MEMORANDUM-DECISION AND ORDER

NEAL McCURN, Senior District Judge

Background

I. State Court Proceedings

According to the testimony adduced at trial, during the early morning hours of August 20, 1995, as Aneesha Brace, Demere Hannah and Lee Johnson were leaving the parking lot of an Albany, New York nightclub, a fight broke out between Johnson and one of Hannah's friends.See Transcript of Trial of Jason Graham (1/27/97) ("Trial Tr.") at 314-17. During the course of that fight, Hannah pulled a handgun out of his coat pocket. Trial Tr. at 317. He then fired a shot, causing Johnson to flee the scene. Trial Tr. at 317-18. Later that day, petitioner Jason Graham approached Karim Maye and asked him if he could provide Graham with a gun. Trial Tr. at 329-30. During that conversation, Graham indicated that he needed the gun because someone had shot at his cousin, Johnson. Trial Tr. at 330. Karim Maye indicated that he could not provide Graham with a gun, Trial Tr. at 330, and was informed by Graham later that day that he "had got [ten] what he needed," Trial Tr. at 330-31, and that he intended to "deal with" Hannah. Trial Tr. at 331.

In the afternoon of August 22, 1995, Aleek Young observed Graham in front of a convenience store on Livingston Avenue in Albany, New York. Trial Tr. at 390-91. After Young overheard some individuals stating that Johnson was a "pussy" who was not "going to do anything," Trial Tr. at 393, Graham indicated that he would "take care of what he got to do" and that he was not concerned about African-Americans from the New York City area. Trial Tr. at 392-93. Graham then lifted up his shirt, revealing the presence of a handgun. Trial Tr. at 393-94.

Between 4:00 p.m. and 4:30 p.m. on August 22, 1995, Charles Teator, a taxicab driver, drove his cab around a Honda automobile ("Honda"). Trial Tr. at 164-67. Soon after passing that car, Teator heard gunshots and observed, through his rear view mirror, shots being fired from the passenger side of the Honda. Trial Tr. at 167-69. Although Teator could not identify the man who had shot the victim, both Wayne Blanchard and Young testified that Graham was the individual whom they observed shoot the victim, Hannah, on August 22, 1995. Trial Tr. at 241-42; 396-97. After Hannah fell to the ground, Johnson backed the car up, and Graham fired several more shots at Hannah. Trial Tr. at 242-43.

Frank Dixon was also near the scene of the crime in the late afternoon of August 22, 1995. Trial Tr. at 185-88. He testified that after hearing gunshots, he observed a "brown . . . light tannish color," Honda being driven toward him in an erratic manner. Trial Tr. at 186-90. Dixon noticed that the driver of the car was a young black male with short hair and a moustache, Trial Tr. at 189, a description which closely matched the physical appearance of Johnson at that time. Trial Tr. at 206-07, 473.

At approximately 5:45 p.m. that same day, Graham, Jerome Walker and Lynwood Maye went to a neighborhood softball field. Trial Tr. at 269-70. Walker testified that at that time, Lynwood Maye stated that he had been informed by Graham that he had killed Hannah. Trial Tr. 270-71. Walker further testified that Graham thereafter admitted his complicity in the crime to Walker. Trial Tr. at 272-74.

Teator, the cab driver, had written down the license plate of the vehicle from which he observed the shots being fired and gave that information to the authorities. Trial Tr. at 172-75. A subsequent investigation revealed that the Honda was registered to Desiree Graham, Trial Tr. at 200, who, when questioned about the car, indicated that her son, Lee Johnson, typically drove the automobile. Trial Tr. at 201. Detective Charles Mulrooney of the Albany Police Department thereafter began searching for Johnson. Trial Tr. at 202. Detective Mulrooney eventually located Johnson, who, when questioned by Detective Mulrooney, was able to inform the authorities where the Honda had been parked. Trial Tr. at 204. He also stated that he owned that automobile, and removed the keys to that car from his pocket and gave them to Detective Mulrooney. Trial Tr. at 203-04.

On April 23, 1996, an Albany County grand jury returned a two count indictment against Graham, charging him with both the intentional and depraved indifference murder of Hannah. See Appendix in Support of Appeal ("App.") at A1-2. Graham was tried before a jury as to these charges in a trial which commenced on January 27, 1997, with Albany County Court Judge Thomas A. Breslin presiding. At the conclusion of that trial, the jury found Graham guilty of intentionally murdering Hannah. Trial Tr. at 530-32. On March 13, 1997, Judge Breslin sentenced Graham principally to a term of twenty-five years to life imprisonment.See Sentencing Transcript (3/13/97) ("Sentencing Tr.") at 8.

Prior to perfecting his appeal of his conviction and sentence to the New York State Supreme Court Appellate Division, Third Department, Graham filed a motion to vacate his judgment of conviction pursuant to New York's Criminal Procedure Law ("CPL"), Section 440.10 ("CPL § 440 Motion"). In that application, Graham claimed through counsel that: i) the prosecutor violated Graham's right to due process and a fair trial by withholding Brady material; ii) Graham received ineffective assistance of trial counsel and iii) the combination of theBrady violations and the ineffectiveness of Graham's counsel deprived Graham of his right to a fair trial. See Memorandum of Law in Support of CPL § 440 Motion (5/15/99) at 14-15. The District Attorney opposed that application, and by Decision and Order dated March 31, 2000, Judge Breslin denied Graham's CPL § 440 Motion in its entirety. See App. at pp. A302-10 ("March, 2000 Decision").

