Culbreath v. Bennett

Full title: JEFFREY M. CULBREATH, Petitioner, v. FLOYD BENNETT, Superintendent of…

Court: United States District Court, W.D. New York

Date published: Aug 11, 2004

01-CV-6337 (CJS) (W.D.N.Y. Aug. 11, 2004)

Opinion

01-CV-6337 (CJS).

August 11, 2004

Jeffrey M. Culbreath, pro se, Sullivan Correctional Facility, Fallsburg, New York, for Petitioner.

Frank J. Clark, District Attorney of Erie County, By Donna A. Milling, Esq., Buffalo, New York, for Respondent.

DECISION AND ORDER

CHARLES SIRAGUSA, District Judge

INTRODUCTION

Petitioner Jeffrey Culbreath ("petitioner"), proceeding pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his convictions in New York State Supreme Court, Erie County, for murder in the second degree, attempted murder in the second degree, unauthorized use of a vehicle in the first degree, and criminal possession of a weapon in the third degree. For the reasons that follow, the petition is denied.

BACKGROUND

Unless otherwise noted, the following are the undisputed facts of this case. On May 12, 1993, in the City of Buffalo, two individuals, Eric Harkins ("Harkins"), age 17, and Carmen Gallo ("Gallo"), age 15, drove together in Harkins's car, which was a Taurus, to purchase drugs from a dealer named Roy "Pee Wee" Highsmith ("Highsmith"), who operated a drug house at 426 Winslow Avenue. While at 426 Winslow Avenue, Harkins agreed to allow a man named Eddie Baldon ("Baldon") to borrow his car for a few hours in exchange for drugs. At Harkins's request, Baldon dropped Harkins and Gallo off at a residence on Box Avenue, which is two blocks south of Winslow Avenue. According to Harkins, a man named Michael Ridgeway ("Ridgeway") was also with Baldon when Baldon borrowed his car and when he dropped Harkins and Gallo off at Box Avenue. While Harkins and Gallo waited at the Box Avenue residence for Baldon to return with the Taurus, Harkins used crack cocaine with the house's owner, Sandra Dukes ("Dukes"). Some time later, the Taurus was returned to Box Avenue, however Baldon was no longer in the car. According to Harkins, Ridgeway was in the car, along with two individuals he did not know. At that time, the men in the car asked Harkins if they could keep his car longer than originally intended. Harkins reluctantly agreed, but said that the men would have to be back shortly, because he needed the car to pick up his mother from her place of employment that evening. One of the men in the Taurus indicated that they would return the car in an hour. However, the Taurus returned only a short time later, with three individuals in the car: Ridgeway, petitioner, and Forest Dwayne Miles ("Miles"). It is undisputed that Miles was in the front passenger seat, however, as will be discussed below, there is disagreement over whether Ridgeway or petitioner was driving. Harkins and Gallo got into the back of the car. As the car drove away from Box Avenue, Harkins heard one of the three men in the car say "Take me home," although he does not remember which one. The driver of the vehicle then drove to Woodlawn Avenue, which is three blocks north of Box Avenue, and adjacent to Winslow Avenue, and stopped at a deserted area beside a field.

At some point along the way, a Nissan Pathfinder being driven by Highsmith began following the Taurus, and subsequently came to a stop alongside the Taurus. Besides Highsmith, four teenage girls, Crystal Camm-Kelly ("Camm-Kelly"), Affie Lee ("Lee"), Timeaka McCray ("McCray"), and Meya Richardson ("Richardson"), were also in the Nissan Pathfinder. Camm-Kelly was in the front passenger seat, while Lee, McCray, and Richardson were in the back seat.

Almost immediately after the Taurus came to a stop on Woodlawn, one of the three men shot Harkins in the head with a silver, double-barreled pistol. Miles then turned and began firing an AK-47-style semi-automatic rifle at Gallo, who was still seated in the back of the Taurus. Both Harkins and Gallo were then dragged from the Taurus, and Miles continued firing the rifle.

At this point, Highsmith and the others in the Nissan Pathfinder drove away, and Highsmith dropped Richardson off at her home. Highsmith then drove, along with Camm-Kelly, Lee, and McCray back toward Winslow Avenue. However, at the intersection of Fillmore Avenue and Ferry Street, which is one block north of Woodlawn Avenue, they observed Harkins, covered in blood, staggering toward a gas station/minimart.¹ Highsmith pulled into the gas station and watched as an employee provided first aid to Harkins while waiting for an ambulance to arrive. At this point, Highsmith remarked to the girls that "somebody wasn't on their job." Highsmith, Camm-Kelly, Lee, and McCray then returned to Winslow Avenue, but Highsmith told the girls to walk back to the gas station "to see what the boy was saying," which they did. Some days later Highsmith told the gas station employee who had provided first aid to Harkins that he should not have helped Harkins.

1 Before leaving to seek help, Harkins had attempted to revive Gallo.

While Harkins was being given first aid at the gas station, police and ambulance personnel arrived. At that time, Harkins indicated that Gallo was lying injured nearby. An ambulance took Harkins to the hospital, while police searched the area. Police discovered Gallo's body on Woodlawn Avenue, surrounded by cartridge cases from an AK-47-style semi-automatic rifle. The Erie County Medical Examiner determined that Gallo had been shot twelve times, in the arms, chest, abdomen, and leg, and died from injuries to his heart, lungs, and liver. At the hospital, Harkins was treated for two gunshot wounds to the head, one which entered his skull below the left ear and exited through the back of his neck, and one which entered his skull near the right ear and exited through his left cheek. Harkins remained in the hospital for sixteen days before being released.

As homicide detectives were investigating the scene of the shooting, other officers discovered Harkins's burned-out Taurus on Barthel Street, which is several blocks southeast of Woodlawn and Winslow. Inside the vehicle police found cartridge cases from the same rifle as those found on Woodlawn avenue, and bullet fragments, some of which they were able to determine had come from the same rifle that had fired the cartridge cases. Police also found a highway flare in the passenger compartment of the Taurus.

On or about November 19, 1993, an Erie County Grand Jury returned a seven-count indictment (Indictment No. 93-1068-001) against petitioner and Miles, charging them with Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the First Degree, Unauthorized Use of a Vehicle in the First Degree, Arson in the Third Degree, and Criminal Possession of a Weapon in the Third Degree (two counts). Petitioner's and Miles's case was assigned to the Honorable Mario J. Rossetti, who scheduled the trial for August 15, 1994. On or about July 5, 1994, petitioner, who was in custody awaiting trial, escaped from the Erie County Holding Center. He was recaptured in Mobile, Alabama on or about July 26, 1994, and returned to Buffalo. The trial was then rescheduled for March 8, 1995.

Petitioner was represented during the pre-trial proceedings and at trial by Paul G. Cleary, Esq. ("Cleary" or "trial counsel"). Prior to trial, petitioner and Cleary had a disagreement over trial strategy, and on March 6, 1995, plaintiff gave to Justice Rosetti a document containing the names of four individuals that plaintiff wanted to testify on his behalf at trial, including Highsmith. Justice Rosetti told petitioner to discuss the matter with Cleary.

On March 8, 1995, the date set for trial, with Miles present in court, Miles's counsel renewed an application for severance, and stated:

The defense on behalf of Dwayne Miles may involve cross-examination or a particular defendant by the — or a particular witness by the name of Michael Ridgeway and the cross-examination would attempt to establish that Jeffrey Culbreath [petitioner] was, in fact, the individual who first shot Carmen Gallo and Eric Harkins and that [the] shooting was a spontaneous act.

Record on Appeal to New York State Appellate Division, Fourth Department, p. 285a (emphasis added). Justice Rosetti denied Miles's application for severance, and later that day Miles pled guilty to all counts of the indictment.

Justice Rosetti then began jury selection. In the course of doing so, Justice Rosetti stated that petitioner had the right to be present during sidebar conferences:

[THE COURT:] Last but not least the voir dire, whether or not Mr. Culbreath will be — wishes to approach the bench.

MR. CLEARY: Yeah. If I may just take a moment, Your Honor, on that issue.

(An off the record discusssion was held between counsel and the defendant)

MR. CLEARY: He would want to be there for it.

THE COURT: He wants to be there. Have you advised Mr. Culbreath by virtue of the security that the deputies may move?

MR. CLEARY: He's now advised, Your Honor.

THE COURT: I'm advising him now. The deputies do have an obligation and they may move and it's got nothing — you know, I just want you to know that. You can either come up or stay there, but I just want you to know that. Do you understand? They're not going to be right next to you.

THE DEFENDANT: I understand, but if I choose to come up I can.

THE COURT: You can come up, but I have to know what you're going to do. I have to know because if you do come up I have to call you up. If you don't come up I just won't call you, I'll call Mr. Cleary.

Id. at 304a-305a. Justice Rosetti had also twice previously advised petitioner of that right. Id. at 278a ("Mr. Miles and Mr. Culbreath, you have a right during the course of the voir dire to approach the bench if a prospective juror wants to speak to the Court. . . . Now, you can waive that right. It's up to you, whatever you want to do."); Id. at 297a ("You have to discuss with them [Miles and petitioner, both of whom were present] whether or not they want to approach the bench during the voir dire."). Petitioner did not approach the bench with Cleary during bench conferences, and at the close of jury selection, Cleary indicated on the record that petitioner had waived his right to be present during the sidebar conferences, and petitioner confirmed that fact:

THE COURT: Mr. Culbreath, you had an opportunity to come up and you waived your right, is that correct?

THE DEFENDANT: Yes, I did, Your Honor.

Id. at 566a-567a.

