United States District Court, Southern District of New York
May 8, 2003
JOSEPH BULLARD, PETITIONER, AGAINST BRIAN S. FISCHER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Petitioner pro se Joseph Bullard ("Bullard" or "Petitioner"), currently incarcerated at Sing Sing Correctional Facility, Ossining, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for Attempted Aggravated Assault Upon a Police Officer (New York Penal Law § 110/120.11), Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03), and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02). The respondent Brian S. Fischer, Superintendent (the "State") has opposed the Petitioner's application which is denied for the reasons set forth below.
Bullard, pro se, filed his petition for a writ of habeas corpus on November 21, 2002, alleging that his appellate counsel was ineffective for failing to raise an issue as to the absence of Bullard at a sidebar conference during his trial and that the evidence at his trial was insufficient.
The State filed its opposition on January 15, 2003, and no further submission has been made by Bullard. The matter was marked fully submitted on January 15, 2003.
State Court Proceedings
On June 4, 1996, prior to the commencement of the trial, the court conducted voir dire of prospective jurors. During voir dire, the court asked the Petitioner:
THE COURT: What I would like to suggest to defense
counsel and his client that he and his client keep in
mind what appears to be a rare incident for a juror
asking for some reason or another some additional
measure of privacy, if your client would be willing to
in effect waive his presence or not hear what is said
by the juror. What I would do is hear the juror at the
bench over there, sidebar with the lawyers on the
record and it would appear that would be something
that would not embarrass anyone. We could then go back
and tell the defendant such and such occurred, and if
there is any reason to excuse the juror we will read
back the statement of what the juror said to us.
Obviously the law allows you to consent to that. But
in any event, it's up to you gentlemen, you and your
(Whereupon defense counsel confers with Petitioner)
DEFENSE COUNSEL: Judge, I have spoken with Mr. Bullard
and for those rare incidents where it is clear that a
juror would be more comfortable at the sidebar he has
agreed to waive his right to be present for that
purpose. With the conditions as set forth by the court
that would be read back he has consented.
On June 11, 1996, during voir dire, in the presence of the defense attorney, the prosecutor, and the court, a prospective juror was questioned regarding prior arrests (T1.522). The discussion was as follows:
PROSECUTOR: Do you have any type of experience with
JUROR: Yes. They thought that I was like selling drugs
or something like that outside the laundromat.
PROSECUTOR: Were you arrested for that?
PROSECUTOR: They just let you go?
JUROR: They just thought I was suspicious, selling
drugs like that.
PROSECUTOR: They came over and spoke with you?
PROSECUTOR: Now, that wasn't a pleasant experience?
PROSECUTOR: Was there anything, sir, about that
experience that would make you feel you have a
predisposition toward police officers?
JUROR: No. They were just doing their job.
PROSECUTOR: When they come here you are not going to
be thinking about that?
JUROR: No, totally separate.
PROSECUTOR: You can assure me of that, sir?
JUROR: Of course.
Then, the attorneys, the court, and the juror returned to open court (T1. 527). The juror was not dismissed (T1.524). Later, the court excused the rest of the prospective jurors from the courtroom, and in Petitioner's presence (T1.417), further questioned the prospective juror:
THE COURT: [Juror], you said during the questioning
that you had been arrested, we did not want to
embarrass you by asking additional questions about
that in the presence of the other jurors. So we
thought that we would wait until they left to ask you
just kindly explain what that was about.
JUROR: Well, this was about twelve years ago, the
charge was possession of a controlled substance. But
the case was thrown out.
THE COURT: Was it here in the Bronx?
THE COURT: That was about twelve years ago?
THE COURT: Do you have any feelings from that event
that would concern you as a juror in this case?
JUROR: Well, yes, to tell you the honest truth, where
innocence is concerned I would have a doubt.
THE COURT: You would have a doubt as to credibility?
(T1.544-45) (emphasis supplied).
The court then excused the juror from the courtroom (T1.546). Then the court stated to the attorneys, "Okay, we can excuse [the juror]"? to which defense counsel responded, "Yes, Judge," and the prosecutor also consented (T1.546).
At trial, evidence was presented that in the early morning hours of October 29, 1994, livery cab driver Diallo Koumbouwain ("Koumbouwain") was flagged down by two black males who instructed him to take them to Willis Avenue and 138th Street, then further up Willis Avenue, near 137th Street, one of the males exited the cab and the other male opened the rear right passenger door. Soon after Koumbouwain and Police Officers Jacqueline Maher and Valarie Baialardo, who were patrolling near Willis Avenue and 138th Street, each heard three successive gunshots. Officers Maher and Baialardo immediately looked to their left and observed Bullard standing alone in the middle of Willis Avenue near 137th Street holding a weapon in his right hand. They also observed Koumbouwain's cab further down the street with its right rear passenger door still open.