Graham thereafter perfected his direct appeal and, by permission of the Appellate Division, also appealed the denial of his CPL § 440 Motion to the Third Department. In that appeal, Graham argued that: i) Blanchard's in-court identification of Graham was improper in light of the unconstitutionally suggestive procedures utilized by the authorities in obtaining Blanchard's pre-trial identification of Graham; ii) the prosecution wrongfully withheld Brady material from the defense; iii) Graham was denied the effective assistance of counsel because his trial attorney labored under a conflict of interest; and iv) the combination of the foregoing deprived Graham of his right to a fair trial. See Appellate Brief (8/30/00) ("App. Br."). The District Attorney filed a brief in opposition to the combined appeal, and, in its decision entered on May 31, 2001, the Third Department affirmed Graham's conviction and sentence in all respects. People v. Graham, 283 A.D.2d 885 (3rd Dept. 2001). New York's Court of Appeals thereafter denied Graham's application for leave to appeal. People v. Graham, 96 N.Y.2d 940 (2001).

II. Proceedings in this Action

Graham, through counsel, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this District on March 1, 2002, Dkt. No. 1, together with a supporting memorandum of law, see Dkt. No. 7 ("Supporting Mem."). United States Magistrate Judge Gustave J. DiBianco promptly directed the respondent to file a response to the petition. Dkt. No. 2. The Office of the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, thereafter filed an answer and memorandum of law requesting dismissal of the petition. See Dkt. Nos. 10-11. Graham's counsel then filed a reply memorandum in further support of the petition. Dkt. No. 13.

Discussion

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a claim:

that was adjudicated on the merits in State court proceedings unless 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 a unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Additionally, the AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a state court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1): see also Bovette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).

B. Substance of Graham's Petition 1. Brady Claims

In his first ground for relief, Graham claims that his Brady rights were violated by the prosecution. Specifically, he claims that the prosecutor wrongfully failed to disclose to the defense a statement made by Lynwood Maye to a police detective in which Lynwood Maye had indicated that Walker's statement that, while at the softball field, Graham admitted to having shot Hannah, was a lie. See Petition at Ground One; Supporting Mem. at 9-10. In his third ground, Graham argues,inter alia, that the prosecution violated his Brady rights when it failed to timely provide the defense with the "rap sheet" of Blanchard. See Petition at Ground Three.

Respondent claims that Lynwood Maye never made the statement characterizing Walker's statement as a lie and that, in any event, noBrady violation occurred. Dkt. No. 11 at 12-16. Respondent further claims that petitioner's argument that he is entitled to habeas relief due to the prosecution's failure to timely disclose the "rap sheet" of Blanchard is without substance. Id. at 23-24.

i. Clearly Established Supreme Court Precedent

In Brady, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."Id., 373 U.S. at 87. To prove a Brady violation, a habeas petitioner must establish that: a) the evidence at issue was favorable to the accused either because it was exculpatory or could have impeached a prosecution witness; b) the evidence was suppressed by the prosecution either willfully or inadvertently; and c) prejudice ensued from the withholding. Moore v. Illinois, 408 U.S. 786, 795 (1972) (citing Brady): see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent

In denying the aspect of Graham's CPL § 440 Motion relating to Lynwood Maye's statement, Judge Breslin noted that the only evidence which supported this aspect of Graham's application was a document signed by Lynwood Maye "two years after the trial" before a "witness" who did not indicate that she was "authorized to administer an oath or affirmation." March, 2000 Decision at 3. Judge Breslin then concluded that there was "no evidence that the prosecutor withheld exculpatory evidence" and denied this aspect of Graham's application as "lacking in merit." Id. at 4. Judge Breslin also denied Graham's claim regarding Blanchard's "rap sheet," concluding that such document was notBrady material and that, in any event, the defense utilized the information on that sheet to impeach Blanchard during cross-examination.See March, 2000 Decision at 2-3.

The Appellate Division did not specifically mention Graham's argument regarding Lynwood Maye's statement which challenged the veracity of Walker's statement in its decision denying Graham's appeal. However, that court concluded its decision by finding that his "remaining contentions" were "without merit." Graham, 283 A.D.2d at 890. Since there is no basis for believing that the Appellate Division rejected this claim on non-substantive grounds, the adjudication was "on the merits," and therefore such decision is to be reviewed under the deferential standards prescribed in 28 U.S.C. § 2254(d)(1). See Sellan, 261 F.3d at 314.

In addressing Graham's argument regarding Blanchard's "rap sheet," the Appellate Division found that even assuming, arguendo, that such document constituted Brady material, there was "no basis to disturb County Court's underlying conclusion that the evidence, if disclosed prior to the hearing, would not have affected its ultimate decision on the suppression motion." Graham, 283 A.D.2d at 888-89 (citations omitted).

Since the rule announced in Brady is clearly established for purposes of the AEDPA. see Huber v. Schriver, 140 F. Supp.2d 265, 274 (E.D.N.Y. 2001); Brooks v. Artuz, 97 CIV. 3300, 2000 WL 1532918, at *5 (S.D.N.Y. Oct. 17, 2000) (state court decisions "were not contrary to, or objectively unreasonable applications of the law clearly established by the Supreme Court inBrady and its progeny") (citations omitted), this Court must determine whether the above-referenced decisions rejecting Graham's claims are contrary to, or an unreasonable application of,Brady.

