Jamison v. Grier

Full title: EDWARD JAMISON, Petitioner, v. C. GRIER, Superintendent, Respondent

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

Date published: Jan 25, 2002

01 Civ. 6678 (AGS) (AJP) (S.D.N.Y. Jan. 25, 2002)

Opinion

01 Civ. 6678 (AGS) (AJP)

January 25, 2002

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge.

To the Honorable Allen G. Schwartz, United States District Judge:

Pro se petitioner Edward Jamison seeks a writ of habeas corpus from his 1999 conviction in Supreme Court, New York County, for attempted grand larceny, criminal mischief and auto stripping. Jamison's petition alleges that: (1) his guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence (Dkt. No. 1: Pet. ¶ 12(A)); (2) the trial court improperly admitted certain photographic evidence (Pet. ¶ 12(B)); (3) the trial court improperly precluded testimony that all charges against Jamison's co-defendant had been dismissed (Pet. ¶ 12(C)); (4) the trial court improperly precluded testimony from an eyewitness at a pretrial evidentiary Wade hearing (Pet. ¶ 12(D)); (5) the evidence was legally insufficient to sustain his attempted grand larceny conviction because the prosecution failed to prove that the car's value exceeded $3,000 (Pet. ¶ 12(E)); and (6) the trial court improperly issued a Sandoval ruling that Jamison could be questioned about prior convictions if he testified (Pet. ¶ 12(F)).

For the reasons set forth below, Jamison's petition should be DENIED.

FACTS

THE PROSECUTION CASE

Ventimiglia's Eyewitness Testimony

On August 23, 1998, just before midnight, Joseph Ventimiglia woke up, looked out his third floor apartment's window, and noticed two men standing in the parking lot at the corner of Vestry and Washington Streets. (Ventimiglia: Trial Transcript ["Tr."] 260-62, 307.) He became suspicious because there was "nobody else on the street" (other than a sleeping homeless man) and because cars in the neighborhood were broken into "all the time." (Ventimiglia: Tr. 281, 312.) Accordingly, he retrieved his "ten by fifty" binoculars and continued to observe the men. (Ventimiglia: Tr. 262-63, 276, 280-82, 307, 312-13.) With the binoculars, it was like Ventimiglia was "about ten to twenty feet" away. (Ventimiglia: Tr. 296.) The parking lot was "pretty well-lit" or "well-lit for a dark area." (Ventimiglia: Tr. 270, 333.)

One of the two men, wearing a white T-shirt, crossed the street, disappearing from Ventimiglia's view. (Ventimiglia: Tr. 263-65, 269-70, 281, 313-14.) Ventimiglia never saw the man's face. (Ventimiglia: Tr. 282-83, 298.)

The other man, an African-American with "Rasta-type" "dreadlocks" and a "stocky build," entered the passenger-side door of a white Volvo parked in the parking lot. (Ventimiglia: Tr. 263-67, 314, 336-37.) The dreadlocked man was not wearing a cap and had "loose" and "dangling" hair. (Ventimiglia: Tr. 324-25, 337-38.) Ventimiglia could not recall whether the man was carrying anything, although he testified he would have noticed had the man been carrying a crowbar. (Ventimiglia: Tr. 317-21.)

Ventimiglia recognized the Volvo as his neighbor's car and called "911" when he saw the dreadlocked man lie down in the Volvo's front seat. (Ventimiglia: Tr. 267, 281-82, 315.) "[T]hrough the windshield" of the Volvo, Ventimiglia could see the man "prying or pulling something," although he could only see the man's shoulders. (Ventimiglia: Tr. 267-69, 281-82, 295-96, 315, 326.)

The man had been in the Volvo for one to two minutes when a police car arrived. (Ventimiglia: Tr. 271-72, 284.) Ventimiglia moved to another window to wave the police over. (Ventimiglia: Tr. 271-73, 283-84, 297, 327.) When Ventimiglia returned to the original window, the dreadlocked man had already exited the Volvo and was walking south and then running from the police. (Ventimiglia: Tr. 271-73, 283-84, 326-30.) Two officers pursued the man on foot out of Ventimiglia's view, while another officer pursued in a patrol car. (Ventimiglia: Tr. 329-30.) Ventimiglia did not observe the dreadlocked man carrying anything during the chase. (Ventimiglia: Tr. 328.)

Subsequently, Ventimiglia came downstairs with hi s dog and met Police Officer John Annibale in his apartment building's lobby. (Ventimiglia: Tr. 272-73, 297-301.) Ventimiglia could not recall whether he received a phone call from the police asking him to go downstairs. (Ventimiglia: Tr. 273.) Ventimiglia told Officer Annibale: "I'm the guy that called." (Ventimigli a: Tr. 298-99.) Ventimiglia and Officer Annibale spoke briefly in the building lobby regarding the Volvo's owner. (Ventimiglia: Tr. 299-301, 357-58.) Ventimiglia "was escorted across the street" to the parking lot where two suspects were being held. (Ventimiglia: Tr. 302-05.) Ventimiglia could not recall whether the suspects were sitting in the patrol car, although he "believe[s]" they were "taken out of the car" and were "standing right there by the car." (Ventimiglia: Tr. 303-06, 330-31.)

Ventimiglia testified that the dreadlocked man who had entered the Volvo was "clearly" one of the men the police had in custody. (Ventimiglia: Tr. 303-304, 356-57, 359.) Ventimiglia had seen the dreadlocked man's face "clearly" through the binoculars before he entered the Volvo. (Ventimiglia: Tr. 315, 324, 326.) Accordingly, "that day, or the next day, [Ventimiglia] would have recognized him." (Ventimiglia: Tr. 315-16.) On cross-examination, however, Ventimiglia conceded:

Q. Because it was fairly dark that night, is it fair to say other than you remember these dreadlocks, you did not get a clear view of the individual's face the night this occurred; is that fair to say?

A. Of the individual's face, just face?

Q. Right.

A. That would be fair to say.

(Ventimiglia: Tr. 333-34.) Ventimiglia could not identify Jamison at trial from memory. (Ventimiglia: Tr. 265, 306, 315-16, 332, 347.)

Admission of Photograph

The State offered a photograph, taken from Ventimiglia's third floor apartment window, of a car parked in the parking lot below. (Badger: Tr. 225-29, 239.) The photograph was taken with a 500 millimeter lens, which the photographer testified replicated Ventimiglia's view of the Volvo through his "ten by fifty" binoculars. (Badger: Tr. 239-41.) Jamison's counsel objected, arguing that the photograph depicted a Jeep Cherokee rather than a Volvo, was taken in daylight rather than night, and depicted a clear view through the windshield rather than the Volvo's "foggy" windshield. (Tr. 285-89.) The trial court agreed, excluding the photograph. (Tr. 290-93.)

Before the prosecution rested, however, the trial court reconsidered and reversed its decision, based on a First Department case that had allowed a daytime picture to demonstrate binoculars' power to make objects appear closer, even at night. (Tr. 514-15.) Jamison again objected (Tr. 515-17), and the judge promised to give a limiting instruction that the photograph was not being admitted to show "the particular car or the conditions" (Tr. 517), but merely "to demonstrate to the jury the power of the binoculars and how close they made objects to appear." (Tr. 518.) The trial court ultimately gave no such instructions when the photograph was admitted (Tr. 523-24) or in the final charge (Tr. 670-707), but defense counsel did not remind the court at either time to give the limiting instruction.

Police Testimony

The jury also heard testimony from Police Officers John Annibale and Shawn O'Brien. Officer Annibale and his partner, Officer Brier, responded to a police radio call 6 shortly after midnight regarding a larceny in progress of a white Volvo at the corner of Vestry and Washington Streets. (Annibale: Tr. 376-77, 393; O'Brien: Tr. 435-36.) The radio call descri bed the two suspects simply as "a male black in a white T-shirt" and "a male black" with "dreadlocks." (Annibale: Tr. 397; O'Brien: Tr. 436.)

Upon arriving at a parking lot at the corner of Vestry and Washington Streets, Officer Annibale noticed a man in the front seat of a white Volvo station wagon. (Annibale: Tr. 377, 388, 393.) Officer Annibale could see movement inside the Volvo, but could not see the man's face because the Volvo's windshield was "foggy." (Annibale: Tr. 377, 398.) The lighting in the parking lot was "dim." (Annibale: Tr. 385.)

Officer Annibale got out of his patrol car and approached the Volvo. (Annibale: Tr. 377, 388, 398.) When he was about fifteen feet from the car, the passenger-side front door opened and a "male black with dreadlocks" and "dark clothing" got out and began walking and then running through the parking lot toward Washington Street. (Annibale: Tr. 377-78, 388-89, 393-94, 398-99, 408.) Although Officer Annibale only saw the dreadlocked man's "profile," at trial he identified the man as Jamison. (Annibale: Tr. 377-78, 394.)¹

1 Officer Annibale testified that the suspect had black, "loose," "shoulder-length" dreadlocks that were "not tied back." (Annibale: Tr. 408-10, 422.) On cross-examination, however, Officer Annibale testified that when Jamison was arrested, his hair was "tied back" as shown in the arrest photograph. (Annibale: Tr. 422-23.) Officer Annibale also initially testified that the dreadlocked man was wearing a dark-blue T-shirt, but confirmed on cross-examination that he was wearing a sleeveless "tank top" as shown in Jamison's arrest photograph. (Annibale: Tr. 410-13.)