At trial, the People presented a number of witnesses, however for purposes of the instant petition, the most notable were Harkins, Ridgeway, and Camm-Kelly. Harkins testified that when the Taurus returned to Box Street the first time, Ridgeway was driving, but that when it returned approximately ten minutes later, he was not sure who was driving. On cross-examination, though, Harkins admitted that in the Grand Jury, he had testified that Ridgeway had been driving. Harkins further testified at trial that he did not know who shot him, although he believed that it was not Ridgeway. Harkins also indicated that he did not remember any conversation in the Taurus before he was shot, except that one of the three men said "Take me home." Harkins stated that as he was lying on the ground after being shot, he opened his eyes and saw the people who shot him getting back into the Taurus, although he did not specifically name them. The next witness to testify was Ridgeway, who admitted to having sold drugs for Highsmith. Ridgeway denied that he had been with Baldon when Baldon originally borrowed the Taurus from Harkins, and stated that Baldon, Miles, and petitioner already had the Taurus when they picked him up later that evening. Ridgeway stated that Miles and Baldon got into an argument about returning the vehicle to Harkins, and that Baldon then left, while he, petitioner, and Miles went to return the car to Harkins. Ridgeway testified that in the Taurus, he was seated in the rear behind petitioner, who was driving, and that Miles was in the front passenger seat. Ridgeway then testified regarding a discussion that took place inside the Taurus while on Box Avenue after the men in the car had asked Harkins if they could keep the car longer. Ridgeway testified that, after Harkins told petitioner and Miles that he needed them to return the car sooner than they wanted, because he needed to pick up his mother at her workplace, both petitioner and Miles became extremely angry, and that after pulling away from Box Avenue the first time, they agreed to kill Harkins and Gallo:

They got real mad and said okay. They pulled off. They was like, who the fuck does the white boy think he is.

* * *

Well, the boy [Harkins] said, you better hurry up. I got to pick up my mom. They got mad. They said okay. They pulled up like two houses, and it was like, fuck that, who the fuck do white boys think they is. Let's do their mother fucking ass.

Trial Transcript at 125. Ridgeway indicated that immediately following this discussion, which occurred only seconds after Harkins had told the men that they needed to hurry up and had gone back into the house on Box Avenue, Culbreath sounded the horn and called Harkins and Gallo to get in the car, which they did. According to Ridgeway, he is the individual who said "Take me home," as petitioner was driving toward Woodlawn. Ridgeway stated that after petitioner stopped the car at a deserted area on Woodlawn, petitioner whirled around and shot Harkins in the head with a silver double-barreled pistol, and Miles began firing a rifle at Gallo. Ridgeway stated that he opened his door and got out of the car as petitioner and Miles began shooting, and that he saw petitioner get out of the car and walk around to the other side, after which he heard more shooting. Ridgeway denied seeing Highsmith's vehicle beside the Taurus as the shooting was occurring, noting that he "really wasn't paying attention," although he did indicate that he saw another vehicle's tail lights nearby. Ridgeway indicated that when the shooting stopped, petitioner and Miles told him to get back into the car, which he did, and that petitioner and Miles then dropped him off at another location.

The next witness to testify was Camm-Kelly, who indicated that she sold drugs for Highsmith and lived in Highsmith's drug house at 426 Winslow Avenue at the time of the shootings. Camm-Kelly stated that at the time of the shootings, she carried a silver, double-barrelled .357 derringer, which Highsmith had given to her to hold for him. Camm-Kelly indicated that on the night in question, she, Lee, McCray, and Richardson were at Highsmith's drug house, when Highsmith agreed to drive Richardson to her house. At about that time, she said, petitioner, who she knew by his nickname, "Jazz," drove up to 426 Winslow Avenue in the Taurus, along with Ridgeway, Miles, Harkins, and Gallo. Camm-Kelly stated that Highsmith asked her for the .357, which she gave to him, and that Highsmith then went and talked with petitioner. Camm-Kelly indicated that petitioner then drove away in the Taurus, along with Miles, Ridgeway, Harkins, and Gallo, and that she, Lee, McCray, and Richardson rode along with Highsmith, who followed the Taurus.² Camm-Kelly indicated that she was in the front passenger seat of Highsmith's Nissan Pathfinder, which sat up higher than the Taurus, and that when Highsmith pulled alongside the Taurus, he lowered the front passenger window, giving her an unobstructed view into the Taurus. She described what she saw as follows:

2 Camm-Kelly's testimony is thus inconsistent with Harkins's and Ridgeway's, since neither Harkins or Ridgeway testified that the Taurus stopped on Winslow Avenue after leaving Box Avenue. Rather, they indicated that the Taurus went directly from Box Avenue to Woodlawn. However, Camm-Kelly's version makes more logical sense, since it explains how Highsmith came to be following the Taurus. If Harkins and Ridgeway were correct, then Highsmith would not have known that the Taurus was heading to Woodlawn. Another possible explanation is that the events described by Camm-Kelly as occurring on Winslow Avenue actually occurred on Box Avenue, meaning that Highsm ith and his passengers were already following petitioner, Miles, and Ridgeway, when they went to Box Avenue to ask Harkins to keep the Taurus longer, and that Highsmith followed the Taurus from Box Avenue to Woodlawn.

I turned my head. Peewee [Highsmith] rolled down the window [the passenger's window beside Camm-Kelly] and I turned my head, and I saw the two white kids in the back, and I saw Wayne [Miles] on the other side pulling one out. He started shooting his gun. I saw Jazz [petitioner] — when we first drove up, Jazz [petitioner] had turned around and shot the one on his side, and then Wayne pulled the one out on the passenger side and shot him.

Trial Transcript at 178. Camm-Kelly stated that petitioner used a handgun, and that Miles used an "AK" rifle. Camm-Kelly testified that Highsmith then drove off, and that sometime later they observed Harkins injured and staggering toward the gas station/mini-mart. Camm-Kelly testified that after she and Highsmith returned to 426 Winslow Avenue for the evening, petitioner and Miles came to the house with the Taurus, and that petitioner talked to Highsmith "about what he was going to do to the car, and he asked him for these sticks of explosives." Camm-Kelly stated that Highsmith gave petitioner "a couple of sticks, about three or four" of explosive. Id. at 184. Camm-Kelly later clarified that what she thought were explosives were really highway flares. Camm-Kelly further indicated that the following day, she and petitioner were alone at 426 Winslow Avenue, and that petitioner returned the double-barreled pistol to her, although her testimony in that regard is equivocal:

Me and Jazz [petitioner] were up in the house, and it was — Jazz gave it to me. Well, it was there and I had taken it.

* * *

Well, it wasn't that Jazz said here, Crystal, here's the gun back. It was in the house that day, and before this all happened I usually had that gun, anyway. So, you know, through the course of the day somehow I got it back.

Trial Transcript at 184-86. Witness Affie Lee testified that she was in the back of Highsmith's vehicle when the shooting occurred, but did not see anything. She acknowledged, however, that she had previously seen Camm-Kelly with the pistol that Camm-Kelly had been holding for Highsmith. Witness Timeaka McCray indicated that she had been in Highsmith's vehicle and did see boys in the back of the Taurus being shot, but did not see who was shooting. Witness Meya Richardson indicated that she also had been in Highsmith's vehicle, and heard "pops," but did not see anything.

Petitioner, who had a previous conviction for Assault in the Third Degree, did not testify and called no witnesses. On March 21, 1995, the jury returned its verdict, finding petitioner guilty of Murder in the Second Degree, Attempted Murder in the Second Degree, Unauthorized Use of a Vehicle in the First Degree, and Criminal Possession of a Weapon in the Third Degree (two counts), and finding him not guilty of Arson in the Third Degree.

On or about April 26, 1995, while awaiting sentencing, petitioner filed a pro se motion pursuant to CPL §§ 330.30, 330.40, and 330.50, asking the trial court to set aside the jury's verdict, on the grounds that there was insufficient evidence to sustain the convictions and that the verdict was against the weight of the evidence. In that regard, petitioner stated, in relevant part: "[I]n order for me to be found 'guilty,' I beyond a reasonable doubt had to be thedriver of the car in which both 'Carmen Gallo' and 'Eric Harkins' were attacked, for it was the driver who initiated the events of this fatal incident by shooting "Eric Harkins." (Emphasis and quotation marks in original). Petitioner noted that in the Grand Jury, Harkins testified that Ridgeway had been driving the car immediately prior to the shooting. Petitioner also alleged that his attorney provided ineffective assistance of counsel by failing to call certain individuals, including Highsmith, to testify at trial. As to that claim, petitioner submitted a "confession," purportedly signed by Miles on March 9, 1995, the very day after Miles pled guilty to all counts of the indictment. In the statement, Miles states:

I and an individual named Michael Ridgeway on May 12, 1993 approx. 10:00 pm killed Carmen Gallo and attempted to kill Eric Harkins. Jeffrey Culbreath was at the scene when everything started but he did not know what was about to happen. Everything started when Mike shot Eric in the side of the face. Eric had turned around looking at a truck that was pulling up, that's when Mike shot him when his head was turned looking at the truck. Jeffrey Culbreath was just sitting there looking he didn't move maybe he was thinking he was next. Mike shot Eric with a small silver handgun. After that I started shooting Carmen. I shot him about 5 times all of this happen inside the car. After that me and Mike pulled Eric and Carmen out of the car, put them on the ground and that's when Mike grabbed the rifle and started shooting both of them until the gun ran out of bullets. Jeff just sat there looking like he was in shock. The truck had left before my shooting started. We all left in the car with both bodies on the ground, then went to get Mike's mother car, dropped Jeff on E. Ferry then me and Mike burned their car with gas. [ sic]

Plaintiff also submitted a written statement from Highsmith, dated May 16, 1995, which states:

I, [Roy Highsmith,] on May 12, 1993 approximately [sic] 9:30-10:00 pm was driving on Woodlawn Avenue, along with some friends and while driving up the street I slowed down to search for a tape[.] When I slowed down I came parallel to a car that pulled over close to the curb. When I looked in the car I witnessed "Michael Ridgeway" turn around and shoot a person that was seated in the back seat of the car. After that happened, I quickly pulled off and left the scene, I dropped a few of the people off at home who were with me, then I drove back to my neighborhood.

Finally, petitioner further argued that his trial counsel had been ineffective because he failed to have Miles's written statement admitted as evidence at trial.

