Madera v. Superintendent, Livingston Correctional Facility (281 F. Supp. 3d 389, 2017)

REPORT AND RECOMMENDATION

The Honorable Ronald L. Ellis, United States Magistrate Judge

To the HONORABLE ANALISA TORRES, U.S.D.J.:

I. INTRODUCTION

Pro se Petitioner Fernando Madera (“Madera”), a New York state prisoner currently incarcerated at Livingston Correctional Facility, seeks a writ of habeas corpus pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. Madera was convicted of three counts of robbery in the first degree (New York Penal Law (“NYPL”) § 160.15(4)) and three counts of robbery in the second degree (NYPL § 160.10(1)) following a jury trial. As a second violent felony offender, he was sentenced to ten years’ imprisonment on each count, to run concurrently, followed by five years of post-release supervision. In his Petition, Madera challenges his conviction and alleges violations of his Due Process rights on two grounds: 1) police officers arrested him despite an inconsistent eyewitness description and following an “unduly suggestive police lineup”; and 2) the trial court abused its discretion during the Sandoval hearing ruling by failing to engage in a balancing of interests before ruling in favor of the prosecution. (Pet. for Writ of Habeas Corpus (“Pet”) at 5.) For the reasons set forth below, I recommend that the Petition be GRANTED.

II. BACKGROUND

A. Factual Background

1. The Victims and the Crime Scene

On January 21, 2010, Angela Krevey, James Chmiel, and Thomas Mahoney met in the office of Pier i Cafe, an outdoor restaurant located at 500 West 70th Street in Riverside Park in Manhattan. (Doc. No. 14, Trial Transcript (“Tr.”) at 159-61, 175, 267-69, 305-06, 309-11, 326-27.) Krevey is the co-owner and manager of the cafe, Chmiel is Krevey’s bookkeeper and manager, and Mahoney is Krevey’s accountant. (Id. at 159-60, 267-68, 305.) The restaurant itself was closed for the season, but the office (located in a trailer across a bicycle path from the restaurant) was open. (Id. at 160, 268, 309.) Krevey, Chmiel, and Mahoney worked out of this trailer office. Id. at 160. The inside of the trailer is in a “railroad” style and has two sections. (Id. at 160.) The first section has two desks, a copy machine, and a couple of file cabinets. (Id.) The second section has two-and-a-half desks, file cabinets, two safes, and a closet. (Id.) The trailer has three windows. (Id.)

2. The Robbery

James Chmiel was the first to arrive at the trailer on January 21, 2010, at approximately 11:00 a.m. (Id. at 309.) Just before 12:30 p.m., Mahoney arrived, and Krevey arrived shortly thereafter. (Id.) After “five to ten minutes” the “door flew open[], [and] two men came in [to the trailer], one holding a gun.” (Id. at 179-80.) The gunman had a bandanna over his face, so that only his Although he wore a bandanna, it did not entirely cover his face.

The gunman and the lookout walked into the first section of the office trailer. (Id. at 181.) The gunman then walked into the second half of the office trailer where Kre-vey’s office was, while the lookout remained in the front half. (Id.) He pointed his gun “directly” at Mahoney and Chmiel and told them to “get down on the floor and to put their heads down.” (Id. at 183-84, 232, 269, 313.) They complied. (Id. at 184.) The gunman then approached Kre-vey, put the gun to her head and demanded that she open the safe. (Id. at 183.) When she did not act quickly enough, he told her he was “going to count to three.” (Id.) Krevey did not know the safe’s combination, but got down on her knees and tried to think of a possible combination that her husband would have chosen for the safe. (Id.) For “a couple of minutes,” the gunman continued to demand that Krevey open the safe. (Id.)

When Krevey was unable to open the safe, she told the gunman that she “could call someone and get the number.” (Id. at 184.) He told her she “couldn’t do that” and, after holding the gun to Krevey’s head for a “long time,” he told the three victims “to empty [their] bags and pockets and to hand over cash and cellphones.” (Id.) Krevey gave approximately $970 from her wallet, but could not find her cell phone. (Id. at 185.) The gunman took $200 from Chmiel’s wallet. (Id. at 314-15.) He then put the gun to Mahoney’s head and Mahoney handed oyer ten $100 bills. (Id. at 274-75.) After the gunman took the money, Mahoney told him and the lookout: “Look, you guys got the money, take the money and get out of here.” (Id.) The lookout then yelled “[L]et’s get out of here,” and the two men left. (Id. at 315.). There is nothing in the record that there was anything distinctive about the lookout’s voice when he said this.- -

. 3. Initial Police Response

As soon as the robbers left, Krevey called 911, (Id, at 189-90, 315.) She did-not tell the 911 operator that she recognized either robber. Police Officer Farrell Con-roy and another officer responded to the 911 call and arrived at the trailer “just after 1:00 p.m.” (Tr. at 193, 275, 296-98, 316.) Detective Francis Brennan interviewed Krevey at the precinct two to three hours after the incident. (Id. at 209-10, 213.) Krevey described both suspects as light-skinned male blacks, (Id. at 258).

4. Detective Galan Takes Over The Investigation

On January 22, 2010, the day after the robbery, the investigation was reassigned from Detective Brennan to Detective Frank Galan. (Id. at 213, 349-50.) Galan had seventeen years’ experience as an officer, including ten as a detective. He had worked in three different precincts. His duties as a detective included “investigating] crimes,” particularly “[fjélonies, major crimes.” (Id. at 347.)' He started where Brennan left off,

Q. And were you given any of that detective’s paperwork?

A. Yes, I was.

(Id. at 350.) He then proceeded to gather firsthand information from the victims:

Q. And once you were assigned this investigation, what did you do?

A. I followed up on the case.

Q. And what does that mean?

A. I proceeded to reinterview the victims and do whatever else was necessary to follow up on the investigation.

Q. And with whom did you speak when you say you reinterviewed the victims? A. I spoke to the victim Angela Kre-vey, and I also spoke to the other two victims also.

Q. Do you remember their names?

A. Yes, Thomas Mahoney and James Chmiel

Q. Did you speak with those three people in person or over the phone?

A. And Krevey was in person and the other two individuals were over the phone.

Q. Did you speak with them—I’m sorry.

Did you ever speak with James 'Chmiel in person?

