McGhee v. Martuscello

• Court: Court of Appeals for the Second Circuit
• Decided: November 26, 2024
• Docket: 24-326
• Status: Unpublished

Opinion

24-326 McGhee v. Martuscello

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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of November, two thousand twenty-four.

PRESENT: AMALYA L. KEARSE, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. ______________________________________

DARRIN MCGHEE,

Petitioner-Appellant,

v. No. 24-326

DANIEL F. MARTUSCELLO III, Commissioner, New York State Department of Corrections and Community Supervision, THOMAS NAPOLI, Acting Superintendent, Auburn Correctional Facility,

Respondents-Appellees. * _______________________________________

For Petitioner-Appellant: DANIEL B. FEDER (H. Gregory Baker, Lauren Schorr Potter, on the brief), Patterson Belknap Webb & Tyler LLP, New York, NY.

For Respondent: ALEXANDER MICHAELS, Assistant District Attorney (Steven C. Wu, Chief, Appeals Division, Stephen J. Kress, Chief, Federal Habeas Corpus Unit, on the brief), for Alvin L. Bragg, Jr., District Attorney for New York County, New York, NY.

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

Southern District of New York (Alvin K. Hellerstein, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the district court’s January 3, 2024 judgment

is AFFIRMED.

Petitioner Darrin McGhee appeals from a judgment of the district court

denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

following his conviction in New York state court for the second-degree murder

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2 of Archie Phillips and for the criminal possession of a weapon second-degree.

McGhee argues that (1) his rights under Brady v. Maryland, 373 U.S. 83 (1963),

were violated when the prosecution failed to disclose a report documenting an

interview with an eyewitness to the murder (“Individual-A”); (2) his Fourteenth

Amendment right to due process was violated when the state trial court (a)

permitted the introduction of eyewitness Nicole Davis’s pretrial identifications

of McGhee and (b) admitted, in violation of New York evidence law, a detective’s

testimony describing an out-of-court statement in which Davis identified

McGhee as the shooter; and (3) these cumulative errors deprived him of a fair

trial. We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal.

I. Standard of Review

“We review de novo a district court’s decision to deny a defendant’s

petition for a writ of habeas corpus under 28 U.S.C. § 2254.” Murray v. Noeth,

32 F.4th 154, 157 (2d Cir. 2022). A federal court may issue a writ of habeas

corpus under section 2254 only if the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established [f]ederal law, as

determined by the Supreme Court of the United States,” or (2) “was based on an

3 unreasonable determination of the facts in light of the evidence presented in the

[s]tate court proceeding.” 28 U.S.C. § 2254(d). McGhee’s petition asserted

only that the New York state courts unreasonably applied clearly established

federal law, so we focus on section 2254(d)(1).

We have explained that “[a] decision is an unreasonable application of

clearly established federal law 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.” Jordan v. Lamanna, 33 F.4th 144, 150

(2d Cir. 2022) (alterations accepted and internal quotation marks omitted).

However, the application of federal law must be “objectively unreasonable, not

merely wrong,” and “even clear error will not suffice.” White v. Woodall, 572

U.S. 415, 419 (2014) (internal quotation marks omitted). In other words, the

state court’s ruling must be “so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 419–20 (emphasis added) (internal quotation

marks omitted); see also Brown v. Davenport, 596 U.S. 118, 136 (2022) (“[Section

2254] asks whether every fairminded jurist would agree that an error was

prejudicial.”). The Supreme Court has observed that, “the more general the

4 federal rule, the more leeway state courts have . . . before their decisions can be

fairly labeled unreasonable.” Brown, 596 U.S. at 144 (alterations accepted and

internal quotation marks omitted). This is because section 2254 “imposes a

highly deferential standard for evaluating state-court rulings and demands that

state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562

U.S. 594, 598 (2011) (internal quotation marks omitted).