On May 18, 1995, petitioner and his counsel appeared before Justice Rossetti for argument of petitioner's post-trial motion and for sentencing. At that time, petitioner personally argued the motion, which he had submitted pro se, and Cleary asked to address the Court only with regard to petitioner's claim that Cleary had been ineffective in failing to call Highsmith to testify, and in failing to have Miles's written statement admitted. Cleary stated, in relevant part:

I would only ask the record to note my comments on those portions of [petitioner's] motion which deal with his allegations regarding failure to call Messrs. Miles and Highsmith as witnesses for the defense in this case. I would note for the record that at the time of the trial both Mr. Miles and Mr. Highsmith had pending criminal proceedings against them. Both were represented by counsel. The code of professional responsibility therefore would preclude my making any kind of direct contact with either of these gentlemen as Mr. Culbreath's attorney but rather contact would have to be made through their counsel and at Mr. Culbreath's specific request I contacted Mr. Moll, counsel for Mr. Miles, and Mr. Clohessy, counsel for Mr. Highsmith. In both instances I was told that if subpoenaed to appear that they would have their clients take the fifth amendment and refuse to answer any questions other than giving of their names and addresses.

In my judgment, and again it's a matter of trial strategy, to bring either of these gentlemen in and to have that done in front of a jury would probably have been damaging to the defense in the case and in that regard I declined to bring these gentlemen in. I made this known to Mr. Culbreath during the pendency of the trial. He was fully aware of the problem. In fact, it was discussed on a number of occasions. Therefore, just so the record is clear that is the factual background behind those particular allegations.

Sentencing Transcript at 3-4. As for Miles's written statement, after plaintiff stated that Cleary had told him that the statement was "unnecessary and unworthy," Cleary interjected and stated: "I'm going to interject, Your Honor. I never used the term unnecessary or unworthy. The term I used, Mr. Culbreath, was inadmissible without the authentication of Mr. Miles on the stand, authentication to the document." Id. at 11. Petitioner then proceeded to argue his motion pro se. In that regard, petitioner stated, in relevant part:

Now, Your Honor, in respect to both ineffective assistance of counsel claims, number e and f, defense counsel blatantly failed to submit my co-defendant's confession [referring not to an actual confession, but to Miles's sworn statement executed after his guilty plea], which completely exonerated me and showed my innocence, see Exhibit A. The counsel also failed to call Roy Highsmith as an eye — he's an eyewitness who saw Ridgeway shoot Harkins from the driver's seat of Harkins' car at the crime scene. I requested Highsmith and other witnesses to be called to testify.

* * *

My defense was to uphold innocence. The best way of doing that would have been to present the evidence that showed my innocence, Your Honor. My lawyer knew that this evidence existed but he failed to call these witnesses or present my co-defendant's confession [ sic]. They both showed my innocence, which render him to be ineffective.

Sentencing Transcript, pp. 17-19. Cleary did not make any comments in response to these statements by petitioner. Cleary did, however, at the time of sentencing, argue that petitioner was innocent, and that it was Ridgeway, and not petitioner, who was driving the Taurus on the night of the crimes, and who shot Harkins. Id. at 34. Cleary further argued that petitioner's sentences should run concurrently and not consecutively. Id. at 36. Justice Rosetti denied petitioner's motion in its entirety and sentenced him to a combined sentence of 33 1/3 years to life, as follows: count one, 25 years to life; count two, 8 1/3 to 25 years; count four, 2 1/3 to 7 years; count six, 2 1/3 to 7 years; and count seven, 2 1/3 to 7 years; the sentences for counts one and six run to run concurrently with each other; the sentences under counts two and seven to run concurrently with each other and consecutive to the sentences for the first and sixth counts; and the sentence for count four to run concurrently to all counts.

On July 10, 1995, petitioner filed a vacatur motion in which he essentially argued the same issues raised in his initial post-trial motion. Petitioner withdrew the application on May 27, 1996.

On or about May 15, 1996, petitioner filed a motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10(1), on two grounds: 1) that Justice Rosetti denied petitioner compulsory process by refusing to secure the attendance Highsmith as a witness;³ and 2) newly discovered evidence, namely Highsmith's May 16, 1995 statement, discussed above. See, Ex. D to the Habeas Corpus Petition. With regard to his claim that Justice Rossetti denied him compulsory process, plaintiff alleged that when he provided Rosetti with a list of potential witnesses prior to trial, rather than telling plaintiff to discuss the matter with his attorney, Rosetti should have subpoenaed the witnesses. Petitioner later amended his motion to include a claim of prosecutorial misconduct. As to that claim, petitioner noted that during summations, the prosecutor made a misleading comment to the effect that it was reasonable to believe that the bullets that had pierced Harkins's head had also struck Gallo, who was seated beside him, and that the prosecutor improperly bolstered Ridgeway's testimony by misstating it. Petitioner subsequently amended his motion a second time, to allege Brady and Rosario violations. As for the Brady claim, petitioner argued that Camm-Kelley testified in another criminal trial involving Miles, and testified that: 1) she had only known Miles for approximately two weeks prior to May, 24, 1993; and 2) she had known Miles as a friend of Highsmith, but did not mention that Miles was allegedly Highsmith's hit man. As for the Rosario claim, petitioner first argued that the prosecution failed to notify the defense that Camm-Kelley had testified at the other proceeding. Petitioner further argued that the prosecution had failed to disclose that one of the trial witnesses, Officer Rankin, who testified regarding the circumstances surrounding petitioner's escape prior to trial, had testified in a grand jury regarding the same events. By Memorandum and Order filed on March 31, 1997, Justice Rosetti denied petitioner's application.

3 As discussed earlier, Justice Rosetti told petitioner that he would not subpoena petitioner's witnesses, and that petitioner would have to discuss the matter of witnesses with Cleary.

On his direct appeal to the New York State Supreme Court, Appellate Division, Fourth Department, petitioner was represented by new appellate counsel. See, Ex. B to the Habeas Corpus Petition. Petitioner's brief raised five issues: 1) that trial counsel was ineffective for failing to have Miles's statement admitted as a statement against penal interest, and that the trial court failed to adequately address the issue in ruling on petitioner's post-trial motion; 2) the trial court's admission of Gallo's autopsy photos was unduly prejudicial; 3) the cumulative effect of the errors described in points 1) and 2) deprived him of a fair trial; 4) the proof was legally insufficient to support his conviction for unauthorized use of a motor vehicle in the 1^st degree, and the verdict on that charge was against the weight of the evidence; and 5) the sentence was unduly harsh and excessive. Petitioner, acting pro se, subsequently filed a supplemental brief, in which he further alleged that trial counsel had been ineffective because he failed to call Miles and Highsmith as witnesses, and because of a conflict of interest. As to his alleged conflict claim, petitioner alleged that at sentencing, trial counsel became a witness against petitioner by explaining his decision not to call Miles or Highsmith to testify.

On December 31, 1998, the Appellate Division, Fourth Department, unanimously affirmed petitioner's conviction, see, People v. Culbreath, 256 A.D.2d 1146 (4th Dep. 1998). In a memorandum decision, the Appellate Division, Fourth Department rejected the idea that trial counsel had been ineffective: "Defendant was not denied effective assistance of counsel by defense counsel's failure to offer into evidence the statement of a codefendant or to call certain witnesses." As to Miles's written statement, the court noted that it "did not qualify for admission into evidence as a declaration against penal interest," and that even if it had, counsel had not been ineffective in deciding not to attempt to introduce it at trial. The court further rejected the issues raised in petitioner's supplemental brief, noting that they "lack[ed] merit." The court found that petitioner was procedurally barred from challenging his conviction for unauthorized use of a motor vehicle on the grounds of insufficient evidence or the verdict being against the weight of the evidence. Finally, the court rejected plaintiffs arguments concerning admission of the photographs of Gallo and concerning his sentence, finding that the photographs were "relevant to the issue of intent," and that the sentence was "neither unduly harsh nor severe." On June 25, 1999, the New York Court of Appeals denied leave to appeal. See People v. Culbreath, 93 N.Y.2d 968 (1999). See, Ex. C to the Habeas Corpus Petition.

In or about February 2000, petitioner, proceeding pro se, filed a second motion to vacate his conviction pursuant to CPL § 440.10(1), on the grounds of newly discovered evidence. This time the newly discovered evidence was a new affidavit from Highsmith, dated June 7, 1999, and a written statement from a Steve Martin, dated January 19, 2000. Highsmith, in his affidavit, states as follows:

I, Roy Highsmith, being duly sworn, deposes and says: On May 12, 1993, at approximately 9:30 pm, while on Winslow Avenue in the City of Buffalo, New York, I was in the process of preparing to drive two friends of mine home. There were a few friends of mine who were going along for the ride, to wit: Crystal Camm-Kelly and Affie Lee. Before I permitted Crystal Camm-Kelly to enter the vehicle I was operating, I told her she could not get in the vehicle if she was armed with a weapon. In response, Crystal Camm-Kelly informed me that she gave Michael Ridgeway her gun so that he could use it to shoot those two white boys that were with him if they did not cooperate with him. She also informed me that Michael Ridgeway had drove around the corner on Woodlawn Avenue.

The response I received from Crystal Camm-Kelly caused me to drive down Woodlawn Avenue in route to driving m[y] friends home. And when I drove down Woodlawn Avenue and came parallel to a car close to the curb, I observed Michael Ridgeway turn around in that car while in the driver's seat and shoot a person that was seated in the back seat of the car . . .

On May 16, 1995, I made a duly sworn statement referring to my observation of Michael Ridgeway as above mentioned. . . . However, that statement did not contain the information regarding Crystal Camm-Kelly which I did not make known until the making of this statement which was caused by my belief that it was not important.

Recently, I was informed by an individual that Jeffrey Culbreath's conviction had been affirmed, and that inspired me to give this statement with the additional information in the hopes that it may produce equity.

Steve Martin, a prison inmate at Clinton Correctional Facility, in his written statement, states as follows:

I am a close and childhood friend of MICHAEL D. RIDGEWAY who testified against JEFFREY M. CULBREATH in a criminal trial held in Erie County Supreme Court of Buffalo, New York.

