McPherson v. Greiner

Full title: BRAD McPHERSON, Petitioner, v. CHARLES GREINER, Green Haven Correctional…

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

Date published: Oct 22, 2003

No. 02 Civ. 2726 (DLC) (AJP) (S.D.N.Y. Oct. 22, 2003)

Opinion

No. 02 Civ. 2726 (DLC) (AJP)

October 22, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Denise L. Cote, United States District Judge:

Petitioner Brad McPherson, pro se, seeks a writ of habeas corpus from his June 16, 1998 conviction in Supreme Court, New York County, of third degree criminal possession of stolen property and seven counts of fourth degree criminal possession of stolen property, for which he was sentenced to fifteen years to life imprisonment on the third degree criminal possession of stolen property conviction as a discretionary persistent felony offender, and concurrent terms of two to four years imprisonment on the fourth degree criminal possession convictions as a second felony offender. (Dkt. No. 1: Pet. ¶¶ 1-4; Dkt. No. 13: 6/16/98 Sentencing Transcript ["S."] 9-11.)

McPherson's federal habeas petition, as amended, alleges that: (1) he was arrested without probable cause and subjected to an unreasonable search and seizure (Dkt. No. 1: Pet. ¶ 12(A) Mem. at 1-3), and the evidence obtained through the illegal arrest should not have been admitted (Pet. ¶ 12(B)); (2) the judge improperly relied on "bias evidence" in imposing sentence, failed to take into account McPherson's non-violent history (Pet. ¶ 12(C) Mem. at 3), and the sentence was excessive for a non-violent offense (Pet. ¶ 12(D)); (3) McPherson's conviction violated Apprendi because (a) the indictment did not state that his sentence could be enhanced under the Persistent Felony Offender statute, and (b) the judge, rather than the jury, decided based on McPherson's history and character whether to sentence him as a persistent felony offender (Pet. ¶ 12(D)); (4) the State altered or destroyed evidence and failed to preserve the chain of custody (Pet. Mem. at 3; Dkt. No. 5: Am. Pet. ¶ 12(C)); (5) certain jurors were biased against McPherson (Pet. Mem. at 3; Am. Pet. ¶ 12(A)); (6) the trial court should not have accepted a "partial verdict" (Pet. Mem. at 3; Am. Pet. ¶ 12(B)); (7) a mistrial should have been declared when a juror saw McPherson in handcuffs (Am. Pet. ¶ 12(B)); and (8) trial counsel rendered ineffective assistance by (a) not challenging certain allegedly biased jurors; (b) not requesting a mistrial when a juror saw McPherson in handcuffs; (c) failing properly to object to the partial verdict; (d) not objecting to the State's evidence tampering; (e) failing to investigate; and (f) failing to object, onApprendi grounds, to the enhancement of McPherson's sentence under the Persistent Felony Offender statute (Am. Pet. ¶¶ 12(D)-(E)).

This Report and Recommendation will analyze all of McPherson's claims except his Apprendi-related claims, which will be addressed in a separate Report and Recommendation. For the reasons set forth below, McPherson's habeas claims addressed herein should be DENIED. FACTS

On January 16, 1997, McPherson was arrested in Manhattan for possessing a stolen bicycle and two bags of property. (E.g., Dkt. No. 15: King Aff. Ex. B: McPherson 1st Dep't Br. at 3.)¹ McPherson was indicted for second degree burglary, third degree criminal possession of stolen property, seven counts of fourth degree criminal possession of stolen property, third degree grand larceny, and seven counts of fourth degree grand larceny. (See Dkt. No. 13: Trial Transcript ["Tr."] 145-46.)

1 References to exhibits are to those attached to the February 7, 2003 Affidavit of Assistant Attorney General Michael P. King, Dkt. No. 15.

The Pretrial Suppression Hearing

The trial court (Justice Bernard Fried) held a Mapp-Huntley suppression hearing on July 22, 1997. (See Dkt. No. 12: 7/22/97 Hearing Transcript ["H."].) Police Officer Austen Zivec testified at the hearing, as follows:

At about 3:00 p.m. on January 16, 1997, Officer Zivec was on plainclothes patrol with Sergeant Mark Eddington and Officer Larry Dougherty in an unmarked police car, when Officer Zivec spotted McPherson approaching a bus stop at West 79th Street and Riverside Drive. (Zivec: H. 6-8, 28-29.) Officer Zivec, a self-described "bicycle buff," noticed McPherson was pushing an expensive mountain bicycle and had a red bag and a black bag slung around his neck. (Zivec: H. 8-9, 29.) Officer Zivec thought it "very unusual" that both the front and rear brake harnesses were disconnected, because it rendered the brakes inoperable and indicated that McPherson was unfamiliar with the bicycle. (Zivec: H. 9-10, 30, 35.)

Officer Zivec got out of the car, displayed his shield, identified himself as a police officer, and asked McPherson, "Do you mind if I ask you a few questions?'" (Zivec: H. 10, 31.) McPherson said he had "no problem with that." (Zivec: H. 10-11.) Officer Zivec asked McPherson what type of bicycle it was, to which McPherson pointed at the "mid column" and said, "It says it right here.'" (Zivec: H. 11.) This seemed unusual to Officer Zivec because, in his experience, a person buying such an expensive bicycle would know what type it was. (Zivec: H. 11.) Given that the brakes were disconnected and McPherson could not identify the type of bicycle, Officer Zivec thought that the bicycle did not belong to McPherson and possibly was stolen. (Zivec: H. 13.)

Officer Zivec also noticed a "mountain bike pass" affixed to the bicycle. (Zivec: H. 13.² Zivec asked McPherson if he knew what the pass was for; McPherson responded that he did not, explaining that two weeks earlier he had lent the bicycle to his cousin. (Zivec: H. 13-15, 36.) However, the pass was dated September 29th, almost four months earlier, and that discrepancy increased Officer Zivec's suspicion that the bicycle was stolen. (Zivec: H. 14-15.)

2 Similar to a ski pass, a mountain bike pass is used as a permit to carry a mountain bike on a chair lift when engaging in the sport of "[d]own hilling," which involves "just going down the hill as fast as possible" on mountain trails. (Zivec: H. 13-14, 36.)

Officer Zivec next asked McPherson where he was coming from, and McPherson responded that he was coming from his cousin's apartment at 875 Amsterdam Avenue, where he had gone to pick up some clothing and a radio to bring to his cousin at Columbia Presbyterian Hospital. (Zivec: H. 15-16, 43.) Officer Zivec knew that 875 Amsterdam Avenue was at least eleven blocks uptown, and that Columbia Presbyterian Hospital was even farther uptown at 168th Street, and it seemed strange that McPherson would have traveled downtown to 79th Street and Riverside on his way uptown to the hospital. (Zivec: H. 15-16, 43.) Officer Zivec therefore asked McPherson "if he would mind taking a ride" with the officers to 875 Amsterdam Avenue so that they could verify his story, and McPherson agreed. (Zivec: H. 16, 42-45.) At this point, McPherson was not under arrest, and he was free to refuse to go with the officers. (Zivec: H. 42-44.)

As they drove up Amsterdam Avenue, Officer Zivec asked McPherson to point out 875 Amsterdam Avenue when they reached it. (Zivec: H. 17.) As they passed the building, McPherson did not recognize it. (Zivec: H. 17.) The officers then drove around the block and parked directly in front of 875 Amsterdam Avenue, but still McPherson did not recognize the building as his cousin's. (Zivec: H. 17.) When Officer Zivec asked McPherson his cousin's apartment number and the name of the building manager who had let him into the apartment, McPherson replied that he did not remember. (Zivec: H. 17.)

At that point, believing that the property in McPherson's possession was stolen, Officer Zivec placed McPherson under arrest. (Zivec: H. 17.) Along with the bicycle, Officer Zivec recovered "a ton of property" from the bags McPherson was carrying. (Zivec: H. 18-19.)³ Using passports and a business card found in the bags, Officer Zivec determined that the property had been stolen that day from the apartment of a married couple, Laura Dedominicis and Scott Whitehouse, while they were at work. (Zivec: H. 20, 37-39.)

3 Officer Zivec read from a ten-page list of items that were recovered from McPherson, including tools, a camera, two cigar cutters, six black leather gloves, twenty-eight music CDs, a flashlight, a table clock, two international vaccine certificates, and a letter opener. (Zivec: H. 18-19.) The court interrupted: "You know, what? Instead of reading the document we'll mark it as a People's Exhibit #1 for hearing purposes only, please." (H. 19.)

At the precinct, after being read his Miranda rights, McPherson told police that he had found the property, and that the keys in his jacket were his own. (Zivec: H. 20-26, 40.)

The Suppression Decision

At the conclusion of the hearing, Justice Fried denied the motion to suppress the physical evidence and the statements McPherson made at the scene prior to being arrested and at the precinct after having been readMiranda warnings. (H. 52-55.)

On April 15, 1998, after trial, Justice Fried issued a formal written decision explaining his prior decision from the bench finding that the police had probable cause to arrest McPherson and that the property should not be suppressed:

Here, from the initial encounter to the time of the arrest, the escalating levels of permissible inquiry were appropriately based upon the increasingly implausible and patently untruthful answers given by the defendant. First, the unusual condition of the bike justified the approach of Officer Zivec to inquire about the brakes. . . . This unusual state of the brakes, visible to the officer, provided a credible basis to approach the defendant. Second, the defendant's apparent lack of knowledge about the make of the bike, the inability to adequately account for the bike pass, coupled with the defendant's conflicting account of his activities gave rise to a founded suspicion that criminal activity was afoot. Thereafter, the defendant's failure to identify the residence of his cousin when parked directly in front of 875 Amsterdam and the defendant's inability to identify the apartment number are thoroughly incompatible with the defendant's contention that he just left the residence. Those omissions, combined with the totality of the other circumstances, provided Officer Zivec with probable cause to place the defendant under arrest.

Accordingly, for the foregoing reasons, the motion [to suppress the property] is in all respects, denied.

(Ex. M: 4/15/98 Justice Fried Suppression Opinion at 6-7.) The Prosecution Case at Trial

At trial, Officer Zivec and Sergeant Eddington described the events leading up to their arrest of McPherson, essentially repeating Officer Zivec's testimony from the suppression hearing. (Dkt. No. 13: Trial Transcript ["Tr."]: Zivec: Tr. 161-89, 221-25, 229-32, 250-51; Eddington: Tr. 255-66, 278-87, 291-92.) At the time of the arrest, the officers had no information regarding an apartment burglary within the precinct. (Zivec: Tr. 236-37; Eddington: Tr. 256-57, 265-66.)

After placing McPherson under arrest, the officers took McPherson to the Twentieth Precinct, where Officer Zivec took possession of both bags McPherson had on him. (Zivec: Tr. 189-90.) Officer Zivec and Sergeant Eddington looked through both bags and found many items, including a large amount of jewelry, a laptop computer and attachments, tools, a leather jacket, three pairs of leather gloves, a table cloth, knives, watches, a letter opener, cigar cutters, a camera, a clock, international vaccination certificates and passports in the names of Whitehouse and Dedominicis, seven department store credit cards in Dedominicis' name, and compact discs. (Zivec: Tr. 191-96, 200, 210-11, 227-28, 250; Eddington: Tr. 262, 267; Dedominicis: Tr. 331-36, 365.) Officer Zivec also recovered two key rings and a number of loose keys — thirty-three keys in all — from the front pouch of the ski parka McPherson was wearing. (Zivec: Tr. 203-05, 207, 228, 242-44; Eddington: Tr. 266-67, 273, 291.)

