Opinion
03 CV 4128 (JG).
December 29, 2004
SATROHAN SINGH, DIN: 99-A-1925, Sing Sing Correctional Facility, Ossining, New York, Petitioner Pro Se.
ELIOT SPITZER, Attorney General, State of New York, New York, By: Luke Martland, Assistant Attorney General, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Satrohan Singh seeks habeas corpus relief from his convictions for assault in the first degree and criminal possession of a weapon in the fourth degree, entered after a jury trial in state court. I held oral argument on November 19, 2004. For the reasons set forth below, the petition is denied.
BACKGROUND
The evidence at trial established that in the late evening and early morning hours on November 4 and 5, 1997, Singh was at the same bar as Swaresh Persaud and his friends, Wilfred and Cecil Callender. Singh got into an argument with Persaud over the use of a pool table. A fight ensued and Singh pulled out a metal object, which he used to slash Persaud's throat, causing a large gash that required surgery to repair. Singh then left the bar. Cecil Callender pursued him, stopping him less than a block away from the bar. The two men struggled, leaving Callender with a laceration to his finger, which later required stitches. Callender eventually detained Singh and brought him back to the bar. The police, who had already arrived at the bar, then arrested Singh.
Cecil Callender is also referred to in the record as Cecil Andrew Callender and Andrew Callender.
Cecil Callender's identification of Singh to the police was suppressed at trial, solely on the ground that the People had failed to timely respond to Singh's omnibus motion in the trial court. However, Cecil Callender testified to the fact that he ran after Singh, apprehended him, and brought him back to the bar, where the police then arrested him. (Trial Tr. dated February 18, 1998 at 451-54.)
Singh was charged with attempted murder in the second degree, assault in the first and second degrees, and criminal possession of a weapon in the fourth degree. On January 13, 1998, Singh was arraigned on the indictment and the court set the following motion schedule: defendant's motions were to be filed by February 10, 1998, the prosecutor was to respond by February 24, 1998, and the court was to issue a decision on March 19, 1998. The defendant was eight days late in filing his omnibus motion, which included a motion to suppress the out-of-court identification of Singh. The prosecution did not respond to the motion until its appearance in court on March 19, 1998. The court refused to accept the response to the motion, holding that the prosecution did not offer a justification for the delay in responding. (Tr. dated March 19, 1998 at 2-3.) The court suppressed the out-of-court identification and ordered a hearing to determine if there was an independent source for the in-court identification.
On April 20, 1998, the prosecution filed a motion asking the court to reconsider its decision. (Pet'r Appell. Br. at 5.) The parties' next court appearance was scheduled for April 30, 1998, but it was adjourned by the court until May 22, 1998 for briefing on the motion to reconsider. ( Id.) On that date, the court denied the prosecution's motion to reconsider.
The government announced it was ready for trial on August 26, 1998. On the same date, Singh consented to an adjournment requested by his trial attorney until October 2, 1998. (Tr. dated August 26, 1998 at 6.) On September 18, 1998, Singh filed a motion to dismiss the indictment on speedy trial grounds under New York Criminal Procedure Law § 30.30. The court denied the motion. Jury selection began on February 10, 1999. At the trial, the victim, his two friends, two police officers who arrived on the scene, a paramedic and the victim's physician all testified.
On February 23, 1999, the jury found Singh guilty of first degree assault and fourth degree criminal possession of a weapon. The jury could not agree on a verdict on the charge of second degree murder. On consent of both parties, the court declared a mistrial with respect to this count. On March 16, 1999, Singh was sentenced as a second violent felony offender to a 25-year term of imprisonment for first degree assault and a one-year term of imprisonment for fourth degree criminal possession of a weapon.
Singh's appellate counsel timely appealed his conviction, claiming a violation of Singh's right to a speedy trial. Singh filed a pro se brief as well. The brief made a number of arguments, including: (1) there were insufficient independent grounds for the in-court identification of him by the three identifying witnesses, and (2) the evidence was insufficient to establish guilt beyond a reasonable doubt. The Appellate Division, Second Department, affirmed the conviction, holding, in relevant part, that
the Supreme Court properly denied the defendant's motion to dismiss the indictment for lack of a speedy trial.
Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.People v. Singh, 734 N.Y.S.2d 457 (2d Dep't 2001) (citations omitted). Singh timely requested leave to appeal, which was denied on February 19, 2002. People v. Singh, 97 N.Y.2d 733 (2002).
