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July 20, 1995

CARMELO GARCIA, Petitioner, against ROBERT KUHLMANN, Superintendent, Sullivan Correctional Facility, et al., Respondents.

The opinion of the court was delivered by: HAROLD BAER, JR.

HAROLD BAER, JR., *fn1" District Judge

 Carmelo Garcia, currently incarcerated at the Sullivan Correctional Facility, brings this petition for writ of habeas corpus. Petitioner was convicted after a jury trial in New York Supreme Court, Bronx County, of two counts of Murder in the Second Degree, N. Y. Penal Law ยง 122.25, and sentenced to concurrent indeterminate terms of imprisonment of from 25 years to life. The Appellate Division, First Department, affirmed Garcia's conviction without opinion, 94 A.D.2d 983 (N.Y. App. Div. 1st Dep't 1983). Petitioner's request for leave to appeal was then denied by the Court of Appeals in June 1983. 58 N.Y.2d 923 (1983).

 Petitioner brings this habeas petition on the grounds that (1) he was denied effective assistance of counsel, (2) the state trial court committed reversible error by denying his mid-trial request for a Wade hearing, (3) the State withheld Brady material, and (4) the court below failed to charge manslaughter in the first degree. Respondents argue that Petitioner's claims are either unexhausted or do not implicate federal constitutional rights. For the reasons stated below, Garcia's petition for writ of habeas corpus is DISMISSED.


 The incident giving rise to Petitioner's murder convictions began as a dispute about an abandoned refrigerator. One of the victims, Wilfredo Delgado, objected to Petitioner taking the refrigerator. Petitioner then shot and killed Delgado and Vernon Harris, a passer-by.


 A. Ineffective Assistance of Counsel

 Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), Petitioner has a very heavy burden in demonstrating ineffective assistance of counsel. He must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) reasonable probability that but for counsel's errors, the outcome would have been different. There is a presumption that counsel performed adequately. Mere disagreement with counsel's trial strategy does not rebut that presumption.

 Here, Petitioner's complaints about counsel's performance center on trial strategy. Petitioner claims that counsel failed to explore certain issues on cross-examination. For example, counsel did not attempt to impeach Andrew Harris, brother of one of the murder victims, on alleged inconsistencies in his testimony concerning the direction of the shots fired and that fact that Harris had been convicted of sexual abuse. The choice of how to conduct cross-examination is a matter of trial strategy, which will not be reviewed by the Court unless counsel failed even to put on a defense, or to perform other basic elements of trial advocacy.

 B. Court's Refusal to Grant a Mid-Trial Wade Hearing

 Petitioner's trial counsel made a mid-trial motion for a Wade hearing, which the court denied. The basis for the motion was the use of a photo array for identification purposes that Petitioner claims was unduly suggestive. Federal constitutional law does not give defendant a per se right to pretrial or mid-trial hearings. Watkins v. Sowders, 449 U.S. 341, 349, 66 L. Ed. 2d 549, 101 S. Ct. 654 (1981); Brown v. Harris, 666 F.2d 782, 785 (2d Cir. 1981), cert. denied, 446 U.S. 948, 72 L. Ed. 2d 472, 102 S. Ct. 2017 (1982). Federal constitutional law does not warrant granting a habeas petition on the basis of denial of a pretrial hearing where Petitioner had the opportunity to cross-examine the witness on the identification issue and to argue in summation that there might have been a problem with the identification procedure. Here, the identifying witness did identify defendant at trial.

 Case law construing New York Criminal Procedure Law Section 710.20 has allowed suppression of a witness's in-court identification under certain conditions relating to the degree of taint of the photo array, depending upon whether or not the witness had an independent basis for the identification. The issue of the denial of the Wade hearing was briefed for the appeal to the Appellate Division, First Department, and Petitioner's conviction was affirmed. Insofar as this is a matter of state law, the general rule is that it is not reviewable on a habeas petition. "It is not the province of a federal habeas court to reexamine state court determinations on state law questions. 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, 67, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991) (citations omitted). While under certain conditions, an identification procedure may be so impermissibly suggestive as to implicate federal due process rights, there must exist a very substantial likelihood of misidentification. Manson v. Brathwaite, 432 U.S. 98, 107, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); Jarrett v. Headley, 802 F.2d 34, 40-41 (2d Cir. 1986).

 The factors involved in determining whether the identification rose to this level of impermissibility include opportunity of witness to view the criminal at the time of the crime, witness's prior description of the criminal, level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). Applied to Petitioner's case, it does not appear that Petitioner can demonstrate that the in-court identification was so tainted by the photo array procedure as to warrant granting of the habeas petition. The witness in question observed the crime under adequate lighting. On these facts, even under the stricter New York State standard, New York v. Adams, 440 N.Y.S.2d 902, 906 (N.Y. 1981), the in-court identification would be admissible. See People v. Hyatt, 162 A.D.2d 713, 557 N.Y.S.2d 415 (App. Div. 2d Dep't 1990) (holding that in-court identification by complaining witness, who had unobstructed view of defendant ...

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