Citations
- 298 F. Supp. 2d 320
Full opinion text
MEMORANDUM AND ORDER
BLOCK, District Judge.
The Court grants petitioner Damecha Harris’ (“Harris”) habeas corpus petition challenging, pursuant to 28 U.S.C. § 2254, his state court robbery conviction, for which he is serving a term of fifteen years to life. Two aspects of this case are rather remarkable: one, the abject ineffectiveness of trial counsel for his failure to confront the victim — the sole witness who identified Harris as the perpetrator at his trial — with a totally different description of him given by her to the police within thirty minutes after the robbery; two, that it has taken Harris almost twelve years from the date of his conviction to obtain relief.
BACKGROUND
I. State Court Proceedings
The underlying facts leading to Harris’ arrest could not be more simple. On February 25, 1991, at approximately 9:20 p.m., Leonida Punu (“Punu”) was robbed outside her home in Queens, New York. Punu called the police, who came to her apartment and took her statement. A complaint report prepared by an Officer Clifton, just thirty minutes after the robbery, states that Punu described her assailant as a black man twenty years of age, standing 5' 4" tall and weighing 130 pounds. Punu is described in the complaint report as an Asian female.
The next evening, two police officers drove Punu around her neighborhood in search of her assailant. After 45 minutes, Punu identified Harris as he was walking on a street; he was accosted and arrested. Two reports relating to his arrest — an On Line Booking System Arrest Worksheet and-a Stop and Frisk Report — described Harris, albeit black, as 26 years old, 6 feet tall and 220 pounds.
A. Wade Hearing
Prior to trial, a Wade hearing was held to determine whether Punu’s identification of. Harris should be suppressed as unduly suggestive. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Police officer Russo ( Officer Russo” or “Russo”) was the only one to testify. On direct examination, Officer Russo recounted that he spoke to Punu on the day after the robbery; “she gave [Russo] a description of a male and she told [him] that she had seen him in the neighborhood before.” Wade Hearing Transcript at 5. During that conversation, Russo and Punu arranged “to take a ride around the neighborhood” later that evening to search for the perpetrator. Id. Russo testified that as he and a fellow officer drove Punu home that night, the following occurred: “[S]he pointed to a male across the street and she said ‘that’s him over there.’ And I said, ‘which person?’ And she described him and she said, ‘the male running toward the subway.’ ” Id. at 6.
Harris’ counsel sought to cross-examine Russo about the complaint report:
Q: On February 26th you spoke with Leonida Punn [sic]; is that correct?
A: Yes.
Q: Did she contact you or did you contact her?
I contacted her. <¡
By telephone? o*
Yes.