The police found one of Whitehouse's business cards in one of the bags, and Sergeant Eddington called Whitehouse to notify him that someone had been found with some of his possessions. (Zivec: Tr. 200, 238; Eddington: Tr. 262, 267, 293-94; Whitehouse: Tr. 375.) Whitehouse returned to his apartment at 80th Street between Riverside Drive and West End Avenue at about 4:00 p.m., put his key in the lock, and discovered that his apartment door was unlocked, although he had locked it before going to work. (Eddington: Tr. 274, 288-89, 298; Whitehouse: Tr. 374-76, 399-400; Zivec: Tr. 200-01.) Officer Zivec, Sergeant Eddington, and latent print officer John Delvalle arrived at the apartment shortly after Whitehouse. (Zivec: Tr. 200-02, 237-39; Eddington: Tr. 268-69, 294-96; Delvalle: Tr. 301-02, 308; Whitehouse: Tr. 398-99.) The door was undamaged and there was no sign of forced entry, but the apartment was a "wreck" and appeared to have been "ransacked". (Zivec: Tr. 201-02, 240, 253; Eddington: Tr. 269-70; Dedominicis: Tr. 324, 349-50; Whitehouse: Tr. 376-77, 378, 400.) Whitehouse and Dedominicis, who arrived around 4:30 p.m., noticed that a number of their possessions were missing, including a mountain bike, jewelry, tools, a leather jacket, a camera, a laptop computer and printer, a compact disc holder, and credit cards. (Dedominicis: Tr. 324-26, 331-36; Whitehouse: Tr. 377, 400.) Officer Delvalle attempted to take fingerprints from several surfaces, but with negative results. (Zivec: Tr. 202, 240-41, 247-48; Eddington: Tr. 274-75, 287-88, 296; Delvalle: Tr. 303-08.)

At about 5:00 p.m., the officers drove Dedominicis and Whitehouse to the precinct, where they saw the bicycle and the other property recovered from McPherson laid out on a table. (Eddington: Tr. 289, 296; Dedominicis: Tr. 326-27, 331-39, 361; Whitehouse: Tr. 378-79, 383, 385, 387, 402-03.) The couple identified all of it as their property, which had been in their apartment that morning. (Zivec: Tr. 225-27; Eddington: Tr. 271-72, 290, 296; Dedominicis: Tr. 331-37; Whitehouse: Tr. 379.)⁴ Everything that was taken from their apartment that day was recovered from McPherson. (Dedominicis: Tr. 327, 360; Whitehouse: Tr. 379, 381.)

4 Later, when Dedominicis and Whitehouse retrieved some of the stolen property from police custody, they discovered that in addition to their own gloves, the police also found a pair of old, torn and "grimy-looking" men's gloves which did not belong to them, and Whitehouse subsequently threw them away. (Zivec: Tr. 226-27; Dedominicis: Tr. 340-41, 360-61; Whitehouse: Tr. 388-90, 395-96.)

After being read his Miranda rights, McPherson told Officer Zivec that the property in his pockets, including the keys, was his own, and that he had found the rest of the property he was carrying in the bags. (Zivec: Tr. 208, 245.) After Dedominicis and Whitehouse viewed their property at the precinct, Sergeant Eddington drove them back to their apartment, where Sergeant Eddington was able to unlock the top lock with one of the keys Officer Zivec had recovered from McPherson. (Zivec: Tr. 239, 243; Eddington: Tr. 267, 272-74, 289, 296; Dedominicis: Tr. 342-43; Whitehouse: Tr. 390-91, 403-05.)

At trial, Officer Zivec and Sergeant Eddington identified McPherson as the man they found in possession of Dedominicis and Whitehouse's property on January 16, 1997. (Zivec: Tr. 163-64; Eddington: Tr. 259.) Neither Dedominicis nor Whitehouse knew McPherson, and he did not have permission to enter their apartment or to take or possess any of their property. (Dedominicis: Tr. 344-45; Whitehouse: Tr. 393-94.) Dedominicis and Whitehouse testified to the identity and unchanged condition of much of the recovered stolen property. (Dedominicis: Tr. 330-36; Whitehouse: Tr. 379-82.)⁵ The mountain bike recovered from McPherson was brought to court by the owners and introduced into evidence at trial and appeared in court in the same condition as it had appeared in the police precinct on January 16, 1997, except that it had some "scratches" which it had sustained while being held by the police. (Zivec: Tr. 168-69, 218-19; Dedominicis: Tr. 328-29; Whitehouse: Tr. 319-82.)⁶ The Defense Case and the People's Rebuttal at Trial

5 Among these items were credit cards, compact discs, passports, jewelry, gloves, a letter opener, Italian currency, tools, and a leather jacket. (Dedominicis: Tr. 330-36.)

6 Whitehouse identified a laptop as being "almost exactly the same" as the one that was taken from his apartment. (Whitehouse: Tr. 386; see also Dedominicis: Tr. 337-38.) According to Dedominicis, after it was returned by the police, she and her husband had given the actual laptop to her brother-in-law; according to Whitehouse, he gave the computer to his mother. (Dedominicis: Tr. 337-38; Whitehouse: Tr. 385-86.)

McPherson testified that, on the day of the incident, he was on sick leave from his job as a messenger for a company for which he had been working for seven or eight months. (McPherson: Tr. 425-26, 445-47.)⁷ He went to the Columbia Presbyterian Hospital eye clinic for a 9:30 a.m. appointment and had planned to relax for the remainder of the day. (McPherson: Tr. 443, 446.) He went to the movie theater at 84th Street, the park at 79th Street and Riverside Drive, and was near a bus stop and planning to return to the theater when two police officers stopped him. (McPherson: Tr. 427, 442-43.) He was not carrying anything and did not have Dedominicis's bicycle or any other property belonging to Dedominicis or Whitehouse, nor was he in possession of the keys introduced into evidence at trial. (McPherson: Tr. 427-29.) He had never been inside the couple's apartment or any other apartment in their building. (McPherson: Tr. 428.) McPherson claimed that the police "planted all of [the] evidence on" him. (McPherson: Tr. 456-57.)

7 To "pull the teeth," defense counsel also established on direct examination that McPherson was convicted of: (1) burglary on October 10, 1990, (2) burglary on April 4, 1990, and (3) attempted burglary on February 24, 1986. (McPherson: Tr. 425-26.)

Officer Zivec approached McPherson and asked if he would answer some "general questions." (McPherson: Tr. 429-30.) McPherson agreed, and Officer Zivec explained that the area they were in was frequently robbed. (McPherson: Tr. 430.) Officer Zivec did not ask any questions about a bicycle, and McPherson did not state that he had come from his cousin's apartment at 875 Amsterdam Avenue nor that he was going to Columbia Presbyterian Hospital. (McPherson: Tr. 430-31.) The officers told McPherson that they "wanted to properly identify [him] and the only way . . . [was] for [him] to take a ride with them." (McPherson: Tr. 432.) McPherson got in the police car, and after a short ride, was taken to the precinct. (McPherson: Tr. 432.) During the ride, he was not asked to identify 875 Amsterdam Avenue. (McPherson: Tr. 433.)

When McPherson got into the police car, he saw the red bag that was introduced into evidence on the back seat. (McPherson: Tr. 433-34, 459.) Other than the bag, McPherson did not see any of the property that was introduced into evidence before it was brought into court. (McPherson: Tr. 433-34, 459.) McPherson told the police that he owned four house keys recovered from him, but he never told the police that he had found Dedominicis and Whitehouse's property. (McPherson: Tr. 434-35.)

Before January 16, 1997, McPherson had never seen Officer Zivec, Sergeant Eddington, or Officer Delvalle. (McPherson: Tr. 459-60.) The only reason McPherson could think of for why the officers "set [him] up" was that they might have learned of his three prior burglary convictions after he gave them his identification during questioning. (McPherson: Tr. 460-61.)

In rebuttal, Officer Zivec and Sergeant Eddington testified that they did not frame McPherson, and that it was not possible for them to find out McPherson's prior record from the learner's permit McPherson gave them as identification. (Zivec: Tr. 464-65; Eddington: Tr. 466-68.) Verdict

On July 29, 1997, after more than a day of deliberations, the jury reported that it had reached a "preliminary" verdict on eight counts, but that it was at an impasse on nine counts, and that further deliberations would not bring it closer to a verdict. (Tr. 603-06.) Justice Fried explained to the jury that "[t]here is a procedure in the law which authorizes me to accept what is known as a partial verdict, that is a verdict on some counts, but not on all counts." (Tr. 606.) Justice Fried asked the jury to continue its deliberations. (Tr. 606.) Defense counsel did not object to the judge's remarks to the jury. (See Tr. 603-06.) After further deliberations, the jury sent a note that it was requesting that a partial verdict be submitted. (Tr. 608.)

Justice Fried announced that, pursuant to C.P.L. § 310.70 (quoted on page 55 below), he would "ask each juror whether he or she believes that further deliberations will be fruitful with regard to whatever the remaining counts are." (Tr. 608.) McPherson's counsel objected "because it would seem that we would be better served to get a verdict on the entire case and by taking this partial verdict, we lessen that likelihood." (Tr. 609.) Justice Fried overruled the objection, explaining: "I intend to proceed in accordance with the C.P.L. I believe it would be appropriate to do so." (Tr. 609.) Justice Fried asked the jury to announce the verdict and indicate if there were any counts on which it had not reached a verdict. (Tr. 609-10.)

The jury convicted McPherson of the class D felony of third degree criminal possession of stolen property (Penal Law § 165.50) involving the possession of property in excess of $3,000 (the mountain bicycle, laptop computer, and jewelry) and seven counts of the class E felony of fourth degree criminal possession of stolen property (Penal Law § 165.45(2)) involving the seven credit cards. (Verdict: Tr. 610-16.) The jury's verdict was "partial" because it was unable to reach a verdict on the burglary counts. (Verdict: Tr. 610-11.)⁸

8 Justice Fried had instructed the jury to consider the counts of grand larceny in the alternative to the counts of criminal possession of stolen property. (Charge: Tr. 548-49, 561-62, 564, 566-69.) Justice Fried had explained to the jury that "that would mean that if you are satisfied that the defendant has been proven guilty beyond a reasonable doubt of a particular criminal possession count, then the grand larceny count would not be considered by you" (Charge: Tr. 549.) The jury properly did not deliver a verdict on the alternative grand larceny counts.
The burglary count was dismissed on the prosecution's motion on June 24, 1998, after McPherson had been sentenced on the possession of stolen property counts. (Dkt. No. 13: 6/24/98 Minutes at 2.)

After the jury delivered its verdict, Justice Fried asked the jury foreperson, and then the remaining jurors individually, whether, if deliberations continued, they would be likely to reach a verdict on the burglary counts within a reasonable period of time. (Tr. 616-18.) The jury foreperson replied, "I believe it is unlikely, your Honor" (Tr. 616), and each of the other jurors expressed their agreement with the foreperson's assessment (Tr. 617-18). Justice Fried stated at sidebar that he intended to declare a mistrial as to the remaining burglary counts. (Tr. 618.) McPherson's counsel objected "based on the same grounds . . . [he] objected to obtaining the partial verdict" (Tr. 618;see also Tr. 619-20), and the prosecutor also objected, requesting that the jury be allowed to deliberate for a few more minutes (Tr. 619). Over both objections, Justice Fried declared a mistrial on the remaining burglary counts because "the jury unanimously said they can't reach a verdict," they have been deliberating after a short trial for a day and a half, and "it would be unfruitful to ask [the jury] to return to the jury room and to continue deliberating." (Tr. 620.)

Sentencing Hearings

On December 11, 1997, the trial court held a hearing regarding the validity of McPherson's prior convictions, in Supreme Court, Kings County, of the violent felonies of (1) second degree attempted burglary on February 24, 1986; (2) second degree burglary on April 4, 1990; and (3) second degree burglary on October 10, 1990. (Dkt. No. 13:12/11/97 Minutes at 3-4.) McPherson acknowledged that he was not controverting or challenging the validity or constitutionality of these three convictions. Qd. at 2-5.)⁹ Justice Fried scheduled a further "hearing to determine whether or not [he] should sentence [McPherson] as a second felony offender or [he] should exercise [his] discretion to sentence [McPherson] as a discretionary persistent felony offender." (Id., at 5.) Justice Fried informed McPherson that at that hearing he would ask McPherson whether he admitted or denied the additional criminal behavior set forth in the presentence report. (M. at 8, 9-10.) The hearing was adjourned several times to allow the parties to obtain and review additional information about McPherson's criminal conduct. (See Dkt. No. 13: 12/11/97 Minutes; 1/8/98 Minutes; 1/22/98 Minutes; 2/26/98 Minutes; 4/8/98 Minutes; 5/13/98 Minutes.)

