MEMORANDUM DECISION

DENNY CHIN, District Judge

Pro se petitioner Lashawn Mackey brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on August 2, 2000, following a jury trial in the Supreme Court of the State of New York, New York County, of Assault in the First Degree. He was sentenced, as a second felony offender, to a determinate term of twenty-three years imprisonment.

Petitioner contests his conviction on the following grounds: (1) he was denied effective assistance of counsel; (2) prosecutorial misconduct prejudiced the jury; and (3) the indictment was defective. The Court has reviewed the parties' submissions and the record of the proceedings below. For the reasons that follow, the petition is denied.

BACKGROUND

I. The Facts

The following is a summary of the facts adduced at trial.

A. The Assault

Eddie Weathers met petitioner, whom he knew by the nickname Unique, in the summer of 1999. (Tr. 452-53). Petitioner had a tattoo of the earth on his left arm, over which was written the word "Unique" in script. Over the next few months, Weathers typically saw petitioner two or three times a week. They often played dice on the corner of 121st Street and Manhattan Avenue. (Tr. 453-54). On October 15, 1999, petitioner lost all of his cash to Weathers gambling on dice. (Tr. 459). When petitioner continued to bet, Weathers demanded his winnings and petitioner left to get the money. (Tr. 464-65). When petitioner returned ten minutes later, Weathers believed he was carrying a gun. Screaming a warning to the people nearby, Weathers ran away. (Tr. 466-68).

Four days later, October 19, 1999, Weathers and his friend Cutie encountered petitioner in the neighborhood. Cutie accused petitioner of dishonesty for making bets without having money to cover them, but the encounter ended peacefully. (Tr. 472-75). Later that evening, Weathers was standing with Darin Phillips on the corner of 121st Street and Morningside Avenue when petitioner arrived with an acquaintance. (Tr. 479). Petitioner, referring to the earlier encounter, insisted to Weathers that he did not want to have "to watch [his] back." As Weathers responded nor did he, petitioner suddenly struck him twice in the abdomen. (Tr. 484-85, 892-95). Weathers fled around the corner towards his apartment building with petitioner in pursuit. (Tr. 484-86, 834). Petitioner's acquaintance prevented Phillips from following the chase. (Tr. 834-35). Phillips soon escaped, however, and saw petitioner standing over Weathers's body before racing away. (Tr. 481-89, 835-38).

Upon discovering that Weathers had been severely wounded, Phillips flagged down a passing police car. The officers phoned an ambulance and began assisting Weathers. (Tr. 839). Three young girls familiar with petitioner from the neighborhood saw him walking hurriedly away from the area of the attack. When two of the girls rounded the corner, they saw Weathers being cared for by police. (Tr. 634-39, 719-723, 763-66). An attorney who lived nearby saw two young men running down the street at the approximate time and location of the assault, but he could not ascertain the violent nature of the encounter or identify those involved. (Tr. 680). Shortly thereafter, he returned from parking his car and noticed the EMS vehicle. When he recognized Weathers being put into the ambulance, the attorney, who was a friend of the Weathers family, left for the hospital. (Tr. 681-87).

Weathers underwent eleven hours of initial surgery and numerous subsequent operations. (Tr. 596). He had been stabbed at least seventeen times, in his stomach, abdomen, back, and right arm. Over and above general trauma to his body, the attack produced three severe injuries: 1) his near-disembowelment; 2) a seven-inch laceration of his liver and permanent scarring of his colon; and 3) the severing of a major nerve in his right arm, because of which he will never regain full use of his dominant hand, severely impairing his work and recreational options. (Tr. 500-03, 593-609).