MICHAEL D. RIDGEWAY told me, on numerous occasions while at his home and mine, that he was truly responsible for the actions Jeffrey M. Culbreath had been accused and convicted of. He informed me that his statement and trial testimony against Jeffrey M. Culbreath was entirely false. Before he testified he told me that his testimony would be false and after he testified he told me that his testimony was false. He further told me that a District Attorney told him that he would be charged with the same charges against Mr. Culbreath if he did not cooperate and incriminate Mr. Culbreath. Thus, according to Mr. Ridgeway, it was under these circumstances in which he gave a completely false statement and testimony against Mr. Culbreath.

Due to my friendship with Mr. Ridgeway, I have kept this information secret for a long time. However, after meeting Mr. Culbreath, I understand that it would be an obstruction of justice on my behalf if I fail to reveal this truth.

Notably, Highsmith and Martin were both convicted felons. Highsmith is currently serving a sentence of 61 years to life in New York state prison, having been convicted of criminal possession of a weapon 3^rd degree, criminal possession of a controlled substance 3^rd degree, and perjury 1^st degree, and at the time Steve Martin submitted his affidavit, he was serving a prison sentence for robbery 2^nd degree. Petitioner argued that these two statements discredited the two main witnesses against him at trial, Ridgeway and Camm-Kelly, and demonstrated that they in fact were accomplices.

By a Memorandum and Order filed on September 8, 2000, Justice Rossetti denied petitioner's application, finding first the motion was procedurally barred by CPL § 440.10(3)(c), since plaintiff had failed to raise the allegedly new evidence from Highsmith concerning Camm-Kelly in his earlier motion to vacate, although he had been in a position to do so. Alternatively, Justice Rossetti ruled that Highsmith's affidavit did "not constitute new evidence that would entitle the Defendant to vacatur," citing People v. Salemi, 309 N.Y. 208, 215-16 (1955), since it merely contradicted Camm-Kelly's trial testimony. Justice Rossetti further rejected Martin's statement, because it was not in the form of a sworn affidavit, and because it too did not qualify as newly discovered evidence, since it merely contradicted Ridgeway's testimony at trial. Petitioner sought to appeal Justice Rossetti's ruling, however on or about March 1, 2001, the Appellate Division, Fourth Department, denied him permission to appeal.

On or about March 8, 2001, petitioner filed a petition for writ of error coram nobis with the Appellate Division, Fourth Department. See, Ex. F to the Habeas Corpus Petition. In it, petitioner alleged that, as a result of a conflict between himself and his appellate counsel, appellate counsel had been ineffective in the following respects: 1) he failed to argue that the "cumulative effect" of trial counsel's errors resulted in ineffective assistance of counsel at trial; 3) he failed to argue that the murder conviction and weapons possession convictions were against the weight of the evidence; and 4) he failed to argued that plaintiff was denied his right to be present during sidebar conferences with prospective jurors. As for his cumulative effect argument, petitioner alleged that appellate counsel was ineffective for failing to argue that there was insufficient evidence to establish the cause of Gallo's death, and to show that petitioner intended Gallo's death. On the issue of intent, petitioner argued that the evidence showed only that he had intended to assault Harkins, and that he did not intend for Miles to then shoot Gallo. Petitioner alleged that the conflict arose between himself and appellate counsel when his wife called appellate counsel to inquire as to the status of petitioner's appeal, and counsel allegedly told her that the conviction had already been affirmed, when it had not, and further told her that if she wanted her husband home with her, she should marry someone who was not in prison. Petitioner stated that, as a result of that conversation, he filed a formal grievance against his appellate counsel.⁴ In his error coram nobis motion, petitioner argued that appellate counsel had ignored more substantial issues, such as the cumulative effect of trial counsel's alleged errors, while raising "issues that were particularly weak, [and] had little or no chance of success." See, Ex. F to Petition for Writ of Habeas Corpus, Petitioner's Memo of Law, p. 13. Petitioner included in the latter category appellate counsel's argument that trial counsel had erroneously failed to offer Miles's statement "under the statement against penal interest exception to the hearsay rule," observing that, "[T]he statement did not qualify for admittance under that exception to the hearsay rule."⁵ On June 8, 2001, the Appellate Division, Fourth Department, denied, without opinion, petitioner's application for a writ of error coram nobis.

4 In his memorandum of law in support of the petition for writ of error coram nobis, petitioner wrote: "[T]his animosity caused appellate counsel to withdraw from pursuing Petitioner's best interest in having the most significant and obvious issues properly argued on direct appeal." Somehow, Petitioner theorized that appellate counsel was making a romantic advance toward his wife, the success of which "was contingent upon Petitioner's perpetual imprisonment," and which caused appellate counsel to abandon his obligation to zealously represent petitioner.

5 Petitioner further characterized appellate counsel's argument as being "extremely weak," with "no chance of success at all." Ex. F to Petition for Writ of Habeas Corpus, Petitioner's Memo of Law, pp. 15, 18. Although he now chastises appellate counsel for having raised the argum ent, the reader will recall that petitioner personally raised the same argument in his pro se supplemental brief submitted to the Appellate Division, Fourth Department.

On June 29, 2001, petitioner commenced the instant proceeding for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner contends that he is entitled to a writ of habeas corpus for the following reasons: 1) trial counsel was ineffective because he failed to offer Miles's affidavit under the statement against penal interest to the hearsay rule, failed to call Highsmith to testify at trial, and failed to represent petitioner at sentencing; 2) the trial court violated his right to due process when it denied his February 2000,⁶ CPL § 440 application on procedural grounds pursuant to CPL § 440.10(3)(c), and when it alternatively determined that the application should be denied on the merits; and 3) appellate counsel was ineffective because he failed to argue on appeal that trial counsel's cumulative errors resulted in petitioner receiving ineffective assistance of counsel at trial, had a conflict of interest, failed to argue that the murder and weapon convictions were against the weight of the evidence, and failed to argue that petitioner was denied his right to be present during sidebar conferences with prospective jurors. As for trial counsel's alleged cumulative errors, petitioner alleges that these consisted of failing to seek a trial order of dismissal of the murder and weapons charges based on insufficient evidence of cause of death and intent,⁷ failing to interview Highsmith, who was represented by counsel, because he believed that the Code of Professional Responsibility prevented him from doing so, failing to object to Ridgeway's alleged hearsay testimony that petitioner and Miles agreed to kill Harkins and Gallo, failing to except to the trial court's accomplice charge concerning Ridgeway, and failing to obtain a "moral certainty" circumstantial evidence charge on the murder and weapons counts.

6 As noted above, the record indicates that the motion was actually filed on March 10, 2000.

7 Petitioner alleges that there was insufficient evidence of the cause of Carmen Gallo's death and of petitioner's intent to kill Gallo.

ANALYSIS

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), a federal court may grant habeas corpus 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). Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).

Ineffective Assistance of Trial Counsel

The standard for establishing ineffective assistance of counsel is well settled:

To establish a constitutional claim of ineffective assistance of counsel, a convicted defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for the deficiency, the likely outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984). . . . Actions or omissions by counsel that "'might be considered sound trial strategy'" do not constitute ineffective assistance. Id. at 689, 104 S.Ct. at 20 ( quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994). Here, petitioner contends that his trial counsel was ineffective in three respects: 1) he failed to have Miles's written statement introduced at trial as a declaration against penal interest; 2) he failed to call Highsmith as a witness at trial; and 3) he testified against petitioner during the argument of plaintiff's pro se motion to set aside his conviction, and failed to represent petitioner at sentencing.

A. Failure to introduce Miles's written statement

Miles's statement is hearsay, since it is an out-of-court statement sought to be offered for the truth of the matter asserted, namely, that petitioner was not involved in the shootings. Petitioner contends that the statement was nonetheless admissible under the "declaration against penal interest" exception to the hearsay rule. As to that, under the law of New York State,

[t]o qualify for admission into evidence as a declaration against the maker's penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.

People v. Settles, 46 N.Y.2d 154, 167 (N.Y. 1978) (citations omitted). The unavailability criterion is satisfied when the declarant is called as a witness at trial and invokes his right against self incrimination. Id. As for the requirement that there be other evidence of reliability independent of the statement, "the trial court must determine, by evaluating competent evidence independent of the declaration itself, whether the declaration was spoken under circumstances which renders it highly probable that it is truthful." People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120,122 (N.Y. 1987) (citation omitted). Moreover, even

[i]f the court decides to allow such evidence, it should admit only the portion of that statement which is opposed to the declarant's interest since the guarantee of reliability contained in declarations against penal interest exists only to the extent the statement is disserving to the declarant.

Id., 70 N.Y.2d at 16, 517 N.Y.S.2d at 123.

Here, petitioner's trial counsel was not ineffective for failing to seek admission of Miles's statement, since it would not have qualified as a declaration against penal interest. In the first place, the statement was not against Miles's penal interest at the time he made it, since he had already pleaded guilty to the indictment. Petitioner argues that Miles still had "something to lose" by making the statement, since it was possible at the time that he could have successfully appealed his conviction. However, that possibility is too remote to render the statement as being against Miles's penal interest. See, U.S. v. Dovico, 380 F.2d 325, 327 (2d Cir. 1967) (Finding that a statement was not against the declarant's penal interest, since he had already pleaded guilty to the crime, and that the possibility of some further prosecution as a result of the statement was too remote), cert. denied, 389 U.S. 944 (1967). Even assuming that the statement was against Miles's penal interest when he made it, the statement is clearly unreliable. Not only is the statement inconsistent with Miles's sworn plea given the previous day,⁸ it seeks to minimize Miles's involvement in the crime, by claiming that he shot Gallo, who suffered twelve gunshot wounds, only "about 5 times," while Ridgeway inflicted the remaining wounds. See, People v. Thomas, 68 N.Y.2d 194, 200, 507 N.Y.S.2d 973, 976 (N.Y. 1986) (Noting that a purported declaration against penal interest would not be reliable if it sought to minimize the declarant's culpability). Miles also claims that "the truck," clearly referring to Highsmith's vehicle, pulled away from the scene before he began firing, which is inconsistent with the other evidence at trial as well as Highsmith's statements, and which if believed, would conveniently remove most of the witnesses from the scene at the time Miles supposedly began firing. Moreover, even if Miles's statement had been allowed in, it would have been redacted to remove the very information that petitioner wanted to put before the jury, which is that Ridgeway was the other shooter, and that petitioner was an innocent bystander, since those portions of the statement, while damaging to Ridgeway, are not against Miles's penal interest.⁹ Finally, the Court notes that in his Memorandum of Law submitted in support of his Petition for a Writ of Error Coram Nobis, petitioner faulted his appellate counsel for raising on appeal the very same argument that petitioner is now pursuing, i.e., that trial counsel should have attempted to introduce Miles's written statement. Notably, petitioner described the argument as being "particularly weak," with "little or no chance of success," since "the statement did not qualify for admittance under [the declaration against penal interest] exception to the hearsay rule." Memo in Support of Writ of Error Coram Nobis, p. 13. Accordingly, the Court finds that petitioner's trial counsel was not ineffective for failing to seek admission of Miles's statement under the declaration against penal interest exception to the hearsay rule.

