Id. at 34 

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DISCUSSION 

Where objections are made to portions of a report and recommendation by a Magistrate 

Judge, a district court is required to make a de novo determination regarding those portions of the 

report to which objections are made, 28 U.S.C. § 636(b)(1)(C), by reviewing the Report, the 

record, applicable legal authorities, and the parties’ objections and replies. See Bandhan v. Lab. 

Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or 

modify in whole or in part recommendations of the Magistrate Judge. Id. (citations omitted). 

I. Standard of Review of State Court’s Decision Under AEDPA 

 Under AEDPA, there are three sets of circumstances under which a federal court may 

grant a writ of habeas corpus to a state prisoner: (i) if the state court’s denial of relief “resulted in 

a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme 

Court of the United States;” (ii) if the state court’s denial of relief “resulted in a decision that . . . 

involved an unreasonable application of clearly established Federal law, as determined by the 

Supreme Court of the United States;” or (iii) if the state court’s denial of relief “was based on an 

unreasonable determination of the facts in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d). The phrase “clearly established Federal law, as determined 

by the Supreme Court of the United States” limits the law governing a habeas petitioner’s claims 

to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state court 

decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 

2000). 

 A state court decision is “contrary to” clearly established federal law if the state court 

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if 

the state court decides a case differently than the Supreme Court on a materially 

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indistinguishable set of facts. Williams, 529 U.S. at 405. The “unreasonable application of 

federal law” clause is independent of the “contrary to” standard and means more than simply an 

erroneous or incorrect application of federal law. See id. at 411; see also Henry v. Poole, 409 

F.3d 48, 68 (2d. Cir. 2005). Under this clause, a federal court may grant a writ of habeas corpus 

“if the state court identifies the correct governing legal principle from [the Supreme Court’s] 

decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 

529 U.S. at 413; see also Henry, 409 F.3d at 68. A federal court reviewing a habeas petition 

“may permissibly conclude that the federal law has been unreasonably applied by the state court 

even though not all reasonable jurists would agree that the state court’s application was 

unreasonable.” Henry, 409 F.3d at 68 (citing Williams, 529 U.S. at 409). Ultimately, the inquiry 

is whether the state court’s application was “objectively unreasonable,” Williams, 529 U.S. at 

409, a standard that falls “somewhere between merely erroneous and unreasonable to all jurists.” 

Henry, 409 F.3d at 68 (internal quotation marks and citation omitted). 

As noted above, the third potential basis for granting a writ of habeas corpus under 

AEDPA is if the state court decision “was based on an unreasonable determination of the facts in 

light of the evidence presented . . .” 28 U.S.C. § 2254(d)(2). In this case, the Appellate Division 

did not premise its decision to deny petitioner’s’ ineffective assistance of counsel claims on any 

purely factual findings, nor has petitioner argued that he is entitled to habeas relief on this basis. 

(See P. Objections at 31.) Thus, 28 § 2254(d)(2) is not applicable and will not be discussed 

further.2 

 

2

 The Appellate Division did conclude that petitioner’s blue shirt was not so distinctive as to draw attention to 

defendant in the lineup. Maldonado, 25 A.D. at 424. However, this conclusion is more appropriately viewed as a 

mixed question of fact and law, and the reasonableness of that conclusion will be addressed below. Even if it is 

considered to be factual determination, the Court would not find it to be unreasonable in light of all the evidence. 

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The preceding discussion makes clear that the standard of review set by AEDPA for the 

present petition is deferential. This Court is not being called upon to determine whether the state 

court correctly rejected petitioner’s ineffective assistance of counsel claim. See Williams, 529 

U.S. at 410. Rather, this Court’s task is simply to determine whether the state court’s rejection 

of petitioner’s Sixth Amendment ineffective assistance of counsel claim was contrary to or 

involved an unreasonable application of clearly established federal law (as defined above). 