9 McPherson, through counsel, had admitted at a hearing on December 8, 1997 that he was the person convicted in the prior cases and that he was not challenging the constitutionality of his prior pleas. (Dkt. No. 13:12/8/97 Minutes at 2-7.) At the defense's request, that hearing was adjourned until December 11, 1997 to give the defense more time to review "whether or not they're sufficient to enhance his punishment in this case." (Id. at 6.)

On June 16, 1998, Justice Fried adjudicated McPherson a discretionary persistent felony offender under Penal Law § 70.10 (S. 9), and issued an eleven-page decision setting forth his reasoning. (Dkt. No. 19: 6/16/98 Justice Fried Decision ["D."].) Justice Fried explained the two-stage discretionary persistent felony hearing process:

First, the People must prove, beyond a reasonable doubt, by legally admissible evidence, that the defendant has been previously convicted of two or more felonies. (C.P.L. 400.20[5]). . . . Second, the court must determine whether the "history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required." (PL § 70.10[2]).

(D. 2.)

Justice Fried found that McPherson had the requisite two previous felony convictions within the meaning of Penal Law § 70.10, as McPherson admitted that he was previously convicted of the violent felony offenses of second degree attempted burglary on February 24, 1986, second degree burglary on April 4, 1990, and second degree burglary on October 10, 1990. (D. 2-3.) In reviewing McPherson's history and character, Justice Fried noted McPherson's "lengthy criminal record, the underlying facts in all of the charges, and all other relevant information." (D. 10.) Justice Fried considered the following aspects of McPherson's criminal history: (1) a November 12, 1980 adjudication as a youthful offender upon a charge of criminal possession of stolen property, with a sentence of three years probation (D. 4); (2) a February 25, 1986 sentence of ninety days on a misdemeanor conviction of fourth degree criminal mischief (D. 4-5); (3) a February 25, 1986 sentence of ninety days for a misdemeanor conviction of attempted third degree unauthorized use of a vehicle (D. 5); (4) a February 25, 1986 sentence of ninety days for a misdemeanor conviction of seventh degree attempted criminal possession of a controlled substance (D. 5); (5) a February 24, 1986 sentence of one to three years for a class D violent felony conviction of second degree attempted burglary (D. 5); (6) an April 4, 1990 sentence of seven and one-half to fifteen years for a class C violent felony conviction of second degree burglary (D. 5-6); (7) October 10, 1990 concurrent sentences of two to four years for two separate class C violent felony convictions of second degree burglary, to also run concurrently with the previously imposed sentence of seven and one-half to fifteen years (D. 6-7); and (8) an October 9, 1997 sentence of nine months for the misdemeanor of third degree assault (D. 7). Justice Fried also noted that in 1988, McPherson's parole was revoked, that he was still on parole when the instant offense occurred, and that he was also indicted for third degree criminal possession of a weapon for possessing a loaded, defaced semiautomatic assault rifle when he was arrested for the incident leading to his October 9, 1997 conviction. (D. 9; D. 7-8 n. 5.)¹⁰

10 McPherson argued that Justice Fried should not consider his indictment for possessing the assault rifle because "it's an uncharged crime and . . . we have one side of the story from the prosecutor who handled the case, but we don't have the full side to the story." (S. 3.) Justice Fried, however, decided to consider the indictment, explaining:

It appears that the Kings County District Attorney accepted a plea to the assault 3rd charge in full satisfaction of the indictment because of an anticipated ruling that the grand jury instructions were deficient and that following "consultation with the victim . . . and relying upon the successful prosecution in New York County [in this indictment] . . . the [Kings County] District Attorney offered this plea bargain." I believe it appropriate, in connection with this proceeding for me to consider that the defendant, while on parole, was in possession of a loaded, defaced semi-automatic rifle.

(D. 7-8 n. 5.)

Justice Fried concluded that "[i]t takes no special powers of clairvoyance to recognize that Brad McPherson will continue to plague innocent citizens when he returns to society. His own record and past conduct is behavioral evidence of his demonstrated inability to act in conformity with the minimum standards of civilized society." (D. 10.) Justice Fried therefore adjudicated McPherson a persistent felony offender within the meaning of Penal Law § 70.10. (D. 11; see also S. 9.)

Counsel for McPherson requested that Justice Fried sentence McPherson to the minimum fifteen years allowed under the persistent felony offender statute. (S. 5-8.)¹¹ Defense counsel argued that McPherson "cares very deeply about his family, and at times during the course of his life was a pretty good employee for some people." (S. 6.) He also noted that McPherson was thirty-five and would be fifty when released. (S. 6-7.) Finally, defense counsel observed that McPherson "has appeared somewhat religious" and that he "does not appear to be this violent individual that we have seen through the papers that we have read." (S. 7.) McPherson handed Justice Fried a written statement which was made part of the court record. (S. 8-9.)

11 Defense counsel had previously submitted a pre-sentence memorandum prepared by the Osborne Association, Inc. Assigned Counsel Services, which reviewed McPherson's background and recommended that McPherson be sentenced as a predicate felon rather than as a persistent felony offender, since McPherson's crimes were non-violent and based on his need for money to support his drug-addiction. (Ex. L.)

Justice Fried agreed with McPherson's counsel that the minimum of fifteen years to life was "enough" and "appropriate." (S. 9.) Accordingly, Justice Fried sentenced McPherson to fifteen years to life imprisonment on the third degree criminal possession of stolen property conviction, and concurrent sentences of two to four years imprisonment on each of the fourth degree criminal possession convictions as a second felony offender. (S. 9-11.) McPherson's First C.P.L. § 440 Motion and Direct Appeal

On June 19, 1998, immediately after sentencing, McPherson moved pro se under C.P.L. § 440.10 (the "First § 440 Motion") to vacate his conviction on the following grounds: (1) the State tampered with or destroyed physical evidence and there was an improper break in the chain of custody; (2) the trial judge improperly accepted a partial verdict despite McPherson's objection; and (3) trial counsel rendered ineffective assistance by failing to provide McPherson with Rosario material, failing to object to the State's alteration or destruction of evidence, and failing to properly advise McPherson. (Ex. F: 6/19/98 McPherson C.P.L. § 440 Motion.)

Justice Fried summarily denied the motion five days later, on June 24, 1998, by endorsing it "Motion Denied." (Ex. F: Endorsement on 6/19/98 McPherson C.P.L. § 440 Motion at 1.) There is no record of McPherson seeking leave to appeal the denial of his first § 440 motion to the First Department. (See Dkt. No. 14: State Br. at 6.)

In June 2000, represented by new counsel from the Legal Aid Society, McPherson directly appealed his conviction to the First Department, asserting that: (1) the prosecution failed to prove McPherson's guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence (Ex. B: McPherson 1st Dep't Br. at 23-28); (2) the physical evidence should have been suppressed as the fruit of an unreasonable search (id. at 29-34); and (3) McPherson's sentence was excessive, given, among other things, McPherson's non-violent record (id. at 35-41). McPherson's appellate counsel also filed a supplemental brief with the First Department arguing that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because: (a) the indictment did not state that his sentence could be enhanced under New York's Persistent Felony Offender statute; and (b) the judge, rather than the jury, decided based on McPherson's history and character whether to sentence him as a persistent felony offender. (Ex. C: McPherson Supp. 1st Dep't Br. at 2-14.)

On September 18, 2001, the First Department unanimously affirmed McPherson's conviction, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence warranted a reasonable inference that the value of almost 300 items of stolen property, including silver, gold and pearl jewelry, a mountain bike, a computer, printer and a camera, exceeded the $3000 statutory threshold. We note that most of the stolen items were admitted as exhibits at trial, enabling the jury to examine their condition.

Defendant's suppression motion was properly denied. The record supports the court's finding that the officer conducted a proper request for information. After the officer saw disconnected brakes dangling from the mountain bicycle defendant was pushing, which the officer, an experienced mountain biker, knew was unusual, he had an objective, credible reason to approach defendant to request information. This initial questioning was non-threatening and brief and constituted a proper level-one inquiry. After defendant provided inconsistent and evasive answers, the officer had a founded suspicion that criminal activity was afoot, entitling him to exercise a common-law right of inquiry that led to defendant's lawful arrest.

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see. People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 [2001]). The court properly exercised its discretion in imposing the enhanced sentence. Defendant's remaining contentions concerning this sentence are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

People v. McPherson, 286 A.D.2d 616, 616-17, 730 N.Y.S.2d 315, 316-17 (1st Dep't 2001) (citations omitted).

On December 28, 2001, the New York Court of Appeals denied leave to appeal. People v. McPherson, 97 N.Y.2d 685, 738 N.Y.S.2d 300 (2001). McPherson did not petition for certiorari to the United States Supreme Court. McPherson's Initial Federal Habeas Petition

McPherson's timely filed federal habeas petition (received by the Court's pro se office on March 19, 2002) alleges that: (1) he was arrested without probable cause and subjected to an unreasonable search and seizure (Dkt. No. 1: Pet. ¶ 12(A) Mem. at 1-3) and the evidence obtained through the illegal arrest should not have been admitted (Pet. ¶ 12(B)); (2) the trial judge improperly relied on "bias evidence" in imposing sentence, failed to take into account McPherson's non-violent history (Pet ¶ 12(C) Mem. at 3), and the sentence was excessive for a non-violent offense (Pet. ¶ 12(D)); and (3) McPherson's conviction violated Apprendi because (a) the indictment did not state that his sentence could be enhanced under the Persistent Felony Offender statute, and (b) the judge, rather than the jury, decided based on McPherson's history and character whether to sentence him as a persistent felony offender (Pet. ¶ 12(D)). In an attachment to his Petition, McPherson also appeared to assert that: (4) the State had altered or destroyed evidence and failed to preserve the chain of custody (Pet. Mem. at 3); (5) certain jurors were biased against McPherson (id.); and (6) the trial court should not have accepted a "partial verdict" ( id.).¹²

12 Although McPherson claimed on direct state appeal that the trial evidence was insufficient to prove that the stolen property's value exceeded $3,000 (Ex. B: McPherson 1st Dep't Br. at 23-28), McPherson's habeas petition, even construed liberally, fails to assert such a claim (Pet. ¶ 12 Mem.). The Court, therefore, deems McPherson to have waived any such habeas claim of insufficiency of the evidence (which, in any event, lacks merit).

