REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

To the Honorable William H. Pauley, III, United States District Judge

Background

This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was brought by Ramon Martinez, currently an inmate at the Green Haven Correctional Facility. On November 14, 1996, Martinez was found guilty by a jury of Murder in the Second Degree under New York Penal Law § 125.25(1); Criminal Possession of a Weapon in the Second Degree under former New York Penal Law § 265.03; Criminal Possession of a Weapon in the Third Degree under New York Penal Law § 265.02 (4); two counts of Criminal Possession of a Controlled Substance in the Third Degree under New York Penal Law § 220.16(1); and Criminally Using Drug Paraphernalia in the Second Degree under New York Penal Law § 220.50(2). On December 16, 1996, Martinez was sentenced by Justice John A. K. Bradley to concurrent sentences of 25 years to life for the murder count, 7-1/2 years to 15 years for the second degree weapon possession count, 3-1/2 years to 7 years for the third degree weapon possession count, 4-1/2 years to 9 years for each of the drug possession counts, and 3 months for the drug paraphernalia count.

Summary of Evidence at Trial

Martinez's conviction stems from the killing of Hector Polanco at about 1:15 a.m. on June 28, 1995. (Tr. at 135-36); see also People's Voluntary Disclosure Form, People v. Martinez, Docket No. 95N051794 (N.Y.Sup.Ct., July 5, 1995) (reproduced in Respondent's Appendix in Support of Pre-Answer Motion to Dismiss Petition for Writ of Habeas Corpus, Exhibit A) (hereinafter, "People's Voluntary Disclosure Form"). Polanco was shot twice, once in the upper abdominal area and once in the flank area. (Tr. at 499). Polanco was shot inside a pool hall, the Billiard Club, in Manhattan, but managed to stagger into the street before collapsing. He was pronounced dead approximately three hours later. See "Certificate of Death" for Hector Polanco, attached as an exhibit to People's Voluntary Disclosure Form.

Ana Medina, a bartender at the pool hall, witnessed the shooting. Medina was familiar with both Polanco and Martinez. (Tr. at 100-06, 123). According to her in-court testimony, Medina had known Martinez for almost three years at the time of the shooting and had seen him "more than once a day" while she was working. (Tr. at 100,102-03). She had been present inside the pool hall and had witnessed an argument involving Polanco and Martinez prior to the shooting. (Tr. at 121, 134-36). Medina described Martinez's shooting of Polanco in detail. (Tr. at 99-100, 134-46, 356-63, 414-21, 435).

After the shooting, Medina "became nervous" and went into a side room and remained there for a few minutes until the police arrived. (Tr. at 137, 146-47). She had been directed by the police to go to the 33rd Precinct where she told detectives what she saw during the shooting, including a description of Martinez. (Tr. at 149-53, 875). Based on this information, the police went to Martinez's home in the Bronx and requested that he return to the police station for questioning. (Tr. at 518-26). Medina was brought back to the police station where she had the opportunity to view Martinez through a one-way mirror and again identified Martinez as the shooter. (Tr. at 153-54). Based on this identification, the police arrested Martinez and obtained a search warrant for his home. (Tr. at 528-29). During the execution of the search warrant, the police recovered the following items: a loaded .38 caliber revolver, assorted types of ammunition, a sum of money, various types of narcotics paraphernalia, 18 small bags of cocaine, 96 glassines of heroin, a bulletproof vest and other clothing. (Tr. at 530-35). A ballistics expert testified that the revolver recovered at Martinez's home was the same gun used to shoot Polanco. (Tr. at 666-80, 702-05).

Procedural History

1. Pretrial and Suppression Proceedings and Trial

On July 14, 1995, Martinez was charged with one count each of Murder in the Second Degree under New York Penal Law § 125.25(1), Criminal Possession of a Weapon in the Second Degree under former New York Penal Law § 265.03, Criminal Possession of a Weapon in the Third Degree under New York Penal Law § 265.02(4), two counts of Criminal Possession of a Controlled Substance in the Third Degree under New York Penal Law § 220.16(1), and one count of Criminally Using Drug Paraphernalia in the Second Degree under New York Penal Law § 220.50(2).