II. Petitioner’s Request for a Writ of Habeas Corpus 

a. Clearly Established Federal Law 

The petition before this Court raises a Sixth Amendment ineffective assistance of counsel 

claim premised upon counsel’s failure to move to reopen a Wade hearing to suppress an out-ofcourt identification that is alleged to have been unduly suggestive. Under AEDPA, the threshold 

question is whether the claim is governed by any applicable clearly established federal law. 

Here, it is. Ineffective assistance of counsel claims are “squarely governed by [the Supreme 

Court’s] holding in Strickland v. Washington.” Williams, 529 U.S. at 390. As noted, the 

Supreme Court established therein a two-prong test to determine whether a defendant’s Sixth 

Amendment right to effective counsel has been violated. 

Under the performance prong of Strickland, there is a “strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689. In 

determining whether counsel’s performance fell below an objective standard of reasonableness, 

“a court must bear in mind both that counsel ‘has a duty to bring to bear such skill and 

knowledge as will render the trial a reliable adversarial testing process,’ and that counsel must 

have ‘wide latitude’ in making tactical decisions.” Henry, 409 F.3d at 63 (quoting Strickland, 

466 U.S. at 688, 689). Thus, the court must make “every effort . . . to eliminate the distorting 

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effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. 

Under the prejudice prong of Strickland, petitioner must prove that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. Thus, “[i]t is not enough to show only that the errors 

had some conceivable effect on the outcome of the proceeding.” Id. at 693. On the other hand, 

it is not necessary to establish that the outcome of the case “more likely than not” would have 

been different. Id. 

While it is undisputed that Strickland applies to the present petition—and to all Sixth 

Amendment ineffective assistance of counsel claims—it is not clear precisely how the general 

standards articulated therein apply to a fact pattern like the one before this Court, in which the 

ineffective assistance of counsel claim is premised on a failure to make a suppression motion. 

The Supreme Court’s decision in Kimmelman v. Morrison, 477 U.S. 365 (1986), provides some 

guidance regarding the application of Strickland in this context, but as the discussion below will 

show, that guidance is incomplete. In Kimmelman, the Supreme Court held that where an 

ineffective assistance of counsel claim is premised on counsel’s failure to make a suppression 

motion, to satisfy the prejudice prong of Strickland the petitioner must prove that the underlying 

suppression claim was “meritorious” and that “there is a reasonable probability that the verdict 

would have been different absent the excludable evidence . . .” Id. at 375.3 The requirement that 

 

3 Kimmelman itself involved an ineffective assistance of counsel claim based on counsel’s failure to move to 

suppress evidence alleged to have been seized in violation of the Fourth Amendment, but courts have also applied 

Kimmelman to motions to suppress identifications alleged to have been unduly suggestive. See, e.g., Thomas v. 

Varner, 428 F.3d 491, 501-503 (3d Cir. 2005); Hughes v. Hubbard, No. 99-56436, 2000 WL 1728113 at *1 (9th Cir. 

2000); but see Lynn v. United States, 443 F.3d 238 (2d Cir. 2006) (analyzing ineffective assistance of counsel claim 

premised on failure to move to suppress identification without mentioning Kimmelman). 

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the underlying suppression motion be “meritorious” was articulated in Kimmelman as being 

relevant to the prejudice prong of Strickland, but it is also relevant to the performance prong in 

that counsel’s failure to make a suppression motion that is obviously non-meritorious cannot be 

said to constitute deficient performance. See Worthington v. United States, 726 F.2d 1089, 1093-

94 (6th Cir. 1984) (Contie, concurring) (“[W]here a suppression motion would be successful, an 

attorney is guilty of ineffective assistance if he does not file the motion on time . . . Conversely, 

if such a motion would fail, counsel may not be criticized for having accurately assessed his 

client's chances of successfully challenging the warrant . . .”). 

