The opinion of the court was delivered by: Block, District Judge.
Pro se petitioner, Roberto Correa ("Correa") seeks habeas
corpus relief pursuant to 28 U.S.C. § 2254, alleging that (1)
his conviction was unsupported by legally sufficient evidence;
(2) the prosecutor violated his right to due process by making
prejudicial remarks during summation, and the trial court
improperly admitted evidence of his gang membership; (3) the
trial court improperly permitted testimony regarding the results
of an unreliable scientific test; (4) the verdict was against the
weight of the evidence; (5) the trial court improperly denied his
request for a missing witness charge; and (6) his lineup
identification was impermissibly suggestive. Having been found
guilty of murder in the second degree by a jury in New York
Supreme Court, Kings County, Correa is currently serving a
sentence of twenty years to life imprisonment.
The underlying facts and circumstances of Correa's claims
regarding the prejudicial remarks during summation, the gang
membership, and the unreliable scientific evidence, are the same
as those of Correa's co-defendant, Hector Gonzalez ("Gonzalez").
As pertains to Gonzalez, the Court addressed those issues in a
Memorandum and Order dated June 22, 2001 denying Gonzalez's §
2254 habeas corpus petition. See Gonzalez v. Duncan, 00 CV
1857 (E.D.N.Y. June 22, 2001) (Block, J.) ("Gonzalez
Memorandum"). The Court refers to and adopts the reasoning set
forth therein, in denying these same claims as raised by Correa.
With regards to the sufficiency of the evidence, both Gonzalez
and Correa failed to preserve this argument for appellate review.
See People v. Correa, 265 A.D.2d 338, 696 N.Y.S.2d 198 (2d
Dep't 1999); People v. Gonzalez, 265 A.D.2d 341, 696 N.Y.S.2d 696
(2d Dep't 1999). Because the Appellate Division relied on an
adequate and independent state ground for denying the claim, the
Court rejected Gonzalez's claim as procedurally barred. See
Gonzalez Memorandum at 2-4. For the same reason, Correa's
sufficiency claim is also procedurally barred.
For the reasons set forth below, Correa's remaining three
claims are also denied.
The Court accepts the factual and procedural history set forth
in respondent's affidavit in opposition to the petition, and the
government's brief on direct appeal. See Aff. in Opp. to Pet.
for Habeas Corpus, at 2-6; Br. for Resp't, at 3-29.
Correa argues that the guilty verdict was against the weight of
the evidence. This claim is distinct from an attack on a verdict
based on the legal sufficiency of the evidence. A "weight of the
evidence" argument is a pure state law claim grounded in New York
Criminal Procedure Law § 470.15(5), whereas a legal sufficiency
claim is based on federal due process principles. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) (Fourteenth Amendment requires record evidence to
reasonably support a finding of guilt beyond a reasonable doubt);
See People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761,
508 N.E.2d 672 (1987) (weight of the evidence is based on court's
factual review power; sufficiency of evidence claim based on the
law). Accordingly, the Court is precluded from considering the
claim. See 28 U.S.C. § 2254(a) (permitting federal habeas
corpus review only where the petitioner has alleged that he is in
state custody in violation of "the Constitution or a federal law
or treaty"); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct.
3092, 111 L.Ed.2d 606 (1990) (habeas corpus review is not
available where there is simply an alleged error of state law).
II. Missing Witness Charge
In its opening statement, the government promised to call four
witnesses who would identify Correa as one of the killers. Three
of the four were never called. Correa requested a jury charge
that would allow the jury to draw an unfavorable inference from
the government's failure to keep its promise. The trial court
denied the request on the ground that the witnesses' testimony
To prevail on an erroneous jury charge claim, "the [habeas]
petitioner must show not only that the instruction misstated
state law but also that the error violated a right guaranteed to
him by federal law." Blazic v. Henderson, 900 F.2d 534, 540 (2d
Cir. 1990); see Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct.
396, 38 L.Ed.2d 368 (1973); Davis v. Strack, 270 F.3d 111,
122-23 (2nd Cir. 2001). In this regard, a petitioner must show
that it was not "merely . . . undesirable, erroneous, or even
universally condemned, but that it violated some right which was
guaranteed to the defendant by the Fourteenth Amendment."
Davis, 270 F.3d at 122-23 (quoting Cupp, 414 U.S. at 146, 94
S.Ct. 396). The question, therefore, is "whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process." Id. "Due process
does not require the giving of a jury instruction when such
charge is not supported by the evidence." Blazic, 900 F.2d at
541. Furthermore, where the alleged error is one of omission, it
"is less likely to be prejudicial than a misstatement of the
law," and thus, the petitioner's "burden is especially heavy."
Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52
L.Ed.2d 203 (1977).
Determining that a petitioner was entitled to a particular
instruction "under state law is the first step in determin[ing]
whether that error violated the
petitioner's federal due process rights." Id. at 123-24. In
order to obtain a missing witness charge under New York state
law, the party seeking the charge must make a prima facie
showing that "the uncalled witness is knowledgeable about a
material issue upon which the evidence is already in the case;
that the witness would naturally be expected to provide
noncumulative testimony favorable to the party who has not called
him, and that the witness is available to such party." People v.
Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 799, 502 N.E.2d 583
(1986); see People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 231,
233, 583 N.E.2d 944 (1991). ...