MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Petitioner Elder Butts seeks habeas relief from a judgment of conviction entered in the Supreme Court of the State of New York, Kings County, convicting him of murder in the second degree and attempted murder in the second degree. For the reasons set forth below, the petition is denied.

BACKGROUND

Williams reported this threat to her friends. When Butts returned to her apartment on March 31, 1997, to demand the money, Williams's friends began shooting at Butts, who received three bullet wounds and was taken to Bellevue Hospital. Williams was arrested based on Butts's initial statements to the police. However, Butts refused to view a lineup or cooperate with the prosecution of Williams, so she was released. Williams and her 16-year-old daughter Bethany went to stay at a relative's home.

On the afternoon of April 30, 1997, after Bethany came home from school, she and her mother went to a grocery store at 472 Park Avenue in Brooklyn to buy ice cream. Butts walked into the entrance of the store and shot Bethany, killing her. Williams turned and looked at Butts, who thereupon shot Williams in the hand and eye. Williams survived and testified against Butts at trial, as did Gary Anderson, another eyewitness who observed Butts enter the store and shoot the victims.

Butts was charged with two counts of murder in the second degree, attempted murder in the first degree, attempted murder in the second degree, two counts of assault in the first degree, and criminal possession of a weapon in the second and third degrees. After a jury trial, he was convicted of murder in the second degree and attempted murder in the second degree. He was sentenced to consecutive prison terms of 25 years to life on the murder count and 12 years on the attempted murder count.

Butts appealed to the New York Supreme Court, Appellate Division, Second Department, He challenged his conviction on the grounds that (1) the photo array shown to Anderson, the eyewitness, was unduly suggestive; and (2) he was deprived of a fair trial by prosecutorial misconduct in both the opening statement and summation. On January 22, 2001, the Appellate Division affirmed the judgment of conviction. People v. Butts, 719 N.Y.S.2d 680 (2d Dep't 2001). In rejecting the challenge to the photo array, the court stated that "[c]ontrary to the defendant's contention, there is no indication that his photograph differed significantly from the photographs of the fillers." Id. at 681. The court further held that the passage of six weeks between the display of the photo array to the witness and his identification of the defendant at a lineup "attenuated any possible taint of suggestiveness," Id. As for the claim of prosecutorial misconduct, the Appellate Division found that it had not been preserved for appellate review, as defense counsel neither objected to the comments nor asked for a curative instruction or mistrial. Id.

Butts sought leave to appeal from the Appellate Division's decision to the Court of Appeals. In his leave application. Butts sought review of the same claims that he raised before the Appellate Division. On April 4, 2001, leave to appeal was denied. People v. Butts, 96 N.Y.2d 798 (2001) (Rosenblatt, J.).

Butts filed the instant petition on August 14, 2001, raising the same claims that he presented on his direct appeal in the state courts. In papers dated September 13, 2001, Butts applied for leave to amend his petition to add a claim of ineffective assistance of trial counsel, based on counsel's failure to preserve the claim of prosecutorial misconduct. He also sought leave to add a claim of ineffective assistance of appellate counsel, based on appellate counsel's failure to challenge the effectiveness of trial counsel on direct appeal in the state court.

On September 26, 2001, Butts's request for leave to amend was denied as unnecessary, as respondent had not yet filed his opposition to the petition. Butts was therefore permitted to advance the two new claims. In a letter dated November 7, 2001, Butts sought a stay of the petition to enable him to return to state court to exhaust his claims of ineffective assistance of counsel. In an order dated November 29, 2001, the request was granted. In order to avoid an excessive delay, Butts was directed to file his petition for a writ of error coram nobis — the state court vehicle for asserting a claim of ineffective assistance of appellate counsel — within 30 days of the order.

Butts pursued such a claim in the Appellate Division, which, in an order dated June 3, 2002, denied the petition; holding that Butts had "failed to establish that he was denied effective assistance of appellate counsel" People v. Butts, 744 N.Y.S.2d 340, 341 (2d Dep't 2002), As required by the order staying the petition. Butts wrote on October 21, 2002, to inform the Court of the completion of the state court proceedings and to request that his petition be reopened. He further provided to the Court his "traverse" in response to the papers submitted in opposition to his petition.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000): see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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) has on a set of materially indistinguishable facts."Williams, 529 U.S, at 413, A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 72 U.S.L.W. 3278, at *7 (U.S. Oct. 20, 2003) (No. 02-1597) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same), Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S, C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting die presumption of correctness by cleat and convincing evidence." 28 U.S.C. § 2254(e)(1).

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . 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."

B. Butts's Claims

1. The Photo Array

Butts claims that the photo array shown to Anderson, the witness who observed the shootings from just outside the store, was unnecessarily suggestive, and therefore violated Butts's due process rights.

When a witness has made a pretrial identification, a challenge to that identification and to an in-court identification of the defendant at trial triggers "a one-step or two-step inquiry," United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990). The first step is to determine whether the pretrial identification procedures were unnecessarily suggestive. Id. If they were not, the challenge is denied, and the reliability of the identification is a question only for the jury. See Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986). If the procedures were unnecessarily suggestive, the second step is to determine whether the identification testimony is nevertheless admissible because it is "independently reliable rather than the product of the earlier suggestive procedures."Maldonado-Rivera, 922 F.2d at 973.