The problem posed by Kimmelman is that the Supreme Court did not define 

“meritorious” and has not done so since then, which has led to some confusion regarding the 

precise meaning of the rule articulated by that decision. Petitioner contends that a suppression 

claim is “meritorious” under Kimmelman if it is “colorable, viable, has quality, or is 

substantial”—in other words, if it “has merit and is therefore potentially successful”—and faults 

Judge Katz for failing to employ this interpretation of Kimmelman in the Report. (P. Objections 

at 3-4, 9.) Thus, petitioner argues that the prejudice prong of Strickland is satisfied if he can 

show that the suppression motion is potentially successful and that if the suppression motion had 

succeeded, there is a reasonable probability the outcome of the trial would have been different. 

(Id. at 9.) The Court, however, concludes that petitioner’s interpretation of the term 

“meritorious” appears overly broad and, in any event, certainly does not qualify as clearly 

established federal law within the meaning of AEDPA. 

While the Supreme Court never defined what it meant by “meritorious,” a complete 

reading of Kimmelman suggests that, at minimum, the Supreme Court intended to set out a 

higher standard than the standard petitioner urges upon the court. In Kimmelman, the respondent 

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brought an ineffective assistance of counsel claim based on his counsel’s failure to move to 

suppress physical evidence alleged to have been seized from his bedroom without a warrant. 477 

U.S. at 368-69. Such a suppression claim would likely have been considered colorable since 

warrantless searches of the home are generally unconstitutional unless an exception applies. Yet 

the respondent was not able to prevail on his ineffective assistance of counsel claim simply by 

alleging that counsel failed to make the suppression claim. Instead, the Supreme Court 

remanded the case to the trial court to further develop the record with respect to the prejudice 

prong of Strickland, in part because the state had not conceded the illegality of the search and no 

hearing had been held on the underlying merits of the Fourth Amendment claim. Id. at 390-91. 

The fact that the Supreme Court remanded for further proceedings suggests that the Supreme 

Court did not mean to imply that a “meritorious” suppression motion is one that is merely 

colorable, or that the prejudice prong of Strickland is satisfied whenever a party raises a 

colorable suppression claim (and can show that if suppression had resulted, there is a reasonable 

probability that the outcome of the proceeding would have been different). 

The circuit courts have advanced a few different interpretations of Kimmelman’s 

statement that petitioner must have a “meritorious” suppression motion in order to satisfy the 

prejudice prong of Strickland. Several courts have stated or implied that a “meritorious” 

suppression motion is one that would succeed if made.4

 Other courts have stated or implied that 

 

4 See, e.g., Young v. Renico, 346 Fed. Appx. 53, 56-59 (6th Cir. 2009) (analyzing the merits of petitioner’s Fourth 

Amendment claim in depth and concluding that it would not have prevailed and therefore could not form the basis of 

an ineffective assistance claim); Mosby v. Senkowski, 470 F.3d 515, 519-21 & n.3 (2d Cir. 2006) (analyzing the 

merits of the suppression claim in a way that suggests that the court interpreted “meritorious” to mean that the 

suppression claim would actually succeed); United States v. Romero-Gallardo, 113 Fed. Appx. 351, 353 n.1 (10th 

Cir. 2004) (“Our examination of these documents does not convince us that the affidavit fails to establish probable 

cause. It is by no means evident that Defendant's suppression argument is meritorious-a necessary prerequisite for a 

successful ineffective-assistance claim under these circumstances.”); Cuevas v. Chrans, 3 Fed.Appx. 528, 531 (7th 

Cir. 2001) (petitioner “was required to demonstrate both that a suppression motion would have succeeded and that, 

having succeeded, there exists a reasonable probability that the outcome of his trial would have been different.”); 

Van Tran v. Lindsey, 212 F.3d 1143, 1156 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 

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to satisfy Kimmelman, a petitioner must show that it is likely that the suppression motion would 

have succeeded, or that there is a reasonable probability that the suppression motion would have 

succeeded.5 

The Court is not aware of any circuit court to have reached the conclusion advanced by 

petitioner that in order for a suppression claim to be “meritorious” under Kimmelman, it need 

only be colorable or have some potential for success. The Second Circuit cases cited by 

petitioner do not so hold. Petitioner relies heavily on the Second Circuit’s statement in Lynn v. 