On October 24, 1996, Martinez moved to suppress, inter alia, the physical evidence seized from his apartment and Medina's identification testimony. Justice Bradley denied that motion in its entirety. (H. at 71-76). Martinez did not challenge the suppression ruling on appeal. Martinez also moved to sever the murder and weapon possession counts from the various drug-related counts. Justice Bradley denied that motion. (H. at 92-93).

On October 28, 1996, Martinez's trial began before Justice Bradley and a jury. At the close of the evidence, the court did not submit the seventh count of the indictment to the jury — Criminally Using Drug Paraphernalia in the Second Degree under New York Penal Law § 220.50(3) — and that charge was dismissed. (Tr. at 887). The jury returned a verdict convicting Martinez on all six of the remaining counts on November 14, 1996. (Tr. at 1069-72). On December 16, 1996, Martinez was sentenced. (S. at 10-12).

2. Direct State Court Appeals

Represented by counsel, Martinez appealed to the Appellate Division, First Department. His brief alleged two major trial court errors. The first ground for the state appeal was that the trial court erred in denying the motion to sever the murder and weapon possession counts from the drug-related counts and that this resulted in the improper introduction of prejudicial evidence against him regarding his drug activities. The second ground was that the trial court erred in denying defense counsel's request to submit a Manslaughter in the First Degree charge to the jury in light of the evidence presented at trial. See Brief for Defendant-Appellant (dated March 31, 1998) (reproduced in Respondent's Appendix in Support of Pre-Answer Motion to Dismiss Petition for Writ of Habeas Corpus, Exhibit D) (hereinafter, "Brief for Defendant-Appellant").

The judgment of conviction was affirmed by the Appellate Division, First Department, on December 3, 1998. See People v. Martinez, 256 A.D.2d 52, 682 N.Y.S.2d 28 (1st Dep't 1998). With respect to Martinez's grounds for appeal, the Appellate Division stated that the trial court

properly denied defendant's motion to sever the drug counts from the homicide and weapon possession counts, and properly allowed the People to introduce evidence of defendant's drug selling activities and of the drugs discovered in his apartment pursuant to a search warrant. The drug evidence, when linked with defendant's otherwise unexplained threatening statements made shortly before the crime, established motive and murderous intent.

Id. at 52 (citation omitted). The Appellate Division also stated that the trial court "properly denied defendant's request for submission of the lesser included offense of manslaughter in the first degree, since there was no reasonable view of the evidence which supported a finding that the defendant intended only to cause serious physical injury to the victim." Id. at 52-53 (citation omitted).

Martinez sought leave to appeal to the New York Court of Appeals. Martinez's counsel's first letter, dated January 11, 1999, enclosed copies of the parties' First Department briefs. See Letter from Richard M. Greenberg, Esq. (Counsel for Defendant) to Chief Judge Judith S. Kaye of the New York Court of Appeals (dated January 11, 1999) (reproduced in Respondent's Appendix in Support of Pre-Answer Motion to Dismiss Petition for Writ of Habeas Corpus, Exhibit G) (hereinafter, "Letter to Chief Judge Kaye, January 11, 1999"). After a Court of Appeals Judge was assigned, Martinez's counsel submitted a second letter on February 2, 1999, asserting that leave to appeal was warranted on the same issues presented to the First Department: namely, that the trial court had erred in refusing to allow a charge of Manslaughter in the First Degree to be presented to the jury and that evidence of defendant's drug activities were prejudicial and irrelevant. See Letter from Richard M. Greenberg, Esq. and Rosemary Herbert, Esq. (Counsel for Defendant) to Judge George Bundy Smith of the New York Court of Appeals (dated February 2, 1999) (reproduced in Respondent's Appendix in Support of Pre-Answer Motion to Dismiss Petition for Writ of Habeas Corpus, Exhibit G) (hereinafter, "Letter to Judge Smith, February 2, 1999").