Officer Annibale began to chase the dreadlocked man through the parking lot (Annibale: Tr. 379, 399-400), which was "pretty empty" (O' Brien: Tr. 447), containing only one or two cars (Annibale: Tr. 400). Officers O' Brien and Perry had pulled up in another patrol car on the opposite side of the parking lot (Annibale: Tr. 379, 400-01; O' Brien: Tr. 436-37), so Officer Annibale called out to them to stop the dreadlocked man (Annibale: Tr. 379, 389, 400-01). Officer O'Brien, however, just heard "yelling" and saw a dreadlocked man (who fit the radio call description) running toward him through the parking lot. (O'Brien: Tr. 437, 439-40, 448-50.) The dreadlocked man ran past Officers O' Brien and Perry and south on Washington Street. (Annibale: Tr. 379, 389-90, 400-01; O' Brien: Tr. 437, 440-41, 449-50.)

Officer O' Brien saw the man's "side and face," and described him as having "dark clothing" and "normal length" dreadlocks. (O'Brien: Tr. 450-53.) Officer O' Brien could not recall whether the dreadlocks were tied back or whether the man wore a tank top. (O'Brien: Tr. 451-55.)

Officer O' Brien chased the dreadlocked man down Washington Street, followed on foot by Officer Brier. (Annibale: Tr. 379-80, 389-90; O' Brien: Tr. 440-41.) Officer O'Brien never lost sight of the man, arresting him two blocks away on Hubert Street approximately fifteen feet from Washington Street. (O'Brien: Tr. 440-42, 455-56.) At trial, Officer O'Brien identified Jamison as the dreadlocked man he chased and arrested. (O'Brien: Tr. 441.)

Because Officer Annibale followed Officer O' Brien in a patrol car, he lost sight of the dreadlocked man and witnessed only part of the chase (Annibale: Tr. 379-80, 389-90, 401-02). Officer Annibale caught up in the patrol car just as Jamison was being handcuffed at the corner of Washington and Hubert Streets. (Annibale: Tr. 380, 390, 402; O'Brien: Tr. 442.) Jamison was not wearing a cap. (Annibale: Tr. 423.)

After arresting Jamison, the police drove him back to the parking lot and joined Officer Perry, who had remained in the parking lot and arrested Mr. Artist, the suspect described as a black male in a white T-shirt. (Annibale: Tr. 380-81, 389, 423, 427; O'Brien: Tr. 437, 449-50, 457.) Ventimiglia came down from his apartment (O'Brien: Tr. 442, 457), was "taken over" to "within fifteen feet" of where suspects Jamison and Artist were being held (Annibale: Tr. 381, 423-25), and positively identified Jamison (Annibale: Tr. 394; O'Brien: Tr. 442).²

2 Officer Annibale initially testified that Jamison was standing "[n]ext to the police cars" when Ventimiglia identified him. (Annibale: Tr. 381-82, 394.) On cross-examination, however, Officer Annibale testified that Jamison was "probably taken out of" the police car for the showup. (Annibale: Tr. 424-29.)

The police found a crowbar "jammed" in the Volvo's ignition in an apparent effort to start the car. (Annibale: Tr. 382-85; O'Brien: Tr. 443-44.) They also found "a screwdriver in the front seat and a screwdriver in the back seat." (Annibale: Tr. 382.) Although the car radio was missing, Officer Annibale searched Jamison after the arrest and found only personal effects. (Annibale: Tr. 430-33.) Moreover, neither Officer Annibale nor Officer O'Brien saw anything in the dreadlocked man's hands during the chase. (Annibale: Tr. 417; O'Brien 460.)

Two police fingerprint experts testified that the Volvo was "dusted" for fingerprints, but that the partial or "latent" fingerprints that were found were of indeterminate origin. (Scotti: Tr. 462-68; Brown: Tr. 489-91, 497-98.) The police were unable to lift any prints from the crowbar because of its peculiar surface. (Scotti: Tr. 469-70.) The police did not dust the screwdrivers, apparently because they had been "handled" by the police. (Scotti: Tr. 476, 479-80.)

Testimony Regarding The Volvo's Value

The Volvo's owner described her car as a 1987 or 1989 Volvo station wagon in "perfect condition" prior to the crime. (Diago: Tr. 246-48.)³ An expert in automobile appraisals testified that a "1987 Volvo 740 GLE turbo" station wagon in "good running condition" would be worth approximately $6,000. (Woigman: Tr. 361-64.) The car's value could be reduced to less than $3,000 only if it were "either in a major accident" or "completely stripped" so as to be rendered not "drivable." (Woigman: Tr. 363-64.) "You would need at least twenty five hundred to three thousand dollars' worth of damage to make it [worth] less than three thousand dollars." (Woigman: Tr. 364.) The valuation expert did not inspect the particular car in question. (Woigman: Tr. 363, 367, 370.)

3 After, the passenger-side front door lock was damaged, the steering mechanism and ignition "didn't exist anymore," and the "radio was gone." (Diago: Tr. 250-52, 255-58.) The owner paid $3,200 to have the car repaired. (Diago: Tr. 253.)

THE DEFENSE CASE

The defense called two witnesses: Clarence Artist, the suspect in the "white T-shirt" who had been arrested with Jamison, and Jamison's mother.

Although the charges against Artist had been dismissed, the trial court precluded as irrelevant any mention of the dismissal. (Tr. 518-19.) The trial court did, however, permit "questioning as to where [Artist] was, what he saw, what he observed." (Tr. 519.)⁴

4 The trial court also informed the jury during voir dire that Artist's case had been separated from Jamison's, and that the resolution of Artist's case was irrelevant to Jamison's case. (Tr. 84, 147-48.)

Artist testified that "around midnight," while walking in the area of the parking lot at the corner of Vestry and Washington Streets, first a homeless man and then another man approached and asked him for a cigarette. (Artist: Tr. 527-28, 530, 562-65.) The second man was "short," black, some two to three inches shorter than Artist's height of 5' 10", had fake hair "extensions" that resembled dreadlocks, and wore a dark T-shirt with sleeves. (Artist: Tr. 530-33, 539-40, 574.) Artist gave a cigarette to this man (Artist: Tr. 530, 532-34), who then returned to the parking lot (Artist: Tr. 564).

Artist stopped to urinate. (Artist: Tr. 532, 534-35, 563, 567.) Two police cars pulled up and an officer grabbed Artist. (Artist: Tr. 536-37, 565-66.) Just then, the "short" man (whom Artist had given a cigarette) ran past Artist and across the parking lot. (Artist: Tr. 537-40, 564-66.) The police officer who was holding Artist, however, waited four or five seconds 540-41.)

The police arrested Artist and placed him in a patrol car parked in or near the parking lot. (Artist: Tr. 527-28, 541-43.) Subsequently, Artist saw a white man with a dog "making motions with his hands." (Artist: Tr. 543-44.) The man with the dog, however, "stayed across the street" and never came near the patrol car. (Artist: Tr. 544-45.)

According to Artist, Jamison was not the "short" man whom the police chased from the parking lot. (Artist: Tr. 546-47.) Artist met Jamison for the first time in the precinct house or in Central Booking after their arrest. (Artist: Tr. 545-46, 551-52, 573.) Jamison was wearing a "cap" as well as the "tank top" shown in Jamison's arrest photographs. (Artist: Tr. 547-50.)

After his arrest, Artist met with the prosecutor and signed a statement, written by the prosecutor, reciting Artist's version of the night's events. (Artist: Tr. 553-56.) That statement failed to mention the "short man," although Artist claimed at trial that he had described the man to the prosecutor. (Artist: Tr. 556-61, 578-80.)

Artist admitted his lengthy criminal record and his equally lengthy list of aliases. (Artist: Tr. 568-73.) At the time of trial, Artist was serving a one-year sentence for possession of marijuana. (Artist: Tr. 526-27, 573.)

Artist denied the prosecutor's accusation that he acted as Jamison's "lookout" during the break-in. (Artist: Tr. 573, 578.) As a result of the prosecutor's question, Jamison's counsel requested permission to raise on redirect the fact that all charges against Artist had 12 been dismissed. (Tr. 576-78, 596-97.) The court denied the request. (Tr. 577-78, 596-97; see also Tr. 621, 659-60.)

Finally, Jamison's mother testified that Jamison lived with her at the time of his arrest, and that he "always" wore a knitted cap for "religious" reasons. (Marian Jamison: Tr. 582-83, 590-91.) On the day of his arrest, Jamison "definitely left the house with a cap on his head," was wearing a "tank top," and had waist-length hair, which Jamison exhibited to the jury. (Marian Jamison: Tr. 583, 592-94.)

PRETRIAL SUPPRESSION HEARING

On January 7, 1999, the trial judge held a pretrial Wade suppression hearing regarding Ventimiglia's identification of Jamison to the police. (Wade Hearing Transcript ["H."] 2-76.) Officer Annibale was the only witness that the prosecution called to testify.