II. Brady Claim

McGhee first argues that the New York Court of Appeals unreasonably

applied clearly established federal law when it denied his Brady claim regarding

the report of the interview with Individual-A. As Brady makes clear, “the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to

punishment.” 373 U.S. at 87. But “evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” United States v. Bagley, 473

U.S. 667, 682 (1985). “The Brady rule is a general rule” that asks “a question that

is a matter of judgment rather than one with a clear, obvious answer,” so on

habeas review, we afford state courts a considerable degree of latitude. McCray

5 v. Capra, 45 F.4th 634, 641 (2d Cir. 2022). And when reviewing a Brady ruling,

we must “evaluate the withheld evidence in the context of the entire record.”

Turner v. United States, 582 U.S. 313, 324–25 (2017) (alterations accepted and

internal quotation marks omitted).

The New York Court of Appeals determined that the Brady violation was

not material because “there [was] no reasonable possibility that the People’s

failure to disclose the witness statement at issue undermined the fairness of

defendant’s trial or impacted the verdict.” People v. McGhee, 36 N.Y.3d 1063,

1065 (2021). As the New York Court of Appeals observed, Individual-A’s

“description of the shooter and his flight path did not differ in any material

respect from that of” Nicole Davis. Id. Both explained that the shooter fled the

scene up a tall flight of stairs near the murder scene (the “110 stairs”) and that

the shooter was wearing all beige, including a beige hat.

McGhee concedes that he was wearing all beige that day and ascended the

110 stairs following the shooting. He nevertheless seizes on various

discrepancies between Individual-A’s account of the shooting and Davis’s

testimony, including that: (1) Individual-A stated that the shooter was speaking

6 to Phillips before the shooting, 1 while Davis testified that the shooter came up

from behind Phillips and immediately shot him in the back; (2) Individual-A

stated that after the first shot, Phillips fled and the shooter chased Phillips before

shooting him three more times in the back, while Davis testified that the shooter

shot Phillips in the back four times in rapid succession; (3) Individual-A stated

that the shooter was wearing a bucket hat, while Davis testified that he was

wearing a “flat cap” with “a snap in front,” J. App’x at 1167; (4) Davis testified

that the shooter was wearing a jacket, while Individual-A did not mention a

jacket; and (5) Individual-A stated that the shooter ran away from the scene,

while Davis testified that the shooter walked away at “a slow pace,” id. at 1168.

Considering the withheld evidence in the context of the entire record, we

cannot say that the New York Court of Appeals unreasonably applied clearly

established federal law when it denied McGhee’s Brady claim. To the contrary,

in light of the significant ways in which Individual-A’s statement bolstered

Davis’s testimony, the New York Court of Appeals reasonably concluded that

“the undisclosed witness statement lacked sufficient impeachment value [with

1 McGhee asserts that the undisclosed witness recounted that the shooter shot the victim “once in the front,” McGhee Br. at 36, but this observation appears nowhere in the undisclosed interview report and is, at best, an extrapolation from the report’s contents.

7 respect to Davis’s testimony] to cast any doubt on the fairness of [the]

defendant’s trial.” McGhee, 36 N.Y.3d at 1065.

The New York Court of Appeals also appropriately emphasized the

“considerable other evidence” of guilt in the record. Id.; see also United States v.

Hunter, 32 F.4th 22, 32 (2d Cir. 2022) (“Where the evidence against the defendant

is ample or overwhelming, the withheld Brady [evidence] is less likely to be

material.” (internal quotation marks omitted)). In particular, the prosecution

called a cooperating witness, John Reynolds, who testified that he and a local

drug boss, Mike Lilly, hired McGhee to kill Phillips as revenge for Phillips

robbing Lilly’s dealers. Reynolds’s estranged wife also testified and

corroborated Reynolds’s account. In particular, she described events consistent

with a plan to murder, including McGhee instructing Reynolds to use gloves

when cleaning the gun and an occasion where McGhee left with the gun and

returned fifteen minutes later wearing kitchen gloves and saying, “It was the

wrong person.” J. App’x at 1459.

Additionally, the prosecution presented cell-phone records reflecting that

McGhee and his co-conspirators were in the vicinity of the public-housing

complex where the murder took place and called each other mere minutes before

8 the shooting. Surveillance footage from an adjacent street also “show[ed] [the]

defendant’s proximity, clothing, and behavior immediately after the crime.”