A. Yes I did.

Q, And do you .remember the date of that conversation?

A. That was on the 27.

Q. Of what month?

A. January

Q. 2010?

A. Yes, ma'am.

(Id.) Based on these interviews and the reports he reviewed, Detective Galan determined that he was looking for two light-skinned, male blacks. (Id. at 367.) To aid the investigation, Detective Galan re-interviewed Krevey on January 23 because he felt that her description of the lookout was “vague.” (Id. at 365-66.) According to Ga-lan, Krevey stated that the lookout was a dark-skinned, black male who was approximately six feet tall and 170-175 pounds-with no “unusual characteristics” like tattoos. (Id at 367-69, 373-74) Galan recalled Krevey telling him that the lookout did not have facial hair, (Id. at 374). Galan testified that when-he asked Krevey if she could tell him the hairstyle or hair length of the lookout, she was not able to. (Id at 376.). Based on his interview with Krevey, Galan prepared a description sheet of the lookout. He testified that he usually leaves description sheets blank when a witness “either doesn’t know the answer or can’t remember.” (Id. at 380.) He left blank the spaces for hair length; color and style; as well as the spaces for mustache; goatee; beard; and “tattoos and/or scars.” (Id. at 377-78, 380-81.) Galan testified that he did not ask Krevey separate questions about each of those characteristics, but filled out the form “based on what she told [him].” (Id. at 401.)

5. Madera’s Appearance at the Time of His Arrest

At the time of his arrest, Madera was 6’3” tall and weighed 170 pounds. (Id. at 387, 389.) Detective Galan noted that Ma-dera “was wearing very baggy jeans, work boots, and had numerous tops, I specifically remember a yellow top.” (Tr. 349.) Chmiel testified to seeing Madera just before the robbery and that Madera was wearing decrepit clothes. Madera had a light beard and a mustache, a small teardrop tattoo on his face, and his'hair was in long braids. (Id. at 397-98.) According to Madera’s Appellate.Division brief, he also had “a large neck tattoo.” (Doc. No. 13-2 at SR9, SR15.) Chmiel testified that Ma-dera spoke with a Hispanic accent. No cell phones, money, or other items from the robbery were recovered from Madera at the time of his arrest. (Tr. -at 394, 397.) The gunman in the robbery was never apprehended or identified. (Doc. No. 13-1 at 12.)

6. Madera Becomes a Suspect

Madera does not enter the picture because the police picked him up from the information provided by the victims. Rather, he is picked up for having an open container of alcohol. The police did not call the victims to identify a suspect in the robbery. Instead,. Krevey learned that a homeless man had been arrested at the trailer. Tr. 234-35. She called Galan on January 27. Tr. 235-36.

That same day, Detective Galan showed Chmiel an array of six photos at the sta-tionhouse. (Id. at 351-52, 390.) The bottom right photograph was a photograph of Ma-dera. (Id. at 352.) Chmiel recognized Ma-dera, but could not remember if he said he frequently saw him in the area near the trailer. (Id. at 335-36.) Detective Galan recalled Chmiel saying he was familiar with Madera from the area. (Id. at 390.) Chmiel, however, did not identify Madera as one of the robbers. (Id. at 335-36, 390-91.)

The next day, January 28, Detective Ga-lan presented a íineup of five people, including Madera, to Krevey. (Id. at 195, 238-39, 354-56, 360, 385.) To address the fact that'Madera was over six feet tall and some of the lineup’s fillers were noticeably shorter - than Madera, Detective Galan made everyone sit. (Id. at 357, 385-86.) He also made each of the fillers and Ma-dera wear a hat because- Madera “had braids and some of the fillers had shorter hair.” (Id. at 357.) Krevey had never participated in a lineup identification before and she was told how the process would work:

Q. And can you describe for the jury the process that you remember going through to view the lineup?

A. I was briefed on what a lineup— what it would be like, because I never ever had done that before.

And they told me to take my time and—as long as I wanted to—and not to be nervous, and they gave me a rundown of how it was going to go.

Q. And what do you mean by rundown?

A. If you see—if you can identify someone I was supposed to' tell them.

(Id. at 195-96.) (emphasis added) Krevey initially viewed the subjects from about ten to twelve feet away, but asked Detective Galan to bring them closer so she could “be very sure” that she “was correct.” (Id. at 239-41, 244, 257.) Viewing the lineup subjects more closely, Krevey picked Ma-dera as the lookout during the robbery:

Q. And what number—Who did you recognize?

A. I recognized the person who I concluded came into the office trailer.

Id. (emphasis added)

Krevey did not indicate to Detective Ga-lan that she had multiple contacts with Madera at the restaurant. For example, there is no record that either Chmiel or Mahoney were ever asked a question such as, “Ms. Krevey thinks the lookout may have been a homeless man who frequents the area. Can you provide any information about this individual?” At this point in the investigation, the police were not looking for (1) a Hispanic male; or (2) a man with an accent; or (3) a man with long braids; or (4) a man with a beard; or (5) a man with a facial tattoo. In, sum, they were not looking for anyone who fit Madera’s description.

7. Trial Testimony

a. Krevey

Unlike her responses to Detective Ga-lan, Krevey’s recollections of Madera were not vague at the trial. She was “certain” that Madera was one of the two people that came into the office trailer the day of the holdup. (Tr. at 197) Krevey also indicated that Madera was “the person that came into the trailer maybe a month or two prior [to the robbery] demanding to use the bathroom” and that he was “the person who [Krevey] had seen on a regular basis ... who would pass the entrance in front of [the] office trailer.” (Id. at, 196-97, 246.)

Krevey testified that, on the day of the robbery, as she backed her car into a parking space, she noticed Madera standing behind her car and “made a motion to him a couple of times to move out of the way” because she did not want to hit him. (Id. at 177.) After getting out of her car, she noticed that Madera was standing in front of the garbage bins. (Id. at 178.) She walked past Madera, making eye contact but not speaking, and entered the trailer. (Id. at 178-79.)

A.