To prevail on a Brady claim, a party must initially establish that the evidence sought, in fact, existed. United States v. Ashley, 41 Fed.Appx. 240, 2002 WL 734764, at *1 (10th Cir. Apr. 26, 2002) (party failed to prove Brady violation where he failed to demonstrate that material which formed basis of Brady claim existed): United States v. Kennedy. 819 F. Supp. 1510, 1518 (D. Colo.) (citation omitted), aff'd mem. sub nom. United States v. Byron, 994 F.2d 747 (10th Cir. 1993); United States v. Libutti, Crim. No. 92-611, 1994 WL 774648, at *5 (D.N.J. Oct. 25, 1994) (to prevail on Brady claim, party must, inter alia, establish that exculpatory information existed).

In opposing the CPL § 440 Motion, Assistant District Attorney Paul A. Clyne, Esq. ("ADA Clyne"), who prosecuted the underlying criminal case, declared in his affirmation that he had spoken with Lynwood Maye at the beginning of Graham's trial, and that "at no time did Lynwood Maye assert that Jerome Walker's account was 'a lie.'" See Affirmation in Opposition to CPL § 440 Motion at ¶ 3.

In the present case, petitioner has not established that the information relating to Lynwood Maye's statement to the detective existed either prior to or during Graham's trial. Specifically, as Judge Breslin noted, the statement in which Lynwood Maye claims that Walker's account of Graham's confession was false was not made until two years after Graham's criminal trial commenced.Compare Trial Tr. at 1 (noting that trial commenced on January 27, 1997 with Appendix in Support of CPL § 440 Motion ("CPL § 440 App.") at A191-92 (indicating that Lynwood Maye's statement was signed on February 5, 1999). Moreover, even assuming, areuendo, that Lynwood Maye had made this statement to the prosecutor prior to Graham's trial, the Court notes that the suppression of exculpatory evidence does not amount to a constitutional violation unless the evidence is material, i.e., "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."Strickler, 527 U.S. at 280 (citations omitted); see also United States v. Bagley, 473 U.S. 667, 682 (1985);Boyette, 246 F.3d at 91 (citing Bagley);Chisholm, 2004 WL 315226, at *5 (citing Strickler);Livingston v. Herbert, 00-CV-1698, 2002 WL 59383, at *3 (N.D.N.Y. Jan. 3, 2002) (Homer, M.J.), adopted, (N.D.N.Y. Jan. 25, 2002) (Kahn, J.), aff'd, (2d Cir. Sept. 11, 2002).

Petitioner claims, in both his supporting memorandum and reply brief, that the foregoing evidence was material. See Dkt. No. 7 at 12-13; Dkt. No. 13 at 8-10. However, in light of all of the evidence presented against Graham at his criminal trial, this Court finds that even if the defense had been aware of Lynwood Maye's claim that Walker's statement about Graham's confession was a lie, there is no reasonable probability that the result of his trial would have been different. Specifically, the evidence presented at trial established that a few days before he was killed, Hannah had been involved in an altercation involving Graham's cousin, Johnson. Trial Tr. at 317-18, 330-31. Shortly before Hannah was shot, Graham displayed a handgun to Young, stating that he was "going to get one of those" African-Americans from the New York City area, Trial Tr. at 392, a statement which the jury could have reasonably concluded was a reference to Hannah. Trial Tr. at 313. Johnson typically drove the automobile that was observed by various witnesses as the one used during the homicide. Trial Tr. at 164-67, 186-90, 201. Additionally, the description Dixon gave the authorities regarding the driver of the car used during the homicide matched the physical appearance of Johnson at that time, Trial Tr. at 206-07, 473, and Johnson both knew where the car had been parked after the homicide and gave the authorities the keys to the automobile, which were in his pocket. Trial Tr. at 203-04. The shots fired at Hannah came from the passenger side of the car. Trial Tr. at 179, 242, 272-73, 397. Finally, both Blanchard and Young specifically testified that they observed Graham shoot Hannah on August 22, 1995.See Trial Tr. at 241-42; 396-97. In light of the foregoing, the undersigned finds that Graham has not demonstrated that even if Lynwood Maye had made the statement challenging the veracity of Walker's statement, there is no reasonable probability that, had such evidence been timely disclosed to the defense, the result of the proceeding would have been different.

In sum, this Court concludes that petitioner has not demonstrated that either prior to or during the course of Graham's trial, the prosecution was aware of Lynwood Maye's belief that Walker's statement about Graham's confession was a lie. Additionally, even if Graham had established (which he did not) that the prosecutor knew of that information prior to or during the course of Graham's trial and had suppressed same, the undersigned concludes that petitioner has not proven that there is a reasonable probability that, had such evidence been disclosed to the defense in time for its effective use at Graham's trial, the result of that proceeding would have been different. Therefore, petitioner has necessarily failed to demonstrate that the denial by the state courts of Graham's Brady claim relating to Lynwood Maye's statement is either contrary to, or an unreasonable application of, Brady. Therefore, the first ground in the petition is denied.

With respect to petitioner's claim relating to the prosecution's alleged failure to timely disclose Blanchard's "rap sheet," see Petition at 20, this aspect of Graham's petition appears to overlook the firmly established principle that "as long as a defendant possessesBrady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." In re United States (United States v. Coppa), 267 F.3d 132, 142 (2d Cir. 2001) ("Coppa"); United States v. Earls, No. 03 CR. 0364, 2004 WL 350725, at *8 (S.D.N.Y. Feb. 25, 2004) (citing Coppa);United States v. Patterson, No. 02 CR. 0283, 2002 WL 31890950, at * 11 (S.D.N.Y. Dec. 27, 2002) (citing Coppa). Thus, "[t]here is no Bradv violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial." Coppa, 267 F.3d at 142 (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)).