B. The Investigation and Line-Ups

After Weathers had been taken to the hospital, police interviewed Phillips and two of the girls who saw petitioner leaving the area. (6/27/00 Hr'g at 10; Tr. 308). They described the assailant as a light-skinned black man, approximately six feet tall and twenty to thirty years old, who was wearing multiple items of distinctive silver jewelry, metal-rimmed glasses, a messenger bag, tan Durango boots, and "Village" style clothing. (6/27/00 Hr'g at 10-11, 18). Additionally, Phillips indicated a building to the police that he had previously seen the assailant entering. (6/27/00 Hr'g at 11-12; Tr. 464-65, 821). The next day, October 20, 1999, at approximately 3:45 p.m., two detectives observed the petitioner, who fit the assailant's description, leaving that building. (6/27/00 Hr'g at 11-12; Tr. 308). Detective Lafferty of the Manhattan North Homicide Squad and another police officer followed petitioner into a bodega. Detective Lafferty identified himself as a police officer, escorted petitioner to the back of the store — directly across from the police precinct — and began questioning him. (6/27/00 Hr'g at 13-14; Tr. 309). They informed petitioner that they were investigating an assault from the evening before and that he strongly resembled the assailant. Petitioner denied any involvement, claiming to have been at home with his wife at the time of the assault. (6/27/00 Hr'g at 16).

Detective Lafferty asked to search petitioner's person and effects, and found no weapons. (6/27/00 Hr'g at 17-18). Petitioner agreed to accompany the police to the precinct, telling them he wanted to clear his name. After arriving at the 28th Precinct, the officers placed petitioner in an interview room, where he remained for more than three hours while the officers found fillers for a line-up. (6/27/00 Hr'g at 16, 27-28, 31; Tr. 340). At 7:20 p.m., petitioner was in the first of three line-ups. (6/27/00 Hr'g at 42). Three witnesses attended the first line-up: Phillips positively identified petitioner from both the October 15th dice game and the October 19th assault; one of the girls picked him out of the line-up but felt uncertain; and a second girl believed she had seen petitioner leaving the vicinity but was unable to recognize him in the line-up absent his distinctive clothing and shoes. (6/27/00 Hr'g at 48-53). Following the line-up, petitioner was arrested and informed of his rights. The police took a post-Miranda statement, in which petitioner re-asserted his alibi defense. (6/27/00 Hr'g at 67, 79). After photographing petitioner, the police seized and vouchered petitioner's boots, jewelry, and bag, which were later introduced into evidence at trial. (Tr. 356).

On October 27, 1999, the People obtained a court order to conduct a second line-up. At this line-up, with defense counsel Arnold P. Keith, Jr., attending, petitioner was identified by two further witnesses. (6/27/00 Hr'g at 73-76). Both identified petitioner from their familiarity with him in the neighborhood and the October 15th dice game. One further identified petitioner as the man fleeing the scene of the crime. (6/27/00 Hr'g at 52; Tr. 360). On March 30, 2000, after a significant hospital stay and recuperation period, Weathers identified petitioner in a third line-up. (6/27/00 Hr'g at 58-61; Tr. 364-66). During all three line-ups, the fillers and petitioner wore similar clothing and hats (concealing petitioner's distinctive hair style), removed any eyeglasses, and covered their feet. (6/27/00 Hr'g at 45-6; Tr. 360).

Weathers had informed detectives of petitioner's tattoo and nickname. (Tr. 96-7). After the third line-up, a court order was issued to photograph this tattoo. Petitioner initially assaulted the detective attempting to take the photograph, but David Muraskin, counsel replacing Keith, convinced petitioner to comply. (6/27/00 Hr'g at 96; Tr. 367-68).

II. Procedural History A. Grand Jury Proceedings and Substitution of Counsel

Petitioner was charged by a New York grand jury, in the Supreme Court, New York County, on two counts: Attempted Murder in the Second Degree and Assault in the First Degree for the October 19, 1999, assault of Weathers. Petitioner was originally represented by Keith, who attended the October 27th line-up and served as petitioner's counsel during the grand jury proceedings. Keith had prepared an omnibus motion to pursue the suppression of all physical evidence taken from petitioner, petitioner's pre- and post-arrest statements to the police, and all line-up identifications as the "fruits" of an unlawful seizure. (9/12/02, 440.10 Hr'g at 13). This motion would have required aMapp/Dunaway hearing to determine whether the police had a proper basis to stop petitioner. On December 16, 1999, however, Keith requested that he be relieved as counsel, asserting "conflicts" between himself and petitioner, who against Keith's advice had filed a pro se omnibus motion and testified, as did his fiancée, before the grand jury. (9/12/02, 440.10 Hr'g at 28). Keith was relieved as counsel, and Muraskin was appointed by the court on January 6, 2000. Petitioner claims to have given Muraskin a copy of Keith's motion, which had not been formally filed and served.