McGhee, 36 N.Y.3d at 1065. And in recorded phone conversations from jail,

McGhee admitted that he appeared in the surveillance videos.

Finally, McGhee argues that Individual-A identified another suspect who

had a separate motive to kill Phillips. But this statement was based on “[t]he

word on the street,” J. App’x at 235, and Individual-A later told prosecutors and

defense counsel that “he ha[d] no idea who made this statement,” id. at 305.

Consequently, such testimony would have been inadmissible hearsay. And

while McGhee now argues that such information could have generated further

investigative leads, this amounts to “mere speculation.” Wood v. Bartholomew,

516 U.S. 1, 6 (1995).

For all these reasons, we cannot say that “every fairminded jurist would

agree” that the undisclosed witness report was material and that McGhee was

deprived of his due-process rights. Brown, 596 U.S. at 136.

III. Identification Evidence

On the evening of the murder, Davis was shown surveillance footage from

which she identified McGhee as the person she had seen shoot Phillips, and

9 twenty-one hours later, she picked him out of a photo array. 2 Six weeks later,

Davis identified McGhee again at an in-person lineup. McGhee argues that all

the pretrial identifications were impermissibly suggestive. McGhee also objects

to the admission of hearsay testimony by the investigating detective that Davis

exclaimed, “That’s him. That’s him. He is the one that shot the boy,” while

viewing the surveillance videos. J. App’x at 1253 (internal quotation marks

omitted).

An out-of-court identification may not be admitted at trial if the

identification procedure used by law enforcement was (1) unduly and

unnecessarily suggestive, and (2) so unreliable that there is a very substantial

likelihood of misidentification. See Manson v. Brathwaite, 432 U.S. 98, 114–17

(1977); Simmons v. United States, 390 U.S. 377, 384–85 (1968). In evaluating the

reliability of an identification, we consider “the opportunity of the witness to

view the criminal at the time of the crime, the witness’ degree of attention, the

accuracy of the witness’ prior description of the criminal, the level of certainty

demonstrated by the witness at the confrontation, and the length of time between

the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199–200 (1972).

2 The photo array was not ultimately introduced, so it is not at issue on this habeas petition.

10 And, as we have noted, “[t]he determination of whether an identification

procedure violates due process is governed by an extraordinarily general

standard that hews closely to the facts of a particular case and turns on a court’s

judgment in evaluating those facts,” which means that the state court is “entitled

to significant ‘leeway’ when we review its decision for reasonableness” on a

habeas petition. Brisco v. Ercole, 565 F.3d 80, 90 (2d Cir. 2009).

On remittitur from the New York Court of Appeals, the New York

Supreme Court, Appellate Division concluded that the lineup identification was

not unduly suggestive. McGhee emphasizes that the detective asked Davis at

the lineup if she recognized anyone from the photo array. According to

McGhee, since the identifications from the video surveillance footage and, in

turn, the photo array were impermissibly suggestive, the detective’s comment

compounded this error and tainted the lineup identification by tying that

identification to Davis’s prior photo array identification. But the Appellate

Division reasonably emphasized that the lineup occurred six weeks after the

photo array and Davis told the detective at the lineup that she recognized

McGhee “as the one who shot the victim, not as the one in the photo array.”

11 People v. McGhee, 146 N.Y.S.3d 635, 637 (1st Dep’t 2021). The Appellate

Division’s conclusion was supported by the record. See J. App’x at 614.

But even if we were to accept McGhee’s argument that the lineup was

unduly suggestive, that identification could nevertheless reasonably be deemed

reliable, since Davis had a good opportunity to view the shooting, which took

place in the daytime; she was standing forty to sixty feet from the shooter at the

time; and she made eye contact with him immediately after the shooting. See

United States v. Finley, 245 F.3d 199, 203–04 (2d Cir. 2001) (finding reliability when

the witness viewed the defendant from approximately fifty feet away); Coleman

v. Alabama, 399 U.S. 1, 4–6 (1970) (concluding that a fleeting but “real good look”

at the assailant was sufficient for identification). Davis had “[n]o doubt” that

she recognized McGhee, J. App’x at 1196–97, since she had seen him twice before

at her apartment building and had briefly spoken with him, see United States v.