While I was parking my car, there was someone behind me who was just standing at—sort of behind the gate. And I was backing my car up and I made a motion to him a couple of times to move out of the way because I didn’t want to hit this individual.

Q. Did you recognize that individual while you were in the car?

A. Yes.

Q. Okay. And who did you recognize that individual to be?

A. One of the homeless men. The one that I saw most often.

Q. Is it the same homeless man you had the argument with in the trailer? A. Yes.

(Id. at 176.) Finally, Krevey testified in detail about the lookout’s appearance and physical characteristics:

Q. And that’s the man with the gun. What did the other man look like?

A. Very tall and very, very thin.

Q. Did you—what was that man wearing?

A. He was wearing jeans, blue jeans, a gray T-shirt, a hooded gray T-shirt, and he had—from what I remember it was probably a bandanna but maybe not—it was—he had something around his neck.

Q. Did—were you able to see his face?

A. Yes.

Q. And did you recognize that man?

A. Yes.

Q. And who did you recognize him to be?

A. The person who was standing in front of the garbage bin and the person that was—who was the same person who was, you know, standing behind the gate who I recognized to be as the homeless person I saw in the vicinity quite often.

(Id. 182.)

Krevey testified that Madera was a “homeless person” she had seen outside of the restaurant “quite frequently,” “at least once [or] twice a week.” (Id. at 162, 201.) She described Madera as a “tall” and “very slender” man with “sort of long hair.” (Id. at 162, 208.) He was “unshaven” at times and tended to wear “[s]habby, unwashed” clothing. (Id. at 201, 206 08.) Krevey remembered that Madera had his hair in a style that was “sometimes like a ponytail or like braids ... or braids that were then put in a ponytail.” (Id. at 208.)

About two months earlier, in November 2009, Krevey testified that she and Madera had a confrontation and argument about his desire to use the restaurant’s bathroom:

Q. Did you ever have an opportunity to speak with that homeless man?

A. Yes.

Q. And approximately how many times do you remember speaking with him? A. Once.

Q. And can you describe for the jury what that conversation was?

A. He came into our office, trailer office and he demanded to use our bathroom, which at the time was locked because our cafe was closed for the season. I told him we couldn’t give out the key, and he asked me who I was and what authority I had to tell him that. And he would never take no for an answer so we went back and forth where I can’t give you the key and he kept insisting. He kept asking me who I was, who I am, what do I do here.

Q. In the trailer when you had this argument what were the lighting conditions like?

A. Fine. We had the lights on. It was during the day. We had our lights on bright.

Q. Were you able to clearly see the face of the man you were arguing with? A. Yes.”

(Id. at 163-4.).

During her direct testimony, however, Krevey was uncertain about her description of Madera:

Q. Okay, now, I’m only interested at this point in your description given to Detective Brennan as to the lookout, the person you describe as a lookout.

A. A-hum.

Q, Do you remember describing him as a light-skinned male black?

A. From what I remember I might have said a dark-skinned Hispanic.

Q. Well, do you remember how you described his race to Detective Brennan?

A. I remember.

Q. And did you, in fact, say to Detective Brennan later that afternoon that you observed two light-skinned male blacks wearing gray hooded sweatshirts enter the trailer; do you remember saying that?

A. Yes.'

(Id. at 210.) Krevey doesn’t deny the description she gave to Brennan. She maintains, however, that the description she gave is consistent with her memory at trial:

Q. Please, did you say that to him? If you don’t remember that’s fine.

A, I don’t remember exactly what I said. I don’t remember exactly what I said. I remember what I remember, but I don’t remember exactly what I said.

Id. at 211. Krevey admits, however, that she gave Brennan the description shortly after the robbery:

Q. And did you, in fact, tell Detective Brennan later that afternoon it was two light-skinned male blacks?

A. Yes:

Q, And Ms. Krevey, the conversation you had-with Detective Brennan, is it fair to say it was two hours or so, maybe three hours after the incident?

A. Yes.

Q. Approximately?

A. Yes

Despite the “vague” description provided by Krevey, Detective Galan tried unsuccessfully to arrange with Krevey to canvass the neighborhood for suspects.

Q. Why didn’t you actually go on a canvass or survey the area with Angela Krevey?

A. The attempt was made to do it, but her schedule was conflicting with—she had a very tight schedule and also I had a trial, ongoing trial also. ...

(Id. at 402.)

Krevey admitted that she believed Galan asked her about “the color” of the lookout, and she said the person was black because “the person was darker.” (Id. at 216) On cross examination, Krevey remembered describing the lookout as a “dark-skinned Hispanic,” but conceded that she told Detective Brennan that she “observed two light-skinned male blacks.” (Id. at 210-12.) Krevey maintained was indicated that there was no difference between her prior description of the lookout and her trial testimony that the lookout was Hispanic, asserting “dark-skinned Hispanic, light-skinned black, I don’t.. .1 don’t know if that’s the same thing...” (Id, at 213.) In addition, although Galan’s notes did not reflect that the lookout had distinctive hair, Krevey maintained at trial that she told him that the lookout “had long braided hair.” (Id. at 221.)

Krevey testified that a few days after the incident, on or about January 27, 2010, one of her workers informed her that a homeless person had been arrested for the incident at the trailer. (Id. at 234-35.) The homeless man gave some property to the worker, who' in turn gave the property to Krevey’s husband. (Id. at 235.) Krevey’s husband later gave it to the police. (Id. at 235.) The property included “two cell phones,” neither of which belonged to any of the victims of this case, and “no money.” (Id. at 394, 397.) Krevey then called Galan to tell him that the person had been arrested. (Id. at 235-36, 384.)