The officers gave chase and Bullard ran in the direction of Koumbouwain's brown livery cab. The officers were able to pass Bullard before he reached the cab and they saw from a very close distance, his facial features, his clothing, and the long, slim, black gun that he was still carrying. The cab drove past the intersection of Willis Avenue and 137th Street, but Officer Baialardo stopped her vehicle near the intersection and angled it in front of Bullard's path.
When Officer Maher opened her car door and began to exit, she saw Bullard running directly at her. From a distance of approximately four feet, Officer Maher then observed Petitioner decelerate, lean slightly backward, deliberately raise and extend his right arm with the gun still in it, and point the raised gun directly at Officer Maher. Officer Maher took cover and both Officers Maher and Baialardo heard a gunshot being fired immediately thereafter.
Both Officers were dressed in uniform and at trial Bullard conceded that Officer Maher had at least partially exited the police car and that under all the circumstances, he or anyone else knew or should have known that she was a police officer (T2. 757, 758, 762). Just prior to shooting at Officer Maher, Bullard successfully fired the gun three times on Willis Avenue, striking an unoccupied vehicle.
After shooting at Officer Maher, Bullard ran around the police car and both Officers saw him enter Koumbouwain's cab at Willis Avenue near 136th Street, through the open right rear passenger door. Koumbouwain confirmed this, testifying that the same black male who exited his cab on Willis Avenue near 138th Street, approximately one minute earlier, was the man who reentered his cab through the open door at Willis Avenue near 136th Street, shortly after he heard successive gunshots. Shortly thereafter, the officers apprehended Bullard when Loumbouwain's livery cab became stuck behind traffic leading to the Third Avenue Bridge.
Bullard was seated in the right rear passenger seat and the cab's front passenger seat had a space underneath, extending all the way through to the back where Bullard sat. A still-cocked, black .9 millimeter gun with nine live rounds in its magazine and one in the chamber was recovered from under the seat. Ballistics and forensics evidence confirmed this was the weapon that Bullard had used just minutes earlier to fire three shots while standing on Willis Avenue between 138th and 137th Street, and the same weapon he used to fire one shot at Officer Maher.
Three spent shells and one copper jacketed bullet fragment were recovered in close proximity to each other in the area on Willis Avenue where the officers stated they first heard gunshots and saw Bullard standing. A fourth, single spent shell was recovered more than fifty feet away from the first three, near the intersection of Willis Avenue and 137th Street, where the officers said they cut Bullard off as he was running and observed and heard him aim his gun at Officer Maher and fire one shot. All four shell casings were determined to have come from the weapon recovered from under the seat of the livery cab, directly in front of where Bullard had been sitting.
By judgment rendered on November 20, 1996, Bullard was sentenced as a persistent felony offender to three concurrent and indeterminate terms of imprisonment of from 20 years to life, each concurrent term to be served consecutively to two undischarged indeterminate sentences of imprisonment imposed after parole violations of the two predicate convictions on which his persistent felony determination was based.
On direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department, Bullard, through assigned counsel the Legal Aid Society, asserted that (1) the evidence was not sufficient to establish beyond a reasonable doubt that the gunman attempted to shoot Officer Maher, and the verdict of guilty of attempted aggravated assault on a police officer was against the weight of the evidence; (2) Bullard was denied his rights to due process to a fair trial and to confront the witness against him when the court ruled that a statement, precluded due to the absence of NYCPL 710.30 notice, would become admissible if the defense elicited the prior inconsistent statement of one of the prosecution witnesses; and (3) Bullard was deprived of a fair trial by the prosecutor's intentional elicitation of highly prejudicial hearsay, and by her comments and questions intended to improperly bolster the credibility, competence and character of the complainant.
On June 29, 2000, the Appellate Division, First Department, affirmed Bullard's judgment of conviction. People v. Bullard, 273 A.D.2d 178, 711 N.Y.S.2d 383 (1st Dep't 2000). In pertinent part, the court found that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. The Appellate Division specifically refused to disturb the jury's credibility determinations. Bullard, 273 A.D.2d at 178.