On June 26, 2002, Singh filed a petition for a writ of error coram nobis, claiming that he received ineffective assistance from his appellate counsel because counsel did not argue that trial counsel was ineffective in that she failed to object to the in-court identifications and to the admission of testimony that Singh's jacket was covered in blood when he was brought back to the scene of the assault minutes after it occurred. The Appellate Division, Second Department, denied the petition on October 7, 2002, holding that Singh had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Singh, 751 N.Y.S.2d 405 (2d Dep't 2002), citing Jones v. Barnes, 463 U.S. 745 (1983). Singh sought leave to appeal, which was denied on January 28, 2003. People v. Singh, 99 N.Y.2d 585 (2003).
On August 13, 2003, petitioner filed the instant petition, which seeks relief from his convictions on the grounds that (1) his right to a speedy trial pursuant to the Sixth and Fourteenth Amendments was violated; (2) his due process rights were violated when the trial court admitted an unreliable in-court identification of him; (3) his appellate counsel was ineffective; and (4) the evidence was insufficient to support his guilt beyond a reasonable doubt.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
Habeas relief is also warranted where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). That subsection is not relevant here.
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.
Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court has explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Mixed questions of law and fact, however, such as the ineffective assistance of counsel inquiry, are reviewed in accordance with Section 2254(d). Thompson v. Keohane, 516 U.S. 99, 111-12 (1995); Rodriguez v. Schriver, No. 99 Civ. 8660 (FM), 2003 WL 22671461, at *8 (S.D.N.Y. Nov. 12, 2003).
B. Singh's Claims
1. Constitutional Right to Speedy Trial
Singh argues that the various delays in state proceedings constituted a violation of his right to a speedy trial. In denying this claim, the Appellate Division held that
since the People were chargeable with only 173 days of delay, which is within the prescribed statutory period, the Supreme Court properly denied the defendant's motion to dismiss the indictment for lack of a speedy trial.People v. Singh, 734 N.Y.S.2d 457 (2d Dep't 2001).
The Appellate Division was referring to the "statutory period" in New York Criminal Procedure Law § 30.30, which requires the government to be "ready for trial within . . . six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." N.Y. Crim. Proc. Law § 30.30(1)(a). Singh's claim that the state court erred in its decision regarding his speedy trial rights under New York state law is not cognizable on habeas review. See 28 U.S.C. § 2254(a) (habeas review of state convictions is available "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States"). Thus, I will consider only Singh's claim that his right to a speedy trial based in the Sixth and Fourteenth Amendments was violated.
The determination of whether pretrial delay violates the Sixth Amendment is governed by Barker v. Wingo, 407 U.S. 514, 530 (1972). See also Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003). Barker identified four factors that "courts should assess in determining whether a particular defendant has been deprived of his right[:] length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530. None of the four factors is alone either necessary or sufficient for a finding of a deprivation of the right; rather, they must be considered together with such other circumstances as may be relevant as part of "a difficult and sensitive balancing process." Davis, 316 F.3d at 127. In this case, I address these factors in turn.
First, the crime for which Singh was convicted occurred on November 4, 1997, and he was arraigned on November 6, 1997. Singh was indicted on December 22, 1997, and he waived any speedy trial claim for the time between his arraignment and this date. Subsequently, his case was transferred, and he was arraigned in Supreme Court on January 13, 1998, when a motion schedule was set. After some delays on the part of both parties in filing motions, the government announced that it was ready for trial on August 26, 1998. ( See Tr. dated August 26, 1998 at 2.) Trial was delayed until October 2, 1998 because of a request by Singh's trial counsel. This latter delay was charged to Singh, who agreed on the record to the adjournment. ( Id. at 6.) Singh then filed a speedy trial motion on September 18, 1998, which was denied on December 8, 1998. (Pet'n at 21.) Jury selection and trial began on February 10, 1999, 466 days after Singh's arrest.
Excluding only the time Singh explicitly agreed to exclude from the speedy trial calculations, less than 13 months (383 days) elapsed from arrest to trial. Much longer delays have withstood constitutional attack. See, e.g., Barker, 407 U.S. 535-36 (over five years); United States v. Williams, 372 F.3d 96, 113 (2d Cir. 2004) (nearly three years); Montalvo v. United States, 862 F.2d 425, 426 (2d Cir. 1988) (eight years); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (over seven years); Jones v. Spitzer, 2003 WL 1563780, at *43 (S.D.N.Y. Mar. 26, 2003) (over two and one-half years). This factor therefore weighs against Singh.