B. Wade/Huntley Hearing

Though petitioner asked Muraskin to adopt Keith's motion or attach it to his own, Muraskin did not do either. He instead moved to suppress any statements made by petitioner as "in violation of his Constitutional Rights under the Fifth Amendment," the lineup identifications as suggestive, and all of petitioner's statements to the detectives as involuntary and inadmissible. While before the court on January 27, 2000, petitioner interrupted Muraskin and read portions of Keith's unfiled defense motion to suppress the line-ups and property into the record. Muraskin advised petitioner not to speak on his own behalf, then asked the court to order a competency evaluation of his client. (9/18/02, 440.10 Hr'g at 19-20). Petitioner was examined and found competent to stand trial.

A Wade hearing was granted on "the suggestiveness of the identification procedures conducted." A Huntley hearing was granted to determine the voluntariness of petitioner's statements. In a decision dated March 13, 2000, the Honorable Budd Goodman denied a Mapp/Dunaway hearing on the grounds that "the [defendant] has failed to allege any sworn allegations of fact in his motion that would create a factual dispute (regarding the probable cause for his arrest) which would warrant the holding of a hearing." The court also noted that a "Motion to Suppress Tangible Evidence or Mapp Hearing" was "not sought," and so denied one. Id.

On June 27, 2000, the Huntley/Wade hearing was held to determine whether petitioner's statements and line-up identifications would be admissible at his trial. The court ruled that a post-Miranda statement had been properly taken by the detectives and was voluntarily made. (6/27/00 Hr'g at 90). The court found that the police properly conducted the three line-ups and no basis existed to suppress them. (6/27/00 Hr'g at 88-89). As Detective Lafferty testified that petitioner would not have been free to leave — from the store, on the way to the precinct, or from within the precinct — the court suppressed petitioner's pre-arrest statements though it left open the possibility of their use for impeachment should petitioner choose to testify. The prosecution noted that petitioner had "[gone] ballistic" when a photographer came to document his tattoo and that petitioner was now being charged with assaulting a detective. (6/27/00 Hr'g at 96). The court ruled that discussion of the incident at trial would be limited to describing petitioner as having given the detectives a difficult time, and that they had needed to use "whatever force was necessary" to obtain the photograph. (6/27/00 Hr'g at 97).

C. The Proceedings in the Trial Court

The jury trial commenced on July 6, 2000, before Justice Goodman. (Tr. 1). At trial, the prosecution presented the testimony of Eddie Weathers, three New York City police officers, a crime scene unit detective, five eye-witnesses to portions of events on the night of the attack, and the surgeon who operated on Weathers immediately after the attack. (Tr. 256-299, 299-322, 324-424, 426-441, 442-578, 584-617, 619-672, 677-703, 704-741, 742-805, 809-919). In addition, the prosecution offered and the court received into evidence: the property confiscated from petitioner (or photographs thereof) (Tr. 313, 335, 356-58, 383-84); photographs of the lineups (Tr. 362, 368, 646) and of petitioner at the time of his arrest (Tr. 311-12); and photographs of the immediate vicinity of the attack (Tr. 264-73).

Petitioner did not testify and the defense did not make an opening argument or call any witnesses. (Tr. 914-16). Muraskin developed a defense of mistaken identity, arguing that there was poor lighting in the immediate area, and also suggesting that the witnesses were biased against petitioner. He stressed that no blood had been found on petitioner's jewelry, clothing, or boots even though the crime scene had been covered in blood.

At trial, because of the Huntley/Wade ruling, Muraskin objected to the prosecutor's questioning of the detective involved in photographing petitioner's tattoo. The judge rephrased the question himself: "Officer, is it fair to say that you had some difficulty getting the picture of the tattoo, without getting into any further details?" The officer responded affirmatively. (Tr. 367-68).