According to Officer Annibale, Ventimiglia's showup identification of Jamison was spontaneous and not police-arranged. Immediately after being arrested, Jamison was driven back to the parking lot, where Officer Perry was waiting with Artist. (H. 12-15, 23-24.) Just as the patrol car containing Jamison arrived in the parking lot, Ventimiglia exited his apartment building, walked to within fifteen feet of the patrol car, and stated that he was responsible for the 911 call. (H. 13-16, 24-26, 28, 53.) Officer Annibale first testified that Jamison "was still in the patrol car" when Ventimiglia approached (H. 13, 15-16), but on cross-examination he could not recall whether Jamison was in or out of the car when Ventimiglia identified him (H. 54-57). When Officer Annibale asked Ventimiglia "if these were the two gentlemen that were breaking into the cars," Ventimiglia responded "yes." (H. 15-17, 25-26.)

The radio dispatcher informed Officer Annibale that Ventimiglia, the 911 caller, had called from the building across the street from the parking lot. (H. 42-43.) Although none of the police at the scene called Ventimiglia directly to ask him to come downstairs for the showup, one of the other officers might have requested the radio dispatcher to ask Ventimiglia to come downstairs. (H. 43-52.)

At the conclusion of Officer Annibale's Wade hearing testimony, Jamison's counsel requested that Ventimiglia provide hearing testimony regarding two issues about which Officer Annibale was unclear: (1) whether or not the police dispatcher called Ventimiglia to come downstairs to identify the suspects; and (2) whether or not Jamison was in the patrol car when Ventimiglia identified hi m. (H. 63-72.)

The trial court denied Jamison's request to call Ventimiglia and also denied Jamison's motion to suppress the showup identification. (H. 72-76.) The trial court found that the showup was spontaneous rather than "police-arranged." (H. 73.) Moreover, the trial court found that even if the showup had been police-arranged, it was not improper because the police had an obligation to ensure that they had not arrested the wrong man. (H. 73-75.)

At the conclusion of Ventimiglia's trial testimony, Jamison renewed his motion to suppress Ventimiglia's identification testimony, arguing, among other things, that Ventimiglia's testimony proved that the showup was police-arranged. (Tr. 340-41.) The trial court rejected Jamison's assertion, finding it not "particularly significant." (Tr. 341.)

VERDICT AND SENTENCE

The jury found Jamison guilty of third degree attempted grand larceny, criminal mischief and auto stripping (Verdict: Tr. 712-15), and the trial court sentenced him as a predicate felon to concurrent sentences totalling two to four years imprisonment. JAMISON'S DIRECT STATE APPEAL

Jamison appealed to the First Department, claiming violation of his federal and state constitutional rights on the following grounds: (1) Jamison's guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence; (2) the trial court improperly admitted certain photographic evidence; (3) the trial court improperly precluded testimony that all charges against Artist had been dismissed; (4) the trial court improperly precluded testimony from eyewitness Ventimiglia at the Wade hearing; (5) the evidence was legally insufficient to sustain his attempted third degree grand larceny conviction because the prosecution did not prove that the car's value exceeded $3,000; and (6) the trial court improperly issued a Sandoval ruling that Jamison could be questioned about prior convictions if he testified. (Agocha Ex. F: Jamison 1st Dep't Br.)

The First Department affirmed, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning identification and credibility. The testimony of the owner of the vehicle as to its condition and the expert testimony of an appraiser properly established the value of the car.

The court was not required to order the eyewitness to testify at the Wade hearing.

The court's Sandoval ruling, permitting inquiry into four named felonies but precluding inquiry into their underlying facts, defendant's prior bench warrants and his prior use of aliases, balanced the appropriate factors and was a proper exercise of discretion. Each of defendant's convictions had a direct bearing on his credibility. None of the convictions was excessively stale or remote, particularly since defendant spent many of the intervening years in prison.

The evidentiary rulings challenged by defendant on appeal were proper exercises of discretion.

People v. Jamison, 278 A.D.2d 100, 101, 717 N.Y.S.2d 183, 184 (1st Dep't 2000) (citations omitted). On March 30, 2001, the New York Court of Appeals denied leave to appeal. People v. Jamison, 96 N.Y.2d 784, 725 N.Y.S.2d 648 (2001).

JAMISON'S FEDERAL HABEAS CORPUS PETITION

On July 23, 2001, Jamison filed the instant pro se habeas corpus petition. (Dkt. No. 1.) In addition to the six claims that he raised in the First Department, Jamison's habeas petition also asserted a seventh claim — that the trial court improperly denied Jamison's request for a continuance to retain different counsel. (Dkt. No. 1: Pet. ¶ 12(G).) This seventh claim, however, had not been raised in state court, and was thus unexhausted. In response to the Court's Order advising Jamison of his options in connecti on with that claim (Dkt. No. 8), Jamison withdrew the seventh claim, which this Court approved by Memo Endorsed Order dated November 9, 2001. (Dkt. No. 9.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD

Before the Court can determine whether Jamison is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000).⁵ The AEDPA imposed a more stringent review standard, as follows:

5 For additional cases authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.⁶ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.⁷

6 Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

7 Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.⁸

8 Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521.⁹

9 Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, e.g., Loliscio v. Goord, 263 F.3d at 184.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).¹⁰

10 The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord Aparicio v. Artuz, 269 F.3d at 93.

The First Department's decision affirming Jamison's conviction, People v. Jamison, 278 A.D.2d 100, 101, 717 N.Y.S.2d 183, 184 (1st Dep't 2000), constituted an adjudications "on the merits" since the decision was based solely on substantive grounds. See Sellan v. Kuhlman, 261 F.3d at 314 (describing factors to consider in determining whether AEDPA applies). The First Department's affirmation of Jamison's conviction must therefore be reviewed under the AEDPA's deferential standards.

II. JAMISON'S CLAIMS REGARDING SUFFICIENCY OF THE EVIDENCE

Jamison asserts two claims sounding in sufficiency of the evidence theory: (1) his guilt was not proven beyond a reasonable doubt and was against the weight of the evidence because of a number of alleged inconsistencies and omissions in the evidence (Dkt. No. 1: Pet. ¶ 12(A); see Agocha Aff. Ex. F: Jamison 1st Dep't Br. at 40-49); and (2) the evidence at trial was legally insufficient to sustain his conviction for attempted grand larceny because the prosecution failed to prove that the Volvo's value exceeded $3,000 (Pet. ¶ 12(E); see Agocha Aff. Ex. F: Jamison 1st Dep't Br. at 66-68).

A. The Evidence Was Legally Sufficient to Support Jamison's Conviction

"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virgini a, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)).¹¹ However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt . . . ." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeascorpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 So. Ct. at 2791-92.¹²

11 For additional cases authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation, see Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1997) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

12 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997); see also cases cited in fn. 11 above.

Petitioner Jamison bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456 (1983).¹³

13 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. . . . In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor."), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor); see also cases cited in fn. 11 above.

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).¹⁴

14 Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395; United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); see also cases cited in fn. 11 above.

Viewed in the light most favorable to the State, the evidence against Jamison was overwhelming. The police never lost sight of Jamison from the moment they saw him committing the crime through the moment they apprehended him: Officer Annibale saw movement inside the Volvo and saw Jamison exit the vehicle and run across the parking lot toward Officer O' Brien; Officer Annibale shouted to Officer O'Brien and saw Officer O' Brien pursue Jamison; Officer O'Brien heard shouting and saw Jamison run toward him in the parking lot; Officer O' Brien pursued Jamison on foot for two blocks, apprehended him, and handcuffed him, without ever losing sight of him; and Officers Annibale and O'Brien unequivocally identified Jamison at trial as the "dreadlocked male" who Officer Annibale saw exit the Volvo and who both Officers Annibale and O'Brien pursued in the parking lot and arrested. (See pages 5-8 above.) In addition to the police testimony, eyewitness Ventimiglia testified that he saw a dreadlocked man enter the Volvo and, moments after the incident, identified Jamison at the scene as the dreadlocked man. (See pages 2-4 above.)

Jamison proffers a number of arguments, all meritless. First he asserts that Ventimiglia failed to identify him at trial. (Pet. ¶ 12(A); Agocha Aff. Ex. F: Jamison 1st Dep't Br. at 46.) However, both Officer Annibale and Officer O'Brien unequivocally identified Jamison at trial as the perpetrator. (Annibale: Tr. 377-788, 394; O'Brien: Tr. 441.) Although Ventimiglia could not identify Jamison from memory at trial (Ventimiglia: Tr. 265, 306, 315-16), he positively identified Jamison at the showup moments after the break-in (Ventimiglia: Tr. 303-304, 356-57, 359; see Annibale: Tr. 394; O'Brien: Tr. 442). A contemporaneous eyewitness identification is admissible regardless of whether the same witness identified the defendant at trial. See, e.g., United States v. Simmons, 923 F.2d 934, 950 (2d Cir.) ("A prior identification is generally admissible . . . regardless of whether there has been an accurate in-court identification."), cert. denied, 500 U.S. 919, 111 S.Ct. 2018 (1991); United States v. DiTommaso, 817 F.2d 201, 212-14 (2d Cir. 1987) (identification of defendant from photo array admissible even though eyewitness could not identify defendant at trial). Moreover, even if Ventimiglia's testimony had been stricken, the police testimony that they caught Jamison "red-handed" would have been more than sufficient to convict him.

