Opinion
99-CV-1866 (JBW) 03-MISC-0066(JBW)
November 10, 2003
MEMORANDUM, ORDER JUDGMENT
The stay previously ordered in this matter is lifted and the case is reopened. The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims,
I. Facts and Procedural History
Petitioner was tried for the armed robbery of a shipping company, At the trial, four of the six persons who were in the office at the time of the robbery testified that three men entered the office, one armed with a handgun and another with a. grenade. The men took money and jewelry from the victims. After the robber with the handgun pointed his firearm at the head of one of the victims, $5000 that was kept in the shop was also turned over the robbers. One of the men, later identified as petitioner, took car keys from one of the robbery victims. The victim's car, a blue Toronado parked up the street from the office, was later found to be gone. After about twenty-five minutes, the robbers left and the victims called police, The four witnesses who testified at trial all identified one of the robbers as having a Guyanese or West Indies accent.
Eleven days later, police of Beets stopped a blue Toronado automobile that had crossed the double-yellow line and nearly struck their patrol car, Petitioner, who was driving the car, approached the patrol car and was asked for identification. He did not produce a car registration or insurance card. The officers were told by other occupants of the car that they did not know petitioner by the name he had given to the police. When informed of this fact, petitioner attempted to flee from the scene on foot. He was followed by an officer who never lost sight of him. Petitioner was caught and handcuffed and brought back to the scene where the car had initially been stopped. A license-plate check of the stopped car revealed that it had been reported stolen in connection with a robbery, The blue Toronado was, in fact, the car that had been stolen from outside of the shipping company. Petitioner was arrested and brought to the precinct house, where he was put in a lineup and identified by four of the robbery victims as one of the robbers.
Petitioner did not present any evidence or witnesses on his own behalf. He did not testify at trial.
He was convicted of four counts of robbery in the first degree, four counts of robbery in the second degree and one count of criminal possession of stolen property in the fourth degree. He was sentenced as a persistent violent felony offender to a total of 12 years to life in prison.
His conviction was affirmed by the Appellate Division, Leave to appeal to the New York Court of Appeals was denied.
A motion to vacate judgment was denied by the trial court. Leave to appeal to the Appellate Division was denied. A second motion to vacate judgment was filed, but the parties have not informed this con it as to its disposition. In addition, petitioner sought a stay of the instant habeas proceedings to allow him to file a coram nobis application in state court, but this court has not been informed whether petitioner filed such an application or in what manner die application was disposed of. No further state collateral proceedings appear to have been initiated.
Further delay in the resolution of this old matter is not warranted. Because all of petitioner's claims arc meritless, it is of no moment that state court proceedings may remain pending.
In his application for a writ of habeas corpus, petitioner claims that (1) he received ineffective assistance of trial counsel on eight separate grounds; (2) his conviction was obtained by die use of evidence obtained pursuant to an unlawful arrest and an unlawful search and seizure; and (3) his conviction was obtained by the unconstitutional failure of the prosecutor to disclose the tape of a 911 call,
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellon v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted),
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1),
III. Exhaustion
In the past, a. state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). `This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "`State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No, 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S, 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules `In any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either un preserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svce., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.
V. Certificate of Appealability
A certificate of appeal ability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability front the Court of Appeals for the Second Circuit. See 28 U.S.C, § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit, See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons For rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claims
Respondent concedes that all of petitioner's claims have been exhausted and wane denied by the state courts on the merits. Although review properly proceeds under the deferential standards of AEDPA, unless otherwise noted below review will be made under a de novo standard.
A.
Petitioner first claims that he was denied the effective assistance of trial counsel on seven separate grounds: (1) trial counsel waived petitioner's right to testify before the grand jury without consulting with petitioner; (2) trial counsel failed to apprise the hearing court the petitioner's right to counsel at lineups was violated; (3) trial counsel failed to challenge the probable cause to arrest petitioner; (4) trial counsel failed to object to Brady violations or request sanctions; (5) trial counsel failed to present an alibi defense; (6) trial counsel failed to request a missing witness charge as to the first officer on the scene; and (7) trial counsel waived petitioner's right to testify at trial and failed to inform petitioner of his right to testify at trial.