In his closing arguments, Muraskin asked the jury to consider the neighborhood connections between the witnesses and the victim, as well as the victim's drug dealing. There was, Muraskin suggested, a high probability that someone else stabbed Weathers. Muraskin argued that no blood tests had ever been performed on petitioner's jewelry, that the serologist report had found no blood on petitioner's boots or clothes, and no instrument of the attack had been found and introduced at trial. Muraskin asked the jury to consider various alternatives to the prosecution's version of events. Muraskin suggested that perhaps Weathers was protecting a drug supplier who had stabbed him for failure to pay. He also proposed that someone random had attacked Weathers, who then implicated petitioner because of the dispute arising out of the October 15th dice game.

The prosecution countered petitioner's theories by citing the victim's direct identification of petitioner, the witnesses' descriptions of the man they saw in the direct vicinity of the attack, and Weathers's honesty in speaking candidly about his connections to cocaine. She directly addressed Muraskin's insinuations of the witnesses' bias by telling the jury: "When was a piece of paper pulled out and said `On this occasion didn't you say X?'. . . . These witnesses were not impeached." (Tr. 955-56).

At the conclusion of the trial, Judge Goodman charged the jury on Attempted Murder in the Second Degree and Assault in the First Degree. (Tr. 960-92, 995-99). On July 12, 2000, the jury found petitioner not guilty of Attempted Murder but convicted him on the count of Assault. (Tr. 1000-05). On August 2, 2000, Justice Goodman sentenced petitioner, as a second felony offender, to a determinate term of imprisonment of twenty-three years. (Sen. 9). D. Motion to Vacate the Judgment

On March 18, 2002, petitioner — now represented by William R. Montross, Esq. — filed a motion to vacate the judgment before pursuing a direct appeal pursuant to New York Criminal Procedure Law (hereinafter "CPL") § 440.10, . Petitioner claimed ineffective assistance of counsel, based on three specific alleged failures: (1) counsel failed to pursue the suppression of property taken from petitioner as the fruit of an illegal seizure; (2) counsel failed to challenge that unlawful seizure at the suppression hearing; and (3) counsel failed to renew the suppression motion when further evidence of the arrest's unconstitutionality was adduced at trial.

On September 12 and 18, 2002, the trial court conducted a hearing to determine if Muraskin's failure to request aMapp/Dunaway hearing was legitimate part of his trial strategy. Muraskin testified. Prior to the § 440.10 hearing, on October 25, 2001, Muraskin had been suspended indefinitely from the practice of law by the Appellate Division, First Department, for defrauding a client of over one-half million dollars and for failing to repay the money owed even after the client obtained a judgment against him. See In re Muraskin, 286 A.D.2d 186, 731 N.Y.S.2d 458 (1st Dep't 2001). The court hearing the motion to vacate judgment considered Muraskin's suspension for its impeachment value on the issue of his credibility.

By a written opinion dated December 30, 2002, Justice James Yates first found that because neither the knife nor petitioner's post-arrest alibi statement came in at trial, trial counsel's failure to file a Mapp/Dunaway motion did not prejudice petitioner; second, that Muraskin had litigated the voluntariness of petitioner's statements and purported suggestiveness of the identifications; and third, a Mapp/Dunaway motion would thus have applied only to the remaining evidentiary items — the line-up identifications and the items of clothing and jewelry seized from petitioner. Muraskin did not seek a hearing to suppress these items because he believed such a motion would have been frivolous and unwinnable given petitioner's statements that he voluntarily accompanied the police and his resemblance to the description of the assailant. Muraskin also testified that he would have risked revealing his trial strategy of misidentification if he had sought the suppression of the line-up identifications. The court held that Muraskin had prepared a defense of intentional misidentification by the witnesses and for tactical purposes had legitimately sought a Wade hearing.

Further, the court made the following findings of fact: 1) petitioner had admitted to voluntarily accompanying detectives to the precinct and participating in lineups; 2) counsel's defense, "in part, was that the items were not particularly distinctive or incriminating . . . and he planned to use this to his client's advantage at trial," and 3) the property at issue was "not critical to the case at trial." (12/30/02 Order at 7). After the trial judge adopted these conclusions and held that petitioner "failed to establish his burden to prove by a preponderance of the evidence that as counsel Mr. Muraskin provided less than effective assistance," petitioner sought and was granted leave to consolidate an appeal from that decision with his direct appeal. (12/30/02 Order at 7, 8).