As noted by the Third Department, in the underlying criminal case, Graham's counsel extensively utilized Blanchard's "rap sheet" at trial in an effort to impeach his credibility. See Graham, 283 A.D.2d at 888; see also Trial Tr. at 248-51. Since Graham's counsel possessed that document in time for its effective use during trial, the Appellate Division properly denied this aspect of Graham'sBrady claim. Thus, petitioner has not established that this aspect of the Third Department's decision is either contrary to, or an unreasonable application of, Brady. Therefore, this portion of petitioner's third ground for relief must be denied.

2. Ineffective Assistance of Counsel

In his second ground, Graham claims that his trial attorney, James Milstein, Esq., who at the time of petitioner's trial worked for the Albany County Public Defender's Office ("PDO"), labored under a conflict of interest while he was representing Graham, and therefore rendered ineffective assistance of counsel. Specifically, petitioner contends that Attorney Milstein was aware that Walker was working at a local McDonald's restaurant at the time he claimed to have been near a softball field listening to Graham confess to the killing, and that Attorney Milstein failed to utilize this information because another attorney at the PDO at which Attorney Milstein worked, Anthony Maney, Esq., had previously represented Walker at a parole revocation hearing, thereby creating conflicting duties of loyalty. Petition at ¶¶ 206-07.

Respondent argues that Graham has failed to establish that Attorney Milstein suffered from a conflict of interest which affected his performance at Graham's trial. Specifically, he argues that there is no evidence that Attorney Milstein possessed, but failed to utilize, information that would have impeached Walker's claim that Graham confessed to committing the crime. Dkt. No. 11 at 16-20.

i. Clearly Established Supreme Court Precedent

The Sixth Amendment to the United States Constitution provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const., Amend. VI. To establish a violation of this right to the effective assistance of counsel, a habeas petitioner must typically show both: a) that counsel's representation fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms; and b) resulting prejudice that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-90 (1984); Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2535 (2003) ("the legal principles that govern claims of ineffective assistance of counsel" were established by the Supreme Court in Strickland).

Moreover, a criminal defendant's Sixth Amendment right to counsel includes a right to conflict-free representation. See Wood v. Georgia, 450 U.S. 261, 271 (1981) ("Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest"). When a party establishes that his defense counsel labored under an actual conflict of interest, he need only demonstrate that the conflict "adversely affected his lawyer's performance" in order to prove a violation of his Sixth Amendment right to effective counsel.Cuyler v. Sullivan, 446 U.S. 335, 348-50(1980).

ii, Contrary to, or Unreasonable Application of, Supreme Court Precedent

In denying Graham's ineffectiveness claims, the Appellate Division found that:

contrary to defendant's contentions, there is no proof that Milstein was aware at trial of records previously obtained by Maney in his prior representation of Walker which might demonstrate that Walker was actually at work at the time that, as he testified, defendant confessed to him defendant's role in this murder. Thus, there is no record support for defendant's claim that Milstein possessed, but failed to use, these records in his defense at trial or was affected by a conflict of interest. To the extent that defendant could be said to have raised the issue on his CPL 440.10 motion, we are not persuaded by defendant's claim that Milstein's failure to discover and use this evidence denied him of meaningful representation.

Since the rules set forth in both Strickland andCuyler qualify as "clearly established Supreme Court precedent,see Williams, 529 U.S. at 391 (Strickland standard is clearly established); Sellan, 261 F.3d at 309 (same),Eisemann v. Herbert, 274 F. Supp.2d 283, 300 (E.D.N.Y. 2003) (Strickland and Cuyler are both "clearly established federal law, as determined by the Supreme Court of the United States"), this Court must determine whether the Third Department's decision rejecting Graham's ineffectiveness claim is either contrary to, or an unreasonable application of, the above-referenced precedent.

The Second Circuit has noted that there are three levels of conflicts of interest to be considered in evaluating an ineffective assistance of counsel claim alleging such a conflict: a) a per se conflict, which does not require a showing of prejudice; b) an actual conflict of interest that carries a presumption of prejudice; and c) a potential conflict of interest that requires a finding of both deficient performance by counsel and prejudice. See United States v. John Doe No. 1, 272 F.3d 116, 125 (2d Cir. 2001) (citation omitted),cert. denied sub nom. Findley v. United States, 537 U.S. 851 (2002); see also Casso v. United States, No. 00-CV-6973, 2001 WL 1517537, at *2 (E.D.N.Y. Nov. 20, 2001) (citingJohn Doe).

Per se conflicts of interest exist only where trial counsel is not authorized to practice law, see Solina v. United States, 709 F.2d 160, 164 (2d Cir. 1983), or is implicated in the very crime for which his client is on trial, see United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Since Graham has not established the existence of either of these two limited circumstances, no per se conflict of interest existed.

Petitioner appears to argue that his trial counsel labored under an actual conflict of interest. Specifically, he notes that at the time Walker heard Graham confess to the crime, Walker was participating in the work release program of the Hudson Correctional Facility. Petition at ¶ 101. In September, 1995, Walker informed his parole officer that while participating in that program, Walker worked from 2:30 p.m. to 10:30 p.m., Thursday through Tuesday. Petition at ¶¶ 95-98; see also Violation of Release Report relating to Walker ("Violation Report") (reproduced in CPL § 440 App. at A199-201). On December 18, 1995, Attorney Maney, who at the time was employed by the PDO, represented Walker at a parole revocation hearing which arose out of a charge that Walker had violated the terms of his parole. CPL § 440 App. at A1 96. During the course of his representation of Walker, Attorney Maney negotiated an agreement with the Division of Parole whereby Walker's parole would only be revoked for a period often months as a result of his parole violations, rather than the three years permitted as a result of his conduct, if Walker cooperated with the prosecution at Graham's trial. Id.; Trial Tr. at 299.