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend, VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added), The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). Li order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001), The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 696. `The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App, LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 4( 56 U.S. at 690-91 Counsel, in other words, "has a duly to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong, See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Linstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689,
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, S38 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 US, Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar, 18, 2002) (Magistrate's Report and Recommendation).
i
Petitioner first claims that trial counsel waived his right to testify before the grand jury without consulting with petitioner. The Fifth Amendment right to a grand jury presentation in felony cases is not applicable to the states, Alexander v. Louisiana, 405 U.S. 625, 633 (1972). "Once a state itself creates such a right, however, due process may prevent it from causing the right to be forfeited in an arbitrary or fundamentally unfair manner." Michael v. Dalsheim, No. 90 CV 2959, 1991 U.S. Dist. LEXIS 7273, at *30 (E.D.N.Y, May 22, 1991), Nonetheless, claims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus proceeding in federal court because any deficiencies have been rendered harmless by conviction at trial by a petit jury assessing petitioner's guilt under a heightened standard of proof, See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989).
At any rate, before neither the state courts nor this court has petitioner substantiated his claim with an affidavit or letter from his trial attorney, In contrast, respondent's counsel asserted in state papers that she had spoken with petitioner's trial attorney, Robert Massi, Esq., and was advised by Mr. Massi that he advised petitioner not to testify before the grand jury. Petitioner's appellate counsel conversed with Mr. Massi to the same effect. In addition, certified mail return receipts sent to petitioner's home by the District Attorney's Office indicate that petitioner was notified of the grand jury proceedings. Petitioner has tailed to demonstrate that defense counsel was ineffective or that he was prejudiced by counsel's performance.
ii
Petitioner next claims that trial counsel failed to apprise the hearing court that petitioner's right to counsel at lineups was violated, The right to counsel at a post-indictment line-up classification is clearly established under Supreme Court precedent. See United States v. Wade, 388 U.S. 218, 236-37 (1967) ("Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that . . . the post-indictment lineup [is] a critical stage of the prosecution at which [defendant is] . . . as much entitled to such aid [of counsel] . . . as at the trial itself,'" (quoting Powell v. Alabama, 287 U.S. 45, 57 (1932); footnote omitted)). The right to counsel at a pretrial identification does not attach, however, before "the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Kirby, 406 U.S. 682, 687 (1971) (no counsel necessary at preindictment show-up).
In the instant case, the lineup identification proceeding occurred before an accusatory instrument was filed against petitioner. The federal constitution was therefore not violated, Petitioner contends, however, that he was represented by a Legal Aid lawyer, named Tracey Mildred, on another pending case at the time and that as such he was entitled to her presence at the lineup. In somewhat similar circumstances, the New York Court of Appeals stated that, "although we conclude that the State has no obligation to supply counsel at investigatory lineups, we have previously no led that if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings," People v. Hawkins, 435 N.E.2d 376, 383 (N.Y. 1982), The Court of Appeals went on to note, however,
that does not mean . . . that the police must notify counsel of an impending investigatory lineup or that counsel is entitled to a lengthy adjournment at this stage of the investigatory process. In view of the limited benefits which counsel provides at this stage, the police need not suspend the lineup in anticipation of the arrival of counsel if this would cause unreasonable delay. Pertinent to this consideration is whether the delay would result in significant inconvenience to the witnesses or would undermine the substantial advantages of a prompt identification confrontation.Id.
Whether or not there was a violation of New York state law in the instant circumstances, it is clear that petitioner's federal constitutional right to counsel was not infringed, See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (habeas corpus relief does not lie for mere errors of state law). Nor has petitioner demonstrated a violation of the requirement of the Due Process Clause that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice,'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)).
Respondent suggests that petitioner may not in fact have been represented by counsel on another pending matter. For present purposes it will be assumed without deciding (1) that petitioner was represented by counsel on another matter; (2) that under state law he was entitled to counsel's attendance at the identification proceeding; (3) that petitioner informed defense counsel that he had been represented on another matter at the lime; and (4) that defense counsel in the instant case performed below a reasonable professional standard in failing to apprize the court at the Wade hearing that petitioner's state right to counsel at the lineups was violated. Petitioner must still demonstrate that, but for counsel's unprofessional errors, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694. Both the federal and New York courts have recognized that during an investigatory identification proceeding that occurs prior to the filing of an accusatory instrument — as in the instant case — the presence of counsel is of limited benefit to a defendant. Petitioner has not demonstrated any way in which the identification proceeding was unfair or any way in which the presence of counsel would have redounded to his benefit. There is no reasonable probability that the identification testimony of the witnesses would have been suppressed by the hearing court if defense counsel had alerted the court to the alleged state-law violation of petitioner's right to counsel at the lineup. Petitioner was not prejudiced by counsel's performance in this regard.