McPherson subsequently moved to hold his habeas petition in abeyance to allow him to file a second C.P.L. § 440 motion in state court. (Dkt. No. 4: Attached McPherson 4/30/02 Letter.) By orders dated May 13, 2002 and June 19, 2002, this Court ordered McPherson to amend his habeas petition by July 1, 2002 to include any new claims. (Dkt. No. 4: 6/19/02 Order attached 5/13/02 Order.) McPherson's Second C.P.L. § 440 Motion

McPherson filed with the state court a second C.P.L. § 440 motion dated June 10, 2002 (Ex. G: McPherson 6/10/02 C.P.L. § 440 Motion, the "Second § 440 Motion"), asserting, in rambling and largely incoherent fashion, that trial counsel rendered ineffective assistance by failing to: (a) exercise peremptory challenges against alleged biased jurors (Ex. G: McPherson 6/7/02 Aff. ¶¶ 3(b)-(c); Ex. G: McPherson C.P.L. § 440 Br. at 9, 13-15, 19, 21-22)¹³; (b) request a mistrial when a juror saw McPherson in handcuffs (McPherson 6/7/02 Aff. ¶ 3(d); McPherson C.P.L. § 440 Br. at 9-10, 15, 22-23); (c) properly argue against the acceptance of a "partial verdict" (McPherson 6/7/02 Aff. ¶ 3(g); McPherson C.P.L. § 440 Br. at 10, 13-14, 18-19, 22); (d) object to the introduction of "altered" or "tainted" evidence or evidence that had not been properly preserved through a chain of custody (McPherson 6/7/02 Aff. ¶ 3(f); McPherson C.P.L. § 440 Br. at 9, 12-13, 15, 17-18, 21-22); and (e) properly "secur[c] documents of proof of defendant[']s employment and whereabouts of the morning leading to the arrest" or to investigate the background of the arresting officers (to show past instances of misconduct or that the arresting officer had no expertise in mountain biking) (McPherson 6/7/02 Aff. ¶ 3(e); McPherson C.P.L. § 440 Br. at 10, 14-15, 19-20, 22 attached exhibits). McPherson's Second C.P.L. § 440 Motion also seemed to assert independent claims that: (1) the judge violated Apprendi by enhancing McPherson's sentence as a persistent felony offender; and (2) his sentence was excessively harsh. (McPherson 6/7/02 Aff. ¶ 3(h); McPherson C.P.L. § 440 Br. at 10-11, 14, 20, 22.)

13 In support of his second § 440 motion, McPherson submitted a number of separate, haphazardly-titled, documents. (Ex. G.) The Court will refer to all of these documents (except for McPherson's 6/7/02 Affidavit) as the "§ 440 Brief and cite to McPherson's handwritten page numbers.

On December 20, 2002, Justice Fried issued an opinion denying McPherson's Second C.P.L. § 440 motion on various grounds. (Ex. I: 12/20/02 Justice Fried Opinion; accord, Dkt. No. 10.) Justice Fried denied several of McPherson's § 440 claims on the ground that the issues could have been, but were not, raised on direct appeal. (Ex. I: 12/20/02 Justice Fried Opinion at 3-6 (denying challenges to voir dire-juror bias, alleged juror viewing of him in handcuffs, and "weak" objections to partial verdict).) As to McPherson's Apprendi claim, Justice Fried held that

This claim is meritless: Not only has the New York Court of Appeals specifically rejected the argument that Apprendi applies to a persistent violent felony sentencing (People v. Rosen, 96 N.Y.2d 329, [2001]), but this precise issue was raised on the defendant's direct appeal in a Supplemental Brief, which was filed with the permission of the Appellate Division.

(Ex. I: 12/20/02 Justice Fried Opinion at 6.)

On March 18, 2003, the First Department summarily denied leave to appeal. (Dkt. No. 17: 3/18/03 1st Dep't Order; see also Dkt. No. 11: McPherson Leave to Appeal Papers.)—¹⁴ McPherson's Amended Federal Habeas Petition

14 In 2002, the New York Criminal Procedure Law was amended to allow permissive appeals to the New York Court of Appeals from the denial of coram nobis petitions. C.P.L. § 450.90(1). The rule is unchanged, however, that no appeal lies to the Court of Appeals from the Appellate Division's denial of a C.P.L. § 440 motion. See. e.g., Martin v. Walker, 02 Civ. 5880, 2002 WL 31509876 at *2 (S.D.N.Y. Nov. 12, 2002) (Peck, M.J.).

On July 11, 2002, McPherson filed his Amended Petition in this Court asserting the following claims: (1) certain jurors were biased against McPherson (Dkt. No. 5: Am. Pet. ¶ 12(A)); (2) a mistrial should have been declared when a juror saw McPherson in handcuffs (Am. Pet. ¶ 12(B)); (3) the trial court "accepted a partial verdict without consent of all parties concerned" (Am. Pet. ¶ 12(B)); (4) the chain of custody was broken with respect to some of the stolen property (Am. Pet. ¶ 12(C)); and (5) trial counsel rendered ineffective assistance in a variety of ways (Am. Pet. ¶¶ 12(D)-(E)). There is no overlap between the claims asserted in McPherson's original habeas petition (Pet. ¶¶ 12(A)-(D)) (excluding the claims inferred from the memorandum attached to the original Petition) and those in the amended petition (Am. Pet. ¶¶ 12(A)-(E)). Accordingly, construing McPherson's claims liberally, as the Court must,¹⁵ the Court assumes that the amended habeas petition supplements, rather than supersedes, McPherson's original habeas petition. (See Dkt. No. 14: State Br. at 8 n. 4 (because not clear whether amended petition replaces or supplements initial petition, the State responded to all claims in both petitions).)

15 See. e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pro se pleadings should be construed liberally "'to raise the strongest arguments that they suggest'"); Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *9 n. 21 (S.D.N.Y. Sept. 26, 2003) (Peck, MJ.); Skinner v.Duncan, 01 Civ. 6656, 2003 WL 21386032 at *30 n. 48 (S.D.N.Y. Jan. 17, 2003) (Peck, MJ.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *5 n. 4 (S.D.N.Y. Oct. 15, 2002) (Peck, M. J.): Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 a *1 nn. 3-4 (S.D.N.Y. Sept. 17, 2002) (Peck, MJ.); Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *5 (S.D.N.Y. Apr. 23, 2002) (Peck, MJ.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, MJ.).

In addition, although the ineffective assistance of trial counsel claims asserted in McPherson's amended habeas petition are largely incoherent (Am. Pet. ¶¶ 12(D)-(E)), they appear to incorporate the claims asserted in McPherson's second C.P.L. § 440 motion (Ex. G: McPherson 6/10/02 C.P.L. § 440 Motion), which was filed at around the same time for the express purpose of exhausting additional federal habeas claims. Thus, construing McPherson's claims liberally, the Court will assume that his amended petition incorporates all claims asserted in his second C.P.L. § 440 motion, including the sentencing claims.

ANALYSIS

I. THE AEDPA REVIEW STANDARD ¹⁶

Before the Court can determine whether McPherson 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). The AEDPA imposed a more stringent review standard, as follows:

(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).¹⁷

17 See also. e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)): Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, DJ.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a beavy burden on habeas petitioners.").

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 1519.¹⁸ 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 1523.¹⁹ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord. e.g., DelValle v. Armstrong, 306 F.3d at 1200.

18 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000). cert. denied, 532 U.S. 943, 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).

19 Accord. e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003);Lockver v. Andrade, 123 S.Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); Parsad v. Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 123 S.Ct. 251 (2002); 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 1519-20.²⁰

20 Accord. e.g., Price v. Vincent, 123 S.Ct. 1848, 1853 (2003);Lockyer v. Andrade, 123 S.Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42: 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 1523.²¹ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from an incorrect application of federal law." Id. ²² Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.²³ "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, 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)).²⁴

21 Accord. e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35: Parsad v. Greiner. 337 F.3d at 181.

22 See also. e.g., Wiggins v. Smith, 123 S.Ct. at 2535: Price v. Vincent. 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockver v. Andrade, 123 S.Ct. at 1175; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

23 Accord. e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853; Lockver v. Andrade, 123 S.Ct. at 1174-75;Woodford v. Visciotti, 537 U.S. at 25-27, 123 S.Ct. at 360-61; Eze v.Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135: Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

24 Accord. e.g., Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135: Loliscio v. Goord, 263 F.3d at 184: Christie v. Hollins, 2003 WL 22299216 at *3.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45.²⁵

25 Accord. e.g., Tueros v. Greiner, 343 F.3d at 591; Yung v. Walker, 296 F.3d at 135.

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

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. e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81: Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v. Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Add v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002);Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).²⁶ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).²⁷ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert. 331 F.3d at 230.

26 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. e.g., Cotto v. Herbert. 331 F.3d at 230: Eze v. Senkowski, 321 F.3d at 121-22: Norde v. Keane. 294 F.3d at 410: Aparicio v. Artuz. 269 F.3d at 93;see also Dallio v. Spitzer, 343 F.3d at 560.

27 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

II. UNDER STONE v. POWELL. McPHERSON'S CLAIM THAT THE PHYSICAL EVH)ENCE RECOVERED WAS THE FRUIT OF AN UNLAWFUL ARREST CANNOT PROVIDE A BASIS FOR HABEAS RELIEF ²⁸

28 For additional decisions authored by this Judge discussing theStone v. Powell standard on habeas review in language substantially similar to the legal analysis in this entire section of this Report Recommendation, see Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *4-6 (S.D.N.Y. June 30, 2003); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *13-16 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Tibbs v. Greiner, 01 Civ. 4319, 2003 WL 1878075 *11-13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Roberts v. Batista 01 Civ. 5264, 2003 WL 1900866 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Lesane v. Dixon, 01 Civ. 9867, 2002 WL 977528 at *4 (S.D.N.Y. May 13, 2002) (Peck, M. J.); Herring v. Miller, 01 Civ. 2920, 2002 WL 461573 at *2-3 (S.D.N.Y. Mar. 27, 2002) (Peck, M. J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *9 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Roberson v. McGinnis, 99 Civ. 9751, 2000 WL 378029 at *5 (S.D.N.Y. Apr. 11, 2000) (Batts, DJ. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *24 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *9 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.);Torres v. Irvin, 33 F. Supp.2d 257, 274-75 (S.D.N.Y. 1998) (Cote, DJ. Peck, M J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 804-05 (S.D.N.Y. 1997) (Sprizzo, DJ. Peck, MJ.).

McPherson claims that he was arrested without probable cause and subjected to an unreasonable search and seizure (Dkt. No. 1: Pet. ¶ 12(A) Mem. at 1-3), and the evidence obtained through the illegal arrest should not have been admitted (Pet. ¶ 12(B)). On direct appeal to the First Department, McPherson argued that: (1) Officer Zivec's reason for approaching and questioning him — that it was "very unusual" for the bicycle's rear brake to be disengaged (Zivec: Tr. 9) — did not constitute a "'founded suspicion that criminal activity is afoot'" (Ex. B: McPherson 1st Dep't Br. at 29); and (2) Officer Zivec lacked an "'objective, credible reason'" to question McPherson because McPherson, who was seen at a bus stop, "could have had the back brake disengaged because he had recently transported the bicycle from another location or was planning to remove the tires before boarding the bus" ( id.). Since Officer Zivec's questioning ultimately led to McPherson's arrest and the seizure of the physical property, McPherson claimed that "that evidence must be suppressed, along with the officers' testimony that they saw [McPherson] in possession of the stolen property." ( Id. at 29-30.)

The First Department rejected the claim on the merits, holding that the record supported the trial court's finding that Officer Zivec had conducted a proper request for information:

Defendant's suppression motion was properly denied. The record supports the court's finding that the officer conducted a proper request for information. After the officer saw disconnected brakes dangling from the mountain bicycle defendant was pushing, which the officer, an experienced mountain biker, knew was unusual, he had an objective, credible reason to approach defendant to request information. This initial questioning was non-threatening and brief and constituted a proper level-one inquiry. After defendant provided inconsistent and evasive answers, the officer had a founded suspicion that criminal activity was afoot, entitling him to exercise a common-law right of inquiry that led to defendant's lawful arrest.

People v. McPherson, 286 A.D.2d 616, 616-17, 730 N.Y.S.2d 315, 316 (1st Dep't) (citations omitted), appeal denied, 97 N.Y.2d 685, 738 N.Y.S.2d 300 (2001).

McPherson's Fourth Amendment claim must be assessedby reference to the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.

Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (fns. omitted).²⁹

29 Accord. e.g., Withrow v. Williams, 507 U.S. 680, 682-86, 113 S.Ct. 1745, 1748-50 (1993); McClesky v. Zant, 499 U.S. 467, 479, 111 S.Ct. 1454, 1462 (1991); Fowler v. Kelly, No. 95-2527, 104 F.3d 350 (table), 1996 WL 521454 at *3 (2d Cir. Sept. 16, 1996): Capellan v. Riley. 975 F.2d 67. 69-71 (2d Cir. 1992): Grew. Hoke. 933 F.2d 117. 121 (2d Cir. 1991); Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987).