Gershman, 31 F.4th 80, 94 (2d Cir. 2022) (concluding that a witness’s identification

was reliable because he “immediately recognized [the defendant] as a neighbor

with whom he had ridden the elevator and conversed” and he identified the

defendant in court with “‘100 percent’ certainty”). Davis was even able to

12 perceive small changes in McGhee’s appearance – he shaved his goatee and had

“shrunk” in build, J. App’x at 1183 – which other witnesses corroborated.

McGhee challenges the reliability of Davis’s identification by insisting that

she was initially “very vague in describing who the shooter was.” Id. at 1365.

But Davis repeatedly testified that police had interrogated her outside on a

terrace and that “living in the projects, you are not supposed to talk” to the

police, so she “was nervous of talking.” Id. at 1185. The investigating detective

even recalled that “she was trying to hide” while they questioned her on the

terrace. Id. at 1365. But Davis explained that she eventually overcame her

nerves because she recognized that “if it was one of [her] kids, [she] would want

somebody to come forward and tell the truth.” Id. at 1246. For these reasons,

we conclude that the state court reasonably upheld the admission of Davis’s

lineup identification.

McGhee also challenges the admission of Davis’s video identification,

which the Appellate Division held was “unduly suggestive” but “harmless error

in light of the overwhelming evidence of guilt.” McGhee, 146 N.Y.S.3d at 637.

Our review of a state court’s determination that an error was harmless involves

two components. First, to overcome that state-court determination, a habeas

13 petitioner must show that an error “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

623 (1993) (internal quotation marks omitted). Second, the petitioner must

show that the harmless-error determination was an unreasonable application of

federal law. See Brown, 596 U.S. at 127. McGhee fails at the first step because

he has failed to show that any error had a substantial and injurious effect. Even

if the video identification had been excluded, Davis still would have been

permitted to testify as to the lineup identification and still would have identified

McGhee in court as the shooter. Plus, as detailed above, the other evidence of

McGhee’s guilt was overwhelming. We therefore conclude that the admission

of the video identification does not entitle McGhee to habeas relief.

McGhee next asserts that the trial court erroneously permitted the

investigating detective to testify about an excited utterance that Davis made

when she saw McGhee on the surveillance footage. J. App’x at 1253 (“That’s

him.”). But we have explained that “[e]rroneous evidentiary rulings do not

automatically rise to the level of constitutional error sufficient to warrant

issuance of a writ of habeas corpus.” Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.

1983). McGhee must demonstrate that the ruling was “so egregious as to

14 implicate the Fourteenth Amendment’s guarantee of due process,” Evans v.

Fischer, 712 F.3d 125, 133 (2d Cir. 2013) – “[i]n short[, the error] must have been

crucial, critical, [and] highly significant,” Collins v. Scully, 755 F.2d 16, 19 (2d Cir.

1985) (internal quotation marks omitted). McGhee cannot meet that high bar.

The detective’s testimony “added little of an incriminating nature” to Davis’s

own testimony that she identified McGhee from the surveillance footage, at the

lineup, and in court. Evans, 712 F.3d at 135. Accordingly, we conclude that

McGhee is not entitled to habeas relief on these grounds either.

IV. Cumulative Effect

Finally, McGhee argues that the cumulative effect of the above alleged

errors deprived him of a fair trial. However, our caselaw is clear that habeas

petitioners “must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

McGhee himself recognizes that “he may not have raised the cumulative error

claim [in state court] exactly as it appears in his habeas petition.” McGhee Br.

at 54. In fact, his defense counsel never mentioned this cumulative-error

argument at all in his initial briefing to the Appellate Division. Nor did the

15 parties address this argument on the merits before the New York Court of

Appeals. But even if we were to reach McGhee’s cumulative-error claim, the

cumulation of otherwise harmless errors here is outweighed by the

overwhelming evidence of McGhee’s guilt. See United States v. Hurtado, 47 F.3d

577, 586 (2d Cir. 1995).

* * *

We have considered McGhee’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court