On direct examination, Krevey was asked if she would recognize the homeless individual that she argued with in November 2009. (Id. at 164.) Krevey answered that she did not know. (Id.) She explained that she was “very nervous” and “did not get a clear view of everyone sitting [in the courtroom].” (Id. at 254-55;) She also explained that based on where she was sitting in the courtroom, her “view” was “blocked.” (Id. at 254-56.) The prosecution rested without the dramatic eyewitness testimony in open court in front of the jury. The court recessed for the day after the cross-examination of. Krevey. When Krevey returned the next day for re-direct, she identified Madera, she identified Madera. (Id. at 252.)

b. Mahoney

Aside from testifying that a robbery took'place, Mahoney provided no information to support a conviction. Indeed his testimony undermines portions of Krevey’s testimony..For example, Mahoney indicated that he saw a tall, thin,man,in-decrepit clothing rummaging through the garbage:

Q. Did you see anyone along your walk to the trailer?

A. Yes. There was only one person that I saw and it was a man who was rummaging through some garbage pails.

Q. What was that man’s- physical- description?

A. He was tall and thin with, you know, like decrepit kind of clothing.

Tr. 269. Except, that this person is “tall and thin,” there is nothing to suggest that he could be Madera. And there is nothing to indicate that he was one of the robbers. As discussed below, Mahoney’s description of the man’s clothing is inconsistent with the clothing worn by the robbers.

In addition, while the robbery took place in the second entry room, Mahoney placed the lookout in the first room, behind a door. (Tr. 271.) (“He had just entered the door behind the other guy. He was more like behind the door.”) Mahoney also testified that at the time the gunman came into the second room, Krevey was not looking in that direction but was looking for some papers:

Q. Please just answer the question. Just answer the question.'

A. She was not on the computer, no.

Q. Do you know which direction she was facing

A. —She may

Q. — at the time the two men came in?

A. She was looking for papers. I was requesting information from the clients.

(TV. 279.) The gunman went to Krevey and put a gun to her head (Tr. 272) (“ Yeah, the man with the gun came in and put it to Angela’s head.”) Krevey was visibly shaken:

Q. And then what happened?

A. He told her to open the safe

Q. Did he say anything else that you remember?

A. Well, she was nervous and stumbled at first and she responded she couldn’t remember or didn’t know the combination or something to that effect.

(Tr. 272.)

Mahoney didn’t get to see the robbers because his main focus was the barrel of the gun Tr. 281. He did, however, hear a conversation between the robbers and heard the lookout say they had to get out:

Q. Did the men leave?

A. There was a brief conversation. The second man said we better get out of here. And then the guy with the gun said, okay, let’s go. the lookout state that the robbers had to get out of the office.

(Tr. 275.) By hearing the conversation between the robbers, Mahoney was able to discern that the second robber was male:

Q. Did you notice his face at all? Just the bottom of his physique. You knew he was a man?

A. Yes, yes. By the voice, by the voice, by the conversation that happened later on.

(Tr. 281-82.) He was therefore able to confirm that the lookout was male. There was no testimony offered or elicited about any accent the lookout might have had.

c. Chmiel

Chmiel testified that he was familiar with Madera. He described him as a tall, thin male that he assumed was Hispanic because of his “Hispanic” accent:

Q. And could you describe what that homeless individual looked like?

A. tall, thin, assuming Hispanic male.

Q. And what do you mean by assuming Hispanic?

A. Darker complexion than me, darker hair. Having heard him speak, you know, slight—what I consider a Hispanic accent

(Tr. 306.) He noted that Madera had a “darker complexion” and “darker hair.” Id. Chmiel had spoken to Madera “[m]aybe a half dozen times” from about “five to ten feet [away].” Tr. 307 He had no trouble identifying Madera in the courtroom. Tr. 308. He even noticed that Madera’s hair was a little shorter at the time of trial and that he had gained some weight. Tr. 308.

When Chmiel got to the trailer around “11, 11:15 in the morning,” he noticed Ma-dera “standing, kind of pacing, walking by [the] garbage dumpsters.” Tr. 309. After the gunman took money from the victims, Chmiel was able to hear the lookout’s voice as he “yelled” to the gunman, “[L]et’s get out of here to get out. (Tr. 315.) Chmiel did not indicate that he recognized the voice as Madera’s or that the lookout spoke with a Hispanic accent. Chmiel picked Madera’s picture out of a photographic array as someone he knew, but did not identify him as one of the robbers.

THE COURT: It seems to me you have [done] everything but introduce] the photo array, and that’s all that is left to be done. And it still doesn’t say he recognized the robber. It .just says he recognizes the defendant’s face in the arm.-

(Tr. at 338.) (emphasis added)

B. Procedural Background

On November 8 and 9, 2010, prior to trial, the court held a suppression hearing to determine, among other things, whether Krevey’s identification of Madera was unduly suggestive. (See Doc 14-1 and 14-2.) That suppression hearing was not at issue on direct appeal and is not at issue in this habeas proceeding. (Doc. No. 13-1 at 5.) The case proceeded to trial before Justice Renee White and a New York County jury on March 31, 2011. (Doc. No. 13-3 at SR119-120; Doc. No. 13-1 at 4.) Before trial, a Sandoval hearing was held, in which the court held that the prosecution could inquire about Madera’s prior felony and misdemeanor convictions. (Tr. at 11-12.) Madera thereafter decided not to testify at trial. (Doc. No. 13-2 at SR9.)

A New York County grand jury charged Madera with three counts of robbery in the first degree (displaying what appeared to be a pistol), and three counts of robbery in the second degree (aided by another person actually present). (Doc. No. 13-3 at SR108-110.) On April 8, 2011, the jury convicted Madera of all charges. (Doc. No. 13-3 at SR119; Doc. No. 13-1 at 2.) On May 10, 2011, Madera was sentenced as a second violent felony offender to ten years’ imprisonment on all three counts of second degree l’obbery, to run concurrently, followed by five years of post-release supervision. (Doc. No. 13-1 at 1-3.)

Madera filed a brief on direct appeal in the Appellate Division, First Department, asserting the following claims: 1) the prosecution failed to establish beyond a reasonable doubt that Madera was the perpetrator, and the verdict was. against the weight of the evidence; and 2) the trial court’s Sandoval ruling violated Ma-dera’s due process rights by allowing inquiry into all of Madera’s prior convictions. (Doc. No. 13-2 at SRI-49.) On April 30, 2013, the Appellate Division, First Department, unanimously affirmed Madera’s conviction. People v. Madera, 105 A.D.3d 680, 963 N.Y.S.2d 862 (1st Dep’t 2013); (Doc. No. 13-3 at SR186-88.) The court found that there was “no basis for disturbing the jury’s determinations concerning identification and credibility, including its resolution of any discrepancies in the main witness’s description of the perpetrator. The court further found that the reliability of Krevey’s identification was enhanced by the fact that she was familiar with [Madera] from his repeated presence in the area, and from having seen him shortly before the crime.” Madera, 105 A.D.3d at 681, 963 N.Y.S.2d 862. The Appellate Division also found that the trial “court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion.” Id.