The Second Circuit, sitting en banc, has concluded that Stone v.Powell permits federal habeas review of exclusionary rule contentions only in limited circumstances:

If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.

Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 So. Ct. 775 (1978).³⁰

30 Accord. e.g., Graham v. Costello, 299 F.3d 129, 133-34 (2d Cir. 2002); Branch v. McClellan, No. 96-2954, 234 F.3d 1261 (table), 2000 WL 1720934 at *3 (2d Cir. Nov. 17, 2000); Capellan v. Rilev, 975 F.2d at 70;Aziz v. Warden of Clinton Correctional Facility, 92 Civ. 104, 1992 WL 249888 at *3 (S.D.N.Y. Sept. 23, 1992), aff'd, 993 F.2d 1533 (2d Cir.),cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993): Allah v. LeFevre, 623 F. Supp. 987, 990-92 (S.D.N.Y. 1985); see also, e.g., Smith v. Senkowski. No. 97 CV 1280, 1999 WL 138903 at *6 (E.D.N. Y. Mar. 10, 1999) (Petitioner claimed he was arrested without probable cause and that his pretrial statements therefore should have been suppressed. "A federal court is not permitted to judge the merits of the state court's decision. The Court need only find that the State's procedure for resolving Fourth Amendment claims is 'facially adequate' and that no unconscionable breakdown' of the process occurred in the petitioner's case. An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim.") (citingCapellan v. Rilev, 975 F.2d at 71).

Here, McPherson litigated his Fourth Amendment claim at the pretrial suppression hearing and on direct appeal to the First Department. (See pages 3-6, 18-19 above.) Thus, state corrective process was not only available but was employed for McPherson's Fourth Amendment claim, which therefore cannot support a petition for a writ of habeas corpus.See. e.g., Gandarilla v. Artuz, 322 F.3d 182, 185 (2d Cir. 2003) ("[T]he merits of a Fourth Amendment challenge are not reviewable in a federal habeas proceeding if a defendant has had a fair opportunity to litigate that question in State court . . ."); Graham v. Costello, 299 F.3d at 134 ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief."); Blagrove v. Mantello. No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at *2 (2d Cir. Sept.24, 1996) (where defendant's "Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief defendant's "Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts."); Capellan v. Riley, 975 F.2d at 70 n. 1 (noting that "the 'federal courts have approved New York's procedure for litigating Fourth Amendment claims. . . .'"); McPhail v. Warden. Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims).³¹

31 See also, e.g., Montero v. Sabouria 02 Civ. 8666, 2003 WL 21012072 at *5 (S.D.N.Y. May 5, 2003) ("[H]abeas review of Fourth Amendment claims that were, or could have been, previously litigated in state court are barred by Stone v. Powell. . . . It has long been acknowledged that New York provides adequate procedures under C.P.L. § 710 et seq., for litigating Fourth Amendment claims."); Ferron v. Goord, 255 F. Supp.2d 127, 130-31 (W.D.N.Y. 2003) ("The Second Circuit has noted that Stone requires only that the 'the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim.") (quoting Gates v. Henderson, 568 F.2d at 839); Baker v. Bennett, 235 F. Supp.2d 298, 307 (S.D.N.Y. 2002) ("The state court need only grant a petitioner 'an opportunity for full and fair litigation of a fourth amendment claim.'") (quoting Capellan v. Riley, 975 F.2d at 70); Favton v. Goord, 01 Civ. 2912, 2001 WL 694573 at *1 (S.D.N.Y. June 18, 2001) ("Since this petition is based on a fully and fairly litigated Fourth Amendment claim . . . such relief cannot be granted."); Gumbs v. Kelly, 2000 WL 1172350 at *10 (New York's procedure for litigating Fourth Amendment claims provides full and fair opportunity to litigate claim);Hunter v. Greiner, 99 Civ. 4191, 2000 WL 245864 at *6 (S.D.N.Y. Mar. 3, 2000).

McPherson's further claim that the police lacked probable cause to question and then arrest him also is a Fourth Amendment claim that is not cognizable on habeas review. E.g., Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986) (Even where state conceded that petitioner's arrest lacked probable cause, petitioner's claim that his post-arrest questioning was fruit of the illegal arrest was barred because New York "clearly provided" petitioner with "an opportunity fully and fairly to litigate" the Fourth Amendment claim.); Chavis v. Henderson, 638 F.2d 534, 538 (2d Cir. 1980) (Petitioner's claim "that his arrest was without probable cause and that therefore the identification evidence should have been excluded, was properly rejected by the district court. [Petitioner] made no showing . . . that he had been precluded from a full and fair opportunity to litigate this issue in the state courts. Under Stone v.Powell . . ., he may not urge the same grounds for federal habeas corpus relief"), cert. denied. 454 U.S. 842, 102 S.Ct. 152 (1981); Roberson v.McGinnis, 2000 WL 378029 at *5 (Under Stone v. Powell, the Court was precluded from reviewing petitioner's claim that his conviction was based on his confession and the identification testimony obtained as a result of his unlawful arrest. Petitioner had the opportunity to fully and fairly litigate this Fourth Amendment claim during his pretrial suppressing hearing and First Department appeal.); see. e.g., Pina v.Kuhlmann, 239 F. Supp.2d 285, 289 (E.D.N.Y. 2003) (Habeas review unavailable for petitioner's claim that since the police lacked probable cause to arrest him, his post-arrest statements should have been suppressed. "It is well settled that such claims are not cognizable for habeas corpus review where the State has provided a full and fair opportunity to litigate this issue."); Manning v. Strack, No. CV 99-3874, 2002 WL 31780175 at *4 (E.D.N.Y. Oct. 11, 2002) (Raggi, DJ.) ("Stone v. Powell prohibits habeas review of [petitioner's] Fourth Amendment claim" that "he was arrested without probable cause" and that his "identifications and . . . statements should have been suppressed as the fruits of this unlawful arrest." Petitioner "was afforded a full evidentiary hearing on his arrest challenge, as well as one appeal of right and one opportunity to move for leave to appeal."); Senor v.Greiner, No. 00-CV-5673, 2002 WL 31102612 at *10-11 (E.D.N.Y. Sept. 18, 2002) (Habeas claim barred where petitioner argued that he was arrested without probable cause and lineup identifications therefore should have been suppressed. Petitioner "cannot claim that the state lacked sufficient procedures for redress of his Fourth Amendment claims because the courts in this circuit have expressly approved New York's procedure for litigating such claims . . ." nor has petitioner "alleged that an unconscionable breakdown in the process occurred."); Bilbrew v. Garvin, No. 97-CV-1422, 2001 WL 91620 at *4-5 (E.D.N.Y. Jan. 10, 2001) (Where petitioner "was not denied the opportunity to litigate his Fourth Amendment claims in the state courts, [the habeas court] will not consider" petitioner's claims "that his statements to the police and the station house identifications of him should have been suppressed as 'fruits' of an unlawful arrest. . . . made without probable cause."): Ortiz v. Artuz, 113 F. Supp.2d 327, 335-36 (E.D.N.Y. Sept. 8, 2000) ("Petitioner argue[d] that he was arrested without probable cause in violation of the Fourth Amendment and that his pretrial statement and the identification procedure should have been suppressed as the fruit of the illegal arrest." Because "[t]he hearing court conducted a reasoned inquiry into petitioner's claim and determined that there was probable cause for his arrest, and the Appellate Division affirmed on the merits petitioner's Fourth Amendment claim is unreviewable by this Court."), aff'd. No. 00-2713, 36 Fed. Appx. 1, 2002 WL 126131 (2d Cir. Jan. 28, 2002), cert. denied, 536 U.S. 909, 122 S.Ct. 2367 (2002).³²

32 See also. e.g., Dawson v. Donnelly, 111 F. Supp.2d 239, 247 (W.D.N.Y. 2000) (Where petitioner's habeas claim that "he was under arrest when he confessed and that there was no probable cause for his arrest" was also raised in a pretrial suppression motion and in his direct state appeal, the state courts gave petitioner "a full and fair opportunity to litigate the claim. Therefore, this Court is precluded from addressing it in the context of a Federal habeas proceeding, and the claim must be dismissed."); Senor v. Senkowski, No. 97-CV-4929, 1999 WL 689477 at *8 (E.D.N.Y. Aug. 31, 1999) (Habeas court cannot consider petitioner's claim that his "arrest violated the Fourth Amendment, and that the lineup identifications were fruit of that unlawful arrest.");Joyner v. Leonardo, 99 Civ. 1275, 1999 WL 608774 at *3-4 (S.D.N.Y. Aug. 12, 1999) (Petitioner's claim that the police lacked probable cause to arrest him and that his subsequent identifications should be suppressed was "rejected under the doctrine established by the Supreme Court inStone v. Powell . . ."); France v. Artuz, No. 98-CV-3850, 1999 WL 1251817 at *6 (E.D.N.Y. Dec. 17, 1999) (Where petitioner's habeas claim that his statements should be suppressed because he was arrested without probable cause was addressed during a pretrial suppression hearing, his claim was denied "[b]ecause petitioner was given a full and fair opportunity in the state courts to litigate this Fourth Amendment issue . . ."); Quinones v. Keane. 97 Civ. 3173, 1998 WL 851583 at *4-5 (S.D.N.Y. Dec. 7, 1998) (Habeas court barred from considering petitioner's claim that his statements should be suppressed because he "was detained without probable cause when he gave the statements."); Maldonado v. Giambrum, 98 Civ. 0058, 1998 WL 841488 at *2 (S.D.N.Y. Dec. 3, 1998) (Petitioner "claim[ed] that the police did not have probable cause to place him under arrest and, for that reason, the evidence acquired after the arrest should not have been admitted at his trial." Because petitioner was "afforded an adequate opportunity to address this fourth amendment claim in the state court proceedings. . . . [the habeas court] need not consider [petitioner's] claim."); Sansalone v. Kuhlmann, 96 Civ. 9231, 1998 WL 804693 at *1 (S.D.N.Y. Nov. 16, 1998) (Parker, DJ.) (Petitioner's "claim, alleging that a lack of probable cause for his arrest warranted suppression of . . . identification testimony . . . [is] precluded from review here because the issues were fully and fairly litigated both in pre-trial hearings and on direct review."); Moreno v. Kelly, 95 Civ. 1546, 1997 WL 109526 at *8 (S.D.N.Y. Mar. 11, 1997) (Where petitioner alleged that his arrest was not based on probable cause and "that all post-arrest identifications should therefore be suppressed as the fruits of an unconstitutional arrest," petitioner's claim was "not a basis for federal habeas relief." Because the trial court held a combined identification, suppression, and probable cause hearing, which was reviewed on direct appeal, petitioner "received a 'full and fair' opportunity to litigate his Fourth Amendment claim in the state courts and this [habeas] court has no authority to revisit the issue." Petitioner's "contention that the trial court's pre-trial determination was incorrect does not entitle him to federal habeas review."); Burton v. Senkowski, No. CV-94-3836, 1995 WL 669908 at *4 (E.D.N.Y. Nov. 5, 1995) ("[Stone v.]Powell and its progeny" barred review of petitioner's claims that his arrest lacked probable cause and that his line-up identification should have been suppressed as fruit of this unlawful arrest.).

Accordingly, because McPherson had a full and fair opportunity to litigate his Fourth Amendment claim in state court, his claims that he was questioned and arrested without probable cause and that the property taken from him and his statements should have been suppressed should be denied as not cognizable on habeas review.

III. McPHERSON'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

McPherson's habeas petition asserts a variety of reasons why his sentence should be deemed excessively harsh, including that the judge improperly relied on "bias evidence" in imposing sentence, the judge failed to take into account McPherson's non-violent history, and the sentence was excessive for a non-violent offense. (Dkt. No. 1: Pet. ¶¶ 12(C)-(D) Mem. at 3.)