E. Petitioner's Direct Appeal

On May 23, 2005, Mackey filed a timely notice of appeal of both the judgment of conviction and the denial of the motion to vacate that conviction. The Appellate Division, First Department, granted Mackey leave to appeal. Mackey's appeal presented the following claims: (1) trial counsel provided ineffective assistance by choosing not to litigate a crucial suppression motion, resulting in the admission of unlawfully seized, prejudicial evidence, and (2) the prosecutor engaged in a pattern of misconduct during summation wherein she shifted the burden of proof, vouched for the honesty of a prosecution witness, argued facts not in evidence, disobeyed prior court rulings regarding permissible comments, and chastised the defense for failing to produce evidence, the cumulative effect of which denied Mackey a fair trial. Petitioner further argued that additional evidence had been adduced at trial that should have been the subject of a motion to suppress — the clothing, jewelry, and boots, and the post-arrest statement.

On March 4, 2004, the Appellate Division unanimously affirmed Mackey's conviction and the denial of the motion to vacate the judgment. People v. Mackey, 5 A.D.3d 136, 723 N.Y.S.2d 27 (1st Dep't 2004). The court held that a Mapp/Dunaway application would have ultimately proven unsuccessful because the detectives had reasonable suspicion to detain him. Further, the court found Muraskin had legitimate reasons for not raising a Fourth Amendment challenge: (1) his client testified before the Grand Jury and told Muraskin directly that he had voluntarily accompanied the police and participated in the line-ups; and (2) the distinctive clothing was not particularly damaging to petitioner's case — in fact, the absence of blood on any of the items actually aided the defense. Further, defense counsel's closing argument — suggesting deliberate false accusation rather than unintentional misidentification — would have been inconsistent with arguing that suppression of the identifications or the articles of apparel seized was necessary. Accordingly, the court rejected petitioner's claim of ineffective assistance of counsel.

With respect to petitioner's prosecutorial misconduct claim, the court held that "[t]he challenged portions of the People's summation generally constituted fair comment on the evidence in response to defense arguments, and the summation did not deprive [petitioner] of a fair trial." Id. at 138. Petitioner's attorney sought leave to appeal the Appellate Division's decision to the New York Court of Appeals. The People submitted a letter opposing leave. On June 22, 2004, the Court of Appeals denied Mackey's application. People v. Mackey, 3 N.Y.3d 643, 782 N.Y.S.2d 414 (2004).

F. The Habeas Petition

Mackey's habeas petition, dated September 14, 2005, was received by this Court's Pro Se office on September 20, 2005. Respondent filed opposing papers on December 5, 2005.

DISCUSSION

I. Federal Review of State Convictions

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners."Williams v. Taylor, 529 U.S. 362, 399 (2000). AEDPA set forth new standards of review that made it more difficult for a habeas petitioner to obtain federal relief from a state conviction. AEDPA provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted with respect to any 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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

AEDPA has been interpreted to require a petitioner to show not only that clearly established federal law was erroneously or incorrectly applied, but that the application was unreasonable.See Williams, 529 U.S. at 411; see also Lockyer v. Andrade, 538 U.S. 63, 66 (2003); Bell v. Cone, 535 U.S. 685, 688 (2002). As the Second Circuit has explained: "A state Court decision is `Contrary to' Supreme Court precedent only if it either `arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or `confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite result].'" Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (quoting Williams, 529 U.S. at 405). The standards set forth by AEDPA apply to all habeas petitions filed after the statute's effective date of April 24, 1996. See Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001) (citing Williams, 529 U.S. at 402).

Federal courts may evaluate habeas corpus petitions only if the petitioner has exhausted his state remedies, i.e., he (1) has "fairly presented" his federal claims to the state's highest court and (2) "has utilized all available mechanisms to secure appellate review of the denial of [his] claim." 28 U.S.C. § 2254(b) (1) (A); see Picard v. Connor, 404 U.S. 270, 275 (1971); Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). Nevertheless, AEDPA provides that a district court may deny a claim "on the merits," even if the petitioner has failed to exhaust his state court remedies. 28 U.S.C. § 2254(b) (2).

II. The Merits

Petitioner raises three claims for federal habeas corpus review: (1) ineffective assistance of counsel, (2) prosecutorial misconduct, and (3) a defective indictment. Though it appears petitioner has failed to exhaust some of his claims, I discuss each on the merits.