Leave to appeal from the decision of the Appellate Division to the New York Court of Appeals was denied on March 17, 1999. See People v. Martinez, 93 N.Y.2d 876, 689 N.Y.S.2d 438 (1999). Martinez did not seek a writ of certiorari from the United States Supreme Court. He also did not mount a collateral attack on his conviction in state court.

3. Martinez's Federal Habeas Petition

Martinez's present petition for writ of habeas corpus is dated June 14, 1999, and was received by the Court on June 21, 1999 (hereinafter, "Habeas Petition"). As previously construed by Magistrate Judge Henry B. Pitman, see Report and Recommendation, dated March 6, 2000, at p. 2, Martinez's petition presents essentially five claims:

1. The prosecution violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose to Martinez "a truthful video of the autopsy" of the deceased. (Habeas Petition, ¶ 12(A)).

2. The trial court violated Martinez's right to a fair trial by refusing to require the prosecution to produce the murder weapon or evidence of fingerprint. (Habeas Petition, ¶ 12(B))

3. The trial court violated Martinez's right to a fair trial by not allowing Martinez to obtain the aid of independent experts to conduct ballistics tests of the murder weapon. (Habeas Petition, ¶ 12(B))

4. The trial court erred in admitting testimony about Martinez's prior narcotics-trafficking activities. (Habeas Petition, ¶ 12(C) and ¶ 12(D))

5. The trial court erred in denying Martinez's motion to suppress identification testimony. (Habeas Petition, ¶ 12(D))

On November 10, 1999, the case was referred by District Judge William H. Pauley, III to Magistrate Judge Pitman for a Report and Recommendation.

On January 28, 2000, the Respondent moved to dismiss the petition on the ground that Martinez had not exhausted his available state remedies with respect to the claims numbered 1 and 3 above. By order dated January 31, 2000, the District Court afforded Martinez the option either to oppose Respondent's motion to dismiss or to withdraw these claims if Martinez agreed that these claims were in fact unexhausted. In a Traverse dated February 18, 2000, Martinez agreed "to withdraw the alleged claims which this Honorable Court find[s] to have not been exhausted." On March 6, 2000, the Court issued a Report and Recommendation in which the Court concluded that the claims 1 and 3 were "clearly unexhausted" and deemed those claims withdrawn. In a separate Order entered that same day, the Court directed Respondent to file his answer to the remaining three claims to the petition no later than May 8, 2000. By Order dated April 6, 2000, United States District Judge William H. Pauley III adopted the March 6, 2000, Report and Recommendation in its entirety.

On May 4, 2000, Respondent submitted an answer in response to the Court's March 6, 2000, Order. This petition was referred to the undersigned for a Report and Recommendation on March 13, 2001.

Applicable Legal Principles

To seek habeas corpus relief from a federal court under 28 U.S.C. § 2254, a petitioner must first allege that he is in state custody in violation of the Constitution or a federal law or treaty. See 28 U.S.C. § 2254(a). Additionally, a petitioner must have exhausted all state remedies before seeking habeas relief from federal court. See 28 U.S.C. § 2254(b)(1). In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to all levels of the State appellate court. See, e.g., Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir. 1989) ("The exhaustion-of-remedies principle embodied in 28 U.S.C. § 2254(b) and (c) requires generally that a state prisoner . . . seeking federal habeas review of his conviction first exhaust available state remedies.").

If a petitioner failed to raise a claim in State court and, at the time of the filing of his federal habeas petition, is barred by State court rules from raising the claim, the claim will be deemed to be technically exhausted for purposes of federal habeas corpus review. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (a "habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred") (citations omitted). Nonetheless, the petitioner will still be barred in federal court from raising such claims in his writ for habeas corpus, unless he can establish cause and prejudice for his default in State court. See, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n.* (1991); Gray v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Taylor v. Harris, 640 F.2d 1, 1-2 (2d Cir. 1991). See also Murray v. Carrier, 477 U.S. 478, 488, 494, 106 S. Ct 2639, 2645, 2648 (1986) (also permitting review where there has been a "fundamental miscarriage of justice"); Strogov v. Attorney General of the State of New York, 191 F.3d 188, 193-4 (2d Cir. 1999) (same).