McPherson's excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v.Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).³³ In this case, it is undisputed that McPherson's sentence was within the range prescribed by state law; indeed, his sentence to fifteen years to life as a persistent felony offender was the minimum possible sentence (he could have been sentenced to twenty five years to life). Penal Law §§ 70.00(2)-(3), 70.10(2).³⁴

33 Accord. e.g., Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, MJ.); Hoover v. Senkowski, No. 00 CIV 2662, 2003 WL 21313726 at *10 (E.D.N.Y. May 24, 2003); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, MJ.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, MJ.); Alfini v. Lord, 245 F. Supp.2d 493, 502 (E.D.N.Y. 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003); Presslev v. Bennett, 235 F. Supp.2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002) (Swain, DJ. Peck, MJ.); Schreter v. Artuz, 225 F. Supp.2d 249, 258 (E.D.N.Y. 2002); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, MJ.);Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, MJ.); Foreman v. Garvia 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, MJ.); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, DJ. Peck, MJ.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also. e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacev, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995);Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd. 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988): Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

34 See. e.g., Griffin v. Mann, 156 F.3d 288, 290 (2d Cir. 1998) ("Under Section 70.10, the minimum term is fifteen to twenty-five years while the maximum is life imprisonment."); Sailor v. Scully, 836 F.2d 118, 119-20 (2d Cir. 1987) ("The authorized punishment for a persistent felony offender is an indeterminate sentence with a minimum term of not less than fifteen nor more than twenty-five years and a required maximum term of life imprisonment."), cert. denied, 486 U.S. 1025 (1988); Hoover v. Senkowski, 2003 WL 21313726 at *11 ("Under New York law, where the accused has been convicted of two or more . . . prior felonies, within the meaning of N.Y. Penal Law § 70.10(1), he may be sentenced to the term of imprisonment authorized for a class A-I felony. . . . An A-1 felony sentence carries a prison term with a minimum of between 15 and 25 years and a maximum of life. N.Y. Penal §§ 70.00(2), (3)."); Brown v.Greiner, 258 F. Supp.2d 68, 74 (E.D.N.Y. 2003) (persistent felony offender enhancement "would require the court to impose an indeterminate term with a minimum of between 15 and 25 years imprisonment and a maximum of life imprisonment."); William C. Donnino, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law art. 70, at 351 (1997) ("The authorized sentence [for a persistent felony offender] is the same as that authorized for a class A-I felony: a minimum period of imprisonment of not less than 15 nor more than 25 years, and a maximum term of life.").

Because McPherson's sentence is within the statutory range, it is not reviewable by this Court for "excessiveness." See, e.g., Briggs v. Phillips, 2003 WL 21497514 at *7 ( cases cited therein).

IV. THE STRICKLAND V. WASHINGTON STANDARD ON INEFFECTIVE ASSISTANCE OF COUNSEL ³⁵

35 For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, MJ.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.);Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Ouinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.): Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M. J.),report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D. J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M. J.),report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D. J.): Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M. J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002),cert. denied, 123 S.Ct. 1787 (2003); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, DJ. Peck, MJ.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, MJ.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, DJ. Peck, MJ.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, DJ. Peck, MJ.); Bovd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, DJ. Peck, MJ.).

In Strickland v. Washington, 466 U.S. 668, 104 So. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord. e.g., Wiggins v.Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.³⁶

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 So. Ct. at 2065 (citation omitted).³⁷

36 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850(2002).

37 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852: Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." M. at 694, 104 S.Ct. at 2068.³⁸

38 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542; BeU v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850; Aparicio v. Artuz, 269 F.3d at 95;Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord. e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Stickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"):Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953;cf. id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington. 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane. 239 F.3d 191 199 (2d Cir. 2001) (quoting Strickland v. Washington. 466 U.S. at 695-96, 104 S.Ct. at 2069); accord. e.g., Rodriguez v. Hoke. 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."Strickland v. Washington. 466 U.S. at 697, 104 S.Ct. at 2069.³⁹

39 Accord. e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington. 466 U.S. at 690-91, 104 S.Ct. at 2066.⁴⁰

40 See also. e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewingStrickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81(1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane. 239 F.3d at 199.

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v.Artuz. 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1))⁴¹ "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz. 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone. 535 U.S. at 698-99, 122 S.Ct. at 1852.

41 See also. e.g., Wiggins v. Smith, 123 S.Ct. at 2535: Bell v. Cone, 535 U.S. at 698.122 S.Ct. at 1852; Sellan v. Kuhlman, 261 F.3d at 315.

V. MCPHERSON'S EVIDENCE TAMPERING AND CHAIN OF CUSTODY CLAIM AND RELATED TRIAL COUNSEL INEFFECTIVENESS CLAIM SHOULD BE DENIED

McPherson's habeas petition claims that the State altered or destroyed evidence and failed to preserve the chain of custody (Dkt. No. 1: Pet. Mem. at 3; Dkt. No. 5: Am. Pet. *par; 12(C)), and that trial counsel was ineffective for failing to object to such evidence-tampering or destruction (Am. Pet. ¶¶ 12(D)-(E) (incorporating Ex. G: McPherson 6/7/02 Aff. ¶ 3(f) Ex. G: McPherson C.P.L. § 440 Br. at 9, 12-13, 15, 17-18, 21-22)). A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings ⁴²

42 For additional cases authored by this Judge discussing the habeas corpus review standard for claims of error in state evidentiary rulings, in language substantially similar to that in this entire section of this Report Recommendation, see Soto v. Greiner, 02 Civ. 2129, 2002 WL1678641 at *8-10 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Jamison v.Grier, 01 Civ. 6678, 2002 WL 100642 at *15-16 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); 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.'")⁴³ 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 issueonly where petitioner can show that the error deprived her of afundamentally 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).⁴⁴

43 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, MJ.) (citing cases);Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, DJ. Peck, M.J.): Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, DJ. Peck, MJ.), 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, DJ. Peck, MJ.); James v.Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, MJ.).

44 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 unconstitutional⁴⁵ 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).⁴⁶

45 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).

46 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); Dev 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.⁴⁷ Here, McPherson asserts that certain evidence, including the bicycle, gloves, computer, mountain bike pass, and jewelry were returned to the owners after being "vouchered and place[d] in safe keeping by po1ice." (Dkt. No. 1: Pet. Mem. at 3; Dkt. No. 5: Am. Pet. ¶ 12(C).) These items, which McPherson claims were "altered" or "were not originals," were then brought to trial and used "as proof of guilt." (Am. Pet. ¶ 12(C).) According to McPherson, the break in the chain of custody, and the altered and lost evidence, "destroyed all crucial evidence pert[i]nent to [McPherson's] defense" (Pet. Mem. at 3), and amounted to "a violation of [McPherson's] constitutional rights" (Am. Pet. ¶ 12(C)).

47 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.") (emphasis in original): Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N. Y. July 27, 2001) ("Vio1ation 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 (boistering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "boistering" 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 falls 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)⁴⁸ The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'"⁴⁹ "'create[d] a reasonable doubt [regarding petitioner's guilt] 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).⁵⁰

48 See also. e.g., Jones v. Stinson, 229 F.3d at 120; 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. . . .").

49 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).

50 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.'") (quotingJohnson 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 276.⁵¹

51 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." Dew. Scully, 952 F. Supp. at 974; see also Kvles 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 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 McPherson 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 of the evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of the Agurs standard.

B. Application of This Standard to McPherson's Evidence Tampering Claim

Under New York law, proof of a complete chain of custody is one, but not the exclusive, method for showing the authenticity of an item of real evidence. People v. Julian. 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 612-13 (1977): People v. Connelly, 35 N.Y.2d 171, 174, 359 N.Y.S.2d 266, 269 (1974). "[F]ailure to establish a chain of custody may be excused 'where the circumstances provide reasonable assurances of the identity and unchanged condition' of the evidence." People v. Julian. 41 N.Y.2d at 343, 392 N.Y.S.2d at 613 (quoting Amaro v. City of New York. 40 N.Y.2d 30, 35, 386 N.Y.S.2d 19, 351 (1976)). Further, "'any deficiencies in the chain of custody affect only the weight of the evidence, not its admissibility.'" People v. Thompson. 300 A.D.2d 1032, 1033, 751 N.Y.S.2d 921 (4th Dep't 2002) (affirming trial court's admission of items into evidence which were obtained from stolen vehicle following its return to owner), appeal denied. 99 N.Y.2d 620, 757 N.Y.S.2d 831 (2003); see also. e.g., Jones v. Spitzer. 01 Civ. 9754, 2003 WL 1563780 at *37-3 8 (S.D.N.Y. Mar. 26, 2003) (rejecting habeas claim that victim's stolen shoes were improperly admitted into evidence without establishing a chain of custody. Simple identification is sufficient for showing authenticity of non-fungible items.) ( New York cases cited therein); People v. Hill. 220 A.D.2d 927, 928, 632 N.Y.S.2d 881, 882 (3d Dep't 1995) (Chain of custody not required for clothes stolen from department store. "[S]trict proof of the chain of custody was not required because clothing is not fungible."); People v. Ciervo. 178 A.D.2d 486, 487, 577 N.Y.S.2d 140, 141-42 (2d Dep't 1991) (Electrical meter properly admitted into evidence because Con Ed inspector who seized the meter from defendant's home identified it at trial. "[T]hat the meter was in Con Ed's custody [before trial] . . . goes to the weight of that evidence and not to its admissibility.") (citing People v. Julian).

McPherson erroneously argues that the items were inadmissible because the chain of custody was broken when the items were returned to the original owners. Laura Dedominicis, the property's owner, testified to the identity and unchanged condition of her stolen property. (Dedominicis: Tr. 330-36.) She identified the mountain bike as the one taken from her apartment on January 16, 1997, and testified that it was in the same condition except for some "scratches" suffered when it was in police holding. (Dedominicis: Tr. 328-29: see also Whitehouse: Tr. 379-82.) Scott Whitehouse, the other owner-victim, testified that, while the laptop computer introduced at trial was not the actual one taken from the apartment, it was "almost exactly the same"; Whitehouse had retrieved the actual laptop from the police and brought it home before eventually giving it to a family member. (Whitehouse: Tr. 385-86; see also Dedominicis: Tr. 337-38.)⁵²

52 McPherson also argues that his constitutional rights were violated because a pair of gloves seized at his arrest were not presented at trial. (Dkt. No. 1: Pet. Mem. at 3; Dkt. No. 5: Am. Pet. ¶ 12(C).) McPherson fails to set forth a constitutional claim because he has not alleged, and the record does not show, bad faith on the part of the police or prosecution or that the destruction or loss of the gloves was attributable to the police or prosecution. Rather, Dedominicis and Whitehouse testified that when they retrieved some of the stolen property from police custody, in addition to their own gloves, they received a pair of old, torn and "grimy-looking" men's gloves, which Whitehouse threw away since these gloves did not belong to them. (Dedominicis: Tr. 340-01; Whitehouse: Tr. 388-90, 395-96.) See. e.g., United States v. Rahman, 189 F.3d 88, 139 (2d Cir.) ("Whether that loss [of evidence] warrants sanctions depends on the Government's culpability for the loss and its prejudicial effect. . . . Before these factors become relevant, however, the record must first show that evidence has been lost and that this loss is 'chargeable to the State.'") (quoting Colon v. Kuhlmann, 865 F.2d 29, 30 (2d Cir. 1988) (State did not violate due process in failing to preserve enough of rapist's semen for determination of rapist's blood type where doctor's failure to preserve underwear "was not chargeable to the State")), cert. denied, 120 S.Ct. 439 (1999); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *7 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.).

Because this Court finds that the trial court did not violate state evidentiary rules, McPherson has failed to make the threshold showing of state-law evidentiary error, and, therefore, "'this Court need not reach the question of whether [McPherson]'s due process rights were violated.'"Soto v. Greiner. 2002 WL 1678641 at *10; see also. e.g., Jamison v.Grier. 01 Civ. 6678, 2002 WL 100642 at *17 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); 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. at 969 (petitioner must show both state law error and violation of constitutional rights).