Second, Jamison asserts that no physical evidence tied him to the break-in, as his fingerprints were not found on the Volvo or the crowbar and the Volvo's radio was never recovered. (Pet. ¶ 12(A); Jamison 1st Dep't Br. at 46-47.) The police witnesses testified, however, that fingerprints could not be lifted from the crowbar and that the "latent" fingerprints lifted from the car were of indeterminate origin. (Brown: Tr. 497-98; Scotti: Tr. 469-70.) Similarly, the missing radio proves nothing, as Jamison's conviction could be based solely on his observed entry into the Volvo and the evidence of the crowbar jammed into the ignition. (Annibale: Tr. 382-85.) Although the case against Jamison would have been rendered airtight by proof that he took the radio or that his fingerprints matched those in the car, the absence of such physical evidence was not dispositive, especially in light of the other inculpatory evidence. See, e.g., United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997) ("It is well settled that where, as here, the government's case is based primarily on eyewitness testimony describing criminal activity, 'any lack of corroboration [with physical evidence] goes only to the weight of the evidence, not to its sufficiency. The weight is a matter for argument to the jury, not a ground for reversal on appeal.'") (citation omitted).

Third, Jamison also relies on Artist's testimony that another man closely resembling Jamison fled the parking lot (Pet. ¶ 12(A); Jamison 1st Dep't Br. at 44-45), implying that Officer O' Brien must have lost sight of this other man and mistakenly arrested Jamison. Artist, however, lacked credibility, given his long criminal history, and his story was patently incredible. It strains credulity to accept that Artist happened to be innocently loitering in the parking lot at midnight at the very moment of the break-in, that the real culprit happened to be virtually Jamison's twin in appearance, or that the police lost sight of the real culprit after only a two-block long foot pursuit on an empty street, confusing the culprit with Mr. Jamison, who happened to turn up at just the wrong moment.¹⁵

15 Jamison also asserted that "[i]t is entirely conceivable" that both the "short" man and Jamison were in the parking lot at the time of the break-in, and that the police confused the two men, mistakenly chasing Jamison out of the lot. (Jamison 1st Dep't Br. at 47.) Officer Annibale testified, however, that he began to chase the dreadlocked man who had exited the Volvo (Annibale: Tr. 379, 399-400), and that he saw Officer O' Brien continue to chase the same man out of the parking lot (Annibale: Tr. 379, 389-90). Moreover, Jamison's own witness, Artist, testified that he saw the police chasing the "short" man (rather than Jamison) out of the parking lot. (Artist: Tr. 537-40, 564-66.) The possibility of confusion in the parking lot i s also rendered unlikely by the unrebutted testimony that the parking lot was "pretty empty" (O'Brien: Tr. 447) as it contained only one or two cars (Annibale: Tr. 400).

While it is easy to see why the jury could have discredited Artist's testimony, the decision to believe or disbelieve Artist was for the jury, not a reviewing court. "[T]he jury is exclusively responsible for determining a witness' credibility," United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)).¹⁶ This Court may not reassess the jury's finding of credibility: "' [f]ederal habeas courts are not free to reassess the fact[-]specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution."' Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993)).¹⁷

16 Accord, e.g., United States v. Rosa, 11 F.3d at 337; see also cases cited in fn. 11 above.

17 See, e.g., cases cited in fn. 11 above; see also, e.g., Huber v. Schriver, 140 F. Supp.2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. . . . However, under both the state law . . . and federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury . . . ."); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").

Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981); see also, e.g., cases cited in fn. 11 above.

Finally, Jamison cites alleged inconsistencies between the eyewitnesses' description of the perpetrator's hair and clothing and Jamison's alleged appearance at the time of his arrest. (Pet. ¶ 12(A); Jamison 1st Dep't Br. at 43-45.) This defense has no basis.

This is not a case in which the eyewitnesses' contemporaneous descriptions conflicted with the defendant's actual appearance at the time of arrest. The only contemporaneous description of the perpetrator was Ventimiglia's statement to the 911 operator, in which he apparently described the perpetrator as simply "a male black" with dreadlocks. (Annibale: Tr. 397; O'Brien: Tr. 436.) That description, albeit superficial, was entirely consistent with Jamison's actual appearance when arrested.

The allegedly inconsistent eyewitness descriptions were made at trial, over four months after the crime. All three eyewitnesses (Ventimiglia and Officers Annibale and O'Brien) testified that, contemporaneously with the crime, they identified Jamison as the dreadlocked man who committed the break-in. Inaccurate descriptions at trial months after the crime should not detract from eyewitness identifications contemporaneous with the crime. See, e.g., Samuels v. Mann, 13 F.3d 522, 527 (2d Cir. 1993) ("Contemporaneous identifications . . . generally are given much more credence" than in-court identifications; thus "the jury certainly had reason to believe the [eyewitness'] contemporaneous identification of [defendant] over" the same eyewitness' in-court identification of a different man), cert. denied, 513 U.S. 849, 115 S.Ct. 145 (1994); United States v. Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977) ("'Congress has recognized, as do most trial judges, that identification in the courtroom is a formality that offers little in the way of reliability and 28 much in the way of suggestibility. The experienced trial judge gives much greater credence to the out-of-court identification.'") (quoting 4 Weinstein's Evidence ¶ 801(d)(1)(C)(01) at 801-103), cert. denied, 435 U.S. 973, 98 S.Ct. 1618 (1978).

In addition, Officers Annibale and O'Brien testified that they caught Jamison in the act, and arrested him after a short foot pursuit during which Officer O' Brien never lost sight of Jamison. Assuming, as we must, that the police account is true, then the arrest did not rely on the officers' memories of the fleeing suspect's appearance. Any inconsistency between the arrest photographs and the officers' trial descriptions of Jamison could simply be ascribed to the interval between the crime and the trial.

Even if this Court credited some of the alleged inconsistencies in the eyewitness testimony, or dispensed entirely with Ventimiglia's identification of Jamison, there would still be no basis to overturn the First Department's decision. See, e.g., Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction."), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979); Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[T]his was 'not a case in which the sole witness was uncertain of his identification . . . [n]or is it one of testimony incredible as a matter of law.' "); United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir. 1971) (where inconsistency in testimony was minor and "all that was involved was faulty memory on a comparatively insignificant point," inconsistency was a jury question that did not create a 29 "reasonable doubt as to defendant's guilt as a matter of law"), cert. denied, 404 U.S. 1025, 92 S.Ct. 675 (1972); de la Cruz v. Miller, 97 Civ. 7785, 2000 WL 1279753 at *2 (S.D.N Y Sept. 8, 2000) (minor inconsistencies in, for example, the eyewitness' description of the color of the perpetrator's shirt, do not undermine the eyewitness' lineup identification); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . . The alleged inconsistencies in Mendez's description of Means's earring and facial hair are insufficient to undermine Mendez's testimony.").¹⁸

18 See also, e.g., Simpson v. Portuondo, 2001 WL 830946 at *9; Carromero v. Strack, 1998 WL 849321 at *5 (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 1998 WL 236222 at *5 ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").

Finally, the Court notes that the AEDPA has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). Under AEDPA guidelines, this Court cannot say that the First Department's decision that the evidence was sufficient to convict Jamison was contrary to established federal law or was based on an unreasonable determination of the facts.¹⁹

B. The Evidence Was Legally Sufficient to Sustain Jamison's Conviction for Attempted Third Degree Grand Larceny, Because the Value of the Car Was Proven to be Over $3,000

19 See, e.g., Ferguson v. Walker, 2001 WL 869615 at *6 nn. 10-11 (applying AEDPA review standard to insufficiency of evidence claim); Simpson v. Portuondo, 2001 WL 830946 at *9 (same); Simmons v. Mazzuca, 2001 WL 537086 at *9 (same); Huber v. Schriver, 140 F. Supp.2d at 276-78 (same); Manning v. Walker, No. 99 Civ. 5747, 2001 WL 25637 at *5-6 (E.D.N.Y. Jan. 3, 2001) (same); Davis v. Keane, 97 Civ. 8328, 2000 WL 1041454 at *2-3 (S.D.N.Y. July 28, 2000) (same); Garvey v. Kelly, 104 F. Supp.2d 169, 170-73 (W.D.N.Y. 2000) (same); Roldan v. Artuz, 78 F. Supp.2d at 269-70 (same); Estrada v. Senkowski, 1999 WL 1051107 at *17-18 (same).

Jamison asserts that the evidence at trial was legally insufficient to sustain his conviction for attempted third degree grand larceny under N.Y. Penal Law § 155.35 because the prosecution failed to prove that the Volvo's value exceeded $3,000. (Pet. ¶ 12(E); Jamison 1st Dep't Br. at 66-68.) This claim, too, is meritless.

Again, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); see also cases cited at page 22 fn. 14 above. "Hence, we must consider whether, as a matter of federal law, there was sufficient evidence for a jury to find that the prosecution proved the substantive elements of the crime as defined by state law." Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997).