On April 30, 2013, Madera applied to the New York Court of Appeals for permission to appeal. (Doc. No. 13-3 at SR189-96.) The initial letter asked the Court to “consider and review all issues in the attached briefs, including the State and Federal Constitutional issues contained therein.” (Id. at 189.) The follow-up letter asserted solely Madera’s claim for sufficiency of the evidence. (Doc. No. 13-3 at SR190-96.) On July 15, 2013, the Court of Appeals denied leave to appeal. People v. Madera, 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 (2013); (Doc. No. 13-3 at SR205.) Ma-dera commenced this action pro se on October 29, 2013. (Doc. No. 2, IFP Application.)

III. DISCUSSION

A. Threshold Issues

1. Timeliness

A petitioner must file an application for a writ of habeas corpus within one year of his conviction becoming final. See 28 U.S.C. § 2244(d)(1). A conviction becomes final “when [the] time to seek direct review in the- United States Supreme Court by writ of certiorari expire[s],” that is, ninety days after the final determination- by the state court .of appeals. Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) (quoting Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998)). Here, the New York State Court of Appeals denied Madera leave to appeal his conviction on July 15, 2013. Therefore, Madera’s conviction became final for purposes of the AEDPA ninety days later, on October 14, 2013. Madera’s pro se petition, dated October 29, 2013, is therefore timely.

2. Exhaustion

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AED-PA”), the Court may not grant a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy substantive exhaustion, which is not an exacting standard, a petitioner’s claim before the state courts must have been federal or constitutional in nature. A petitioner must have “fairly presented” his claim to state courts by apprising them of “ ‘both the factual and the legal'premises of the claim [he] asserts in federal court.’” Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Att’y Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Procedurally, the petitioner must utilize all avenues of appellate review within the state court system before proceeding to federal court. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). He must raise a federal claim at each level of the state court, system, “presenting] the substance of his federal claims ‘to the highest court of the pertinent state.’ ” Id. (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)).

A petitioner is deemed to have exhausted state judicial remedies when the issue has been fairly presented in the state courts or the petitioner has otherwise given the state courts a fair opportunity to redress the federal claim. Duncan v. Henry, 513 U.S. 364, 366-67, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (citing Picard, 404 U.S. at 270, 92 S.Ct. 509). Generally, the petitioner must have referred to the relevant federal constitutional provisions in the briefs submitted to state courts. See Baldwin v. Reese, 541 U.S. 27, 31, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (finding inadequate exhaustion where the state court would have to look at the record beyond the petition or brief to be aware of the federal claim).

A claim may be presented for habe-as review even if the federal grounds were not explicitly asserted before the state courts if the petitioner, in asserting his claim before the state court, can show “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” See Daye v. Attorney General, 696 F.2d 186, 194 (1982).

a. Improper Arrest Claims

Madera alleges that police officers arrested him despite an inconsistent eyewitness description, and following an “unduly suggestive police line-up,” (Doc., No. 1 at 4.) In his Petition, Madera presents these improper arrest claims as “violations of due process.” Id. In his Appellate Division brief and in his application for leave to appeal to the Court of Appeals, these claims are raised as components of his “weight of the evidence” claim. (Doc. No. 13-2 at SRI-49.). A weight of the evidence claim does not raise a federal constitutional issue, but construing Madera’s pro se Petition liberally, the Court finds that he is asserting the same insufficiency of the evidence claim, and .therefore that he has successfully exhausted that claim. Madera has not, however, exhausted his suggestive lineup claim as a separate Due Process violation.

(1) Sufficiency of the Evidence

Madera exhausted his improper arrest claims by arguing in each of his appellate briefs that his conviction was against the weight of the evidence. (Doc. No, 13-2 at SR19-31.) Madera satisfies the substantive exhaustion standard because his claim before the state courts was federal and constitutional in nature. (Id.) He fairly presented his claim to the state court by referencing the Fourteenth Amendment of the Constitution, the New York State Constitution, and relevant New York State and United States Supreme Court cases. (Id.) Madera also procedurally exhausted his sufficiency of the evidence claim. He raised a federal claim at each level of the state court system, and presented the substance of this claim to the highest court of New York in constitutional terms. People v. Madera, 105 A.D.3d 680, 963 N.Y.S.2d 862 (N.Y. App. Div. 1st Dep’t 2013); People v. Madera, 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 (2013), He utilized all avenues of appellate review within the New York State Unified Court System by appealing his conviction at every level of state court. Id. Madera was denied leave to appeal all three of his claims to the New York State Court of Appeals. (Madera, 971 N.Y.S.2d 499, 994 N.E.2d 395.)

(2) Suggestive Lineup

Madera failed to raise his “unduly suggestive lineup” claim in, his Appellate Division brief.. (Id.) Because Madera directed the Court of Appeals to his Appellate Division brief for the claims he wished to raise on appeal, he also failed to raise an unduly suggestive lineup claim with the Court of Appeals. (Doc. No. 13-3 at SR189-96.) Madera cited no federal or constitutional law related to suggestive lineups. (Id.) Furthermore, he made no mention of the suppression hearing regarding the lineup and solely referenced trial testimony. As Respondent argues, appellate review of a trial court’s denial of a motion to suppress testimony is limited to the evidence presented at the suppression hearing. People v. South, 47 A.D.3d 734, 735, 849 N.Y.S.2d 603 (2008)(collecting cases).