As to the second and third factors, the reason for the delay and the defendant's assertion of his right, the Appellate Division expressly excluded a total of 51 days, from February 18, 1998 to March 19, 1998 and from April 30, 1998 to May 22, 1998, based on motion practice. Singh, 734 N.Y.S.2d at 457. Singh disputes the reasonableness of excluding the first time period because the government did not timely respond to Singh's suppression motion, and the second time period because the government was moving for reconsideration of the court's decision to suppress the out-of-court identifications. The Second Circuit has held that "time spent on discovery and pre-trial motions" is "justifiably required" under the second factor of Barker. Williams, 372 F.3d at 113. Singh asserted his speedy trial right in September of 1998. This was after the government had declared that it was ready for trial on August 26, 1998. These factors also weigh against Singh.
Finally, Singh claims that he was prejudiced by the delay in that he suffered anxiety, his family suffered, he lost his job, and he defaulted on a loan and other bill payments which resulted in bad credit. I recognize the weight of these collateral adverse effects on Singh, but they do not constitute the sort of prejudice required to support his claim. Barker, 407 U.S. at 534. Although Singh also claims that the recollections of the witnesses were diminished by the delay, mere allegations that "recollections are dim" because of the passage of time are not sufficient to sustain a speedy trial claim. Williams, 372 F.3d at 113. Moreover, as the government rightly points out, Singh's claim is that the passage of time led to further inconsistencies in the testimony of the government's witnesses. This would likely have had a positive effect on his case, as it undermined the credibility of those witnesses.
After analyzing the four factors listed in Barker, I conclude that the Appellate Division's denial of Singh's claim was neither contrary to nor an unreasonable application of federal law.
2. The In-Court Identification
Based solely on a procedural defect during motion practice, the one-the-scene identification of Singh by Cecil Callender was suppressed. Singh claims that he should have been precluded from making an in-court identification as well. This claim has no merit.
Even if a witness has been subjected to an unnecessarily suggestive identification procedure, an in-court identification violates due process, and must be excluded, only if the identification is not independently reliable. Manson v. Brathwaite, 432 U.S. 98, 114-16 (1977); Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001), cert. denied, 534 U.S. 1118 (2002); United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990), cert. denied, 501 U.S. 1233 (1991). To determine whether an identification is independently reliable, courts consider the following five factors: "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972); accord Manson, 432 U.S. at 114. All of the factors need not weigh in favor of independent reliability for the identification to be admissible. See, e.g., United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992), cert. denied, 510 U.S. 856 (1993). Moreover, "in each case, the question of independent reliability must be assessed in light of the totality of the circumstances." Raheem, 257 F.3d at 135 (citations omitted).
In this case, there is no reasonable question about the independent reliability of the in-court identifications by the witnesses. Regarding the first and second factors, the three witnesses were in the bar with Singh playing pool in the same area for at least one-half hour, and Wilfred Callender spoke with Singh for two to three minutes before the incident. (Trial Tr. dated February 17, 1998 at 360-61.) Moreover, Cecil Callender chased Singh, had a physical altercation with him and brought him back to the bar, providing significant opportunity for him to view Singh. As the government points out, the third factor — the prior description of Singh — is not particularly relevant in this case, since Singh was arrested almost immediately after the incident, at the behest of one of the witnesses.
With respect to the fourth factor, each of the witnesses pointed clearly to the defendant in court. Finally, the 15 months between the crime and the identifications do not render the identifications unreliable. See, e.g., United States v. Wong, 40 F.3d 1347, 1360 (2d Cir. 1994), cert. denied, 514 U.S. 1113 (1995), (holding that a ten-month gap before an identification was outweighed by the witness' opportunity to view the defendant for two or three seconds before ducking under a table for fear of being shot); United States v. Tortora, 30 F.3d 334, 338-39 (2d Cir. 1994), cert. denied, 513 U.S. 820 (1994), (five-year gap and inaccurate description of defendant outweighed by other "particularly strong indicia of reliability").
In considering the five factors together, there is ample evidence supporting the independent reliability of the in-court identifications of Singh by the three witnesses. Therefore, I conclude that the Appellate Division's holding that this claim is "without merit" was neither contrary to nor an unreasonable application of federal law.