Analysis of Martinez's Claims

As noted, only three claims remain in the petition (numbered 2, 4, and 5 above) following Martinez's withdrawal of claims 1 and 3. Each is discussed separately below.

1. Legal Sufficiency of Evidence at Trial (Claim 2)

In this claim, Martinez argued that the trial court violated his right to a fair trial by refusing to require the prosecution to produce the murder weapon or evidence of fingerprints. Martinez did not raise this claim, however, either at trial or on direct appeal to the New York Appellate Division or to the New York Court of Appeals. Under New York Criminal Procedure Law § 470.05(2), Martinez is now procedurally barred from obtaining state relief on this issue because the issue was not preserved at trial or raised on direct appeal. Martinez never argued during trial that the People would be unable to prove he killed Polanco without submitting fingerprint evidence or that the prosecution had failed to introduce the murder weapon into evidence. Moreover, Martinez never challenged the sufficiency of the prosecution's evidence during the direct appeals. See Brief for Defendant-Appellant; Letter to Chief Judge Kaye, January 11, 1999, and Letter to Judge Smith, February 2, 1999. Because of Martinez's failure to raise this issue on direct appeal, he is also procedurally barred from raising this issue in his writ for habeas corpus unless he can show cause for his failure to do so and prejudice. See, e.g., Gray, 518 U.S. at 161-62 (defaulted claims are unavailable for habeas review unless the petitioner can demonstrate cause and prejudice for the default).

Martinez has made no such showing for his failure to raise these claims in the state courts. Martinez's petition appears to assert for the first time that it was the ineffective assistance of his counsel that prevented these claims from being raised. (Habeas Petition, ¶ 13). However, in order for a claim of ineffective assistance of counsel to be used as "cause" for an otherwise defaulted habeas claim, the petitioner must have properly presented his ineffectiveness claim to the state courts. See Murray v. Carrier, 477 U.S. at 489 ("[A] claim of ineffective assistance [must] be presented to the state courts as an independent claim before it may be used to establish cause of a procedural default."); Reyes v. Keane, 118 F.3d at 139-40. Martinez could have raised this claim through a collateral attack on his conviction under New York Criminal Procedural Law § 440.10, provided it was timely made. See New York Criminal Procedure Law § 440.10; People v. Montes, 265 A.D.2d 195, 196, 697 N.Y.S.2d 9, 10 (1st Dep't 1999) (ineffective assistance of counsel claims must be first raised in a CPL § 440.10 motion). Because this means of redress was available to him but never utilized, he cannot establish "cause" for his procedural default on his sufficiency-of-the-evidence claim. See, e.g., Reyes, 118 F.3d at 139-40 (petitioner barred from habeas review because of the "unjustifiable failure" to raise the ineffective assistance claim in state court and no showing of cause for such default). For these reasons, no federal habeas corpus relief is available for Martinez's claim regarding the sufficiency of the evidence introduced at his trial.

Even if Martinez's claim were not procedurally barred, this Court would reject it on the merits. In general, a petitioner advancing a claim based on insufficiency of the evidence bears "a very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (citations omitted). A state criminal conviction will be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (emphasis in original). In making this assessment, a court may not disturb the jury's findings with respect to witnesses' credibility, see United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), and cannot review the evidence presented at trial to make an evaluation of the credibility or weight of witness testimony. See, e.g., United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989) ("the reviewing court must draw all reasonable inferences and resolve all issues of credibility in favor of the verdict"). Thus, under this standard, this Court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326.

