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November 8, 2001


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.


I. Weight of Evidence

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 was cumulative.

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).

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