Bliden, 443 F.3d 238, 249 (2d Cir. 2006), that “[i]n prior habeas cases in which there were 

claims of ineffective assistance of counsel for failing to request a Wade hearing, this Court has 

demanded some showing of the likelihood of success at the hearing.” Petitioner contends that 

this language makes clear that he only needs to show that “there is at least a colorable or viable 

ground for suppression” (and a reasonable probability that the verdict would be different if the 

lineup had been suppressed) in order to prevail on the present petition. (P. Objections at 6). 

 U.S. 63 (2003) (“in order to show prejudice when a suppression issue provides the basis for an ineffectiveness claim, 

the petitioner must show that he would have prevailed on the suppression motion, and that there is a reasonable 

probability that the successful motion would have affected the outcome”); United States v. Bland, 23 F.3d 403, 403 

(4th Cir. 1994) (“[Petitioner] has failed to show that the evidence at the suppression hearing would have established 

an improper search. Without a meritorious Fourth Amendment claim, there is no prejudice under Strickland.”); 

Laaman v. United States, 973 F.2d 107, 113 (2d Cir. 1992) (“Applying [the standard articulated in Kimmelman], it is 

our view that whether or not Williams had joined in the motion to suppress . . . suppression of the evidence . . . 

would not have resulted. In other words, for reasons hereinafter stated, we conclude that petitioners' Fourth 

Amendment claim is not meritorious.”); United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.1989), abrogated on 

other grounds by Horton v. California, 496 U.S. 128 (1990) (“[i]f the searches and seizures were valid, then 

defendant's fourth amendment claim is meritless, and he can show no prejudice from his trial attorney's withdrawal 

of the suppression motions.”); see also Garcia v. Walsh, No. 08-4622-pr, 2009 WL 3198804, at *1-2 (2d Cir. 2009); 

Phillips v. Mitchell, 187 Fed. Appx. 678, 679 (9th Cir. 2005); Huynh v. King, 95 F.3d 1052, 1058 (11th Cir. 1996); 

United States v. Owens, 882 F.2d 1493, 1498-1501 & n. 14 (10th Cir. 1989). 5 See, e.g., Belmontes v. Brown, 414 F.3d 1094, 1121 (9th Cir. 2005), overruled on other grounds by Ayers v. 

Belmontes, 549 U.S. 7 (2006) (requiring a “reasonable probability that a motion to suppress would have succeeded 

and that the suppression ... would have led to a different out-come at the trial”); Thomas, 428 F.3d at 502 (“with 

respect to the prejudice inquiry, Thomas must show that he would likely have prevailed on the suppression motion 

and that, having prevailed, there is a reasonable likelihood that he would not have been convicted”); United States v. 

Horne, 203 F.3d 53, 53 (D.C. Cir. 2000) (“[t]he district court correctly held that appellant failed to prove his trial 

counsel rendered ineffective assistance by failing to move to suppress the contraband recovered from appellant's car. 

For the reasons stated in the district court's memorandum opinion, appellant has not shown a ‘reasonable 

probability’ that a motion to suppress would have been meritorious.”). 

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However, the excerpted statement from Lynn must be read in the context of the Court’s holding 

in that case, which rejected an ineffective assistance of counsel claim premised on a failure to 

request a Wade hearing because there was nothing in the record to suggest that had the Wade 

hearing been reopened, the identification would have been suppressed. Lynn, 443 F.3d at 249. 