A. Ineffective Assistance of Counsel 1. Applicable law

To prove ineffective assistance of counsel, petitioner must show that (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) he was prejudiced by counsel's deficient performance.See Strickland v. Washington, 466 U.S. 668, 686-88 (1984);United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994). To demonstrate prejudice, petitioner must show that, but for counsel's errors, there is a sufficient probability that the outcome of the proceeding would have been different.Strickland, 466 U.S. at 694.

When the court applies the Strickland test, "[j]udicial scrutiny of counsel's performance must be highly deferential."Id. at 689. "The court's central concern is not with `grad[ing] counsel's performance,' but with discerning `whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" United States v. Aquirre, 912 F.2d 555, 561 (2d Cir. 1990) (internal citation omitted) (quoting Strickland, 466 U.S. at 696-97).

2. Application

Petitioner claims that he was denied the effective assistance of trial counsel by Muraskin's failure to file and litigate aMapp/Dunaway motion. Petitioner asserts that aMapp/Dunaway hearing was necessary because his detention was an illegally protracted Terry stop or an arrest whose probable cause arose only after the lineup identifications. See Terry v. Ohio, 392 U.S. 1 (1968). Thus, he maintains, both the physical evidence taken from him and the lineup identifications made of him should have been suppressed as the fruit of an unlawful seizure.

The Appellate Division found that Muraskin had legitimate reasons for not pursuing a Mapp/Dunaway hearing, partially based on his client's own actions and statements. Because this holding is neither contrary to, nor an unreasonable application of, clearly established federal law, it provides no basis for habeas relief.

Muraskin's decision not to pursue a Mapp/Dunaway hearing was not unreasonable. First, the police had reasonable suspicion to stop petitioner, for his appearance fit the detailed description of Weathers's assailant and he was seen leaving the building identified to the police as the assailant's home. Once he was stopped, as petitioner testified to the Grand Jury and repeatedly confirmed to Muraskin, he voluntarily went with the police and participated in the lineups. Thus, his clothing, jewelry, and boots and the identifications made of him were not the fruits of an unlawful seizure and a motion to suppress would have failed. Second, Muraskin chose to litigate more meritorious motions. He successfully persuaded the trial court to suppress petitioner's pre-arrest statements except for impeachment purposes. Moreover, though unsuccessful, Muraskin litigated the purported suggestiveness of the identifications. Petitioner has not overcome the strong presumption of the reasonableness of trial counsel's representation.

Even if Muraskin's representation fell below an objective standard of reasonableness, petitioner was not prejudiced. Even absent the line-up identifications, Weathers directly identified petitioner as his assailant, and testified about the tattoo by which he confirmed the identity of his assailant. Weathers's testimony alone — without the line-up identifications and clothing — provided a sufficient basis for a jury to determine the identity of the attacker. The introduction of petitioner's apparel may actually have helped his defense, for there was no blood on any of the items despite the copious amounts of blood found at the scene. Of course, even if Muraskin had sought suppression of this evidence, he would not have been precluded from making the very same argument — that there was no evidence of any blood found on petitioner. Nonetheless, the absence of any blood on the clothing or jewelry substantially limited any prejudice their admission at trial might have had.

Petitioner fails to meet the requirements of the Strickland test and his claim for ineffective assistance of counsel fails. Petitioner's request for habeas relief on this basis is denied.

B. Prosecutor's Summation 1. Applicable law

When reviewing habeas claims brought by state prisoners, federal courts must distinguish between those premised upon prosecutorial misconduct for "`ordinary trial error of a prosecutor and that sort of egregious misconduct . . . amount[ing] to a denial of constitutional due process.'" Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 647-48 (1974) (citations omitted)); see Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986) (question is whether "the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair"). "Where a prosecution comment is a rejoinder to defense counsel's comments, that factor ameliorates the effect of an objectionable prosecution comment upon the fairness of a trial." Moore v. Warden, Southport Corr. Facility, 380 F. Supp. 2d 321, 331 (S.D.N.Y. 2005). Improper remarks at summation "must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error." United States v. Young, 470 U.S. 1, 12 (1985).