Here, the prosecution in fact submitted the murder weapon as an exhibit at trial, (Tr. at 532, 535-42, 544-52, 666, 668-80, 700-06, People's Trial Exhibit 18), although it was not required to do so. With respect to the fingerprint evidence, there exists no requirement that any particular piece of evidence be introduced to support a conviction. See, e.g., Maldonado v. Scully, 86 F.3d 32. 35-36 (2d Cir. 1996) (proof beyond a reasonable doubt may be established entirely by circumstantial evidence); United States v. Sureff, 15 F.3d 225, 228 (2d Cir. 1994) (not necessary to offer cocaine or any direct testimony of drug transactions to sustain conviction for conspiracy to distribute cocaine); see also Hernandez v. Senkowski, 1999 WL 1495443 at *10 (E.D.N.Y. 1999) (eyewitness testimony sufficient to support the conviction even without the murder weapon). There was ample other evidence at trial to prove Martinez guilty beyond a reasonable doubt of the crimes charged

According to the trial record, the prosecution provided, inter alia, the following evidence in support of the conviction: Ana Medina and Jose Nunez, the owner of the Billiard Club, recounted the dispute that preceded the shooting. (Tr. at 121-32, 159-61, 468-72, 476, 488). Medina described in detail how Martinez shot Polanco and the events following the shooting, including the arrival of the police. (Tr. at 99-100, 134-46, 356-63, 414-21, 435). The police found a loaded .32 caliber revolver, with two spent rounds, underneath Martinez's bed and recovered a variety of narcotics paraphernalia under Martinez's bed, including 18 small bags of cocaine and 96 glassines of heroin. (Tr. at 530-35). There was testimony from a ballistics expert who testified that the weapon recovered at Martinez's home was the same gun used to shoot Polanco. (Tr. at 666-80, 702-05).

Taking the evidence in the light most favorable to the prosecution and presuming that the jury resolved all questions of credibility in the prosecution's favor, this overwhelming evidence permitted a rational jury to conclude that Martinez was guilty of the crimes charged beyond a reasonable doubt, regardless of whether any fingerprint evidence (or even the murder weapon) had been introduced. Therefore, habeas corpus relief is not available on this ground.

2. Introduction of Evidence Relating to Martinez's Drug Activities (Claim 4)

Martinez asserts that the trial court erroneously admitted evidence concerning his prior narcotics trafficking activities. (Habeas Petition, ¶ 12(C) and ¶ 12(D)). While this claim is technically exhausted, it still suffers from the defect of not having been raised as an identifiable violation of federal law before the state courts. Unless a claim is presented to the state court as a federal claim, it may not be considered on federal habeas corpus review. See Levine v. Commissioner, 44 F.3d 121, 124 (2d Cir. 1995); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982). Petitioners may "fairly present" their federal claims in state court by, inter alia, presenting explicit constitutional arguments, "relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis." Levine v. Commissioner, 44 F.3d at 124 (citation omitted); see also Daye v. Attorney General of the State of New York, 696 F.2d at 192-93 ("[I]n state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.").

None of these occurred in this case. Martinez never presented the issue of the admission of drug trafficking evidence as a constitutional claim to the state courts. Nor did Martinez cite to federal or state case law that brought to mind a specific constitutional issue. Rather, Martinez's brief discussed only state court cases and asserted violations only of state law on the introduction of prior bad acts. See Brief for Defendant-Appellant, pp. 24-31. Martinez presented the argument solely as a state law evidentiary issue. Habeas corpus relief, however, "does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475,480 (1991). A mistake in the application of state law can be reviewed by this court only if the result was a cognizable constitutional violation because "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. at 67-8, 112 S. Ct. at 480, citing 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21, 96 S. Ct. 175, 177 (1975).

There is no constitutional or other federal legal principle that bars the introduction of evidence of prior bad acts where relevant to proving an element of the crime charged. Indeed, the Federal Rules of Evidence explicitly allows for the introduction of such evidence. See Fed.R.Evid. 404(b). See also Spencer v. Texas, 385 U.S. 554, 560-63 (1967) (upholding state rules requiring that the jury be informed of certain prior bad acts of a defendant). The Due Process Clause of the Fourteenth Amendment is violated only where the evidence in question "is so extremely unfair that its admission violates fundamental concepts of justice." Dowling v. United States, 493 U.S. 342, 352 (1990) (citations omitted). There can be no unfairness, of course, where the prejudicial evidence is "probative of [an] essential element" in the case. Estelle v. McGuire, 502 U.S. at 69; accord Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1991).