Jamison's conviction for attempted third degree grand larceny required proof that the "value of the [stolen] property exceed[ed] three thousand dollars." Penal Law § 155.35. The statute defines "value" as "the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime." Penal Law § 155.20(1). New York courts have held that the statute's monetary requirement can be satisfied by, among other things, the testimony of the owner as to the car's condition combined with the testimony of an appraisal expert that such a car would be worth over $3,000. See, e.g., People v. Brown, 275 A.D.2d 668, 668, 713 N.Y.S.2d 726, 727 (1st Dep't 2000) (vehicle's value established to be over $3,000 through (a) testimony of expert appraiser who relied on "automobile industry valuation books and conversations with the car's owner in making his appraisal" and (b) owner's testimony "as to the prior good condition of her vehicle"), appeal denied, 96 N.Y.2d 732, 722 N.Y.S.2d 799 (2001); People v. Callendar, 260 A.D.2d 315, 316, 690 N.Y.S.2d 180, 180 (1st Dep't) (vehicle's value established to be over $3,000 through "photographs, testimony by the complainant regarding the overall good condition of the vehicle immediately preceding the theft," and testimony of an appraisal expert who did not inspect the vehicle), appeal denied, 93 N.Y.2d 1015, 697 N.Y.S.2d 573 (1999).²⁰

20 See also, e.g., People v. Lopez, 221 A.D.2d 243, 244, 633 N.Y.S.2d 787, 788 (1st Dep't 1995) (vehicle's value proven "through the testimony of the owner as to the car's condition, and the testimony of an expert appraiser who did not examine the car but consulted with the owner and recognized evaluation resources"), appeal denied, 87 N.Y.2d 1021, 644 N.Y.S.2d 155 (1996); People v. Rodriguez, 171 A.D.2d 419, 419, 67 N.Y.S.2d 2, 2 (1st Dep't) ("[p]roof beyond a reasonable doubt that a stolen car's street market value was more than $100 can be established by an expert ["using the National Automobile Dealer's Association Guide"] without seeing the car when there is corroborating evidence as to the condition of the car"), appeal denied, 78 N.Y.2d 973, 574 N.Y.S.2d 953 (1991).

The trial testimony thus satisfied the statute's monetary proof requirements. The owner testified that the car was either a 1987 or 1989 Volvo station wagon²¹ in "perfect condition" prior to the break-in. (Diago: Tr. 246-48.) An expert in automobile valuations, when asked to appraise the value of a "1987 Volvo," testified that a "1987 Volvo 740 GLE turbo" station wagon in "good running condition" was worth approximately $6,000. (Woigman: Tr. 362-63.) The car's value could be reduced to less than $3,000 only if it were "either in a major accident" or "completely stripped" and rendered not "drivable." (Woigman: Tr. 363-64.)

21 The relevant testimony reads as follows:
THE COURT: What do you own?
THE WITNESS: It's a Volvo station wagon; 1989.
Q. Is that '87?
MR. FELDMAN: Objection?
A. Maybe.

THE COURT: Well, anyway, it's a Volvo station wagon. Do you know the year?

THE WITNESS: I think '87 or '89. I don't remember which.
(Diago: Tr. 247.)

Jamison argued that this evidence was legally insufficient because the appraiser's valuation was based on a 1987 model, while the owner testified that she did not know the model year. (Tr. 521-22.) While the owner could have described the car's model year with greater clarity, taking the evidence in the light most favorable to the State, the jury could have concluded that the model year was either 1987 or 1989, and the jury could have reasonably inferred that newer models of the same car generally are worth more than older models. The jury could have reasonably concluded, therefore, that the appraiser's valuation of a "1987" model was, at worst, an underestimate of the car's value.²² See Mobile Dodge, Inc. v. Ladnier, 228 So.2d 478, 480 (Ala.Civ.App. 1969) (court took judicial notice that new car was worth more than used car); Gomillion v. Lingold, 209 S.W.2d 205, 208 (Tex.Civ.App. 1948) (same).

22 Jamison also complained that the appraiser had no foundation for describing the vehicle as either a "turbo" or a "740 GLE," because the owner merely testified that she owned a 1987 or 1989 "Volvo station wagon." (Tr. 521-22.) The appraiser valued the car at $6,000, while the State merely had to prove that the value exceeded $3,000. In light of the substantial difference between the $6,000 appraised value and the $3,000 statutory requirement, and drawing all possible inferences in the government's favor, the jury could have reasonably concluded that any 1987 "Volvo station wagon" in "good running condition" would be worth over $3,000, even if it lacked "turbo" and was not a 740 GLE. See People v. Diaz, 184 A.D.2d 327, 328, 584 N.Y.S.2d 827, 827 (1st Dep't) (evidence was found sufficient to exceed $3,000 statutory threshold because, inter alia, the "complaint report" listed a value of $15,000, "indicating a wide difference between the cost of the item and the threshold;" "The jury could thus properly infer that the market value of the car exceeded $3,000 minimum at the time of the theft."), appeal denied, 80 N.Y.2d 928, 589 N.Y.S.2d 856 (1992).

Jamison thus has failed to carry his "very heavy burden" of demonstrating that the trial evidence was not sufficient to support his conviction. See, e.g., United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456 (1983); see also cases cited at pages 21-22 fn. 13 above.

III. JAMISON'S CLAIMS INVOLVING ALLEGED EVIDENTIARY ERRORS

Jamison charges that the trial court committed two evidentiary errors: (1) erroneously admitting a photograph into evidence (Pet. ¶ 12(B)); and (2) precluding Artist from testifying that the charges against him had been dismissed (Pet. ¶ 12(C)).

A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings²³

23 For an additional case authored by this Judge discussing the habeas corpus review standard for claims of errors in state evidentiary rulings, in language substantially similar to that in this entire section of this Report Recommendation, see Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *5-6 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'").²⁴ Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . . "); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).²⁵

24 See also, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (citing cases); Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd, 234 F.3d 1262 (2d Cir. 2000); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4-5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).

25 See also, e.g., Roldan v. Artuz, 78 F. Supp.2d at 276 (citing cases); Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v. Senkowski, 1998 WL 217903 at *5.

The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.²⁶ See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp.2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).²⁷

26 This assumes that the petitioner has not attacked the constitutionality of the state evidentiary rule itself. See Jones v. Stinson, 94 F. Supp.2d 370, 387 n. 19 (E.D.N.Y.) (distinguishing between cases "where an evidentiary rule was correctly applied as a matter of state law, but is either unconstitutional on its face or violates a constitutional right as applied," and cases where the petitioner took no exception to the constitutionality of the state evidentiary rule, but asserted that the state court decision misapplied the state rule, resulting in a constitutional violation), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).

27 See also, e.g., Williams v. Walker, No. 00-CV-5912, 2001 WL 1352105 at *3 (E.D.N.Y. Oct. 31, 2001) (habeas court must first determine if ruling was erroneous under state law, and then whether ruling was of a constitutional magnitude); Coleman v. Greiner, No. 97-CV-2409, 1999 WL 320812 at *5 (E.D.N.Y. May 19, 1999); Till v. Miller, 96 Civ. 4387, 1998 WL 397848 at *4 (S.D.N.Y. July 16, 1998); Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at *5-6 (S.D.N.Y. Apr. 20, 1998); Copes v. Schriver, 97 Civ. 2284, 1997 WL 659096 at *3 (S.D.N.Y. Oct. 22, 1997); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) ("[T]he Court engages in a two part analysis, examining 1) whether the exclusion [of evidence] was error under state law, and 2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial."); see generally
Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (in determining whether failure to give state jury charge violated federal constitution, first question for habeas court is whether the charge was required under New York law, and only if so, was the failure to give the charge of constitutional dimension).

Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system.²⁸ Here, Jamison alleged that the

28 See, e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at * 1 (2d Cir. Mar. 9, 1998) ("To the extent that this claim is based on a Rosario violation, it must fail, because a habeas petition can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law. Thus, the only question is whether the prosecution violated Brady."); Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N.Y. July 27, 2001) ("Violation of the notice requirement of [N.Y. C.P.L.] § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review."); Ventura v. Artuz, 2000 WL 995497 at *12 (same); Roldan v. Artuz, 78 F. Supp.2d at 276 (Molineux claim not cognizable as such on habeas); Benitez v. Senkowski, 1998 WL 668079 at *5 (bolstering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "bolstering" of eyewitness identification testimony held to be, at most, violation of state rule, and thus not could not form basis for constitutional claim).
Indeed, courts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [out of court declarant's] statement violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it fall s within Rule 801(d)(2)'s co-conspirator exception"), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Ford v. Crinder, 97 Civ. 3031, 2001 WL 640807 at *5 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a [state] criminal defendant's due process rights or provide the basis for habeas corpus relief.").

Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "' where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original).²⁹ The test for "fundamental fairness" is whether the excluded evidence, "' evaluated in the context of the entire record,'"³⁰ "'create[d] a reasonable doubt that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401-02).³¹

29 See also, e.g., Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) ("The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'"), cert. denied, 525 U.S. 840, 119 S.Ct. 101 (1998); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) ("In order to prevail on a [habeas] claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial . . . . ").

30 "If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402 (1976).