Federal habeas review is precluded where the petitioner fails to properly raise objections or to appeal to the state courts, unless the petitioner “can demonstrate cause ’ for' the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Harris v. Reed, 489 U.S. 255, 258, 109 act. 1038, 103 L.Ed.2d 308 (1989). The Supreme Court has defined “cause” as a showing that “some c bjective factor external to the defense impeded counsel’s efforts to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L.Ed.2d 397 (1986)). The “fundamental miscarriage of justice” exception “is only available where the petitioner can supplement his constitutional violation with ‘a colorable showing of factual innocence’” in the form of newly adduced evidence of innocence. Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at *7 (S.D.N.Y. April 11, 1997) (quoting McCleskey, 499 U.S. at 494, 111 S.Ct. 1454); see also Schlup v. Delo, 513 U.S. 298, 332, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Madera does not raise, and the record does not reflect, any facts to demonstrate cause and prejudice or a fundamental miscarriage of justice. Accordingly, Madera’s unduly suggestive lineup claim is procedurally barred from habeas review.

b. Sandoval Claim

Madera argues that the trial court’s Sandoval ruling violated his Constitutional right to a fair trial. (Pet.) During the Sandoval hearing, the trial court ruled that the “jury has to know about” Madera’s criminal history of one felony and eighteen misdemeanor convictions. (Sandoval Tr. at 11-12.) The judge held that the jury should be permitted to “inquire about the fact [that] he has a felony conviction in 2000 for possession of a criminal weapon in the third degree, the possession of the handgun” and said he would “ask [the jury] to limit themselves to the fact there are eighteen misdemeanor convictions and the dates of the convictions without going into the fact they’re either trespass, theft of services, or mischief, but rather the dates of the eighteen misdemeanor convictions and the fact there aré eighteen misdemeanor convictions.” (Sandoval Tr. at 11-13.) The Petition states that “[t]he defense counsel argued for a reasonable compromise to avoid jury prejudice against the defendant as a ‘person likely to commit a crime.’” (Pet. at 5.)

The right to testify on one’s own behalf is a right founded in the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). A court need not reach the merits of a Sandoval claim, however, if the petitioner did not testify at trial. See Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (holding that “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify” because where he does not, the nature of his testimony is “unknowable,” any harm from the ruling is “wholly speculative,” the court “cannot assume that the adverse ruling motivated [the] defendant’s decision not to testify,” and the court has no way to conduct a harmless error analysis). Although Luce involved a direct appeal of a federal court’s interpretation of a federal rule of evidence, courts have consistently applied its reasoning to a federal habeas court’s review of state court rulings. See Mercado v. Phillips, No. 04-CIV-2204 (GBD) (MHD), 2011 WL 1157617, at *6 (S.D.N.Y. Feb. 22, 2011) (collecting cases); Butler v. Graham, No. 07-CIV-6586 (JSR) (MHD), 2008 WL 2388740, at *8 (S.D.N.Y. June 12, 2008) (“[E]ven though there is no unequivocal guidance on the application of Luce in habeas cases challenging a state-court conviction, we are of the opinion that the analysis in Luce should be deemed applicable to a habeas petitioner’s challenge '.. ”); Peterson v. LeFevre, 753 F.Supp. 518, 521 (S.D.N.Y. 1991), aff'd, 940 F.2d 649 (2d Cir. 1991).

The Court finds that the Luce rationale appropriately applies in this case and Ma-dera’s failure to testify at trial precludes his raising this issue on habeas review. Therefore, Madera’s Sandoval claim is not cognizable on federal habeas review, and should be DENIED.

B. Merits of Madera’s Claims

1. Standard of Review

Under the AEDPA, -a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was “adjudicated on the merits” in state court only if it concludes that the adjudication of the claim “(1) resulted, in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

An “adjudication on the merits” is a “substantive, rather than a procedural, resolution of a federal claim.” Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the “contrary to” clause, “a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495 (O’Connor, J., concurring and writing for the majority in this part). Under the “unreasonable application” clause, “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. “[Fjederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context.” Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003) (amended order) (district court’s habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of “the more general teachings” of Supreme Court decisions). Importantly, “[a]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410, 120 S.Ct. 1495 (emphasis in original). The “distinction creates a substantially higher threshold for obtaining relief.” Renico v. Lett, 559, U.S. 766, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (citation omitted). Determination, of factual issues made by a state court “shall be presumed to be correct,” and the applicant “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Because Madera appears pro se, the Court construes his- petitionliberally in order to raise the strongest arguments it presents. See, e.g., Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (“We construe complaints filed by pro se litigants -liberally and ‘interpret them to raise the strongest arguments that they suggest.’”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

2. Deference to State Court Factual Determinations

a. Legal Framework

A petitioner faces a daunting task in making a sufficiency of evidence claim under AEDPA. “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of “rebutting the presumption of correctness by clear and convincing evidence.” Id.; see also McKinney v. Artuz, 326 F.3d 87, 101 (2d Cir.2003) (citations omitted). This .presumption of correctness is particularly important when reviewing the trial court’s assessment of witness credibility. See Cotto v. Herbert, 331 F.3d 217, 233-34 (2d Cir.2003); see also Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040-41, 154 L.Ed.2d 931 (2003). It is the Court’s duty to defer to state court findings of fact, “so long as ‘fair minded jurists could disagree’ on the correctness of [the state court’s] decision.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Although AEDPA affords a great amount of deference to, credibility determinations by a state court, the Supreme Court has made it clear that “deference does not imply abandonment or abdication of judicial review.” Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. The, Court may grant relief to Ma-dera on the grounds of insufficient evidence where the state court decision' 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)(2). A decision which is “objectively unreasonable” in light - of .the evidence presented may be overturned. Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. This includes findings purported based on observations at trial:

A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by . clear and convincing' evidence.

Miller-El, 123 S.Ct. at 1041. In sum, “[d]eference does not by definition preclude relief.” Id. Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003).