Graham argues that because the PDO (through Attorney Maney) had represented Walker at the parole revocation hearing, that office, including Attorney Milstein, owed Walker a duty of loyalty, which included not compromising the "deal" Attorney Maney had negotiated with the Division of Parole. Petition at ¶ 94. Graham alleges that so as "not to expose [the PDO's] client's testimony as perjurious," regarding the softball field confession, Attorney Milstein failed to question Walker about the inconsistency between that testimony and the information Walker had provided to his parole officer regarding his scheduled work hours during the work release program. Petition at ¶¶ 94-104, 206;see also Trial Tr. at 269, 272-73; Violation Report at A201.

In order to prove that his attorney suffered from an actual conflict of interest during the course of his representation, Graham must demonstrate the existence of three distinct elements. See United States v. Berger, 188 F. Supp.2d 307, 333 (S.D.N.Y. 2002) (citing United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)). First, he must establish that an "actual conflict of interest" existed, i.e., that "the attorney's and defendant's interests diverge[d] with respect to a material factual or legal issue or to a course of action." Berger, 188 F. Supp.2d at 333 (citing Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993)). He must then establish that an "actual lapse in representation" resulted from the conflict; this is demonstrated by the existence of some "plausible alternative defense strategy" not pursued by counsel. Berger, 188 F. Supp.2d at 333 (citing Winkler, 7 F.3d at 309). Finally, Graham must show causation — that the alternative defense strategy was "inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000); Berger, 188 F. Supp.2d at 333 (citingWinkler, 7 F.3d at 309) (other citation omitted).

The Appellate Division specifically found that there was "no record support" for Graham's claim that Attorney Milstein possessed, but neglected to utilize, parole records relating to Walker in his defense of Graham, or that Attorney Milstein's representation of Graham was affected by a conflict of interest. Graham, 283 A.D.2d at 890. As noted above, determination of factual issues made by a State court "shall be presumed to be correct," and a habeas petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Boyette, 246 F.3d at 88: see also Mask v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000). "The touchstone for a reasonable determination under § 2254(e)(1) is whether the determination is at least minimally consistent with the facts and circumstances of the case."Dawson v. Donnelly, 111 F. Supp.2d 239, 245 (W.D.N.Y. 2000) (citations and internal quotations omitted).

As petitioner argues, since Attorney Milstein questioned Walker about his participation in the work release program at the time of trial, Attorney Milstein was necessarily aware of the fact that Walker participated in that program. See Dkt. No. 13 at 12; see also Trial Tr. at 284-91. Additionally, in his affirmation in support of Graham's CPL § 440 Motion, Thomas Marcelle, Esq. declared that the PDO's office was in possession of documents relating to Walker's parole (including the Violation Report) prior to Graham's trial.See Affidavit of Thomas Marcelle, Esq. (5/15/99) at ¶¶ 93-96. The foregoing is some evidence that Attorney Milstein, an attorney with the PDO, had access to the Violation Report prior to Graham's trial. However, petitioner has not rebutted, by clear and convincing evidence, the Third Department's explicit finding that Attorney Milstein actually "possessed, but failed to use" Walker's parole records to rebut his testimony regarding the time at which he claimed Graham confessed to the killing. Graham, 283 A.D.2d at 890.

Moreover, the record reflects that Graham's counsel vigorously cross-examined Walker and attempted to impeach his credibility by noting that he had previously been convicted of criminal possession of a controlled substance and had violated the terms of both the work release program and his parole. Trial Tr. at 286-91. In light of Walker's prior trial testimony that he had already finished working before he accompanied Graham and Lynwood Maye to the softball field, see Trial Tr. at 269, even if Attorney Milstein had actually been aware of the information contained in the Violation Report which indicated that Walker was scheduled to be at work during the time he testified he was at a softball field, Attorney Milstein could only have utilized that information to further impeach Walker, and not, as petitioner suggests, as proof that Walker was actually at work during the time Graham admitted to Walker that petitioner had killed Hannah.

This Court concludes that petitioner has not established that his trial attorney's interests diverged from those of Graham. Specifically, he has not established that Attorney Milstein was aware of the information contained in the Violation Report at the time of Graham's trial, resulting in a divergence of interests relating to the issue of Walker's whereabouts at approximately 5:45 p.m. on August 22, 1995. Thus, the claimed conflict of interest between Attorney Milstein and Graham is purely hypothetical and cannot form a basis for finding that an actual conflict of interest existed. See Quince v. Crosby, 360 F.3d 1259, ___ (11th Cir. 2004) ("A mere hypothetical conflict will not suffice to establish a violation under Cuyler") (citations omitted);United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998) ("Without a showing of inconsistent interests, any alleged conflict remains hypothetical, and does not constitute ineffective assistance") (citation omitted); Burden v. Zant, 24 F.3d 1298, 1305 (11th Cir. 1994) ("A speculative or merely hypothetical conflict of interest does not yield a Sixth Amendment violation") (citing Cuyler);see also United States v. Persico, No. 84 CR. 809, 1990 WL 3218, at *6 (S.D.N.Y. Jan. 5, 1990) (citing Cuyler) (other citation omitted); United States v. Hopkins, 43 F.3d 1116, 1119 (6th Cir.) (no actual conflict of interest where attorney was unaware of facts giving rise to claimed conflict), cert. denied, 514 U.S. 1135 (1995).