McPherson's second C.P.L. § 440 motion claimed that trial counsel rendered ineffective assistance by failing to object to the introduction of "altered" or "tainted" evidence or evidence that had not been properly preserved through a chain of custody. (Ex. G: McPherson 6/7/02 Aff. ¶ 3(f); McPherson C.P.L. § 440 Br. at 9, 12-13, 15, 17-18, 21-22.) On December 20, 2002, Justice Fried denied McPherson's claim:

The defendant . . . argues that it was improper for his attorney to stipulate to the admission of altered and damaged evidence, such as gloves, a bike pass, a laptop, and business cards. However . . ., the defendant fails to give any explanation as to how this evidence was tainted, or how it impeded his case. He also claims that there was an improper break in the chain of custody of the mountain bike, when it was returned to the owners before trial. Prior to the bike being admitted into evidence, the defense counsel had an opportunity to question its admissibility. After doing so, the defense made no objection to the bicycle being offered into evidence, subject to connection. And it was later properly connected. While none of these precise issues concerning the particular items was specifically raised on direct appeal, the sufficiency of the evidence was strongly challenged and the Appellate Division held that "the verdict was based upon legally sufficient evidence." This, too, is the end of the issue.

(Ex. I: 12/20/02 Justice Fried Opinion at 6.)

Since McPherson's underlying evidence-tampering claim is meritless, counsel cannot be found to be ineffective for failing to assert a meritless objection. See. e.g., United States v. Arena. 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance."), cert. denied. 531 U.S. 811, 121 S.Ct. 33 (2000); United States v. Kirsh. 54 F.3d 1062, 1071 (2d Cir.) ("the failure to make a meritless argument does not rise to the level of ineffective assistance"), cert. denied. 516 U.S. 927, 116 S.Ct. 330 (1995); United States v. Moland. No. 94-1032, 39 F.3d 1193 (table), 1994 WL 600985 at *2 (10th Cir. Nov. 3, 1994) ("counsel cannot be ineffective for not pursuing a strategy doomed to failure"); Cuevas v. Henderson. 801 F.2d 586, 592 (2d Cir. 1986), cert. denied. 480 U.S. 908, 107 S.Ct. 1354 (1987); Ouinones v. Miller. 01 Civ. 10752, 2003 WL 21276429 at *53 (S.D.N.Y. June 3, 2003) (Peck, M.J.):Rosario v. Bennett. 01 Civ. 7142, 2002 WL 31852827 at *35 n. 61 (S.D.N.Y Dec. 20, 2002) (Peck, MJ.) ("counsel cannot be faulted for failure to make a meritless objection"); Ennis v.Walker, 00 Civ. 2875, 2001 WL 409530 at *22 (S.D.N.Y. Apr. 6, 2001) (Peck, MJ.) ("Because there would have been no merit to any of the objections [petitioner] contends defense counsel should have made, counsel's failure to object does not constitute ineffective assistance."); Franza v. Stinson. 58 F. Supp.2d 124, 148 (S.D.N.Y. 1999) (Kaplan, DJ. Peck, MJ.)⁵³

53 See also. e.g., Duncan v. Greiner, 97 Civ. 8754, 1999 WL 20890 at *10 (S.D.N.Y. Jan. 19, 1999) (since trial counsel's objection would have been fruitless, "the failure to so object is not evidence of ineffective assistance of counsel"); Perez v. United States, 89 CR 800, 96 Civ. 7702, 1997 WL 661426 at *4 (S.D.N.Y. Oct. 23, 1997) ("Defense counsel's failure to object, then, cannot have resulted in actual prejudice to petitioner, as the objection would have been meritless."): United States v. Corcoran. 855 F. Supp. 1359, 1368 (E.D.N.Y. 1994) (where identification found not improper, "counsel's failure to pursue the motion to suppress the in-court identification clearly did not deny defendant the effective assistance of counsel."), aff'd. 100 F.3d 944 (2d Cir.), cert. denied. 517 U.S. 1228.116 S.Ct. 1864 (1996): Arce v. Smith, 710 F. Supp. 920, 926-27 (S.D.N.Y.) (inasmuch as there was no constitutional error or reversible error under state law, petitioner was not prejudiced by counsel's failure to object and counsel was not ineffective), aff'd, 889 F.2d 1271 (2d Cir. 1989), cert. denied. 495 U.S. 937, 110 S.Ct. 2185 (1990).

VI. MCPHERSON'S JURY BIAS CLAIM AND RELATED TRIAL COUNSEL

INEFFECTIVENESS CLAIM SHOULD BE DENIED

McPherson asserts on habeas review both the underlying claim that certain jurors were "biased" against him (Dkt. No. 1: Pet. Mem. at 3; Dkt. No. 5: Am. Pet. ¶ 12(A)), and a separate claim that trial counsel erred by failing to challenge such allegedly biased jurors (Am. Pet. ¶¶ 12(D)-(E) (incorporating Ex. G: McPherson 6/7/02 Aff. ¶¶ 3(b)-(c) Ex. G: McPherson C.P.L. § 440 Br. at 9, 13-15, 19, 21-22)). McPherson failed to raise the underlying juror bias claim on direct appeal. (See pages 18-19 above.) Further, because the claim could have been raised on direct appeal, but was not, McPherson may not raise the claim collaterally via a third § 440 motion. See C.P.L. § 440.10(2)(c). The claim is therefore unexhausted but deemed exhausted and procedurally barred. See. e.g., Soto v. Greiner. 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, MJ.) (collecting cases). Further, because McPherson has not claimed the ineffectiveness ofappellate counsel for failure to raise the jury bias claim on direct appeal, the default may not be excused. Thus, the Court is precluded from considering the underlying juror bias claim on habeas review.

McPherson's claim of trial counsel ineffectiveness for failure to preserve the jury bias claim at trial is similarly barred because McPherson failed to raise this ineffectiveness claim on direct appeal. Justice Fried expressly held that McPherson's ineffectiveness claim related solely to matters on the record, since the "entire voir dire was recorded," and that his failure to raise the claim on direct appeal precluded the § 440 court from considering it on the merits. (Ex. 1:12/20/02 Justice Fried Opinion at 3-4.) The state court's preclusion ruling under C.P.L. § 440.10(2)(c) in turn bars this Court, on adequate and independent state grounds, from considering the claim on the merits. See. e.g., Aparicio v. Artuz, 269 F.3d 78, 90-91 (2d Cir. 2001);Reves v. Keane. 118 F.3d 136, 139 (2d Cir. 1997) (same); Ferguson v. Walker. OO Civ. 1356, 2002 WL 31246533 at *12 n. 20 (S.D.N.Y. Oct. 7, 2002) (Swain, DJ. Peck, MJ.) ( cases cited therein).

VII. MCPHERSON'S PARTIAL VERDICT CLAIM AND RELATED TRIAL COUNSEL INEFFECTIVENESS CLAIM SHOULD BE DENIED

McPherson argues that the trial court wrongly" accepted a partial verdict without [the] consent of all parties concerned," i.e., over McPherson's objection. (Dkt. No. 5: Am. Pet. ¶ 12(B); Dkt. No. 1: Pet. Mem. at 3.) McPherson's claim is patently frivolous.

A criminal defendant's constitutional right to a fair trial before an impartial jury is violated when a trial court coerces the jury into giving a verdict. See Lowenfield v. Phelps. 484 U.S. 231, 241, 108 S.Ct. 546, 552 (1988) ("Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body.");Smalls v. Batista, 191 F.3d 272, 282-83 (affirming grant of § 2254 habeas petition where trial court gave jury unconstitutionally coercive charge to continue deliberating in order to reach a verdict). "Absent a showing of coercion implicating [a defendant]'s constitutional rights, the conduct of the trial judge [in accepting apartial verdict] is governed by state law."Bordas v. Walker. 97 Civ. 2982, 2000 WL 1867915 at *5 (S.D.N.Y. Dec. 20, 2000).

Here, the trial court correctly followed state law when it accepted the partial verdict pursuant to C.P.L. § 310.70, which provides:

1. If a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it . . . the court must proceed as follows:

(a) If the possibility of ultimate agreement with respect to the other submitted offenses . . . is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury pursuant to paragraph (a) of subdivision one of section 310.60,⁵⁴ the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses . . . upon which . . . it has reached a verdict;

(b) If the court is satisfied that there is a reasonable possibility of ultimate agreement upon any of the unresolved . . ., it may either:

(i) Order the jury to render its verdict with respect to those offenses . . . upon which . . . it has reached agreement and resume its deliberation upon the remainder; or

(ii) Refuse to accept a partial verdict at the time and order the jury to resume its deliberation upon the entire case.

54 C.P.L. § 310.60(1)(a) provides: "1. A deliberating jury may be discharged by the court without having rendered a verdict only when: (a) The jury has deliberated for an extensive period of time without agreeing upon a verdict with respect to any of the charges submitted and the court is satisfied that any such agreement is unlikely within a reasonable time." Penal Law § 310.60(1)(a).

C.P.L. § 310.70(1).

When the jury informed Justice Fried that it had reached a verdict on eight counts, was at an impasse on nine additional counts, and that further deliberations would not bring it closer to a verdict (Tr. 605-06), Justice Fried explained to the jury the possibility of a partial verdict, and asked the jurors to continue deliberating and to advise whether they could reach a verdict (Tr. 606). After further deliberations, the jury sent a note to the court requesting that a partial verdict be submitted. (Tr. 608.) Justice Fried polled each juror regarding the likelihood of reaching a verdict should they deliberate further, and the jurors unanimously agreed that they were unlikely to reach a verdict. (Tr. 616-18.) Because Justice Fried believed that further deliberations would be "unfruitful," he declared a mistrial as to the remaining counts, over the objections of both parties. (Tr. 620.)

Because there is no indication in the record that Justice Fried coerced the jury into delivering a partial verdict, and since Justice Fried properly followed the procedures for accepting a partial verdict under New York law, McPherson's claim that the trial court should not have accepted the partial verdict is patently frivolous and should be denied.See. e.g., Bordas v. Walker. 2000 WL 1867915 at *4 (denying habeas claim that trial court erroneously sought and accepted a partial verdict because "[t]here is no indication in the trial transcript . . . that the trial judge coerced the jury into announcing a partial verdict before it was ready The judge did not tell the jury that it was required to announce a verdict as to any of the counts, and there is no sign that the jurors felt compelled to announce a verdict against their will. To the contrary, the jury foreperson freely announced that the jury had not reached a verdict as to one of the counts and rendered a not guilty verdict as to another count. Each individual juror was given the opportunity to object to each verdict and none did so.").⁵⁵

55 The Court further notes that the burglary count on which the jury had not reached a verdict was dismissed on the prosecution's motion. (Dkt. No. 13:6/24/98 Minutes at 2.) Thus, even if it were error for Justice Fried to have accepted a partial verdict when the jury could not agree on the burglary count, McPherson has not shown harm, since the burglary count subsequently was dismissed. See. e.g., People v. Stewart, 210 A.D.2d 161, 162, 620 N.Y.S.2d 955, 956 (1st Dep't 1994) (rejecting claim that trial court "prematurely accepted a partial verdict with respect to the grand larceny counts without determining whether there was a reasonable possibility that the jury would reach an agreement as to the remaining counts. While the court did not instruct the jury to continue deliberations on the entire case, defendant was not prejudiced because the [remaining] charges were withdrawn from the jury's consideration.");cf People v. Williams, 114 A.D.2d 683, 684-85, 494 N.Y.S.2d 563, 564-65 (3d Dep't 1985) (Trial court erred by not specifically instructing jury to continue deliberating on entire case when rejecting partial verdict on four of five counts, but "that error was rectified 2 1/2 hours later when the jury again announced, and the court on this occasion accepted, the identical partial verdict.").