iii
Petitioner claims that trial counsel failed to challenge the probable cause of the police to arrest him. The Appellate Division concluded that, "Contrary to the defendant's contentions, the hearing court properly denied suppression of the stolen vehicle that he was driving as the fruit of an unlawful arrest. The police officers, after lawfully stopping the vehicle upon observing the defendant commit a traffic infraction, had probable cause to arrest the defendant upon determining that the vehicle had been reported stolen," People v. Shepherd, 658 N.Y.S.2d 884 (App.Div. 1997), That conclusion was reasonable. Petitioner has not demonstrated any way in which further argument from defense counsel could reasonably have led the state courts to a different conclusion. Petitioner was not prejudiced by defense counsel's performance in this respect,
iv
Petitioner claims that trial counsel failed to object to Brady violations or request sanctions. As discussed infra. Part VI.C, there was no Brady violation. Defense counsel did not perform ineffectively in this respect.
v
Petitioner claims that trial counsel failed to research and present an alibi defense, Respondent's counsel asserted in state papers that she had spoken with petitioner's trial attorney and was advised by Mr. Massi that (1) he spoke with petitioner's alibi witnesses bat that they were not sure of the date in question that would have presented petitioner with an alibi; (2) he investigated petitioner's claim that petitioner had spoken with his parole officer on the date in question but could not verify the information; and (3) he dissuaded petitioner from presenting an alibi defense. This was arguably a reasonable strategic decision made after sufficient investigation and after conferring with petitioner. Petitioner's factual claims to the contrary are unsupported by anything beyond his own assertions. Trial counsel's performance cannot be deemed ineffective under these circumstances,
vi
Petitioner claims that trial counsel failed to request a missing witness charge as to the first officer on the scene of the robbery. Under New York law, a party seeking a missing witness charge
must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party. The burden then shifts to the opposing party, in order to defeat the request, "to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate, This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not `available,' or that the witness is not under the party's `control' such that he would not be expected to testify in his or her favor."People v. Macana, 639 N.E.2d 13 (RY. 1991) (quoting People v. Gonzalez, 502 N.E.2d 583, 586 (N.Y. 1986); further citations omitted); see also Graves v. United States, 150 U.S. US, 121 (1893) ("The rule . . . in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.").
Petitioner has failed to demonstrate how the police officer's testimony would have been relevant to a "material issue." The officer's written report and its descriptions of the perpetrators differed in no significant respect from the testimony of the witnesses and other detectives, A missing witness charge, if requested, would in all likelihood have been denied by the trial court, Petitioner cannot show under these circumstances that he was prejudiced by counsel's failure to make such a request,
vii
Petitioner finally claims that trial counsel waived petitioner's right to testify at trial and failed to inform him of his right to testify at trial. Respondent's counsel asserted in state papers that she had spoken with petitioner's trial attorney and was advised by Mr. Massi that he discussed at length with petitioner whether he should testify in his own defense and that Mr. Massi and petitioner agreed that he should not testify. Petitioner's assertion that he was unaware of his right to testify and that counsel never broached the topic with him is unsupported by any evidence and is not credible. Counsel's performance in this regard cannot under these circumstances be deemed unprofessional.
Trial counsel's alleged errors, whether considered individually or cumulatively, did not deprive petitioner of constitutionally ineffective assistance of counsel meriting habeas corpus relief,
B
Petitioner next claims that his conviction was obtained by the use of evidence obtained pursuant to an unlawful arrest and an unlawful search and seizure. As noted above, the Appellate Division rejected this claim, stating, "Contrary to the defendant's contentions, the hearing court properly denied suppression of the stolen vehicle that he was driving as the fruit of an unlawful arrest. The police officers, after lawfully stopping the vehicle upon observing the defendant commit a traffic infraction, had probable cause to arrest the defendant upon determining that the vehicle had been reported stolen," Shepherd, 658 N.Y.S.2d at 884.