Additionally, since Petitioner has failed to establish that Attorney Milstein knew of the statement contained in the Violation Report, he has also failed to demonstrate that Attorney Milstein failed to pursue a plausible alternative defense strategy (i.e., questioning Walker about his whereabouts on August 22, 1995 at 5:45 p.m.) because of the alleged conflict. See Armienti, 234 F.3d at 824; Berger, 188 F. Supp.2d at 333, or that Attorney Milstein's performance at trial was adversely affected by the claimed conflict.

To the extent petitioner claims that a potential conflict existed between Graham and his trial counsel, the Court notes that in considering such a claim, the undersigned must apply the standard established inStrickland. See John Doe No. 1, 272 F.3d at 126. In the present case, petitioner has failed to establish either of the twoStrickland prongs. Specifically, he has not shown that Attorney Milstein's failure to review (or obtain) the Violation Report, or discuss that matter with Attorney Hanley during the course of Attorney Milstein's representation of Graham, fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms. Moreover, petitioner has not established that absent counsel's alleged errors, the result of Graham's trial would likely have been different, considering the totality of the evidence. In this regard, the undersigned notes that although Walker's testimony and perceived credibility were important to the prosecution's case, after reviewing the trial transcripts, this Court finds that, in light of counsel's thorough challenge to Walker's credibility during cross-examination, any impeachment evidence regarding the time he worked at the McDonald's restaurant on August 22, 1995 "would have had a negligible impact on [Walker's] credibility and the trial's ultimate outcome." See Maggard v. Gammon, 197 F. Supp.2d 1321, 1336 (D.Kan. 2002),appeal dismissed, 2003 WL 254882 (10th Cir. 2003).

Since petitioner has not established that Attorney Milstein labored under a per se, actual or potential conflict of interest, he has a fortiori failed to demonstrate that the Third Department's decision denying this aspect of Graham's appeal is either contrary to, or represents an unreasonable application of, Strickland or Cuyler. The Court therefore denies petitioner's second ground for relief.

3. Blanchard's Pre-Trial Identification of Graham

Petitioner next claims that prior to trial, the police impermissibly displayed a single photograph of Graham to Blanchard in determining whether he could identify Graham as the individual who shot Hannah, and that, as a result, Blanchard's in-court identification of Graham violated his right to a fair trial. See Petition, Ground Three. In related claims, petitioner contends that the in-court identification of Graham by Blanchard denied petitioner his due process rights because: i) Blanchard had previously informed the authorities on October 12, 1995 that he did not recognize the shooter; and ii) on March 16, 1998, Blanchard's brother, Johnny, declared in a sworn statement that on two earlier occasions, his brother Wayne had indicated that he did not see the individual who shot Hannah.

Respondent contends that Blanchard's in-court identification of Graham was proper because Blanchard's pre-trial identification of petitioner was not unconstitutionally suggestive due to Blanchard's prior relationship with Graham. Dkt. No. 11 at 20-23.

i. Clearly Established Supreme Court Precedent

In considering a challenge to a pre-trial identification of a defendant, courts are to consider whether the pre-trial identification process created "a very substantial likelihood of irreparable misidentification" at the time of trial. Manson v. Brathwaite, 432 U.S. 98, 113, 116 (1977) (internal quotation and citation omitted). Courts must consider the totality of the circumstances relating to the pre-trial identification, see Neil v. Biggers, 409 U.S. 188, 199 (1972), weighed against the corrupting effect of the suggestive identification. Manson, 432 U.S. at 114. In determining whether a witness' identification of a defendant is reliable independent of unduly suggestive identification procedures, courts should consider:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.

After considering these factors, if the court concludes that a petitioner has failed to establish that there was "a very substantial likelihood of irreparable misidentification," the presence of some elements of untrustworthiness goes only to the weight of the identification, not its admissibility. See Manson, 432 U.S. at 116.

ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent

The Appellate Division discussed Graham's claim relating to Blanchard's pre-trial identification in some detail. Specifically, that court noted that during a pre-trial suppression hearing conducted by Judge Breslin, Detective Mulrooney testified that Blanchard, without any prompting or suggestiveness on the part of the police, provided the detective with both the actual and "street name" of Graham. Graham, 283 A.D.2d at 887. Moreover, Blanchard stated that he knew the petitioner for "over ten years," and was aware that Graham was related to Johnson. Id. The Third Department then concluded that the "uncontroverted, albeit limited, evidence adduced at the [suppression] hearing was sufficient to establish that [Graham] and Blanchard were 'long-time acquaintances,'" and that, "as a matter of law, Blanchard was 'impervious to police suggestion' at the time of the subject identification."Graham, 283 A.D.2d at 887-88.

Since both Biggers and Manson are clearly established federal law as determined by the Supreme Court, see Kennaugh v. Miller, 289 F.3d 36, 44 (2d Cir.), cert. denied, 537 U.S. 909 (2002), this Court must consider whether the Third Department's decision denying this aspect of Graham's appeal is either contrary to, or an unreasonable application, the above-referenced precedent.