2. Application

Mackey claims in his petition that the prosecutor: (1) shifted the burden of proof to the defense; (2) improperly vouched for the credibility of prosecution witnesses; and (3) spoke of petitioner's conduct when police photographed his tattoo, in violation of a prior court ruling. The Appellate Division rejected these claims, holding that "[t]he challenged portions of the People's summation generally constituted fair comment on the evidence in response to defense arguments, and the summation did not deprive [petitioner] of a fair trial."Mackey, 5 A.D.3d at 138. Because this holding was neither contrary to, nor an unreasonable application of, clearly established federal law, it provides no basis for habeas relief.

(a) Shifting of the Burden of Proof

Petitioner first argues that the prosecutor shifted the burden of proof by arguing that the defense did not introduce evidence to support its alternative theories and by stating that the prosecution witnesses were not impeached by prior inconsistent statements. Rather than shifting the burden to the defense, however, the prosecutor's challenged comments were directly responsive to the arguments in defense counsel's summation and were therefore proper. In his summation, defense counsel argued that Weathers lied when he testified that petitioner had stabbed him and that he did so out of fear of the actual perpetrator, a man named "Da-da" who supplied Weathers with drugs. Muraskin's summation included this statement:

[Weathers's] interest in this case is to protect the person who stabbed him, being Dada, who is his supplier of drugs, . . . if I was the thirteenth juror, I would say to you that Da-da was the man on the street and [Weathers] was a worker for him and that he did not pay his bills, and that's why [the attorney] was afraid for Eddie Weathers and what he was into.

(Tr. 926). In her summation, the prosecutor addressed defense counsel's theories:

In his closing remarks, defense counsel bantered about a few different theories, Dada did it, who is Da-da? Who is Dard? Names bantered about. . . . What evidence did you hear on that witness stand to possibly think that those people are the assailants in this case. It's absurd. It comes out of thin air. . . . You need evidence to support such theories. There is no evidence to support that Alex did this or some person named Dard, that they [sic] were punches without knives, but the defendant was present but he didn't have a weapon. Where is the evidence of that? All of the evidence points to one thing, that this defendant was present, that he had a knife, that he chased Eddie Weathers and stabbed him viciously and repeatedly.

(Tr. 940-41). This portion of the summation did not shift the burden, but rather questioned defense counsel's theory that another perpetrator had assaulted Weathers.

Petitioner also argues that the prosecutor shifted the burden during summation by telling the jury that it need not consider each element of the offenses charged. In her summation, the prosecutor stated that the evidence had unequivocally proven that Weathers had been injured with a dangerous instrument, and that the only issue for the jury was therefore whether petitioner was the perpetrator. (Tr. 937-40). Contrary to petitioner's argument, the prosecutor did not "instruct" the jury that it need not consider each element of the charged crimes but instead argued that the jury should focus on the issue of identification.

(b) No Improper Vouching

Muraskin argued at closing that the prosecution witnesses had "baggage" and suggested that these witnesses were unworthy of belief. Thus, the prosecutor's comment that none of the prosecution witnesses were impeached with prior inconsistent testimony directly responded to defense counsel's argument and did not improperly vouch for prosecution witnesses. (Tr. 952, 956). Petitioner also argues that the prosecutor improperly vouched for the credibility of the main prosecution witness, Weathers. (Tr. 954). This claim fails, however, as the prosecutor's comments regarding Weathers's credibility answered defense counsel's argument that Weathers testified untruthfully and was an unreliable witness. "Prosecutors have greater leeway in commenting on the credibility of their witnesses when the defense has attacked that credibility." United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998); see United States v. Perry, 643 F.2d 38, 51 (2d Cir. 1981).

The prosecution's assertion that Weathers was credible and that this was demonstrated by his candid testimony regarding his drug-dealing responded to defense counsel's attack on Weathers's credibility and was not an improper bolstering of this testimony. Additionally, courts in this circuit have held that claims of bolstering are not cognizable on federal habeas review, as such claims are based on state law and do not raise a federal constitutional issue. See Peakes v. Spitzer, 04 Civ. 1342 (RMB) (AJP), 2004 WL 1366056, at *15 (S.D.N.Y. June 16, 2004), report and recommendation adopted, 2004 WL 1656568 (S.D.N.Y. July 23, 2004); see also Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978) ("[T]his Circuit has never regarded the practice [of bolstering] as inimical to trial fairness.").