There is no indication that the Second Circuit in Lynn intended to spell out for future litigants 

precisely how strong the underlying suppression motion must be in order to prevail on an 

ineffective assistance of counsel claim premised on the failure to make such a motion. Rather, 

the Court was merely noting that the evidence in that case fell far below any standard that may 

be relevant because there was no evidence in the record that the identification would have been 

suppressed had the hearing been reopened.6

 

As this discussion reveals, there is some uncertainty under federal law as to precisely 

what showing is required to satisfy Strickland’s prejudice prong where the ineffective assistance 

of counsel claim is premised on a failure to make a suppression motion. The Supreme Court has 

made clear that as a threshold matter, the suppression motion must be “meritorious,” but it is not 

 

6

 The other cases cited by Petitioner are similarly unavailing. Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979) (rejecting 

ineffective assistance claim for failure to seek Wade hearing where there was no basis for questioning the propriety 

of the out-of-court identification procedure) and United States v. Daniels, 558 F.2d 122 (2d Cir. 1977) (finding no 

prejudice from counsel’s failure to move to suppress out-of-court identification where there was no basis for 

questioning the propriety of that identification) are unhelpful to petitioner’s case for the same reason that Lynn is 

unhelpful to his case. Neither case articulates a standard for how strong a suppression motion must be in order to 

form the basis of an ineffective assistance of counsel claim; they merely observe that where there is no evidence that 

the suppression motion would succeed, an ineffective assistance of counsel claim premised on a failure to raise that 

suppression motion cannot stand. Twitty, 614 F.2d at 333; Daniels, 558 F.2d. at 126. Petitioner also relies on 

United States v. Matos, 905 F.2d 30 (2d Cir. 1990), which involved an ineffective assistance claim premised on 

counsel’s failure to move to suppress statements alleged to have been unlawfully obtained. In that case, the court 

concluded after citing Kimmelman that there was insufficient evidence in the record for it to determine whether the 

statements were obtained illegally, the accused having failed to raise the ineffective assistance claim at any point 

prior to his appeal to the Second Circuit. Id. at 32-33. Therefore, the court was unable to determine whether either 

prong of Strickland was satisfied and remanded to the district court for such a determination. Id. at 32-33, 35. At no 

time in Matos did the court state that failure to make a suppression claim that was merely colorable, but that would 

not ultimately succeed, would be enough to sustain an ineffective assistance of counsel claim. Indeed, Matos, read 

as a whole, is arguably consistent with the notion that a suppression motion must be meritorious in the sense that it 

would actually succeed in order to support an ineffective assistance claim. Finally, Saltys v. Adams, 465 F.2d 1023 

(2d Cir. 1982), which petitioner also cites, is a pre-Strickland case that did not endeavor to answer the question of 

how strong a suppression motion must be in order for a litigant to be prejudiced by his counsel’s failure to raise that 

claim. 

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entirely clear what “meritorious” means in this context. The weight of the authority and the 

logic of Kimmelman suggest that petitioner must show, at minimum, a reasonable probability 

that the suppression motion would succeed, and quite possibly that that the suppression motion 

would in fact succeed. In the end, in light of the incomplete guidance provided by Kimmelman 

and the divergent opinions of the circuit courts, it is probably not possible to treat the rule 

articulated therein as clearly established federal law and to evaluate the state court’s decision 

against that uncertain standard. At minimum, petitioner’s interpretation of Kimmelman is not 

clearly established federal law within the meaning of AEDPA under any analysis. Accordingly, 

the Court will look to the general standards articulated by the Supreme Court in Strickland, as 

that decision continues to provide “sufficient guidance for resolving virtually all ineffectiveassistance-of-counsel claims.” See Williams, 529 U.S. at 391. 

b. The “Contrary To” Test

The Court has no trouble concluding that the Appellate Division’s decision was not 

“contrary to” Strickland. The Appellate Division concluded that petitioner was not deprived of 

effective assistance of counsel under state or federal standards, citing Strickland and reasoning 

that, “[a]lthough petitioner’s counsel did not move to reopen the Wade hearing upon learning 

that one of the robbery victims had described defendant as wearing a blue shirt, the same color 

he wore at a lineup, this did not deprive defendant of effective assistance [because] such a 

motion would not have resulted in suppression.” See Maldonado, 25 A.D. 3d. at 423-24. This 

conclusion plainly does not represent a legal conclusion opposite to that reached in Strickland; 

rather, it appears to represent the Appellate Division’s application of the prejudice prong of 

Strickland to the facts before it. 