McPherson's ineffectiveness claim on the partial verdict issue is hard to understand-his trial counsel did object to the partial verdict, but Justice Fried overruled the defense and prosecution objections and took the partial verdict. (Tr. 609, 618-20; see pages 12-14 above.) Thus, McPherson's ineffective assistance claim that his counsel failed to "properly" oppose the partial verdict is frivolous, and should be denied.

VIII. MCPHERSON'S MISTRIAL CLAIM AND RELATED TRIAL COUNSEL INEFFECTIVENESS CLAIM SHOULD BE DENIED

On habeas review, McPherson claims both that a mistrial should have been declared when a juror saw McPherson in handcuffs (Dkt. No. 5: Am. Pet. ¶ 12(B)), and that his trial counsel erred by failing to request a mistrial (Am. Pet. ¶¶ 12(D)-(E) (incorporating Ex. G: McPherson 6/7/02 Aff. ¶ 3(d) Ex. G: McPherson C.P.L. § 440 Br. at 9-10, 15, 22-23)). McPherson offers no evidence outside the record relevant to these claims, and thus no reason the claims were not raised on direct appeal. Accordingly, the Court finds the underlying claim for failure to declare a mistrial to be unexhausted but deemed exhausted and procedurally barred. See. e.g., Wilder v.Herbert. 03 Civ. 397, 2003 WL 22219929 at *6-9 (S.D.N.Y. Sept. 26, 2003) (Peck, M. J.); Besser v. Walsh. 02 Civ. 6775, 2003 WL 22093477 at *30-32 (S.D.N.Y. Sept. 10, 2003) (Peck, MJ.); Soto v. Greiner. 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, MJ.) ( cases cited therein). Further, because the § 440 court expressly found the ineffectiveness claim precluded for failure to raise the claim on direct appeal (Ex. 1:12/20/02 Justice Fried Opinion at 4), McPherson's ineffectiveness claim is barred on adequate and independent state grounds. See. e.g., cases cited at page 54 above.

Were this Court to address the claim on the merits, it would be denied as frivolous. Justice Fried questioned the juror who allegedly witnessed McPherson in handcuffs. (Tr. 366-69.) The juror stated that he did not observe anyone connected with the case when he left the room for a drink of water from the fountain, which was right outside the door. (Tr. 369.) Justice Fried instructed the juror not to reveal the details of the conversation to the other jurors. (Tr. 369-70.) The juror stated that he did not observe McPherson (in handcuffs or otherwise), and Justice Fried ordered the juror to keep the details of the conversation to himself. McPherson's mistrial claim is meritless. See United States v. Torres. 519 F.2d 723, 727-28 (2d Cir. 1975), cert. denied. 423 U.S. 1019, 96 S.Ct. 457 (1975) (right to fair trial not infringed where one juror and one alternate were retained after seeing defendants in handcuffs in the corridor outside the courtroom because the court questioned those jurors, who stated that their decisions would not be influenced by what they had seen: "[T]he trial court's expeditious handling of the matter certainly minimized whatever prejudice there may have been. Since the incident was not flagrantly prejudicial, and since there was no specific showing of how the defendants were harmed, we are inclined to give full effect to the jurors' statements of impartiality on voir dire."); see also. e.g., United States v. Taylor. 562 F.2d 1345, 1359 (2d Cir. 1977) ("Numerous cases support the proposition that an inadvertent view by jurors of defendants in handcuffs, without more, is not so inherently prejudicial as to require a mistrial."), cert. denied. 432 U.S. 909, 97 S.Ct. 2958 (1977). Here, Justice Fried's questioning of the juror established that the juror did not see McPherson. McPherson therefore was not entitled to a mistrial. And counsel's failure to make a meritless request for such a mistrial is not ineffective assistance. See cases cited at pages 52-53 above.

IX. MCPHERSON'S CLAIM THAT HIS TRIAL COUNSEL ERRED BY FAILING TO INVESTIGATE SHOULD BE DENIED

McPherson claims that his trial counsel erred by failing to investigate a number of "important" leads. (Dkt. No. 5: Am. Pet. ¶¶ 12(D)-(E) (incorporating Ex. G: McPherson 6/7/02 Aff. ¶ 3(e) Ex. G: McPherson C.P.L. § 440 Br. at 10, 14-15, 19-20, 22 attached exhibits).)

McPherson's claims that trial counsel was ineffective for failing to investigate are conclusory and give no indication as to what exculpatory evidence a proper investigation would have revealed, or how such evidence would have benefitted McPherson's case. There is also no way to know that trial counsel did not consider investigating these claims but simply rejected them as being unpromising. Since "[s]uch speculation satisfies neither Strickland's deficient performance nor prejudice prongs," McPherson's claim must be denied. Rosario v. Bennett. 01 Civ. 7142, 2002 WL 31852827 at *33 (S.D.N.Y. Dec. 20, 2002) (Peck, MJ.) ( cases cited therein); see, e.g., Vasquez v. United States. 96 Civ. 2104, 91 Cr. 153, 1997 WL 148812 at *2 (S.D.N.Y. Mar. 28, 1997) (§ 2225 case; "[Petitioner's] allegations with regard to alleged counsel errors in pre-trial preparation and investigation and trial advocacy are 'Vague, conclusory, and unsupported by citation to the record, any affidavit, or any other source,' and, accordingly, . . . '[t]he vague and unsubstantiated nature of the claims' defeated petitioner's claim of ineffective assistance of counsel. . . .");Lawrence v. Armontrout. 900 F.2d 127, 130 (8th Cir. 1990) ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a postconviction review hearing, the petitioner ordinarily should explain their absence and 'demonstrate, with some precision, the content of the testimony they would have given at trial.'") (citations omitted); Lamberti v. United States. 95 Civ. 1557, 1998 WL 118172 at *2 (S.D.N.Y. Mar. 13, 1998) (Leval, C. J.) ("The allegations of failure to investigate or to communicate are vague and conclusory. They do not identify counsel's asserted failings with any specificity or show how any different conduct might have changed the result."), aff'd, No. 98-2875, 201 F.3d 430 (table), 1999 WL 1212654 (2d Cir. Dec. 10, 1999);Madarikan v. United States. No. 95 CV 2052, 1997 WL 597085 at *1 (E.D.N.Y. Sept. 24, 1997) (denying ineffective assistance claim based on failure to investigate or interview witnesses; petitioner's "allegations of ineffective assistance are conclusory, and give no indication as to what exculpatory evidence may have been revealed by an investigation");Matura v. United States. 875 F. Supp. 235, 238 (S.D.N. Y. 1995) ("Petitioner has not stated why his counsel's investigation was inadequate, what his counsel should have investigated, what this investigation would have produced, or how the fruits of this investigation would have aided petitioner's case.").⁵⁶

56 See also. e.g., Polanco v. United States, 99 Civ. 5739, 94 Cr. 453, 2000 WL1072303 at *10 (S.D.N.Y. Aug. 3, 2000) (denying claim of failure to investigate, because petitioner "does not say precisely what counsel would have learned or how counsel would have learned it");Muhammad v. Bennett, 96 Civ. 8430, 1998 WL 214884 at *1 (S.D.N.Y. Apr. 29, 1998) ("petitioner's speculative claim about the testimony of an uncalled witness" is insufficient to show ineffective assistance of trial counsel); United States v. Vargas, 871 F. Supp. 623, 624 (S.D.N. Y. 1994) (Rejecting ineffective assistance claim based on failure to investigate, since "[t]here is no evidence that avenues suggested by the client which might have altered the outcome were ignored."); Gossett v. Henderson, 87 Civ. 5878, 1991 WL 135601 at *7 (S.D.N.Y. July 18, 1991) (denying claim of ineffective assistance for failure to investigate and develop an alibi defense based on entirely conclusory allegations which failed to show that any omission was prejudicial), aff'd, 978 F.2d 705 (2d Cir. 1992),cert. denied, 510 U.S. 997, 114 S.Ct. 564 (1993); Croney v. Scully, CV-86-4335, 1988 WL 69766 at *2 (E.D.N.Y. June 13, 1988) ("Petitioner's contention that assignment of an investigator would have been helpful to his defense is conclusory and speculative. Petitioner must show not only that the testimony would have been favorable, but also that the witness would have testified at trial."), aff'd. 880 F.2d 1318 (2d Cir. 1989).

McPherson's claims are not only fatally conclusory and speculative, but also demonstrably specious. McPherson first asserts that trial counsel erred by not securing documents proving that McPherson was on sick leave and at an eye clinic on the morning of his arrest, which would have established his alibi at the time of the burglary. (Dkt. No. 5: Am. Pet. ¶¶ 12(D)-(E) (incorporating Ex. G: McPherson C.P.L. § 440 Br. at 10, 14-15, 22).) However, according to McPherson's own testimony, his eye clinic appointment was at 9:30 a.m. (McPherson: Tr. 443, 446), and he was first approached by Officer Zivec at 3:00 p.m. (Zivec: H. 6-8, 29)-over five hours later. Counsel can hardly be faulted for failing to offer such a patently specious alibi defense. As Justice Fried held, "records showing that [McPherson] was at a hospital early that morning would have been of no relevance and not corroborative of his testimony." (Ex. I: 12/20/02 Justice Fried Opinion at 5.)

McPherson also suggests that had trial counsel investigated the arresting officers' backgrounds, it would have bolstered McPherson's theory that he was stopped because he was "a blackman pushing an expensive bicycle in a white neighborhood." (Dkt. No. 5: Am. Pet. ¶¶ 12(D)-(E) (incorporating Ex. G: McPherson C.P.L. § 440 Br. at 10, 15, 19, 22 attached exhibit B).) While it is not clear what McPherson believes such an investigation would have revealed, he did attach to his § 440 brief what he purported to be summaries of: (1) a New York Post article from "August or July 2000" describing the New York City Police Department anti-crime unit's "abusing the[ir] job by targeting people of color only for arrest"; and (2) a New York Law Journal article discussing claims that the New York City Police Department's "stop and frisk policy" racially profiled Blacks and Latinos. (McPherson C.P.L. § 440 Br.Ex.B.) McPherson's apparent theory that a background investigation would have revealed that the particular arresting officers had a history of racially profiling suspects must be rejected as speculative.⁵⁷

57 Moreover, Justice Fried held that even had McPherson's trial counsel requested the personnel files of the arresting officers, the court would not have ordered their production:

Under the governing statute, a police officer's personnel records are confidential, absent express written consent of the officer, or a court order based on a clear showing of facts sufficient to warrant review. . . . Here, the defendant makes a vague attack on the credibility of the arresting officers, and this would not have been sufficient to justify an order to review these confidential records. This falls far short of a bonafide claim of ineffective assistance of counsel.

(Ex. I: 12/20/02 Justice Fried Opinion at 5.)

McPherson also claims, in conclusory fashion, that trial counsel should have investigated whether the arresting officers could have learned of McPherson's prior convictions from his learner's permit. McPherson seems to suggest that after the officers learned of his prior convictions from his learner's permit, the officers decided to set him up. (Ex. G: McPherson C.P.L. § 440 Br. at 10 attached exhibit C.) But even if McPherson could prove that the officers learned of his convictions before arresting him, Justice Fried had found that the officers had grounds to question and arrest him. McPherson's argument that the officers decided to pin this crime on him because of his record is just silly.

Finally, McPherson claims that trial counsel erred by failing to investigate whether Officer Zivec was truly a mountain biking expert. (Ex. G: McPherson C.P.L. § 440 Br. at 10, 19 attached exs. A, D.) This argument is conclusory, as McPherson has offered no reason why defense counsel (or this Court) should doubt Officer Zivec's proclaimed knowledge of mountain bikes.

CONCLUSION

For the reasons set forth above, the Court should deny McPherson's habeas claims that are addressed in this Report and Recommendation; a second Report and Recommendation will follow that will address McPherson's Apprendi-related claims. A certificate of appealability should not be issued as to the habeas claims addressed in this Report and Recommendation.

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 Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn. 474 U.S. 140, 106 So. 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 So. 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).