On November 27, 2000, the New York Court of Appeals denied leave to appeal. People v. Bullard, 95 N.Y.2d 932 (2000).
In an application to the Appellate Division dated August 24, 2001, Bullard asserted that his appellate counsel was ineffective for failing to raise an issue concerning Bullard's right to be present at a sidebar conference and on June 20, 2002. The Appellate Division denied the application.
The Standard For Relief
Bullard filed for habeas corpus relief after April 26, 1996, and therefore the provisions of the Anatiterrorism and Effective Death Penalty Act of 1996 ("AEDPA:) are applicable. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362 (2000); Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997). The standards are contained in 28 U.S.C. § 2254(d), which states as follows:
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) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
The Supreme Court addressed the 1996 amendment in Williams v. Taylor, 529 U.S. 362
. The Court ruled that the amendment imposed a "new constraint" on courts reviewing habeas corpus petitions regarding claims that were reached on the merits by the state court. Williams, 529 U.S. at 412. In addressing 28 U.S.C. § 2254(d)(1), the Court explained that under the "contrary to" clause, a habeas court "may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 412-13. In addressing the "unreasonable application" cause, the Court stressed that "unreasonable" does not mean "incorrect" or "erroneous." Id. at 410-11. A writ may only issue "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; Vasquez v. Strack, 228 F.3d 143
, 147-48 (2d Cir. 2000); Hill v. Johnson, 210 F.3d 481
(5th Cir. 2000). Indeed, the Second Circuit has interpreted the amendment as requiring denial of a habeas corpus petition, even in cases where the state court is incorrect, as long as the state court is not unreasonable. Jones v. Stinson, 229 F.3d 112
, 119-21 (2d Cir. 2000).
If the dispute involves a purely factual question, § 2254(d)(2) governs, and a federal court can grant a habeas corpus application only if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997). A state court determination of a factual issue is "presumed to be correct" and the petitioner can rebut the presumption only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In addition to imposing a more deferential standard of review, the 1996 amendment restricts courts when reviewing habeas claims to the case law of the United States Supreme Court. Williams, 529 U.S. at 410-13; Delvalle v. Armstrong, 306 F.3d 1197 (2d Cir. 2002).
Moreover, the district and circuit courts evaluating a habeas petition should survey the legal landscape at the time the state court adjudicated the petitioner's claim to determine the applicable Supreme Court authority; the law is "clearly established" only if the Supreme Court precedent in existence at the time of the petitioner's conviction would have compelled a particular result in the case. Williams, 529 U.S. at 380 ("It is perfectly clear that . . . Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction becomes final."). See also Drinkard v. Johnson, 97 F.3d 751, 768 (5th Cir. 1996); 28 U.S.C. § 2254(d) (limiting habeas relief to any claim that "was adjudicated" on the merits in state court unless that decision "was" inconsistent with "clearly established Federal law, as determined by the Supreme Court."). It is their standards that govern review of Petitioner's claims.
Ineffective Assistance of Appellate Counsel
"In a petition for habeas relief alleging ineffective counsel, the question as to whether the matter is governed by existing Supreme Court precedent `is easily answered because the merits of [such] claim[s] are squarely governed by [the Supreme Court's] holding in Strickland v. Washington.'" Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. at 390).
In Strickland, the Supreme Court held:
A convicted [petitioner]'s claim that counsel's
assistance was so defective as to require reversal of
a conviction . . . has two components. First, the
[petitioner] must show that counsel's performance was
deficient . . . Second, the [petitioner] must show
that the deficient performance prejudiced the defense
. . . The court must then determine whether, in light
of all the circumstances, the identified acts or
omissions were outside the wide range of
professionally competent assistance. In making that
determination, . . . the court should recognize that
counsel is strongly presumed to have rendered adequate
assistance . . . [Furthermore,] the [petitioner] must
show that they actually had an adverse effect on the
defense . . . The [petitioner] must show that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in
the outcome. In making that determination . . . a
court should presume . . . that the judge . . . acted
according to law.
Strickland v. Washington, 466 U.S. 668
, 687-94 (1984).