(c) Violation of Court Ruling

Lastly, petitioner argues that the prosecutor improperly commented on the altercation that took place during the photographing of petitioner's tattoo, in violation of theWade/Huntley ruling. During summation, the prosecutor stated that "after much struggle and much refusal on the part of the defendant to take this picture," the police had taken the picture of petitioner's "Unique" tattoo. (Tr. 959). At trial, Judge Goodman had taken over questioning to ensure compliance with his ruling, so the prosecutor's statement here was, at most, a slight elaboration in an isolated portion of summation. It was not the sort of "egregious conduct" that the Supreme Court considers a "denial of constitutional due process." Donnelly, 416 U.S. at 647-48 (citations omitted). Petitioner has therefore failed to demonstrate that any of the comments in the prosecutor's summation prevented a fair trial.

Moreover, even if the prosecutor's statements were improper, they did not rise to the level of a constitutional violation. Unlike the "repeated and escalating prosecutorial misconduct" ofFloyd v. Meachum, 907 F.2d at 353-55, where the prosecutor's "pattern of improper remarks" cumulatively violated the petitioner's due process rights, the prosecutor here cabined her comments as permissible responses to defense counsel. Additionally, the court's instructions to the jury cured any possible error in the prosecutor's summation. See Moore, 380 F. Supp. 2d at 333. The court instructed the jury that the arguments by counsel were not evidence, described what constituted evidence and charged that a verdict may only be based on this evidence, provided a thorough definition of reasonable doubt, and told the jury that it must deliberate regarding each element of the charged offenses. (Tr. 962-67, 980-86). The jury is presumed to have followed such instructions and to have based its verdict on the evidence. See Zafiro v. United States, 506 U.S. 534, 540-41 (1993) (emphasizing that prejudice "can be cured with proper instructions and juries are presumed to follow their instructions") (internal quotation marks omitted)); United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002) ("Absent evidence to the contrary, we must presume that juries understand and abide by a district court's limiting instructions.").

Moreover, any error in the prosecutor's summation was clearly harmless in light of the evidence presented, including Eddie Weathers's testimony that petitioner stabbed him repeatedly, Phillips's testimony about events surrounding this attack, and evidence of the prior dice dispute. The prosecutor's summation was a reasonable rebuttal to defense counsel's statements and unlikely to have improperly influenced the jury. The Appellate Division's holding that the prosecutor's summation comments did not deprive petitioner of a fair trial was not contrary to, or an unreasonable application of, Supreme Court law. Petitioner's request for habeas relief on this basis is therefore denied.

C. Defective Indictment Claim

Petitioner further argues, for the first time, that the indictment was defective because the prosecutor failed to properly instruct the grand jury, made prejudicial statements about petitioner during his testimony at the grand jury proceedings, and improperly questioned witnesses who were not present when the incident occurred. Such claims do not assert a violation of federal constitutional law, and petitioner is therefore not entitled to habeas relief on this basis.

The right to a grand jury in a federal criminal case was not incorporated to the states through the Fourteenth Amendment.See LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002). Accordingly, errors in state grand jury proceedings are questions of state law and therefore are not reviewable on a petition for a writ of habeas corpus. Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y. 1989). In any event, any potential defect in a grand jury proceeding is cured by a subsequent conviction. United States v. Mechanik, 475 U.S. 66, 68 (1986) ("[M]easured by the petit jury's verdict, . . . any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt."); see also Lopez v. Riley, 865 F.2d 30, 31-32 (2d Cir. 1989) (holding that claims of error in grand jury proceedings may not be raised where a properly instructed jury convicted at trial).

As Mackey was convicted at trial, any alleged error resulting from events before the grand jury is "harmless beyond a reasonable doubt." Mechanik, 475 U.S. at 68. Hence, petitioner's claim that his grand jury indictment was defective is denied on the merits.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is denied. Because the petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (as amended by AEDPA). I certify pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this decision would not be taken in good faith. The Clerk of the Court is directed to enter judgment accordingly and to close this case.

SO ORDERED.