8 The statement is also inconsistent with Miles's motion for severance, discussed above, in which he alleged that Petitioner was "the individual who first shot Carmen Gallo and Eric Harkins."

9 While the statement is inconsistent with Miles's plea, the Court believes that the possibility that Miles might have been prosecuted for perjury in that regard was again too remote.

Nor was trial counsel ineffective for failing to call Highsmith to testify at trial, which is the second basis for petitioner's claim alleging ineffective assistance of trial counsel. According to petitioner's trial counsel, he had contacted Highsmith's attorney, who advised him that if he were to call Highsmith as a witness, Highsmith would exercise his right against self incrimination and would "refuse to answer any questions other than giving of [his] name and address." Petitioner's claim is without merit, since it is a "reasonable trial strategy" to decline to call a witness where a defense counsel has been advised in advance that the witness will invoke his Fifth Amendment privilege if called to testify. Mesterino v. United States, No. 96 CIV. 2114 MJL, 90 CR 276 MJL, 1997 WL 528047 at *6 (S.D.N.Y. Aug. 27, 1997); see also, U.S. v. Feyrer, 333 F.3d 110, 119 (2d Cir. 2003) ("[I]t seems . . . likely that [defense counsel] considered it poor trial strategy to subpoena a peripheral, reluctant and not very credible witness who planned in any event to invoke his Fifth Amendment privilege."). Petitioner argues that trial counsel was nonetheless ineffective because he relied on Highsmith's attorney's representations in that regard, rather than contacting Highsmith directly. As to that, as discussed above, petitioner's attorney did state, at sentencing, that he believed that, pursuant to the "code of professional responsibility," he could not contact either Miles or Highsmith directly, but had to speak to their attorneys. Petitioner, citing cases such as Grievance Committee for the Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995), argues that trial counsel was mistaken in his belief that he could not contact Highsmith directly. However, even if trial counsel could have contacted Highsmith directly, he was justified in relying on the representations of Highsmith's attorney. Mesterino v. United States, 1997 WL 528047 at *6. (Finding that counsel was not ineffective where he relied on a prospective witness's attorney's statement that the witness would invoke his Fifth Amendment right if called to testify.). Significantly, there is nothing to indicate that trial counsel was mistaken in relying on Highsmith's attorney's statement that his client would invoke his Fifth Amendment right if called to testify, and Highsmith says nothing to contradict that belief in either of the two sworn statements he has submitted on petitioner's behalf.¹⁰ Moreover, petitioner's argument that Highsmith would have had no fear of self incrimination if called to testify is highly doubtful, considering that: 1) it is undisputed that the crimes occurred in connection with the victims' purchase of drugs at a drug house run by Highsmith, and that in fact, Highsmith was the "drug kingpin of Winslow Avenue"; 2) there was evidence that Miles worked as a hit man for Highsmith; 3) there was evidence that, only moments before the shootings, Highsmith gave petitioner the weapon used to shoot Harkins; 4) there was evidence that, after giving the pistol to petitioner, Highsmith followed the Taurus down Woodlawn Avenue, and sat a few feet away in his vehicle while the shootings occurred; 5) there was evidence that, after seeing that Harkins had survived, Highsmith commented that "somebody wasn't on their job"; 6) there was evidence that Highsmith subsequently told the gas station attendant that he should not have provided first aid to Harkins; and 7) there was evidence that Highsmith provided the highway flares that petitioner and Miles used to incinerate Harkins's car. For all of these reasons, the Court finds that trial counsel's failure to call Highsmith as a witness at trial did not violate petitioner's right to effective counsel, but rather, represented sound trial strategy.¹¹

10 While, on the one hand, petitioner offers nothing to indicate that Highsmith's attorney was mistaken, it is clear, on the other hand, that he believes that Miles's attorney was correct in indicating that Miles would "take the Fifth" if called to testify, since he argues that "there's no doubt" that Miles "would have invoked his privilege against self-incrimination if called as a witness thereby becoming legally unavailable to give testimony." Petition [#1], p. 10.

11 Petitioner's reliance on the case of Batten v. Griener, No. 97-CV-2378 (JBW), 2003 WL 22284187 (E.D.N.Y. Aug. 26, 2003), is misplaced. That case involved trial counsel's failure to secure the attendance at trial of an impartial, exculpatory witness who had expressed a reluctance to testify. Although the witness's testimony would have substantially impeached the testimony of the prosecution's main witness, who was the only witness to identify the defendant, trial counsel did not secure the witness's attendance, citing a belief that the witness might be hostile toward defendant if compelled to testify. Id. at *8.

Finally, with regard to petitioner's third and final argument that trial counsel was ineffective, the Court finds that trial counsel was not rendered ineffective because of his comments made at sentencing in connection with petitioner's pro se motion pursuant to CPL §§ 330.30, 330.40, and 330.50. As discussed above,

[a] defendant who claims that he was denied effective assistance of counsel must ordinarily show that (1) his attorney's performance fell below an objective standard of reasonableness, and (2) he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 688, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proving prejudice requires an affirmative showing of a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. However, when the claim of ineffective assistance of counsel is based on an asserted conflict of interest, a less exacting standard applies, and prejudice may be presumed. A defendant is entitled to a presumption of prejudice on showing (1) an actual conflict of interest that (2) adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

U.S. v. Moree, 220 F.3d 65, 69 (2d Cir. 2000) (internal quotation marks omitted). A petitioner may also establish ineffective assistance where counsel had a potential conflict of interest that resulted in prejudice to the petitioner. Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995). "Because sentencing is a critical stage of the criminal proceeding at which a defendant is entitled to the effective assistance of counsel, a constitutional violation may occur if a conflict of interest arises after a defendant is convicted but before he is sentenced." Id. (citation and internal quotation marks omitted).

In the instant case, during oral argument of petitioner's pro se motion for a new trial, after petitioner complained that trial counsel had failed to call Highsmith as a witness, trial counsel explained to the court his reason for not doing so. A few moments later, after petitioner complained that trial counsel should have introduced Miles's written statement under the declaration against penal interest exception to the hearsay rule, and stated that trial counsel had described Miles's statement as "unnecessary and unworthy," trial counsel interjected and explained that he had not used those words, but instead had told petitioner that he believed that Miles's written statement could not be introduced as evidence unless Miles testified and authenticated the document. Petitioner contends that by making these statements, trial counsel became a witness against him, and that petitioner was thus deprived of representation at sentencing. The Court disagrees. First, the Court finds that no actual conflict of interest arose merely because petitioner accused trial counsel of ineffectiveness, or because trial counsel clarified certain factual matters related to plaintiff's allegations. U.S. v. White, 174 F.3d 290, 292-93 (2d Cir. 1999) (Finding no actual conflict of interest, where in response to the defendant's claims of ineffectiveness, defense counsel explained her reasons for failing to call a particular witness and for declining to file a particular post-trial motion). Trial counsel did not otherwise respond to petitioner's allegations of ineffectiveness, and at sentencing, trial counsel reiterated petitioner's claims of innocence and asked for leniency. cf. Lopez v. Scully, 58 F.3d at 40 (A conflict of interest existed where trial counsel, after being accused of ineffectiveness by his client, told the court that he "denied each and every allegation" by the defendant, and declined to make arguments on the defendant's behalf at sentencing.). Petitioner has not shown that counsel's performance "fell below an objective standard of reasonableness" or that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," since, as discussed above, petitioner's arguments regarding trial counsel's failure to seek admission of Miles's written statement and to call Highsmith as a witness lack merit. Accordingly, the petition is denied to the extent that it is based on alleged ineffective assistance of counsel by trial counsel.

Ineffective Assistance of Appellate Counsel

Petitioner also contends that he was denied effective assistance of appellate counsel, in connection with his direct appeal to the New York State Supreme Court, Appellate Division, Fourth Department. In that regard, petitioner alleges that his appellate counsel: 1) had a conflict of interest, involving petitioner's wife, which affected his handling of the appeal; 2) failed to argue on appeal that trial counsel's "cumulative errors" denied him effective assistance of counsel; 3) failed to argue on appeal that the murder and weapons possession convictions were against the weight of the evidence; and 4) failed to argue on appeal that petitioner had been denied his right to be present at sidebar conferences with potential jurors during jury selection.

While the Strickland standard for assessing claims of ineffective assistance, set forth above, "was formulated in the context of evaluating the effectiveness of trial counsel, the same standard applies to claims regarding the performance of appellate counsel." Allen v. Filion, No. 02-CV-6079, 2004 WL 1498167 at *5 (W.D.N.Y. Jul. 6,2004) ( citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) and Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)). With regard to petitioner's claim that appellate counsel had a conflict of interest, the petition states:

During the course [sic] where appellate counsel . . . was in the pursuit of perfecting Petitioner's direct appeal, an insurmountable degree of animosity developed between petitioner and appellate counsel. This animosity, in essence, amongst other things, resulted from the fact when [sic] petitioner's wife . . . called appellate counsel to inquire about the prospect and status of the appellate brief being prepared. During this telephonic convers[ation], appellate counsel told Mrs. Culbreath that petitioner's conviction had been affirmed, even though the appellate brief had not even been prepared. Further, in an attempt to appeal to Mrs. Culbreath, appellate counsel told Mrs. Culbreath that if she wanted her husband home with her that she should marry someone who's not in prison.