Petitioner and Respondent agree that the determination of reasonableness centers on the testimony of one alleged eyewitness—Angela Krevey. Given that testimony, the case thus presents one question: Is the testimony of Krevey sufficient to support a verdict of guilty beyond a reasonable doubt? Mindful of the deference due state court determinations, and jury verdicts in particular, and considering the objective rationality of the evidence related to Krevey, the Court concludes that the answer is “No.”

b. Krevey did not qualify as an acquaintance witness,

Kreyey’s testimony was problematic from the beginning because neither the court nor the parties seems to agree whether this was an acquaintance or a stranger identification. While it is true that the case was ultimately argued as an acquaintance situation, some of the evidence emphasized suggested a classic stranger identification: emphasis on the lighting in' the restaurant; how close the witnesses were to the robbers; the opportunities of the witnesses to observe the robbers during the robbery; a photographic show-up; and a lineup. At other times, the prosecution sought to emphasize Madera’s alleged múltiple encounters with Krevey. The prosecution has a significant dilemma: if this case is evaluated as a stranger identification, Krevey’s descriptions of the perpetrators and the conduct of the lineup assume major roles in the sufficiency of the evidence claim.

The New York Court of Appeals- long ago recognized that identification procedures can lead misidentification:

In criminal investigations, the police employ a variety of identification procedures—including lineups, one-on-one showups, photo arrays, and (as in this case) single-photo displays. While such techniques help- assure that the right person has been or will be arrested, if tainted by suggestion they can lead to irreparable misidentification. “The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined. (Wall, Eye-Witness Identification in Criminal Cases, at 26; see also, United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926.)

People v. Rodriguez, 79 N.Y.2d 445, 448-49, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992). Seeking to avoid these miscarriages of justice, the legislature enacted CPL article 710. Id. at 449, 583 N.Y.S.2d 814, 593 N.E.2d 268. This section requires the prosecution to notify the defendant if it intends to offer identification evidence at trial so that the defendant may make a motion to suppress the identification as unreliable. Id. The court noted one narrow exception allowed by the rule: “In cases in which the defendant’s identity is not in issue, or those in which the protagonists are known to one another, ‘suggestiveness’ is not a concern and, hence, [CPL 710.30] does not come into play.” Id. (emphasis supplied). The issue is the degree and quality of the prior contact:

-When a crime has been committed by a family member, former friend or longtime acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person. ... But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the "witness in making an identification.

Id. at 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 (emphasis supplied). There are some cases in which the witness is so familiar with the suspect that identification is not a real issue and there are other cases in which the taint of improper identification techniques makes it' moré likely that there will be a false selection. An exception to the notice requirement is appropriate when the individual to be identified is well known to the witness:

The exception may be confidently applied where the protagonists are family members, friends or acquaintances or have lived together for a time. At the ■other extreme, it clearly does not apply where the familiarity emanates from a brief encounter.

Id. (Internal citations omitted). Of note, the' witness in Rodriguez claimed to have seen the defendant “[a]t least four dozen times,” yet the court found that a Wade identity hearing was required. The court held that “[t]o summarily deny a Wade hearing, the trial "court had to conclude that, as a matter of law, [the witness] knew defendant so well that no amount of police suggestiveness could possibly taint the identification.”' Id. at 453, 583 N.Y.S.2d 814, 593 N.E.2d 268. Given this standard, Krevey did not qualify as an acquaintance witness, and the trial court appropriately held a Wade'hearing in this case.

The prosecution nonetheless sought to build a record that Krevey knew Madera “so well” that any problems with the identification were insignificant. The problem is that the more the prosecution emphasized the alleged encounters with Madera prior to the robbery, the harder it is to. find credible Krevey’s failure to notice distinctive characteristics about Madera.

c. Krevey’s alleged encounters with Madera prior to the robbery do not credibly show that she was acquainted with him for identification purposes.

Three individuals were victims of the January 21, 2010 robbery. Two of those individuals, Krevey and Chmiel, testified that they had interacted with Madera before the date of the robbery. Between January 2009 and January 2010, Krevey claimed to have seen Madera “quite frequently.” (Tr. at 162, 201.) Since 2008, Chmiel said that he often noticed Madera in the area and had assumed he was homeless. (Tr. at 323.) Chmiel and Madera had brief face-to-face conversations “maybe a half dozen times” as close as “five to ten feet” apart, and Madera sometimes came to the counter at the restaurant. (Id. at 307, 324.)

Krevey testified at length during the trial about multiple. times she had seen Madera prior to the robbery. Out of numerous homeless individuals who lived in the vicinity of her office trailer, Krevey asserted that she saw Madera the most often—“a couple of times a week on bicycle or by foot” for at least one year before the incident. (Tr. at 162, 163, 176.) On at least one occasion, Krevey was only “two feet” away from Madera, (Id. at 202), and had a lengthy conversation with him about the cafe bathroom. (Id. at 163-64.) During this interaction she saw Madera’s face clearly and recognized him as someone she had seen before. (Id. at 164.) Krevey testified, in fact, that on the morning of the robbery she had seen Madera behind her car and waved him to the side. (Id. at 178.) When asked at trial if she had opportunities to observe Madera, Krevey repeatedly affirmed that she had observed his height, his clothes, his general build, his age, and his appearance. (Id. at 201-69.) She testified that she saw Madera so often that he “stood out” to her among the homeless individuals who frequented the area. (Id. at 162.) This testimony was not credible,

d. Krevey’s description of the lookout was so far removed from Madera’s actual appearance as to be not credible

Madera is a Latino male. He is approximately 6 feet, three inches tall. At the time of the robbery, he weighed about 170-175 pounds. He had a beard and a moustache, a small teardrop tattoo on his face, and long braids, which he wore sometime in a ponytail and sometimes down. He spoke with a noticeable Hispanic accent. Except for describing the perpetrator as tall and slender, Krevey’s portrait of the lookout bear no credible resemblance to Madera. Not only did her description seem vague to the investigating detective, but Krevey said the lookout was a light-skinned black male. Id. at 367. She described no facial hair (Id. at 374) and noted nothing distinctive about his hairstyle. Id. at 376. At trial, Krevey testified that the lookout was a dark-skinned Hispanic male with long braids. He was wearing a gray hooded sweatshirt.