31 Accord, e.g., Jones v. Stinson, 229 F.3d at 120; Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996); Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Blissett v. Lefevre, 924 F.2d 434, 439 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991); Collins v. Scully, 755 F.2d at 19; Rosario v. Kuhlman, 839 F.2d at 925; Roldan v. Artuz, 78 F. Supp.2d at 276; Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v. Senkowski, 1998 WL 217903 at *6; Dey v. Scully, 952 F. Supp. at 971.

The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp.2d at 276.³²

32 For the reasons stated by Judge Block in Dey v. Scully, "[h]armless error analysis is simply inapplicable to [trial] error that only attains constitutional significance when considered in the context of the entire trial because such analysis inheres in the initial finding that the error was constitutionally significant. A determination that such error was not harmless, after having already concluded that it denied the defendant a fundamentally fair trial, would be tautological." Dey v. Scully, 952 F. Supp. at 974; see also Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567 (1995) ("Agurs . . . opted for its formulation of materiality . . . only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos."); Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) ("The creation of otherwise non-existent reasonable doubt [under Agurs] satisfies the 'substantial and injurious' standard" under Brecht) (quoting Jones v. Stinson, 229 F.3d at 120); Coleman v. Greiner, 1999 WL 320812 at *4-5.

The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue recently addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21.

In sum, for Jamison to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary ruling was erroneous as a matter of state law, (2) under Agurs, that admission/exclusion of the evidence deprived him of a fair trial, and (3) under the AEDPA, that the First Department's affirmation of the trial court's ruling constituted an abjectively unreasonable application of the Agursstandard.

B. Application of This Standard to Jamison's Evidentiary Claims

1. The Admission Into Evidence of the Photograph Was A Proper Exercise of the Trial Court's Discretion

The trial court admitted into evidence a photograph, taken from Ventimiglia's third floor apartment window and depicting a car in the parking lot, taken with a 500 millimeter lens that the photographer testified replicated Ventimiglia's view of the Volvo in the parking lot through his "ten by fifty" binoculars. (Badger: Tr. 225-29, 239-41.) Jamison claims a fair trial violation because the photograph: (1) was taken during the day rather than at night; (2) showed a clear view through the car's windshield; and (3) depicted a Jeep rather than a Volvo. (Pet. ¶ 12(B); Jamison 1st Dep't Br. at 49-53.) This claim is meritless.

The "general rule" under New York law is that photographs are admissible "if they tend 'to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.'" People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 993 (1992) (quoting People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 493 (1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1609 (1974)).

The photograph at issue, taken with a telephoto lens, was intended to demonstrate how far and accurately Ventimiglia could see with his binoculars. (Badger: Tr. 225-27, 239-41.) New York courts regularly admit such photographs into evidence.³³

33 See, e.g., People v. Mathison, 287 A.D.2d 384, ___, 732 N.Y.S.2d 2, 3 (1st Dep't 2001) ("The photographs replicating the magnification provided by binoculars used by the observing officer were relevant and admissible 'to demonstrate to the jury the power of the binoculars and how close they made objects appear.'"); People v. Johnson, 279 A.D.2d 294, 295, 719 N.Y.S.2d 232, 233 (1st Dep't) ("the court properly admitted photographs of the crime scene taken from the officer's observation post with the use of a lens replicating the degree of magnification provided by the officer's binoculars."), appeal denied, 96 N.Y.2d 830, 729 N.Y.S.2d 451 (2001); People v. Rodriguez, 278 A.D.2d 99, 100, 718 N.Y.S.2d 32, 33 (1st Dep't 2000) ("The court properly exercised its discretion in admitting photographs of the crime scene in that they were relevant to illustrate the officer's ability to observe the sale and the power of his binoculars . . . ."), appeal denied, 96 N.Y.2d 787, 725 N.Y.S.2d 651 (2001); People v. Johnson, 256 A.D.2d 89, 90, 682 N.Y.S.2d 143, 144 (1st Dep't 1998) ("The court properly exercised its discretion when it admitted photographs of the crime scene taken from the officer's observation post and with a lens that had the same magnification as the binoculars used by the officer during his observations since they were admitted to demonstrate to the jury the power of the binoculars and how close they made objects appear."), appeal denied, 93 N.Y.2d 972, 695 N.Y.S.2d 58 (1999).

Jamison claims it was error to admit the photograph because it was taken in daylight, while Ventimiglia's observation of the crime occurred at midnight. (Jamison 1st Dep't Br. at 49-50.) The jury was made well aware of the difference in lighting conditions, both during the voirdire examination relating to the photograph (Badger: Tr. 230-31, 235-38) and during defense counsel's summation (Tr. 627-28). New York cases have long held that this issue goes to the weight, not the admissibility, of such photographs. See, e.g., People v. Mathison, 732 N.Y.S.2d at 3 ("The People acknowledged, on summation, that the jurors would have to take into account the effects of darkness in assessing the photographs, defendant did not request any limiting instruction, and the difference in lighting conditions goes only to the weight the jury might attach to the evidence, not its admissibility."); People v. Rodriguez, 278 A.D.2d at 100, 718 N.Y.S.2d at 33 (magnified photograph was properly admitted because, inter alia, "the jury was made aware that the photographs were taken under different lighting conditions than the incident"); People v. Johnson, 256 A.D.2d at 90, 682 N.Y.S.2d at 144 (magnified photographs properly admitted because, inter alia, "the jury was clearly made aware that the photographs were taken in daylight whereas the incident occurred at night").³⁴

34 Jamison also complains that the photograph depicted a Jeep rather than a Volvo, even though a Jeep's windshield might be more transparent than a Volvo's. (Jamison 1st Dep't Br. at 51; Tr. 516-17.) Further, the photograph depicted a clear view through the Jeep's windshield, even though Officer Annibale testified that the Volvo's windshield had been slightly fogged (Annibale: Tr. 377, 398). (Jamison 1st Dep't Br. at 51.) Jamison's complaints are misplaced, as none of the eyewitness testimony relied on a clear view through the Volvo's windshield, and the jury was under no misimpression to the contrary. Ventimiglia testified that, although he saw Jamison "prying or pulling something" inside the Volvo, he did not see Jamison's face inside the Volvo. (Ventimiglia: Tr. 268-69, 281-82, 326.) Ventimiglia's identification of Jamison as the perpetrator was based entirely on his observations before Jamison entered the Volvo. (Id.) Similarly, Officer Annibale testified that he saw only "movement" inside the Volvo, and first saw Jamison's face when Jamison exited the Volvo. (Annibale: Tr. 377-78, 398.) These issues, like the taking of the photograph in the daytime, went only to the weight, not the admissibility, of the photograph.

While it might have been appropriate for the trial court to instruct the jury that the photograph was admitted solely for the purpose of demonstrating the magnification of Ventimiglia's binoculars, the trial court's actions were not an abuse of discretion and thus not an error of state law, much less an error of constitutional magnitude. See, e.g., Thomas v. Breslin 01 Civ. 6657, 2002 WL 22015 at *5 n. 14, *8 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.) ("Because [petitioner] has 'failed to make the threshhold showing that the First Department erred as a matter of state law in upholding the trial court's decision' to admit the [challenged evidence], 'this Court need not reach the question of whether [petitioner's] due process rights were violated.'") (quoting Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *17 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.)); Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner could not demonstrate an error under state evidentiary law, much less an error of constitutional magnitude); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) (petitioner must show both state law error and violation of constitutional rights).

2. The Preclusion of Testimony Regarding Artist's Dismissal Did Not Render Jamison's Trial Fundamentally Unfair

Jamison asserts that the trial court violated his due process rights by prohibiting him from informing the jury that all charges against Artist had been dismissed. (Pet. ¶ 12(C); Jamison 1st Dep't Br. at 57-60.)

During voir dire, the trial court informed the jury that the case against Artist had been separated from Jamison's case, and that resolution of Artist's case was irrelevant to Jamison's case. (Tr. 84, 147-48.) The trial court also prohibited counsel from mentioning the "dismissal" of Artist's case. (Tr. 518-19.) The court did, however, "permit questioning as to where [Artist] was, what he saw, what he observed." (Tr. 519.)

This initial ruling appears to have been appropriate under New York law. For example, in People v. Lawson, 112 A.D.2d 457, 461, 491 N.Y.S.2d 197, 202 (3d Dep't), appeal denied, 66 N.Y.2d 764, 497 N.Y.S.2d 1038 (1985), an alleged accomplice of the defendant was tried separately and acquitted. The Third Department affirmed the trial court's ruling that, should the accomplice "be called by defendant as a witness, he could not be questioned about his acquittal of the instant charge. Only if the prosecution were to impermissibly cross-examine [the accomplice] about the acts underlying the instant crime would his acquittal of the instant charge be relevant." People v. Lawson, 112 A.D.2d at 461, 491 N.Y.S.2d at 202.³⁵

35 See N.Y. Crim. CJI 5.37 (pattern jury charge provides that the jury is not to speculate as to why co-defendants were tried separately); 1A O'Malley, Grenig Lee, Federal Jury Practice Instructions, Criminal § 11.14 (5th Ed. 2000) (federal pattern jury charge that, where the case of a co-defendant has been dismissed during trial, the disposition of the dismissed defendant's case is "no longer of concern to [the jury] and [the jury] should not speculate as to the reason for this occurrence.").