3. Ineffective Assistance of Appellate Counsel
a. The Strickland Standard
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Singh must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) 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. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Gentry, 124 S. Ct. at 4 ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533 (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533 (citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").
Singh argues that his appellate counsel was ineffective in failing to raise on direct review the issue of ineffective assistance of trial counsel based on trial counsel's failure to (1) object to testimony regarding blood on Singh's jacket and (2) object to the in-court identifications discussed above. Neither claim has merit.
As I discussed with Singh at oral argument, no nonfrivolous objection could have been raised by trial counsel to exclude the testimony regarding the bloody jacket worn by Singh on the night of his arrest. The testimony was directly probative of the People's claim that Singh had been involved in the stabbing. Since trial counsel cannot be fairly criticized for not objecting, I cannot conclude that the performance of Singh's appellate counsel "fell below an objective standard of reasonable," as required by Strickland. Moreover, there is no reasonable probability that the outcome of the proceedings in state court would have been different even if appellate counsel had raised the argument.
Singh's second basis for his claim — that appellate counsel failed to raise trial counsel's ineffectiveness in failing to object to the circumstances of the in-court identification — is also without merit. As acknowledged by the Court in Strickland, trial counsel make numerous tactical decisions during the course of a trial. In this case, Singh's counsel could have requested a line-up to avoid the suggestiveness inherent in any in-court identification. Such a tactic would have been risky; if the witnesses selected Singh from the line-up, the defense would have been undermined. Perhaps recognizing that risk, trial counsel chose a different tactic — undermining the in-court identifications by cross-examination. The following is an example of the questioning by Singh's trial counsel to this end:
Trial Counsel: . . . Mr. Persaud, you knew that Mr. Singh was going to be in court today; right? . . .
Persaud: Yes.
Trial Counsel: And he's supposed to be sitting next to his lawyer; right?
Persaud: I don't know that part.
(Trial Tr. dated February 17, 2004 at 432-33.) This tactical decision as to how to deal with the in-court identifications may not properly be second-guessed on either direct review or habeas review. Appellate counsel cannot be criticized for failing to make such a challenge, and the decision of the Appellate Division to deny petitioner's writ of error coram nobis for failure to establish that he was denied effective assistance of counsel was neither contrary to nor an unreasonable application of federal law.
4. Insufficiency of Evidence
A petitioner arguing that the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt bears a "very heavy burden." See Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation marks omitted); Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks 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 (1979) (emphasis in original); see also Ponnapula, 297 F.3d at 179 ("[W]e review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.").
In making this assessment, the court may not "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences 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.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
Singh argues that the evidence presented at his trial was legally insufficient to establish his guilt beyond a reasonable doubt. However, the victim, Persaud, as well as Cecil and Wilfred Callender testified to the following series of events: the three were at the same bar as Singh for at least one-half hour before the incident; Wilfred Callender spoke with Singh for two to three minutes prior to the incident; Persuad and Singh exchanged words about the pool table after which Singh made a movement with his hand that slashed Persuad's throat; Persaud jumped on Singh and was pulled off of him by Wilfred Callender; Singh left the bar; Cecil Callender left after him and caught him about one block away; there was blood on Singh's jacket; Cecil Callender brought Singh back to the bar; and the police on the scene arrested Singh. (Trial Tr. at 345, 360-61, 405, 484-85.) Each of these three witnesses identified Singh as the assailant. ( Id. at 360-61 (W. Callender), 405 (Persaud), 484 (C. Callender).) I presume, as required by the above standard, that the jury fully credited the testimony of the witnesses.
Accordingly, I find the Appellate Division's finding, that "the verdict of guilt was not against the weight of the evidence" was neither contrary to nor an unreasonable application of federal law. Singh, 734 N.Y.S.2d at 457.
CONCLUSION
For the foregoing reasons, the petition is denied. As Singh has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
As stated at the oral argument, Singh's eleventh-hour request to adjourn his petition, which arises out of his efforts to procure testimony from witnesses presently living in Florida, is denied. Singh's letter of November 5, 2004 fails to state (1) why it has taken so long for him to contact these witnesses; and (2) that either of the two witnesses in Florida has testimony that would help his case. I see no reason to delay the disposition of the pending petition in light of these efforts by Singh.
So Ordered.