e. The State Court’s factual determinations were unreasonable

A federal court may disagree with a state court’s credibility determination, and conclude the decision was unreasonable, or that the factual premise was incorrect by clear and convincing evidence, so long as the court is guided by the standards set forth by AEDPA. Miller-El, 123 S.Ct. at 1041. However, the extent to which AEDPA standards have been met in determining whether a factual determination was “unreasonable” is a question that remains to be answered. The Supreme Court granted certiorari in Wood v. Allen to review the question of whether a petition must establish that the state-court factual determination was “unreasonable” under 28 U.S.C. § 2254(d)(2), or whether the petitioner must additionally rebut a presumption that the determination was correct with clear and convincing evidence under 28 U.S.C. § 2254(e)(1). Wood v. Allen, 558 U.S. 290, 299, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). However, the Court did not determine whether the “arguably more deferential standard” of § 2254(e)(1) should apply. Id. at 301, 130 S.Ct. 841. The relationship between the two provisions remains uncertain. See Burt v. Titlow, 571 U.S. 12, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (“we have not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), and we need not do so here”). In providing guidance as to whether a determination is “unreasonable”, the Supreme Court has reiterated that “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood, 558 U.S. at 301, 130 S.Ct. 841 (citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). If this were the standard, it would have been met here. In seeking to frame the issue more broadly,’ however, the Court has examined the reasonableness of the determination from different perspectives.

For this case, the reasonableness of the state court determinations boils down to one question: Was it reasonable to credit Krevey’s identification of Madera as the lookout? To begin to answer this ultimate question, the Court has endeavored to pose a series of intermediate questions in the form “Was it reasonable to believe ...?

The Court’s analysis actually begins with two topics which were largely ignored by the focus on the lineup: Clothing worn by the robbers and voice identification. It is axiomatic that evidence consists not only of facts that are shown but also by the absence of facts that are expected.

Was it reasonable to believe that at the time of the robbery that Madera was dressed as the victims agree the robbers were dressed?

All the evidence was consistent with the fact that Madera was homeless. Krevey testified that Madera tended to wear “[s]habby, unwashed” clothing. {Id. at 205-OS). Chmiel, who encountered Madera only minutes before the robbery testified that he was wearing “decrepit” kind of clothing. (Tr. at 269.) This was also consistent with Madera’s appearance when arrested—multiple layers of clothing, bright top. {Id. at 349.) On the other hand, Krevey described the robbers as two light-skinned male blacks wearing “gray hooded sweatshirts.”(M at 210.) Chmiel identified Ma-dera as rummaging through garbage and dressed in decrepit clothing when he arrived at the restaurant ahead of Krevey. Krevey testified that the robbery occurred “five to ten minutes” after she arrived. If Madera was the lookout as Krevey claims, he-either should have been wearing the same clothes when he participated in the robbery or he had to have changed clothes in the short interval between encountering Krevey and the actual robbery. Neither scenario seems reasonable. If he was wearing the same clothes, is it reasonable to believe that not one of the victims noticed? If Madera was the lookout, and he wasn’t wearing the same clothes, then he must have changed in the minutes before the robbery. Krevey testified that when she walked past Madera, they made “eye contact.” Tr. at 179. Is it reasonable to believe that he participated in a robbery five or ten minutes later and didn’t cover his face? Does it make sense that a would-be robber plans a change of clothes but fails to cover his face? And where could this change have taken place?

Was it reasonable to believe that no one indicated that the lookout had a Hispanic accent?

The prosecution-spent, considerable time, trying to explain the discrepancies in Kre-vey’s [physical description of Madera, but ■completely avoided the fact that his voice would have given him away. Chmiel and Mahoney’s trial testimony do not corroborate Krevey’s identification of Madera as the lookout.- Although Chmiel and Maho-ney testified that they did not have an opportunity to see the lookout’s face, the witnesses were able to hear the lookout’s voice when he yelled for his accomplice to leave. (Tr. at 275, 315.) During trial, Chmiel testified that he assumed Madera was “Hispanic,” because of his “Hispanic accent.” (Id. at 306.) Indeed, Madera is a Latino male. (Doc. No. 14-6 at 397-98) However, no witness reported to the police or testified at trial that the lookout had an accent.

Was it reasonable to believe that Ma-dera participated in a robbery with his face uncovered and just kept hanging around the restaurant?

Madera’s own behavior in the days following the robbery does not corroborate the allegations against him. Madera was arrested for an open container violation outside of the cafe a few days after the robbery occurred. (Tr. at 139-41.) When he was arrested, Madera gave his belongings to one of .Krevey’s co-workers. (Id. at 394, 397.) That property included “two cell phones,” neither of which belonged to any of the victims of this case, and “no money.” (Id.) Krevey’s husband later gave Ma-dera’s property to the police. (Id. at 235.) It is unlikely that a’ participant in an armed robbery would subsequently spend time in the area the robbery occurred. It is. especially unlikely where, as here, the victims had . numerous face-to-face interactions -with the perpetrator and would recognize him. It is also unlikely that a participant in an armed robbery would turn over his belongings to a coworker of the people he robbed. It is especially unlikely that this person would not have the fruits of his crime on his person when arrested if he was homeless, as Madera was.

TVas it reasonable that Krevey didn’t mention that the lookout was a homeless man who frequented the area?

At trial, counsel brought up Krevey’s failure to give this fact during the 911 call. But forget about the 911 call. Maybe Kre-vey had other things on her mind. Maybe she just wanted to get the police there as quickly as possible. Sure, there are people who would have blurted out something akin to, “We just got robbed by this homeless guy from the area.” Let’s give Krevey the benefit of the doubt that she is not that kind of victim. Let’s even put aside the police reports for now. Although Detective Galan seemed thorough-and Krevey charitably can be described as uncertain, Kre-vey denied or didn’t remember some of the information testified to by Detective Galan. Give Krevey a pass on all this, and there is still .one nagging question remaining: Is it reasonable to believe that Krevey would not have mentioned this important fact to her coworkers? The prosecution went to great lengths to convey the idea that Ma-dera was a known individual around the restaurant. Krevey testified that he was frequently around. Chmiel testified that he was frequently around. Krevey even testified about the notorious encounter where Madera allegedly wanted to use the bathroom. And yet, there is no testimony from anyone, nothing in the record even suggesting that there were conversations between the victims about this lookout who frequented the area of the restaurant. This is not just unreasonable, it’ is incredible. It is not difficult to predict how the robbery investigation would have taken a more focused approach. Each of the victims would