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c. The “Unreasonable Application” Test

The Court also finds that the Appellate Division’s decision was not an unreasonable 

application of Strickland. While that Appellate Divisions’ decision appears to have focused on 

the prejudice prong of Strickland, this Court concludes that petitioner has failed to satisfy the 

performance prong as well. Although Judge Katz found that “there is no apparent strategic 

justification for not moving to reopen the Wade hearing” and that it could not “conclude that 

counsel’s failure was professionally reasonable” (Report at 26), this Court respectfully disagrees. 

Petitioner’s trial counsel could reasonably have concluded that moving to suppress the lineup 

would have been a strategic error. First, trial counsel could reasonably have concluded that the 

motion to suppress was unlikely to succeed in light of the facts surrounding the lineup procedure 

and the New York case law on suggestive identifications (see discussion, infra), as well as the 

fact that the trial court had already denied his motion to suppress Ms. Barcene’s photo 

identification. More importantly, petitioner’s trial counsel could reasonably have concluded that 

even if he did manage to convince the trial court to suppress the lineup identification, there was 

nothing to suggest that Ms. Simpson’s earlier photo book identification of petitioner was 

improper and would have been suppressed; and further that it was highly unlikely that Ms. 

Simpson’s in-court identification would ultimately have been suppressed as tainted by the lineup 

since Ms. Simpson’s prior independent identification of petitioner from the photo book would 

support the reliability of her in-court identification. See U.S. v. Douglas, 525 F.3d 225, 242 (2d 

Cir. 2008) (noting that the central question in determining whether an in-court identification 

should be suppressed is whether the identification is reliable). Accordingly, the Court finds that 

it was a reasonable strategy for petitioner’s trial counsel to use the fact that petitioner’s blue shirt 

was visible during the lineup as a jury argument—specifically, to buttress his misidentification 

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theory by attempting to raise doubt in the jurors’ minds as to whether the police has used fair 

identification procedures—rather than moving to suppress the identification. Thus, petitioner 

has failed to establish that his trial counsel’s performance was deficient under the performance 

prong of Strickland. 

Turning to the prejudice prong, petitioner must show that there was a reasonable 

probability that, but for counsel’s alleged unprofessional errors, the result of the proceeding 

(here, the trial) would have been different. Strickland, 466 U.S. at 694. Although the Appellate 

Division’s discussion of its reasons for denying petitioner’s ineffective assistance of counsel 

claim was brief, its decision appears to have been premised on a conclusion that petitioner could 

not satisfy the prejudice prong because reopening the Wade hearing “would not have resulted in 

suppression” of the lineup under New York state law since the “blue shirt was not so distinctive 

to draw attention to defendant.” 7 See Maldonado, 25 A.D. 3d. at 424. Obviously, if the 

suppression motion was denied, the outcome of the trial could not have been different. 

Petitioner argues that the Appellate Division’s conclusion that the suppression motion 

would not have succeeded was an unreasonable application of Strickland’s prejudice prong . To 

the extent that petitioner is arguing that the Appellate Division’s underlying analysis of 

New York law on suggestive identifications was incorrect, that challenge is not cognizable on 

habeas review. 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. In 

conducting habeas review, a federal court is limited to deciding whether a conviction violated the 

Constitution, laws, or treaties of the United States.” Id. 

 

7

 The state court “decision” that is subject to review under AEDPA is the state court’s result, not its reasoning. See 

Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) (“Although sound reasoning will enhance the likelihood that a state 

court’s ruling will be determined to be a reasonable application of Supreme Court law, deficient reasoning will not 

preclude AEDPA deference. . .” (citations and internal quotation marks omitted). 

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Even if it were cognizable, petitioner would not prevail because the Court cannot 

conclude that the Appellate Division’s application of Strickland’s prejudice prong was 

objectively unreasonable. Petitioner argues that there is a reasonable probability that Ms. 