Although Judge Breslin did not explicitly consider theBiggers factors in denying defense counsel's motion to suppress the identification testimony of Blanchard, Judge Breslin was necessarily aware of, and specifically based his decision denying the motion to suppress on, Detective Mulrooney's testimony at the suppression hearing.See Pre-trial Suppression Hearing conducted in People v. Graham (10/2/96) ("Suppression Tr.") at 193-94. Moreover, even ade novo consideration of the Biggers factors supports Judge Breslin's ruling that Blanchard could properly make an in-court identification of Graham. At the pre-trial suppression hearing conducted by Judge Breslin, Detective Mulrooney described in detail Blanchard's familiarity with Graham and what Blanchard observed on the day of the shooting. See Suppression Tr. at 67-71, 75-79. Specifically, Detective Mulrooney testified at that hearing that Blanchard had observed the vehicle drive up to Hannah, and that Graham then began shooting at Hannah with a semi-automatic pistol. Suppression Tr. at 67-68. After Hannah fell to the ground, Johnson backed the car up and Graham continued shooting Hannah as he lay in a fetal position on the ground. Suppression Tr. at 68. These facts strongly suggest that Blanchard observed Graham as he committed the crime and paid close attention to the shooting. Additionally, the record establishes that Blanchard knew Graham for approximately ten years, see Suppression Tr. at 76; see also Trial Tr. at 242-43, and that Blanchard unequivocally informed Detective Mulrooney that the car was driven by Johnson, with Graham shooting Hannah from the passenger seat of the car. Suppression Tr. at 67-68. Additionally, more than one month prior to being shown Graham's photograph, Blanchard provided the police with a written statement in which he clearly stated that Graham shot Hannah.See Blanchard's Sworn Statement to the Albany Police Department (3/20/96) at 2-3 (reproduced in CPL § 440 App. at A150-51). Eight months, however, had passed between the time of the crime and the date on which Blanchard identified Graham, see Suppression Tr. at 69-70, a period of time which is clearly a negative factor to be considered in this context. See Biggers, 409 U.S. at 201.

After considering the totality of the circumstances relating to this issue, this Court concludes that Judge Breslin's decision allowing Blanchard's in-court identification of Graham did not violate the general due process standard enunciated in Manson. See Kennaugh, 289 F.3d at 44. Moreover, the County Court's finding was entirely consistent with the Supreme Court's holding inBiggers. Therefore, any claimed untrustworthiness relating to the identification "goes only to the identification's weight, not to its admissibility."Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998) (quotingManson, 432 U.S. at 116). Weight of the evidence review, however, is a product of New York state statute and therefore merely a state law issue. See CPL § 470.15; see also People v. Bleakley, 69 N.Y.2d 490 (1987). It is well-established that habeas corpus review is not available for errors of state law.Estelle v. McGuire, 502 U.S. 62, 67-69 (1991). As such, no cognizable federal issue is presented by a habeas claim challenging the weight of the evidence adduced at trial. Glisson v. Mantello, 287 F. Supp.2d 414, 441 (S.D.N.Y. 2003) (citingGivens v. Burge, 02Civ.0842, 2003 WL 1563775, at *10 (S.D.N.Y. Mar. 4, 2003) (collecting cases); McBride v. Senkowski, 98CV8663, 2002 WL 523275, at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)).

Moreover, the Court endorses the Third Department's findings that: a) Blanchard's October, 1995 statement to the police (in which he indicated that he did not recognize the shooter); and b) the March, 1998 statement written by Johnny Blanchard in which he indicated that his brother, Wayne, twice claimed that he did not see the individual who shot Hannah, did not establish that Blanchard's in-court identification of Graham was unreliable. As the Third Department noted, that impeachment evidence merely provided additional support to "the issue — explored at length at trial — of Blanchard's ability and motive to identify the shooter." See Graham, 283 A.D.2d at 889.

In light of the foregoing, the undersigned concludes that petitioner has failed to demonstrate that the Appellate Division's decision rejecting this aspect of Graham's appeal was either contrary to, or represented an unreasonable application of, Manson orBiggers. Therefore, this aspect of Graham's third ground for relief is denied. E.g. Sides v. Senkowski, 281 F. Supp.2d 649, 654 (W.D.N.Y. 2003) (denying habeas claim where evidence demonstrated that witness knew petitioner and there was no likelihood of misidentification at trial).

4. Denial of Right to Fair Trial

In his final ground for relief, petitioner contends that he was denied his right to a fair trial. See Petition at Ground Four. In this ground, in addition to reasserting his Brady and ineffective assistance claims, as well as petitioner's argument that Blanchard's in-court identification of Graham as the shooter was improper, Graham further contends that he was denied his right to a fair trial because: i) "all of the evidence of Petitioner's guilt was manufactured by deals and bargains given to notorious career criminals;" and ii) "all of the unbiased witnesses and physical evidence exculpated petitioner."See Petition at Ground Four.

Respondent argues that "a jury of twelve . . . concluded that these criminals and scoundrels . . . were telling the truth when they fingered petitioner as the shooter," and that therefore Graham's final ground for relief should be denied. Dkt. No. 11 at 25.

i. Clearly Established Supreme Court Precedent

"The right to a fair trial . . . has been called 'the most fundamental of all freedoms.'" Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 586 (1976) (Brennan, J., concurring) (quoting Estes v. Texas, 381 U.S. 532, 540 (1965)). "It is a right essential to the preservation and enjoyment of all other rights, providing a necessary means of safeguarding personal liberties against government oppression."Stuart, 427 U.S. at 586 (citing Rideau v. Louisiana, 373 U.S. 723, 726-727 (1963)): see also Albright v. Oliver, 510 U.S. 266, 273 n. 6 (1994) (a criminal defendant's right to a fair trial is mandated by the Constitution) (citing United States v. Agurs, 427 U.S. 97, 107 (1976)); Tavlor v. Hayes, 418 U.S. 488, 501-02 (1974). Nevertheless, where a habeas petitioner claims that he was denied his right to a fair trial, a federal habeas court's reviewing power is "the narrow one of due process . . . not the broad power that [it] would possess in regard to [its] own trial court."See Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974).

ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent

The Third Department considered and rejected the aspect of Graham's appeal which argued that Graham's conviction was obtained by "[c]riminals looking for deals." Compare App. Br. at ¶ 4; with Graham, 283 A.D.2d at 889-90. This Court must therefore determine whether this aspect of the Appellate Division's decision is contrary to, or represents an unreasonable application of, the above-referenced Supreme Court authority.

As petitioner correctly notes, several prosecution witnesses received favorable treatment regarding pending criminal charges in exchange for their testimony against Graham.

Specifically, as is discussed in more detail above, Attorney Maney of the PDO obtained an agreement whereby Walker's parole would only be revoked for ten months, rather than the longer period allowed by his parole violations, in exchange for Walker's trial testimony. CPL § 440 App. at A196; Trial Tr. at 299.

Karim Maye similarly received a plea bargain in exchange for his trial testimony — the PDO, which represented him in a prior criminal proceeding, obtained a favorable plea agreement from the District Attorney allowing Karim Maye to plead guilty to a misdemeanor offense arising out of a felony drug sale charge that followed his arrest in February, 1996. See Graham, 283 A.D.2d at 890. In a subsequent criminal matter, Karim Maye's retained counsel negotiated a plea bargain with the District Attorney which resulted in Karim Maye receiving a sentence of one year imprisonment after having been arrested for first degree robbery and the criminal possession and use of a weapon in exchange for his trial testimony. Trial Tr. at 337-340; Graham, 283 A.D.2d at 890.

For Blanchard's cooperation at Graham's trial, Blanchard requested that the District Attorney's office facilitate his release on parole "to a long-term residential program" to assist Blanchard in "put[ting his] life in order." CPL § 440 App. at A148. The District Attorney thereafter agreed to write a letter to the Commissioner of the Department of Correctional Services advising him of Blanchard's cooperation at Graham's trial. Trial Tr. at 255-58.

Finally, during the cross-examination of Young, it was revealed that he had previously been arrested for the criminal possession of a weapon in the third degree, as well as third degree criminal possession of a controlled substance. Trial Tr. at 406-09. Young pled guilty to the weapons possession charge and received a one year sentence following that plea. Trial Tr. at 411. In exchange for Young's truthful testimony at trial, the District Attorney agreed to dismiss the drug possession charge. See CPL § 440 App. at A265.

However, petitioner's trial attorney was well aware of the foregoing arrangements at the time of Graham's trial, and thoroughly cross-examined each of these witnesses as to their respective agreements in an effort to impeach their credibility. See Trial Tr. at 299 (as to Walker); 335-340 (as to Karim Maye); 255-58 (as to Blanchard) and 406-13 (as to Young).

The fact that some of the prosecution witnesses were convicted criminals testifying pursuant to cooperation agreements does not form a basis for habeas relief; "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses." Simpson v. Portuondo, No. 01 CIV 1379, 2001 WL 830946, at *8 (S.D.N.Y. July 12, 2001) (Peck, M.J.); see also United States v. Tavlor, 92 F.3d 1313, 1333 (2d Cir. 1996) ("Although [the defendant] complains that the bulk of this testimony came from cooperating witnesses, we must defer to the jury's resolution of any questions as to the credibility of witnesses"), cert. denied, 519 U.S. 1093 (1997); Simmons v. Mazzuca, 00 CIV. 8174, 2001 WL 537086 at * 8 (jury was entitled to credit main government witness who testified pursuant to cooperation agreement); United States v. Mason, 96 Cr. 126, 2001 WL 69442 at * 2 (S.D.N.Y. Jan. 29, 2001) (jury's action in crediting testimony of cooperating witnesses could not be disturbed on collateral review).

Petitioner's contention that the evidence of his guilt was "manufactured by deals and bargains given to notorious career criminals," as well as his argument that "all of the unbiased witnesses and physical evidence exculpated petitioner," Petition at ¶ 211, are requests by him for this Court to conclude that the credible evidence exonerated Graham notwithstanding the jury's finding to the contrary. However, federal habeas courts "are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution." Ferguson v. Walker, No. OOCIV1356, 2001 WL 869615, at *5 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.) (internal quotations and citations omitted),adopted, 2002 WL 31246533 (S.D.N.Y. Oct 7, 2002); see also Bellezza v. Fischer, No. 01-CV-1445, 2003 WL 21854749, at *15 (E.D.N.Y. Aug. 6, 2003) (citations omitted); Cottrel v. New York, 259 F. Supp.2d 300, 308 (S.D.N.Y. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony") (citing United States v. Zabare, 871 F.2d 282, 286(2d Cir. 1989)).

Although Graham and his counsel fervently believe that the credible evidence warrants the granting of the present petition, Graham has not established that he was denied his right to a fair trial by the jury's ultimate decision, after considering all of the testimony and other evidence before it, to convict him of the intentional murder of Hannah. Nor do any of the other theories asserted by petitioner in his petition establish that he was denied his right to a fair trial. Graham has therefore necessarily failed to demonstrate that the Third Department's decision denying this aspect of his appeal is contrary to, or represents an unreasonable application of, the Supreme Court precedent referenced above. Therefore, the undersigned denies this final ground for relief.

Conclusion

After carefully considering all of the theories asserted by petitioner in support of his petition, this Court concludes that Graham is not entitled to habeas relief on any of the grounds raised in this action. Therefore, based upon the above, it is hereby

ORDERED, that Graham's habeas petition is DENIED and DISMISSED; and it is further

ORDERED, that the Clerk of Court serve a copy of this Memorandum-Decision and Order upon the parties by regular mail; and it is further

ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Memorandum-Decision and Order filed by any party).

IT IS SO ORDERED.