Petition, pp. 44-45. The petitioner further alleges that

this animosity caused appellate counsel to withdraw from pursuing petitioner's best interest in having the most significant and obvious issues properly argued on appeal thereby causing a conflict of interest. Alternatively, said circumstances apparently caused appellate counsel to not effectively engage in the necessary research to determine applicable law and prepare an appellate brief raising cogently the most significant and obvious issues.

Id. at 45. However, while petitioner contends that the alleged conflict of interest influenced appellate counsel's decision to raise certain arguments on appeal, an affidavit from petitioner's wife indicates that she spoke with appellate counsel after he had filed the appellate brief on behalf of petitioner. In fact, the record indicates that appellate counsel filed the appellate brief on or about February 22, 1998, while the telephone conversation between petitioner's wife and appellate counsel did not take place until April 10, 1998. Accordingly, for that reason alone there can be no merit to petitioner's claim that this telephone conversation somehow created a conflict that led appellate counsel to pursue only weak claims on appeal. There is also no indication that this alleged telephone conversation could have created a conflict of evidence or otherwise negatively impacted upon petitioner. Petitioner's theory is that, appellate counsel's comment that petitioner's wife should "marry someone who is not in prison," made in response to her statement that she wanted her husband home, shows that appellate counsel had a romantic interest in petitioner's wife. This theory is absurd on its face. Nor can petitioner claim to have been misled by appellate counsel's alleged statement that the appeal had already been decided, since petitioner obviously knew that the appeal had not been decided, as shown by the fact that, subsequently (in May or June of 1998), petitioner filed a pro se supplemental brief in support of the appeal. Therefore, the Court finds that petitioner has not demonstrated that appellate counsel was ineffective due to a conflict of interest.

As for petitioner's claims that appellate counsel was ineffective for failing to raise particular arguments on appeal,

counsel need not present every non-frivolous argument that could be made on petitioner's behalf. Mayo, 13 F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (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 choices concerning strategy. Mayo, 13 F.3d at 533; see also Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1984) ("For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the goal of vigorous and effective advocacy [.]"). However, a habeas petitioner may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing arguments that were patently and significantly weaker. Mayo, 13 F.3d at 533.

Allen v. Filion, No. 02-CV-6079, 2004 WL 1498167 at *5 (W.D.N.Y. Jul. 6, 2004); see also, Mayo v. Henderson, 13 F.3d at 533 ("Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome."). Moreover, even if the petitioner demonstrates that counsel was ineffective, he must still demonstrate prejudice:

In evaluating the prejudice component of the Strickland test, a court must determine whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The outcome determination, unlike the performance determination, may be made with the benefit of hindsight. To establish prejudice in the appellate context, a petitioner must demonstrate that there was a 'reasonable probability' that his claim would have been successful before the state's highest court.

Mayo v. Henderson, 13 F.3d at 534 (citations and internal quotation marks omitted).

Petitioner first contends that appellate counsel should have argued that trial counsel's cumulative errors resulted in a denial of the effective assistance of counsel, and in that regard, petitioner contends that these cumulative errors consisted of 1) failing to seek a trial order dismissing the murder and weapons possession charges for insufficient evidence;¹² 2) failing to call Highsmith as a witness; 3) failing to object to the hearsay statement, "who do the fucking white boys think they is[?] Let's do their motherfucking ass"; 4) failing to object to the trial court's accomplice jury instruction pertaining to Ridgeway; and 5) failing to request a "moral certainty" jury instruction pertaining to circumstantial evidence, since the People's case against petitioner as to the murder of Gallo was based on "wholly circumstantial" evidence.¹³

12 For example, petitioner contends that there was insufficient evidence of the cause of Gallo's death, as well as insufficient evidence that petitioner intended to kill Harkins, since the evidence indicated that petitioner only intended to wound Harkins by shooting him in the jaw. Petition at pp. 25-28.

13 As discussed earlier, the claim is that appellate counsel did raise were: 1) that trial counsel was ineffective for failing to have Miles's statement admitted as a statement against penal interest, and that the trial court failed to adequately address the issue in ruling on petitioner's post trial motion; 2) the trial court's admission of Gallo's autopsy photos was unduly prejudicial; 3) the cumulative effect of the errors described in points 1) and 2) deprived him of a fair trial; 4) the proof was legally insufficient to support his conviction for unauthorized use of a motor vehicle in the 1^st degree, and the verdict on that charge was against the weight of the evidence; and 5) the sentence was unduly harsh and excessive.

Taking these alleged cumulative errors in order, the Court first finds that appellate counsel was not ineffective for failing to argue that there was insufficient evidence to support the jury's verdict, since, clearly, the record does contain sufficient evidence. See, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761,763 (N.Y. 1987) ("For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.") (citations and internal quotation marks omitted).

Next, the Court has already determined that trial counsel was not ineffective for failing to call Highsmith as a witness. Therefore, appellate counsel was not ineffective for raising that argument on appeal. More importantly, petitioner raised that very argument himself in his pro se supplement to appellate counsel's brief. Consequently, petitioner could not have been prejudiced by appellate counsel's failure to make the argument.

Further, petitioner contends that appellate counsel was ineffective for failing to argue that trial counsel should have objected to Ridgeway's testimony that either petitioner or Miles said, "who do the fucking white boys think they is[?] Let's do their motherfucking ass." Petitioner contends that the statement is inadmissible hearsay, however, the Court disagrees, and finds that appellate counsel was not ineffective for failing to advance the argument. See, e.g., People v. Ayala, 273 A.D.2d 40, 40, 709 N.Y.S.2d 528, 529 (N.Y.A.D. 1 Dept. 2000) ("As trial counsel undoubtedly recognized, testimony elicited from the undercover detective regarding statements made by defendant's companions during the transaction was not hearsay because each of the statements constituted a verbal act and part of the criminal res gestae establishing the theory of 'acting in concert' as charged in the indictment."). Petitioner also contends that appellate counsel should have argued that it was error for trial counsel to fail to object to the court's accomplice charge, since the instruction was contrary to CPL § 60.22(2)(b). However, the Court again disagrees, since the accomplice charge given, New York Criminal Jury Instruction 7.53, was the one requested by defendant's counsel, and was not in any event contrary to CPL § 60.22(2)(b). See, Petition [#1], p. 34; Trial Transcript, pp. 447-48, 543-45. As to that, although the charge given included an essentially verbatim recitation of CPL § 60.22(2)(b), petitioner apparently is referring to Justice Rosetti's later use of the phrase, participation "in the offense based on the same or some of the same facts or conduct constituting the offense charged," as opposed to participation "in an offense upon the same or some of the same facts or conduct which constitutes the offense charged." Petition [#1], p. 34. If indeed Justice Rosetti's use of the word "the" instead of "an" in this instance was erroneous, the Court has no doubt that it was harmless, and notes that petitioner does not allege that this perceived error caused the jury to fail to find that Ridgeway was an accomplice. Instead, according to petitioner, "[p]resumptively, the jury deemed Ridgeway an accomplice."¹⁴ Petition p. 19. Accordingly, appellate counsel was not ineffective for raising the argument on appeal.

14 As discussed further below, petitioner's theory that the jury found that Ridgeway was an accomplice is one of the lynchpins of his due process claim, since he argues that, as an accomplice, Ridgeway's testimony was required to have been corroborated by a non-accomplice, namely Camm-Kelly, and that since Camm-Kelly was, according to Highsmith, herself an accomplice, he should not have been convicted on the testimony of Ridgeway and Camm-Kelly without some further corroborating evidence. Petition [#1], pp. 18-20. Petitioner's theory is thus inconsistent with the notion that Justice Rosetti's accomplice charge somehow prevented the jury from finding that Ridgeway was an accomplice.

Petitioner concludes by contending appellate counsel should have argued that trial counsel was ineffective with regard to his request for a "moral certainty" charge concerning circumstantial evidence. As to that, trial counsel clearly did request the moral certainty charge, and was given an exception to Justice Rosetti's ruling denying the request. See, Trial Transcript pp. 447-48. Petitioner, however, contends that trial counsel was ineffective because he took the position that "much of the evidence" against petitioner was circumstantial, instead of arguing that it was entirely circumstantial. Here, petitioner alleges that "[a]ll of the evidence put forth by the People to establish Petitioner's accomplice liability to the murder and its accompanying weapons charge was wholly circumstantial." Petition [#1], p. 36. The Court disagrees and finds that there is direct evidence of petitioner's guilt of murder. See, e.g., People v. Roldan, 88 N.Y.2d 826, 827, 643 N.Y.S.2d 960, 961 (1996) ("Eyewitness testimony, if believed by the jury, established that defendant engaged in acts which directly proved that at the very least he acted as a lookout while the crime was being committed. Coupled with conduct before and after the actual commission of the crime, defendant's accessorial guilt cannot be viewed as premised solely on circumstantial evidence.") (citation omitted). In any event, while Justice Rosetti did not use the term "moral certainty," his jury instruction was sufficient on that point. As to that, the jury instruction, in relevant part, was as follows:

You must be satisfied beyond a reasonable doubt that the circumstantial facts proved point solely and exclusively to such guilty intention and that such circumstantial facts prove are inconsistent with any rationale of an innocent intention. In short, before you may draw any inference of guilty intention, you must be satisfied beyond a reasonable doubt that such inference is the only inference reasonable — reasonably possible from the circumstantial facts proved.

Trial Transcript p. 587. This instruction was not erroneous. People v. Schachter, 774 N.Y.S.2d 24, 26 (1^st Dept. 2004) ("[T]he particular phrase "moral certainty" need not be part of the charge where the court instructs the jury "in substance" that it "must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.") (citation omitted).