During his cross-examination of Artist, however, the prosecutor charged that Artist had acted as Jamison's "lookout" during the break-in. (Artist: Tr. 573, 578.) By "impermissibly cross-examin[ing] [Artist] about the acts underlying the instant crime," People v. Lawson, 112 A.D.2d at 461, 491 N.Y.S.2d at 202, the trial court could have found that the prosecutor opened the door to rehabilitative testimony regarding Artist's dismissal. The trial court nevertheless continued to preclude Jamison from inquiring on redirect into Artist's dismissal. (Tr. 576-78, 596-97; see also Tr. 621, 659-60.)

This Court cannot say that the trial court's ruling was an abuse of discretion or error under state law. While the jury might have been slightly more inclined to believe Artist had the jury learned of Artist's dismissal on the ground that he would have had less reason to lie on Jamison's behalf,³⁶ the State's non-merits dismissal had little probative value, since the charges against Artist could have been dropped for any number of reasons having nothing to do with his guilt or innocence.³⁷ Artist's long history of criminal convictions and aliases, when combined with the improbability of his story (i.e., that during a two-block long foot pursuit on an empty street at midnight, the police managed to lose the real culprit and nab a look-alike, Jamison, instead) rendered Artist a very weak defense witness, dismissal or no dismissal.

36 Cf., e.g., United States v. Jung, No. 97-10198, 185 F.3d 870 (table), 1999 WL 397525 at *1 (9th Cir. May 27, 1999) ("Every federal court that has addressed the issue has ruled that there is no error in giving an accomplice instruction [that such testimony should be viewed with greater care] when the accomplice's testimony favors the defendant."); United States v. Bolin, 35 F.3d 306, 308-09 (7th Cir. 1994) (approving jury charge that accomplice's testimony favoring defendant should be viewed with "caution and great care," given greater likelihood that accomplice will lie).

37 See, e.g., People v. Matthews, 68 N.Y.2d 118, 123, 506 N.Y.S.2d 149, 151 (1986) (defendant may be cross-examined regarding acts underlying dismissed charges, because charges were not dismissed on the merits); People v. Vidal, 26 N.Y.2d 249, 253, 309 N.Y.S.2d 336, 339 (1970) (same, distinguishing termination of charges from acquittal on the merits); Matter of Robert T., 220 A.D.2d 434, 434, 631 N.Y.S.2d 915, 915 (2d Dep't 1995) (same), appeal denied, 87 N.Y.2d 808, 641 N.Y.S.2d 829 (1996); see also People v. Booker, 134 A.D.2d 949, 949-50, 521 N.Y.S.2d 953, 954 (4th Dep't 1987) (defense witness may not be impeached regarding acts underlying criminal charges on which he was acquitted, since the "acquittal of the witness negates the good-faith and basis-in fact requirements" for asking the question), appeal denied, 70 N.Y.2d 953, 525 N.Y.S.2d 836 (1988). Because the charges against Artist were merely dismissed rather than his being acquitted, the prosecutor's accusation that Artist took part in the crime did not constitute bad faith, as Jamison asserts. (Jamison 1st Dep't Br. at 57-60.)

Finally, even if the trial court's ruling could be considered erroneous as a matter of state law (and this Court does not believe it was), state evidentiary rulings are not ordinarily subject to habeas review, see Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998), and will merit habeas relief only "where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (emphasis in original); see pages 38-39 above. The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record'", 'creates a reasonable doubt that did not otherwise exist.'" Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983); see pages 38-39 above. The most important factor in a habeas due process analysis is "the overall strength of the prosecution's case." Dunnigan v. Keane, 137 F.3d at 130 (quoting Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 116 (1997)). Here, the prosecution's case against Jamison was overwhelming, given that the police caught Jamison in the act and never lost sight of him during a short foot pursuit. The probative value of Artist's dismissal was weak and the case against Jamison was quite strong. Thus, even if the exclusion of testimony regarding Artist's dismissal was error under state law, this Court cannot conclude that admission of such testimony, evaluated in the context of the entire record, "creates a reasonable doubt that did not otherwise exist." Jones v. Stinson, 229 F.3d at 120 (citations omitted). Nor was the First Department's rejection of Jamison's claim an objectively unreasonable application of the Agurs fundamental fairness standard. Id. at 120-21.

IV. VENTIMIGLIA'S SHOWUP IDENTIFICATION OF JAMISON DOES NOT PROVIDE A BASIS FOR HABEAS CORPUS RELIEF

Jamison asserts that the trial court denied him due process by precluding testimony from Ventimiglia at the Wade hearing regarding Ventimiglia's showup identification of Jamison, despite evidence that the showup was unduly suggestive. (Pet. ¶ 12(D); Jamison 1st Dep't Br. at 61-66.) This claim should be denied.

New York law contains no absolute rule requiring an identifying witness to appear at a Wade hearing. People v. Chipp, 75 N.Y.2d 327, 336-39, 553 N.Y.S.2d 72, 77-79, cert. denied, 498 U.S. 833, 111 S.Ct. 99 (1990). Under New York law, "[a]n identifying witness may be required to testify only if substantial issues exist regarding the suggestiveness of the identification procedure which cannot be resolved without the witness' testimony." Byas v. Keane, 97 Civ. 2789, 1999 WL 608787 at *13 (S.D.N.Y. Aug. 12, 1999) (citing People v. Chipp, 75 N.Y.2d at 338, 553 N.Y.S.2d at 78-79).³⁸ Jamison asserts that Officer Annibale, the only witness at the Wade hearing, gave inconsistent testimony or was ignorant of key facts about the showup. (Jamison 1st Dep't Br. at 61.) Jamison thus argues that, in light of the plainly suggestive nature of the showup, Ventimiglia should have been required to testify as to the reliability of the showup. (Id.)

38 Accord, e.g., Heron v. People of the State of New York, 98 Civ. 7941, 1999 WL 1125059 at *10 (S.D.N.Y. Dec. 8, 1999) ("Under New York law, it is well-settled that there is no absolute rule which requires the identifying witness to appear at a Wade hearing . . . . Absent some proof that the line-up was unduly suggestive, a trial court may properly preclude an identifying witness from testifying."); Sorenson v. Superintendent, Fishkill Corr. Facility, No. 97 CV 3498, 1998 WL 474149 at *4 (E.D.N.Y. Aug. 7, 1998) ("[U]nder New York law, a defendant does not have an absolute right to call an identifying witness at a pre-trial identification hearing. . . . 'Absent some indication that the pretrial identification procedure employed was suggestive,'" no requirement that the eyewitness testify at Wade hearing.) (quoting Rivalta v. Artuz, 96 Civ. 8043, 1997 WL 401819 at *3 (S.D.N.Y. July 16, 1997)).

Ventimiglia ultimately testified at trial regarding the conditions of the showup, thus providing the testimony that Jamison contends should have been provided at the Wade hearing. Indeed, after Ventimiglia's trial testimony, in which Jamison's counsel ably brought out the facts of the showup on cross-examination, Jamison renewed his motion to suppress Ventimiglia's pretrial identification. (Tr. 340-41.) In effect, the question of whether Ventimiglia should have been called at the Wade hearing was superseded by the question of whether, based on both the Wade hearing and trial testimony, the showup was so unduly suggestive as to violate Jamison's constitutional rights. See Dunnigan v. Keane, 137 F.3d 117, 129 (2d Cir. 1998) ("Although it might have been preferable for the state court to hold a pretrial Wade hearing, we see no indication that the basis for [the eyewitness'] pretrial identification was not adequately explored . . . at trial."); People v. Chipp, 75 N.Y.2d at 338, 553 N.Y.S.2d at 79 (no unfairness in defendant being precluded from questioning complainant at Wade hearing, because "defendant will be able to examine the witness and explore issues relevant to identification at trial"). This Court concludes, as detailed below, that the showup was either not unduly suggestive or that the decision to admit evidence of the showup was harmless error.

The Second Circuit has announced the following standard for admitting so-called "showup" eyewitness identifications:

We will exclude a pre-trial identification only if the procedure that produced the identification is so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law. That is, we will exclude a pre-trial identification only if it was both produced through an unnecessarily suggestive procedure and unreliable. Even if the procedure was unnecessarily (or impermissibly) suggestive, therefore, a district court may still admit the evidence if, when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability.

United States v. Bautista, 23 F.3d 726, 729-30 (2d Cir.) (citations internal quotations omitted, emphasis in original), cert. denied, 513 U.S. 862, 115 S.Ct. 174 (1994).³⁹

39 See also, e.g., Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001) ("When the defendant objects to identification testimony to be given by a witness who has identified him prior to trial, a sequential inquiry is required in order to determine whether either the prior identification or an in-court identification of the defendant at trial is admissible. The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility; no further inquiry by the court is required, and [t]he reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case, is a matter for the jury. If the court finds, however, that the procedures were suggestive, it must then determine whether the identification was nonetheless independently reliable.") (citations internal quotations omitted); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *18-20 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.) ( cases cited therein); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *10-12 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.) (upholding showup identification as not impermissibly suggestive); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *6-7 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.) (upholding police officer's on-the-scene identification).