Although lineups are universally regarded as the least questionable of the various identification procedures, they are by no means free from the risk of suggestiveness. For example, a lineup that unnecessarily contrasts the height of the suspect with that of the other participants can be suggestive. See, e.g., Foster v. California, 394 U.S. 440, 441-44 (1969) (defendant placed with two other men who were six inches shorter). When the appearance of participants in a lineup varies, the Second Circuit has held that "the `principal question' in determining suggestiveness is whether the appearance `of the accused, matching descriptions given by the witness,'" so stood out from die other participants as to suggest to the witness that the suspect was the culprit. United States v. Wong, 40 F.3d 1347, 1359-60 (2d Cir. 1994) (quoting Jarrett, 802 F.2d at 41). The focus of the inquiry is not whether the suspect has a distinctive feature not shared by the other participants, but whether that feature matches the description provided by the witness. Compare Solomon v. Smith, 645 F.2d 1179, 1182-84 (2d Cir. 1981) (lineup suggestive where suspect is only person meeting height and weight descriptions provided by witness), and United States ex ret. Cannon v. Montanye, 486 F.2d 263, 266-67 (2d Cir. 1973) (lineup suggestive where defendant directed to wear green sweater and witness had stated suspect wore green shirt), with United States v. Jacobetz, 955 F.2d 786, 803 (2d Cir. 1992) (lineup not suggestive despite fact that suspect bad smallest mustache where witness had described suspect as having no facial hair at all).

"The fairness of a photographic array depends on a number of factors, including the size of the array, the manner of presentation by the officers, and the array's contents," Maldonado-Rivera, 922 F.2d at 974. The defendant's photograph should not be the only one in the array that matches the witness's description of the suspect. Id. "One would think that if a suspect is described only in terms of one characteristic, the filler photos in an array would also portray people having that characteristic." United States v. Eltayib, SS F.3d 157, 166 (2d Cir. 1996) (witness described suspect as having full head of bushy hair; all photos but that of suspect had hair cropped out); see also United States v. Fernandez, 456 F.2d 638, 641-42 (2d Cir. 1972) (array impermissibly suggestive where surveillance photos depicted light-skinned male with "Afro" and defendant's photo was only one of six in array that "remotely resembl[ed]" that description). But see United States v. Mickens, 926 F.2d 1323, 1329 (2d Cir. 1991) (fact that defendant's picture was the only photocopy in the array is "insignificant").

Anderson, who was just outside the store at the time of the shootings, told the police that the shooter was "a heavy set male black wearing a hoody." (Wade Hearing Tr. at 72.) Butts complains that he was the heaviest of the six people depicted in the photo array shown to Anderson, and that he was one of only three people in the array wearing a hooded sweatshirt.

The hearing court rejected the claim that the array was unduly suggestive, stating as follows:

Although, as the defense has pointed out, the defendant was the heaviest person in the photo array. Number 2 in the array, also, was heavy. And the weight of the suspect, while included in the description provided by Anderson, did not figure prominently in the description. In addition, the detective's instruction to Anderson before he saw the array were [sic] very fair and countered any suggestion that the shooter was in the array.

Moreover, it was the eyes of the man in position one in the array that prompted Anderson to tentatively pick that photograph. Person's Number 3 and 6 had similar eyes.

(Id. at 144.)

In addition, the hearing court found that any suggestiveness in the photo array was rendered harmless by the fact that Anderson picked Butts out of lineup six weeks later:

Moreover, it's noteworthy that-that six weeks later at the lineup, there were three heavy men in the lineup; namely, the defendant and two others who were fillers Number 2 and 6. And Anderson positively identified the defendant. The Court, therefore, finds not only that the photo array procedure with Anderson was not unduly suggestive, but finds further that any alleged deficiency in the photo array had no affect [sic] in the lineup identification and did not taint the lineup identification,

(Id. at 144-45.) The Appellate Division affirmed both of the hearing court's conclusions when it upheld the convictions.Butts, 719 N.Y.$.2d at 681.

I have reviewed both the transcript of the Wade hearing and the photo array itself, and I agree with the conclusions of the hearing court and the Appellate Division. Although it is true that Butts appears to be the heaviest person in the array, he does not appear far heavier than all of the others, as Butts contended in the Appellate Division. In addition, the state courts appropriately based their decision in part on the fact that Anderson's Identification of Bulls was based principally not on his size, but on the appearance of his eyes, and the array was not suggestive with regard to that physical characteristic. In these circumstances, it cannot reasonably be said that the state court's rejection of Butts's due process claim was an unreasonable application of the clearly established federal law governing identification procedures.