Here, the evidence that Martinez was a known drug dealer and that drugs were recovered in his apartment was directly relevant to the prosecutor's proof of what occurred on the day of the murder. The evidence was used to establish Martinez's relationship with Polanco as well as the circumstances surrounding the shooting. Ana Medina testified Martinez had told her he had a drug spot (Tr. at 105-06) and that she had seen drug transactions occur between Martinez and other people. (Tr. at 109-15). She stated Martinez had many individuals working for him, including someone by the name of Frank (Tr. at 115), who was friends with Polanco. (Tr. at 125). Medina saw the three men — Martinez, Frank, and Polanco — arguing in the Billiard Club. (Tr. at 128-29). Specifically, she had overheard an argument between Martinez and Polanco just prior to the shooting where she heard Martinez tell Polanco "the calling of the police is going to finish" (Tr. at 128) and "I'll be back" (Tr. at 132). These comments taken alone are meaningless, but placed in the context of drug deals Medina had seen and heard (Tr. at 105-116), the drug trafficking evidence establishes the motive for the shooting of Polanco. As the trial court noted, "the evidence of drug dealing outside of the establishment was probative of motive, provided relevant background information, and completed the narrative. And it appears also to be inextricably woven with the offenses charged." (H. at 92).

Because the introduction of this evidence cannot be characterized as being "so extremely unfair that its admission violates fundamental concepts of justice," Dowling v. United States, 493 U.S. at 352, Martinez cannot obtain habeas corpus relief on this ground.

3. Admission of Identification Testimony (Claim 5)

Martinez's final claim is that the trial court erroneously denied his motion to suppress certain identification testimony. (Habeas Petition, ¶ 12(D)). According to the trial record, Martinez's arrest followed an identification by Ana Medina through a one-way mirror at the police station. (H. at 16). Medina subsequently identified Martinez at trial. (Tr. at 99-100).

Martinez failed to raise this claim properly before the state courts, however, since he never included the claim in any of his briefs on appeal. See Brief for Defendant-Appellant; Letter to Chief Judge Kaye, January 11, 1999, and Letter to Judge Smith, February 2, 1999. Martinez has neither established nor claimed cause or prejudice based on this default. As a result, this claim is barred from federal habeas corpus review. See, e.g., Gray, 518 U.S. at 161-62 (defaulted claims are precluded from review "unless the petitioner can demonstrate cause and prejudice for the default").

Even if Martinez had properly presented this claim, the Court would deny it on the merits. A pretrial identification implicates the due process clause only where there is a "very substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254 (1978) (citation omitted). See generally Watkins v. Sowders, 449 U.S. 341, 347, 101 S. Ct. 654, 658 (1981) (reliability of identification procedure determines its admissibility). Thus, where there is a suggestive pre-trial identification procedure, the identification testimony at trial will not be excluded if "a threshold level of reliability can be established through evidence that is independent of the suggestive procedure." Dunnigan v. Keane, 137 F.3d at 128 (citing cases). Here, the reliability of the evidence is established by the fact that Medina had known Martinez for at least three years prior to the shooting; that she had seen him at least once a day during the time she was working; that she regularly spoke to him; and that he even sometimes invited her to go out. (Tr. 100, 102-03). The trial court thus properly determined that Medina was sufficiently familiar with Martinez to obviate any possibility that the police-arranged lineup could have tainted her identification. (H. 73-76). See Espinal v. Duncan 2000 WL 1774960 at *3 (S.D.N Y 2000) (where there is a prior relationship between the witness and the defendant, a Wade hearing is unnecessary); see also Styers v. Smith, 659 F.2d 293, 297 (2d Cir. 1981) ("Even grossly suggestive procedures will not require suppression of a witness' identification testimony if it is clearly reliable, independent of improper procedures."). Medina's prior acquaintance with Martinez made the suggestiveness of any identification procedure irrelevant because Medina's own familiarity with the defendant provided a reliable and independent basis for the identification. As a result, even if this claim had been exhausted, Martinez could not obtain habeas corpus relief on this ground.

Conclusion

For the foregoing reasons, the undersigned recommends that Martinez's petition be dismissed.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley, III, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Pauley. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985).