At the conclusion of the pre-trial Wade hearing the trial court ruled that Ventimiglia's pretrial identification of Jamison would be permitted at trial because, inter alia, the showup was necessary to ensure that the police had not arrested an innocent man. (H. 73-75.) That decision was sound. "[I]t is now settled law that prompt on-the-scene confrontation is 'consistent with good police work' and does not offend the principles established in United States v. Wade." United States ex rel. Cummings v. Zelker, 455 F.2d 714, 716 (2d Cir.) (citing, inter alia, United States v. Sanchez, 422 F.2d 1198, 1200 (2d Cir. 1970)), cert. denied, 406 U.S. 927, 92 S.Ct. 1800 (1972). "[P]rompt confrontation [is] F.3d at 729-30 (identification by confidential informant of handcuffed defendant at time of his arrest not "unnecessarily suggestive," because necessary to identify perpetrators and release innocent persons); United States v. Butler, 970 F.2d 1017, 1021 (2d Cir.) (identification proper where, less than thirty minutes after the robbery of a check cashing business, suspects were brought to victim who was sitting in a police car), cert. denied, 506 U.S. 980, 113 S.Ct. 480 (1992); United States v. Sanchez, 422 F.2d at 1199-200 ("prompt on-the-scene confrontation" i n which police drove suspects by witnesses on the street thirty minutes after a robbery was "consistent with good police work" where defendants protested 53 their innocence; not impermissibly suggestive for police to ask witnesses if suspects were "the guys"); United States v. Ortiz, 99 Cr. 532, 2000 WL 37998 at *1 (S.D.N.Y. Jan. 18, 2000) (showup identification of robbery victims not unduly suggestive where "defendants [were] in handcuffs, standing beside a marked police car, and accompanied by uniformed police officers"); Jones v. Strack, 1999 WL 983871 at *11 (showup identifi cation after street crime not unduly suggestive where defendant was "surrounded by police, with lights flashing, within a few blocks of the incident"); Malik v. Kelly, No. 97-CV-4543, 1999 WL 390604 at *5 (E.D.N.Y. Apr. 6, 1999) (no impermissible suggestiveness where police drove crime victim past suspect immediately after she spotted him in the neighborhood); James v. Senkowski, 1998 WL 217903 at *7; United States v. Nelson, 931 F. Supp. 194, 197, 199-200 (W.D.N Y 1996) (showup identification in which single suspect was taken in handcuffs to eyewitnesses after hot pursuit not unnecessarily suggestive), aff'd mem., 131 F.3d 132 (2d Cir. 1997).⁴⁰

40 See also, e.g., Boles v. Senkowski, 878 F. Supp. 415, 421-23 (N.D.N.Y. 1995) (showup identification not impermissibly suggestive where mugging victim identified unhandcuffed suspect on a street corner by driving by in a police car twenty minutes after the crime); United States v. Gonzalez, 864 F. Supp. 375, 386 (S.D.N.Y. 1994) (showup identification at point of arrest by off-duty police officer who had witnessed defendant's criminal conduct some half-hour earlier was proper); Colson v. Mitchell, 798 F. Supp. 966, 974 (E.D.N.Y. 1992) (showup identification after temporary stop of defendant within ten minutes of crime permissible); United States v. Viscioso, 711 F. Supp. 740, 748 (S.D.N.Y. 1989).

Here, Jamison was arrested two blocks from the scene of the crime and shown (in handcuffs) to the eyewitness for identification just a few minutes after the break-in — a classic showup necessitated by exigent circumstances. Where, as here, the police make a prompt and reasonable effort to identify the perpetrators and release the innocent, handcuffs and police custody are "necessary incidents of an on-the-scene identification" that do not "render the [pre-trial] identification procedure unnecessarily suggestive."⁴¹ United States v. Bautista, 23 F.3d at 730. The showup procedure, albeit clearly "suggestive," was not unnecessarily suggestive as it was necessitated by the exigent circumstances.

41 Whether Jamison was in the police car or standing next to it at the time of the showup (a subject of intense questioning during trial) has no bearing on whether the showup identification was admissible. Compare, e.g., United States. v. Mohammed, 27 F.3d 815, 821-22 (2d Cir.) (showup while defendant sat in police car was reliable), cert. denied, 513 U.S. 975, 115 S.Ct. 451 (1994); United States ex rel. Cummings v. Zelker, 455 F.2d at 715-16 ("prompt on-the-scene confrontation" in which witness "glanced" at suspects sitting in police car, was admissible because, among other things, it ensured quick release of innocent suspects), with, e.g., United States v. Bautista, 23 F.3d at 730 (show-up identification at night while defendant in handcuffs and in the presence of a police officer not unduly suggestive); United States v. Ortiz, 2000 WL 37998 at *1 (not unduly suggestive where "defendants in handcuffs, standing beside a marked police car, and accompanied by uniformed police officers"); Jones v. Strack, 1999 WL 983871 at *11 (prompt on the scene showup with defendant "surrounded by police, with lights flashing, within a few blocks of the incident" not impermissibly suggestive).

The only possible argument that Jamison could make here is that the showup was not "necessary" because the police knew they had the right man. According to the police testimony, Jamison was caught "red-handed" after a short foot pursuit in which the police never lost sight of him. The exigent circumstances exception, however, applies only where the "officer has or should have doubts whether a detained suspect is in fact the person sought." United States v. Bautista, 23 F.3d at 730 (citation and internal quotation omitted). If the police here were absolutely certain that they had the right man, then there was no need for a showup to ensure "'the immediate release of an innocent suspect.'" United States ex rel. Cummings v. Zelker, 455 F.2d at 716. If that is the case, however, and the showup was not necessary because the police knew Jamison to be guilty, then the admission of Ventimiglia's testimony regarding the showup was, at most, harmless error.⁴² E.g., Wray v. Johnson, 202 F.3d 515, 524-25 (2d Cir. 2000) (error in admitting identification testimony is subject to deferential harmless error analysis on habeas review); Dunnigan v. Keane, 137 F.3d at 130 (admission of impermissibly suggestive identification held to be harmless error); see, e.g., United States v. Adeniji 31 F.3d 58, 64 (2d Cir. 1994) (jury instruction error was harmless where defendant was caught "red-handed"); United States v. Modica, 663 F.2d 1173, 1182 (2d Cir. 1981) (prosecutorial misconduct was harmless error where the "case against appellant was overwhelming; he was caught red-handed, and his explanation was implausible . . . "), cert. denied, 456 U.S. 989, 102 S.Ct. 2269 (1982).

42 "Neither the Supreme Court nor [the Second Circuit] has definitively established the proper harmless error standard to apply when a constitutional error is being evaluated for the first time on collateral review." Santana-Madera v. United States, 260 F.3d 133, 140 (2d Cir. 2001), cert. denied, 122 S.Ct. 817 (2002). This Court need not choose here between the Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22 (1993), and Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967), harmless error standards, because any error would be harmless under either standard.

Accordingly, Ventimiglia's showup identification was either (1) required by exigent circumstances, and thus not "unnecessarily suggestive," or (2) harmless error, as the police identification of Jamison, who they caught red-handed, rendered Ventimiglia's identification unnecessary and cumulative.

V. THE TRIAL COURT'S SANDOVAL RULING IS NOT REVIEWABLE IN A HABEAS PROCEEDING WHERE, AS HERE, THE DEFENDANT DID NOT TESTIFY AT TRIAL

Jamison asserts that the trial court erred by issuing a Sandoval ruling that Jamison could be questioned about his prior convictions if he testified. (Pet. ¶ 12(F); Jamison 1st Dep't Br. at 54-57.) Jamison's failure to testify at trial, however, bars this habeas court from reviewing the trial court's Sandoval ruling.

"It is well-settled that a petitioner's failure to testify at trial is fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling. . . . The reason that a habeas petitioner's failure to testify at trial is 'fatal to any claims arising out of a Sandoval type ruling' is that absent such testimony, a court has no 'adequate non-speculative basis upon which to assess the merits of that claim.'" McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997) (quoting Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd mem., 940 F.2d 649 (2d Cir. 1991)); see, e.g., Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 463 (1984) ("Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative."); Shannon v. Senkowski, 00 Civ. 2865, 2000 WL 1683448 at *6 (S.D.N.Y. Nov. 9, 2000) ("Second Circuit law has created a bright-line rule, however, barring habeas relief for allegedly erroneous 57 Sandoval rulings in instances where a defendant elects not [to] testify.") (citing cases); Warren v. Miller, 78 F. Supp.2d 120, 135 (E.D.N.Y. 2000) ("Importantly, where as here, a habeas petitioner did not testify at trial, the Sandoval ruling may not be assessed on habeas review because any such ruling would be wholly speculative."); Stevenson v. Strack, 96 Civ. 8429, 1999 WL 294805 at *5 (S.D.N.Y. May 11, 1999) ("It is well-settled that a petitioner's failure to testify at trial is fatal to any claim of constitutional deprivation arising out of a Sandoval-type ruling."); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *7 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.) (petitioner's "unwillingness to testify bars the habeas court from reviewing the trial court's Sandoval ruling") (citing cases).

Accordingly, Jamison's Sandoval claim should be denied.

CONCLUSION

For the reasons set forth above, Jamison's habeas corpus petition should be denied. Since Jamison has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Allen G. Schwartz, 500 Pearl Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Schwartz. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).