2. Prosecutorial Misconduct

Butts claims that he was deprived of his due process right to a fair trial by the prosecutor's remarks in her opening and closing statements, Specifically, Butts objects to the prosecutor's statement at the outset of the trial that Butts had followed Williams and `her sixteen year old daughter" into a grocery store; that he had "held the gun inches away" from the head of the 16-year-old girl and pulled the trigger; that the bullet went in one side of the girl's head and came out the other; and that "sixteen year old Bethany Williams, sophomore in high school, died on the floor of the grocery store. (Trial Tr. at 140-41.) The prosecutor made similar graphic statements in summation based on the People's claim that Butts had murdered a 16-year-old girl by shooting her in the head at point-blank range, (See id. at 799.)

Habeas relief based on a claim of prosecutorial misconduct during summation is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process," Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), A petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict."Bentley v. Scully, 41 F.3d 818, $24 (2d Cir. 1994). In making this determination, the habeas court should consider the severity of the prosecutor's conduct; the measures, if any, that the trial court took to remedy any prejudice; and the certainty of conviction absent the prosecutor's remarks. See id.

The state court rejected this claim on procedural grounds. Specifically, the Appellate Division declined to reach the issue because trial counsel had failed to object, ask for a curative instruction, or move for a mistrial based on the allegedly offending statements by the prosecutor. Butts, 719 N.Y.S.2d at 681. Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground"Harris v. Reed, 489 U.S. 255, 261 (1992); Levinc v. Comm'r of Corr. Servs" 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Colernan v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors"). see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").

A defaulted claim will be considered by the habeas court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750;Teague v. Lane, 489 U.S. 288, 298 (1992). A petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel . . . or that some interference by officials . . . made compliance impracticable'"Colernan, 501 U.S. at 753 (ellipses in original) (internal quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (internal quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).

Butts cites as cause for the default the ineffective assistance of his trial counsel. Although I address this claim more fully below, as it is raised as a separate basis for habeas relief, I reject Butts's claim that he has shown cause for the procedural default. The prosecutor's brief opening statement (which spans only seven pages of the trial transcript (Trial Tr. at 140-46)) was wholly unobjectionable. The prejudice of which Butts complains does not arise from any inappropriate comments made by the prosecutor, but from the horrifying facts of the case, The theme of the opening statement was not an appeal to sympathy. Rather, the prosecutor began by asserting that "[t]his case is about revenge, pure and simple," (Id. at 140.) She outlined the proof of the motive, i.e., that Williams had stolen money from Butts, and in a straightforward way outlined the facts that were later proved at trial. In my view, defense counsel's failure to object during the opening statement reflects only an accurate sense that there was nothing objectionable in it.

Similarly, Butts's objections to the comments in summation are unavailing, For example, he complains that the prosecutor stated: "What right did he have? What possible reason could he have had for shooting Bethany Williams in the head and murdering her?" (Id. at 800.) But that rhetorical question was quickly following by an assertion by the prosecutor that Butts had a reason: to retaliate against Williams and her family because she had stolen from him in his drug business. See id. Indeed, when the prosecutor began to assert that Butts was sending a message to the entire neighborhood, defense counsel objected, and the trial court sustained the objection.

In short, there was nothing ineffective in trial counsel's failure to object to the portions of the prosecutor's remarks to the jury that Butts now claims were objectionable. Thus, ineffective assistance of counsel was not cause for the default.

Obviously, for the same reasons that I find Butts's claims to be procedurally defaulted, I find them lacking in merit. I see no misconduct in the challenged statements of the prosecutor. At the very least, those statements cannot rise to the level of misconduct that would warrant habeas relief.

3. Ineffective Assistance of Counsel

Butts claims that his trial counsel was ineffective in failing to object to the prosecutor's opening statement and summation. He further claims that counsel's failure to request curative instructions (or a mistrial) as a remedy for the improper remarks made by the prosecutor constituted ineffective assistance of counsel.

The Supreme Court has established the following standard for ineffective assistance claims:

First, the defendant must show that counsel's performance was deficient, This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

Butts fails to satisfy either of the two Strickland prongs. As stated in the preceding section, I do not find the prosecutor's comments either in the opening statement or in the summation to be objectionable. Accordingly, trial counsel's failure to object does not constitute conduct falling below the objective standard of reasonableness set by Strickland, In any event, had counsel objected, the outcome of the proceeding would not have been different. Even if the trial court had sustained the objection, the comment plainly would not have warranted a mistrial. Also, given the overwhelming evidence that Butts was the shooter, it is inconceivable that the jury's verdicts would have been different if trial counsel had objected to the challenged portions of the prosecutor's statements.

Similarly, Butts's claim of ineffective assistance of appellate counsel has no merit. Although the Supreme Court formulated theStrickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533; see also Evitts v. Lucey. 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533. A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").

Here, Butts's appellate counsel pursued two arguments on appeal: the identification procedure claim and the claim of prosecutorial misconduct. I agree with the Appellate Division that the failure to contend that trial counsel was ineffective did not deprive Butts of effective counsel on appeal. See Butts, 744 N.Y.S.2d at 341.

CONCLUSION

For the foregoing reasons, the petition is denied. Because Butt has failed to make a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue.

So Ordered.