Favourite v. Colvin

Background

Rivin Favourite, representing himself, filed a petition under 28 U.S.C. § 2254 asking the federal court to overturn his New York convictions. A New York jury had found him guilty of first-degree robbery and second-degree assault based on a 2007 pharmacy robbery, and he had received a 23-year prison sentence. The court’s opinion states that Favourite and another person entered the pharmacy, that the other person pointed a gun at an employee, and that Favourite controlled two other employees and searched for money.

An employee, Sylvia Cortade, identified Favourite outside the pharmacy shortly after police arrived. She did not testify at trial, but the trial court admitted her out-of-court identification after holding a hearing on whether the identification procedure was improperly suggestive. Police officers also testified about what they observed and about the identification. New York’s appellate courts affirmed the conviction and sentence.

An earlier federal ruling had rejected Favourite’s petition as filed too late. The Court of Appeals later vacated that ruling, concluding that extraordinary circumstances and Favourite’s diligence justified extending the filing deadline. The case was returned to the district court, reassigned after Judge Katherine B. Forrest’s retirement, and referred to Magistrate Judge Ona T. Wang. Judge Wang recommended denying the petition, and Favourite objected.

Court’s Analysis

The district court reviewed the state-court decisions under the Antiterrorism and Effective Death Penalty Act. Under that law, federal habeas relief generally is available only when the state court’s decision conflicts with clearly established United States Supreme Court law, unreasonably applies that law, or rests on an unreasonable factual determination.

Sufficiency of the Evidence

Favourite argued that the evidence did not establish that he knowingly participated in the robbery. The court applied the rule that the evidence must be viewed in the light most favorable to the prosecution and that relief is available only if no reasonable jury could have found guilt beyond a reasonable doubt. The court noted that the prosecution presented testimony from police officers and three of the four victims, and that the jury considered the evidence during deliberations. Because the record did not show the required serious evidentiary deficiency, the court rejected this claim.

Missing-Witness Instruction and Counsel’s Performance

Favourite argued that his trial lawyer was ineffective for failing to request a missing-witness instruction concerning Cortade’s absence from trial. Because Favourite’s objection repeated his earlier arguments rather than specifically challenging Judge Wang’s analysis, the district court reviewed this issue for clear error rather than reconsidering it from the beginning.

The court found no clear error in Judge Wang’s conclusion that Cortade’s testimony would have been cumulative and that a missing-witness instruction would not have succeeded under New York law. It therefore concluded that counsel’s decision fell within the range of reasonable professional assistance and that Favourite had not shown that the result would probably have been different. The court adopted the recommendation that this claim be dismissed.

Identification Evidence

Favourite argued that Cortade’s out-of-court identification was improperly suggestive because the police had not first received a sufficiently specific description of him. The court again found that he had largely repeated arguments already made in the petition and therefore reviewed Judge Wang’s analysis for clear error.

The court found no clear error in the conclusion that the identification was permissible and independently reliable. It relied on the close timing and location of the identification, Detective Izizarry’s observation of Favourite at the pharmacy, and the analysis of the identification under the factors established by the Supreme Court. The court adopted the recommendation that this claim be dismissed.

Disposition

The court adopted the Report and Recommendation in its entirety and denied Favourite’s habeas petition. It also stated that Favourite had not made a substantial showing that a constitutional right was denied, so it would not issue a certificate of appealability. The court certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. It directed the clerk to lift the stay, close the case, and mail a copy of the order to Favourite.