Apart from his argument that appellate counsel failed to raise the alleged cumulative errors of trial counsel, petitioner further contends that appellate counsel should have argued that the murder and weapons possession convictions were against the weight of the evidence. The law in the State of New York concerning arguments directed to the weight of the evidence is well settled:

Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.

To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict.

Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor.

People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (citations and internal quotation marks omitted). Here, the Court finds, based upon the evidence introduced at trial as discussed above, that the verdict here clearly was not against the weight of the evidence, and that appellate counsel was not ineffective for failing to raise the argument.¹⁵ See, e.g., People v. Jones, 2 A.D.3d 1397, 768 N.Y.S.2d 881, 882 (N.Y.A.D. 4 Dept. 2003) ("The fact that one of the victim's sons was confused or mistaken about the perpetrator's identity does not render the verdict against the weight of the evidence."); People v. Smith, 770 N.Y.S.2d 527, 528-529 (4^th Dept. 2003) ("The People presented the testimony of, inter alia, two witnesses who identified defendant as the person who entered an apartment, occupied by those witnesses and the victim, and shot the victim. One witness observed defendant shoot the victim several times, and the other witness heard the shots from another room and then observed defendant run out of the apartment holding a gun. Although defendant's former neighbor testified that defendant was with him at the time the murder occurred, great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor, and here there is no basis upon which to disturb the jury's credibility determinations.") ( citing People v. Bleakley, 69 N.Y.2d at 495; internal quotation marks omitted).

15 As respondent notes, the New York State Supreme Court, Appellate Division, Fourth Department, summarily rejected petitioner's "against the weight of the evidence" argument raised in his pro se petition for writ of error coram nobis filed on or about March 8, 2001.

Finally, petitioner contends that appellate counsel should have argued that petitioner's constitutional right to be present during sidebar conferences with prospective jurors was violated. Petitioner acknowledges that trial counsel indicated on the record that petitioner was waiving his right to be present at those conferences, but contends that trial counsel was "referring to a putative waiver that is not on the record." Petition, p. 41. Moreover, although petitioner acknowledges that he specifically waived his right to be present at a sidebar conference with a juror on one occasion, he alleges that "the trial court's inquiry did not address the issue of the appellant waiving his right to be present at each sidebar colloquy . . . nor did it ascertain whether appellant was aware of the consequences." Petition, p. 42. However, the Court finds that appellate counsel was not ineffective for raising this argument, since it is clear, from the trial record, as discussed above, that petitioner understood his right to be present at such sidebar conferences, and that he unequivocally waived the same. See, People v. Beverly, 775 N.Y.S.2d 409, 411 (3rd Dept. 2004) ("The record reveals that such a waiver occurred here. After defense counsel conferred with defendant and waived his right to be present at sidebar conferences, defendant confirmed on the record that he understood and agreed to waive this right. Under these circumstances, it cannot be said that defendant was deprived of the right to be present at a material stage of trial."). That being the case, the argument is without merit and would not have been successful on appeal.

Due Process Violations by the Trial Court

Petitioner next argues that the trial court denied his right to due process by denying his motion for a new trial brought pursuant to CPL § 440.10. This argument is twofold. First, petitioner contends that the trial court erroneously denied his motion pursuant to CPL § 440.10(1), seeking a new trial on the grounds of newly discovered evidence, namely, the written statement by Highsmith, dated June 7, 1999, and the written statement by Martin dated January 19, 2000. In this regard, he maintains the following: 1) if Ridgeway was an accomplice, his testimony required independent corroboration pursuant to CPL § 60.22(1); 2) the jury must have found that Ridgeway was an accomplice;¹⁶ 3) since Camm-Kelly's complicity in the crimes was not in question at the trial, the jury must have relied on her testimony as the independent corroboration of Ridgeway's testimony; 4) under New York law, the testimony of one accomplice cannot corroborate the testimony of another accomplice; 5) Highsmith's June 7, 1999, affidavit indicates that Camm-Kelly was an accomplice; 6) petitioner is therefore entitled to a new trial, at which the court must instruct the jurors that if they find that Ridgeway and Camm-Kelly are both accomplices, they must find petitioner "not guilty." Petition [#1], pp. 18-20. Petitioner states:

16 Petitioner does not explain the factual basis for this assumption.

Petitioner has a liberty interest protected by the Due Process Clause in the Fourteenth Amendment of the United States Constitution relative to having a trial by jury resolve together both Ridgeway's and Camm-Kelly's complicity. See, Hicks v. Oklahoma, 447 U.S. 343, 345-346. This is so, owing to the fact that the Petitioner in this case has a substantial and legitimate expectation that he will be deprived of his liberty only after the jury has concluded, in fact, that Ridgeway and Camm-Kelly are not accomplices and that the State has proved Petitioner's guilt beyond a reasonable doubt. Id. Thus, under these circumstances, the trial court should have ordered a new trial, and its failure to do so violated petitioner's right to due process.

Petition [#1], p. 20. In the end, however, petitioner's argument is essentially that Ridgeway and Camm-Kelly committed perjury at trial when they testified that it was petitioner, and not Ridgeway, who shot Harkins. Liberally construing the pro se petitioner's papers to raise the strongest arguments they suggest, as the Court is required to do, the Court finds that petitioner is arguing that his federal due process rights were violated because he was convicted based upon perjured testimony by Ridgeway and Camm-Kelly.

The law concerning federal habeas claims based on perjured testimony at trial is as follows:

The Supreme Court analyzes claims for wrongful conviction based on perjured testimony under the Due Process Clause of the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Under this standard, the Court has said that the conviction must be set aside if (1) "the prosecution knew, or should have known, of the perjury," and (2) "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). Where it is not alleged that the prosecution knew or should have known of the perjury, "due process is violated only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003).¹⁷ Initially, the Court must determine whether or not a witness actually committed perjury. The petitioner has the burden of demonstrating, by a preponderance of evidence, that the witness committed perjury. See, Ortega v. Duncan, 333 F.3d at 106. In making this determination, a court must "weigh all the evidence of perjury before it." Id. at 107.

17 But see, Lombard v. Mazzuca, No. 00 CV 74622(JG), 2003 WL 22900918 at *7-8 (E.D.N.Y. Dec. 8, 2003) ("Because the [U.S.] Supreme Court has not clearly established that habeas relief is available in the complete absence of prosecutorial knowledge of perjury, I may not, consistent with § 2254(d)(1), grant relief on this ground.") (emphasis added).

A district court's decision to deny a habeas petition without conducting a hearing is reviewed using an "abuse of discretion" standard. See, U.S. v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995). It is not an abuse of discretion to deny a habeas petition without a hearing where the evidence of perjury consists of hearsay, or has other "evidentiary frailties." U.S. v. Sasso, 59 F.3d at 351; see also, U.S. v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987) ("To warrant plenary presentation of evidence, the [ habeas] application must contain assertions of fact that a petitioner is in a position to establish by competent evidence. . . . Airy generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing."); Rodriguez v. Mitchell, No. 92 Civ. 2083 (LLS), 1993 WL 229013 at *5 (S.D.N.Y. Jun. 24, 1993) ("A standard that would entitle a petitioner, based solely on hearsay information . . . to a full evidentiary hearing . . . would too easily lend itself to abuse, because such hearsay is too easily manufactured.") ( quoting Hayden v. U.S., 814 F.2d 888, 892 (2d Cir. 1987)).

To the extent that petitioner is alleging that Justice Rosetti's decision, rejecting Highsmith's affidavit on procedural grounds pursuant to CPL § 440.10(3)(c), denied him due process, the claim must be denied.¹⁸ As discussed earlier, Justice Rosetti denied petitioner's application, insofar as it relied on Highsmith's second affidavit, since petitioner had earlier failed to raise the matters concerning Camm-Kelly being alleged by Highsmith, although he was in a position to do so. It is well settled that,

18 To the extent that petitioner may be alleging that Justice Rosetti merely applied CPL § 440.10(3)(c) incorrectly, the claim must also be denied, since it is well settled that federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings. Jones v. Duncan, 162 F. Supp.2d 204, 217-19 (S.D.N .Y. 2001).

[w]here a state court rejects a petitioner[']s claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations omitted); accord Coleman, 501 U.S. at 749-50; see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas.").

* * *

To qualify for the "fundamental miscarriage of justice" exception, a petitioner must make a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); Murray v. Carrier, 477 U.S. 478, 496 (1986); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).

Snitzel v. Murry, No. 01-CV-6274, 2004 WL 1498185 at *5 (W.D.N.Y. Jul. 6, 2004). Here, petitioner's claim is clearly barred by an adequate and independent state ground, namely, CPL § 440.10(3)(c). See, Jones v. Spitzer, No. 01 Civ. 9754 HBGWG, 2003 WL 1563780 at *51 (S.D.N.Y. Mar. 26, 2003) ("Courts in this Circuit have routinely held that a New York court's reliance on CPL § 440.10(3)(c) constitutes an adequate and independent state ground that precludes federal habeas review.") (citations omitted). Therefore, petitioner's claim, insofar as it relies on Highsmith's affidavit, is barred from habeas review unless petitioner can show cause and prejudice, or a fundamental miscarriage of justice. Although petitioner has not addressed the significance of his procedural default, and has not expressly discussed cause and prejudice or a fundamental miscarriage of justice, he does maintain that he is actually innocent. However, the Court finds that petitioner has not submitted sufficient evidence on that point to even warrant a hearing. In that regard, neither Highsmith's June 7, 1999 affidavit nor Martin's January 19, 2000, statement, provides competent evidence of petitioner's claimed innocence, since both are based on hearsay. That is, Camm-Kelly's alleged statement to Highsmith that she gave a gun to Ridgeway, who indicated that he needed the gun to shoot Harkins and Gallo, and Ridgeway's alleged confessions to Martin, are all hearsay. Ridgeway's alleged statement to Camm-Kelly, that he intended to use the gun to shoot Harkins and Gallo if they did not cooperate, is hearsay within hearsay. Although petitioner does not make the argument, it could be argued that portions of Camm-Kelly's and Ridgeway's alleged statements fall under the declaration against penal interest exception to the hearsay rule. See, FED. R. EVIDENCE 804(b)(3). However, even if portions of the alleged statements by Camm-Kelly and Ridgeway would have been against their penal interests when made, the Court finds that the statements are inadmissible because they utterly lack trustworthiness.¹⁹ See, Id. ("A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."). Petitioner has not identified any such corroborating circumstances, nor does the record reveal any.