Simpson’s lineup identification would have been suppressed as unduly suggestive because the 

top of his blue shirt was visible during the lineup, he was the only person in the lineup with a 

blue shirt, and Ms. Simpson had described him as wearing a blue shirt during the robbery. (P. 

Objections at 10-12). As Judge Katz aptly noted in the Report, New York courts have found 

lineups to be improperly suggestive in this context only where defendant’s clothing was unusual, 

figured prominently in the witness’ description, or if there was evidence that the witness relied 

on the clothing to identify the suspect in the lineup. See Report at 27-28 (collecting cases). 

Judge Katz’s thorough review of the case law suggests that whether a lineup is unduly suggestive 

is a fact-specific determination that depends on the totality of the circumstances surrounding the 

identification. Here, a blue shirt in itself is not particularly distinctive, which undermines a 

finding of suggestiveness. See, e.g., People v. Gilbert, 295 A.D.2d 275, 276 (1st Dep’t 2002). 

And while the blue shirt was one feature of Ms. Simpson’s description of petitioner, it could 

hardly be classified as a “prominent” factor, given that she also described petitioner’s skin tone, 

height, hair style and color, weight, age, the scar next to his mouth, and other items of clothing 

that he was wearing (including a particularly distinctive “Phillies” jacket). When the facts of 

petitioner’s case are considered as a whole, the Court agrees with the Appellate Division and 

Judge Katz that the lineup was not suggestive (see Maldonado, 25 A. D. 3d at 423-24; Report at 

30). Moreover, regardless whether the Appellate Division’s conclusion was correct or not, the 

Court cannot certainly cannot conclude under the deferential standard of review set by AEDPA 

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that the Appellate Division’s judgment on the issue of suggestiveness rendered its application of 

Strickland’s prejudice prong objectively unreasonable. See Williams, 529 U.S. at 409.8 

III. Certificate of Appealability 

The Court concludes that petitioner has not made a substantial showing of the denial of a 

constitutional right, and recommends that no certificate of appealability be issued. See 28 U.S.C. 

§ 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Although 

there is some uncertainty under federal law regarding the precise showing required to make out 

an ineffective assistance of counsel claim premised on a failure to make a motion to suppress, 

petitioner has not made a substantial showing that he was denied his Sixth Amendment right to 

the effective assistance of counsel under any reasonable reading of federal law. In other words, 

the question whether petitioner was denied his Sixth Amendment right to the effective assistance 

of counsel is not debatable among jurists of reason and does not deserve encouragement to 

proceed further. See id. Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would 

not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). 

 

8

 Petitioner, who has been represented by counsel throughout these proceedings, did not argue in his petition or in 

his Objections to the Report that the Appellate Division’s conclusion that the lineup would not have been suppressed 

was contrary to or involved an unreasonable application of clearly established federal law regarding the 

suggestiveness of identification procedures. Accordingly, such a contention is not before the Court. See Ortiz v. 

Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) (district courts “generally should not entertain new grounds for 

relief or additional legal arguments not presented to the magistrate.”) Even if such a contention were before the 

Court, it would not prevail under the deferential standard of review set by AEDPA. The Supreme Court has not set 

bright line rules governing the circumstances in which lineups are unnecessarily suggestive or the circumstances in 

which unnecessarily suggestive lineups will be suppressed; rather, the court has articulated general principles that 

govern the inquiry, which require nuanced application depending on the circumstances of each case. See, e.g., Neil 

v. Biggers, 409 U.S. 188, 198-99 (1972); Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977). Those standards make 

clear that even if a lineup is found to be suggestive, it does not automatically follow that the identification obtained 

from it should be suppressed if the identification testimony is nonetheless reliable. See Neil, 409 U.S. at 198-99; 

Manson, 432 U.S. at 113-14. Nothing in the record suggests that the Appellate Division’s conclusion that the lineup 

procedures in this case would not have been suppressed runs afoul of, or is an unreasonable application, the general 

standards articulated by the Supreme Court. 

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