Under Stone v. Powell, 428 U.S. 465 (1976), a federal habeas court is barred from reviewing the merits of a Fourth Amendment claim so long as the state has provided petitioner with the opportunity for a full and fair litigation of his claim. Fourth Amendment claims in habeas petitions may be undertaken "in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992),
Petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim. Farther review is precluded in this court pursuant to the Stone doctrine. Habeas corpus relief is not warranted on the claim,
To the degree petitioner is claiming that the lineup identification procedure was suggestive and denied him his a fair trial and due process, the claim is likewise without merit. In United States v. Wade, the Supreme Court recognized that there is a "grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial," 388 U.S. 218, 236 (1966), and that to protect defendant's Sixth Amendment rights the trial court must ascertain prior to trial whether a witness's identification testimony is tainted by an improperly made identification. The Court has set forth a two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures, "requiring a determination of whether the identification process was impermissibly suggestive and, if so, whether it was so suggestive as to raise `a very substantial likelihood of irreparable misidentification.'" Jackson v. Fogg, S89 F.2d 108, 111 (2d Cir. 1978) (quoting Nell v. Biggers, 409 U.S. 188, 198 (1972) (citing Simmons v. United States, 390 U.S. 377, 384 (1968))). "If pretrial procedures have been unduly suggestive, a court may nonetheless admit in-court identification testimony if the court determines it to be independently reliable," United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986),
In Manson, Court stated that "reliability is the linchpin in determining the admissibility of identification testimony," and that the factors to be considered in determining reliability include "[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 his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." 432 U.S. at 114.
The hearing court and the Appellate Division found no suggestivness in the instant case. Petitioner's primary complaint is that the shower caps worn by himself and the fillers did not sufficiently conceal his dreadlocks. The police took reasonable steps to conceal the lineup participants' hair. Moreover, the description of the robber given by witnesses did not include that he had dreadlocks; to the contrary, the robber was described as wearing a hat. The state courts' ruling that the lineup was not suggestive and that petitioner's constitutional rights were not violated was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. Habeas corpus relief on this claim is not warranted,
C
Petitioner finally claims that his conviction was obtained by the unconstitutional failure of the prosecutor to disclose the tape of a 911 call. He suggests that the recording would have confirmed that the robber's weight was described by the victim making the call as being 130 pounds, matching a detective's notes taken after interviewing the victim. Petitioner weighs about 200 pounds. At trial the victim testified that he told the detective that petitioner weighed about 175 pounds. The discrepancy was fully explored via cross-examination at trial.
To the degree petitioner alleges a violation of People v. Rosario, his claim is not re viewable in federal court. Pursuant to Rosario, the state must provide a criminal defendant with the pretrial statements of any witness who will be called to testify on behalf of the prosecution. 173 N.E.2d at 883-84, This rule has been codified in the New York criminal procedure law; the prosecutor is obliged to "make available to the defendant . . . any written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony." N.Y, Grim, Pro, Law § 240, 45(1)(a). Rosario material "is valuable not just as a source of contradictions with which to confront [a witness] and discredit his trial testimony," but also because the material "may reflect a witness' bias . . . or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor," Rosario, 173 N.E.2d at 883. Federal habeas corpus relief does not, however, lie for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991). Because a Rosario claim is purely a state right, embodying "`policy considerations grounded in state common law, not constitutional principles,'" the prosecutorial failure to turn over Rosario material is not subject to habeas review by a federal court. Whittman v. Sabourin, 2001 U.S. Dist. LEXIS 8049, at *12 (S.D.N.Y. June 12, 2001) (quoting Southerland v. Walker, 1999 US. Dist. LEXIS 19327, at *9 (S.D.N.Y. Dec, 10, 1999)),
Petitioner may, alternatively, be alleging a violation of Brady v. Maryland, 373 U.S. 83 (1967), which established that the prosecution in a criminal matter has a constitutional obligation to disclose exculpatory evidence to the defendant, "A finding of materiality of the evidence is required under Brady" Giglio v. United States, 405 U.S, 150, 154 (1972), Exculpatory evidence is considered material "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 v. Greene, 527 U.S. 263, 280 (1999) (quoting United Stares v. Bagley, 473 U.S. 667, 682 (1985)). Nondisclosure merits relief only if the prosecution's failure "`undermines confidence in the outcome of the trial,"' Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678), The Supreme Court has rejected any distinction between impeachment evidence and exculpatory evidence, See Bagley, 473 U.S. at 676, Impeachment evidence "is `evidence favorable to an accused,' Brady, 373 U.S. at 87, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." Id. The "individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police " Kyles, 514 U.S. at 437; see also Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (assuming that state child protective agency files could be Brady material).
Whether stated as a Rosario or a Brady claim, petitioner's argument is meritless. Although the recording of the 911 call was inadvertently destroyed, petitioner was given a transcript of the call which indicated that the victim who made the call did not mention the robber's weight at all, Petitioner cannot therefore show that he was prejudiced by the failure of the prosecution to preserve the tape. Habeas corpus relief on this ground is not warranted,
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appeal ability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.