19 Some portions of the alleged statements would never qualify, regardless of corroborating evidence of trustworthiness. For example, Ridgeway's alleged statement that an assistant district attorney pressured him to incriminate petitioner would not have been against Ridgeway's penal interest when made, nor would Camm-Kelly's alleged statement, that Ridgeway said he intended to shoot Harkins and Gallo if they did not cooperate with him, have been against her penal interest.

Nor are the statements themselves trustworthy, but rather, just the opposite is true. The affidavit of Highsmith, who has been convicted of numerous felonies as well as being a business associate of Miles and petitioner, clearly appears to be nothing more than an attempt to manufacture a version of facts that discredits Camm-Kelly's trial testimony.²⁰ Highsmith's second affidavit is substantially different than his initial affidavit, and his explanation, that he omitted the information concerning Camm-Kelly from the first affidavit because he believed "it was not important," is not credible. One other notable aspect of Highsmith's affidavit is that in it, Highsmith claims to have driven away from the crime scene before Miles began shooting Gallo, which, although it is inconsistent with the sworn testimony at trial,²¹ neatly dovetails with Miles's own self-serving affidavit. Meanwhile, Martin, also a convicted felon, claims, unconvincingly, that he was aware that Ridgeway was going to commit perjury in advance of the trial, and that Ridgeway did in fact commit perjury at trial, but that he kept silent about the matter for years, until he by chance encountered petitioner in prison, and then decided to come forward with the information so as to avoid obstructing justice. Suffice it to say that, in the Court's mind, these statements by Highsmith and Martin have absolutely no indicia of trustworthiness. Accordingly, petitioner's due process claim, to the extent it is based on Justice Rosetti's rejection of petitioner's CPL § 440 motion on procedural grounds, is denied.

20 Highsmith's professed ignorance as to whether or not Camm-Kelly was carrying a weapon is not only inconsistent with the testimony of Camm-Kelly, who stated that she was holding the weapon for Highsmith, it is inconsistent with the testimony of Affie Lee, who confirmed at trial that Camm-Kelly was holding the .357 pistol for Highsmith. Petitioner has not alleged that Lee committed perjury.

21 Highsmith's and Miles's claim that Highsmith drove away before Gallo began being shot is inconsistent not only with Camm-Kelly's testimony, but also with the testimony of Timeaka McCray, who testified that, while sitting in Highsmith's car, she saw "the two white boys in the car getting shot." Trial Transcript p. 293-96; see also Id. at 179. Petitioner has not alleged that McCray committed perjury.

Similarly, Justice Rosetti's decision rejecting Martin's written statement, on the grounds that it was not in the form of an affidavit, provides no basis for granting relief to petitioner. In general,

erroneous evidentiary rulings by a state trial court do not constitute a basis upon which a writ of habeas corpus can be issued." Underwood v. Kelly, 692 F. Supp. 146, 150 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir. 1989); see Chandler v. Moscicki, 253 F. Supp.2d 478, 489 (W.D.N.Y. 2003); see also, Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) (stating that "[i]t is true that erroneous evidentiary rulings do not automatically rise to the level of constitutional error"). Petitioner must therefore demonstrate that the admission of the challenged evidence violated an identifiable constitutional right. Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1995), aff'd mem., 71 F.3d 406 (2d Cir. 1995). On this issue, Petitioner bears a heavy burden. Id.

Highsmith v. Donnelly, No. 99-CV-495A, 2004 WL 1071246 at *7 (W.D.N.Y. Mar. 30, 2004); see also, Lombard v. Mazzuca, 2003 WL 22900918 at *6 ("Erroneous exclusion of evidence warrants habeas relief only if the omission deprived the petitioner of a fundamentally fair trial."). As to that, motions brought under CPL § 440.10 "must contain sworn allegations," CPL § 440.30(1), and Martin's written statement is not a notarized affidavit, but instead merely purports to be "affirm[ed] under the penalty of perjury." However, New York State law does not permit Martin to make such an affirmation. See, New York Civil Practice Law and Rules ("CPLR") § 2106. Therefore, petitioner was not entitled to relief under CPL § 440.10 on the basis of Martin's statement. See, Utsey v. American Bible Society, No. 02 Civ. 3995 (LAK), 2004 WL 551201 at *2, n. 8 (S.D.N.Y. Mar. 22, 2004) ("Plaintiff's motion is supported by an affirmation, which does not comply with the statutory requirement of an affidavit. Indeed, although affirmations may be submitted in New York State courts by attorneys in lieu of affidavits, N.Y. CPLR 2106, plaintiff is not an attorney."). Moreover, even if Martin's statement had been in the form of an affidavit, it was rife with inadmissible hearsay, as discussed earlier. For all the foregoing reasons, petitioner's claim that the trial court denied him due process by denying his CPL § 440.10 motion is denied.

The second aspect of petitioner's due process argument is slightly less convoluted, but equally unavailing. Namely, he alleges that: 1) he is actually innocent, as shown by the statements of Highsmith and Martin; 2) that the prosecution failed to expressly rebut those statements, thereby conceding their truthfulness; 3) that pursuant to CPL § 440.30(3)(c), the trial court was therefore required to vacate his conviction; and 4) that by denying his motion, the trial court violated his right to due process. Petitioner essentially argues that the trial court deprived him of a liberty interest created by CPL § 440.30(3)(c), which provides that:

Upon considering the merits of the motion, the court must grant it without conducting a hearing and vacate the judgment or set aside the sentence, as the case may be, if: . . . [t]he sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.²²

22 Petitioner contends only that the People have conceded his innocence; he does not claim that his innocence can be "conclusively substantiated by unquestionable documentary proof."

CPL § 440.30(3)(c) (McKinney 2004) (emphasis added). Plaintiff further cites the case of People v. Wright, 86 N.Y.2d 591, 596 (N.Y. 1995), for the proposition that the People must be deemed to have conceded a defendant's factual allegations when they do not refute them.

This claim must be denied, however, since it is well settled that federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings. See, Jones v. Duncan, 162 F.Supp.2d 204, 217-19 (S.D.N.Y. 2001). In any event, petitioner's reliance on People v. Wright is misplaced. In People v. Wright, the defendant was seeking to vacate her conviction, on the grounds that the prosecution had committed a Brady violation by failing to disclose that the complainant was a police informant. In support of her motion under CPL 440, the defendant alleged that the complainant was a police informant, and the People did not dispute the allegation. The New York Court of Appeals found that the People had conceded the point, stating:

Having failed to dispute defendant's factual allegation that Washington operated as a police informant, the People have impliedly conceded the truthfulness of that allegation ( see, e.g., People v. Ciaccio, 47 NY2d 431, 438; see also, People v. Gruden, 42 NY2d 214, 216 ["(n)ormally what is not disputed is deemed to be conceded"]). Consequently, if Washington's status as a police informant constituted Brady material, the trial court was obligated to grant defendant's CPL 440.10 motion ( see, CPL 440.30 [3]; People v. Gruden, supra, at 215-216).

People v. Wright, 86 N.Y.2d at 596. Here, relying on that holding, petitioner contends that the People conceded his innocence because they did not specifically refute the allegations contained in Highsmith's and Martin's written statements. However, People v. Wright is inapposite, since in that case, the truth or falsity of the defendant's factual statement was particularly within the People's knowledge: either the complainant was a police informant or he wasn't. Thus, in that case, because the People did not refute the defendant's allegation, it was reasonable to find that they had impliedly conceded the fact. On the other hand, in the instant case, the allegations contained in Highsmith's and Martin's written statements are not the type which the People could refute based on the personal knowledge of the prosecutor or of the police. That is, neither the prosecutor nor the police were present when the shootings occurred, nor were they present when Ridgeway supposedly confessed to Martin that it was he, and not petitioner, who committed the crimes. Nonetheless, the People clearly did not concede the truth of Highsmith's and Martin's statements, as shown by the fact that they presented directly contrary evidence at petitioner's trial through the testimony of Camm-Kelly and Ridgeway. Moreover, the People vigorously opposed petitioner's motion, by explaining why Highsmith's and Martin's statements were unworthy of belief, and why, as a matter of law, petitioner's motion should be denied. For example, the People referred to Highsmith as a "drug kingpin and convicted murderer"²³ [ sic], and discussed how his June 7, 1999 affidavit varied from his previous affidavit. See, People's Response, ¶ 19 ("[N]ot only would new jurors have to ignore [Highsmith's] severe credibility problems [resulting from his prior convictions], but they would also have to ignore the apparent inconsistencies with the two post-verdict affidavits Highsmith has now allegedly provided."); see also, Id. at ¶ 20 (Referring to "Highsmith's utter lack of credibility."). The People also argued that Martin's written statement could not even be considered because it was unsworn.²⁴ The Court therefore finds that the People did not in any way "concede" petitioner's innocence, within the meaning of CPL § 440.30(3)(c). Accordingly, the Court need not discuss any remaining issues related to this argument.

23 The People subsequently corrected that statement and noted that Highsmith had not been convicted of murder.

24 The People noted that Martin's attempt to affirm the statement under CPLR § 2106 was unavailing, since he was not statutorily able to make such an affirmation.

The Court has considered all of petitioner's other arguments and finds them to be without merit as well.

CONCLUSION

For all of the foregoing reasons, petitioner's application for a writ of habeas corpus is denied, and the petition is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

The Court also finds that no certificate of appealability should issue here, since petitioner has not made a substantial showing of the denial of a constitutional right. See, 28 U.S.C. § 2253(c)(2) (Providing, in relevant part, that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also, Miller-El v. Cockrell, 123 S.Ct. 1029, 1039-1042 (2003) ("Under the controlling standard, a petitioner must show that reasonable jurists could debate whether (or for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.") (citation and internal quotation marks omitted).

So Ordered.