In Murray v. Carrier, 477 U.S. 478, 488-89 (1986), the Supreme Court held that the two-pronged Strickland test also applies to claims of ineffective assistance of appellate counsel. See also Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994), cert. denied, 513 U.S. 888 (1994); Gulliver v. Dalsheim, 739 F.2d 104, 107 (2d Cir. 1984); United States ex rel. Roche v. Scully, 739 F.2d 739, 743-44 (2d Cir. 1984). Moreover, no decision of the Supreme Court "suggests . . . that the . . . [petitioner] has a constitutional right to compel . . . counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points. . . . For judges to second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy . . . Nothing in the Constitution or our interpretations of that document requires such a standard." Jones v. Barnes, 463 U.S. 745, 751-54 (1983); see also Cantone v. Superintendent, New York Corr. Facility at Green Haven, 759 F.2d 207, 218 (2d Cir.), cert. denied, 474 U.S. 835 (1985); Gulliver, 739 F.2d at 106-07; Roche, 739 F.2d at 743-44.
To show deficient performance, a petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. However, there exists a strong presumption that counsel's conduct falls within the wide range of reasonable assistance, and the court must consider that, under the circumstances, the challenged action might be considered sound strategy. Id. at 689. The strong presumption of counsel's effectiveness is overcome first by demonstrating that his appellate counsel was not reasonably competent. Id. at 689-90. However, "judicial scrutiny of counsel's performance must be highly deferential . . . [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. To establish prejudice, the petitioner is requires to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Here, the Appellate Division, First Department, rejected Petitioner's claim of ineffective assistance of appellate counsel in a reasonable application of Supreme Court jurisprudence. The mere fact that appellate counsel chose to raise issues other than the one Petitioner now claims he would have preferred does not entitle him to habeas relief, especially since there is no indication that Petitioner asked appellate counsel to raise this particular issue regarding his presence at a sidebar conference. Indeed, an effective appellate attorney must "examine the record with a view to selecting the most promising issues for review . . . [because a] brief that raises every colorable issue runs the risk of burying good arguments." Barnes, 463 U.S. at 752-53. See also Jameson, 22 F.3d at 429 (attorney's performance is not "outside the wide range of professionally competent assistance" when he does not argue an issue that he determines to be "futile.").
Moreover, appellate counsel carefully composed and advanced well-reasoned arguments to support reversing Petitioner's conviction in a 61-page, three-point brief raising non-frivolous issues submitted by the Criminal Appeals Bureau of the Legal Aid Society. Sufficient issues were raised to warrant a substantial decision, see Bullard, 273 A.D.2d 178, demonstrating the effectiveness of counsel.
Moreover, Bullard has not established that he was prejudiced by appellate counsel's failure to advance the claim which he now deems colorable.
Under New York law, a defendant does not have an absolute right to be present at all sidebar discussions held at trial. People v. Velasco, 77 N.Y.2d 469 (1991) held that a defendant is not constitutionally required to be present at a robing room conference to discuss peremptory challenges and challenges for cause. Rather, a defendant has a right to be present only where the proceeding involves factual matters about which the defendant might have "peculiar knowledge." People v. Spotford, 85 N.Y.2d 593, 596 (1995). "[A] reversal is not required when, because of the matter then at issue before the court or the practical result of the determination of that matter, the defendant's presence could not have afforded him or her any meaningful opportunity to affect the outcome." People v. Roman, 88 N.Y.2d 18, 26 (1996).
"[E]ven where a defendant has been erroneously excluded from sidebar conference with a prospective juror," this does not constitute reversible error "if that potential juror has been excused for cause." People v. Maher, 89 N.Y.2d 318, 325 (1996). "[A]ny contribution that a defendant may make regarding excusal for cause by the court is purely speculative." Id. Furthermore, in determining whether a juror has been dismissed for cause, the phrase "on consent," has been used as "a short-hand expression for `excused for cause on consent of both sides.'" People v. Childs, 247 A.D.2d 319, 321 (1st Dep't 1998).
Bullard was present for the pertinent questioning of the prospective juror. (Petitioner's Memo of Law, p. 4). The prospective juror was not dismissed or excused as a result of the sidebar conference, but the juror was dismissed as he stated, in Bullard's presence and on the record, "where innocence is concerned I would have a doubt." Therefore, in light of Bullard's waiver, his right to be present was not violated, and the Appellate Division reasonably concluded that appellate counsel was not ineffective for omitting this meritless claim.
Presenting a meritless claim would not have caused a greater likelihood that the judgment would have been reversed or modified. Bullard's claim amounts to an attempt to second-guess his attorney's professional judgment. See Strickland, 466 U.S. at 687; Barnes, 463 U.S. at 751.
The Appellate Division, First Department's rejection of Bullard's claim that he was deprived of the right to the effective assistance of appellate counsel was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court.
Bullard has based his claim both upon legal sufficiency of the evidence and the weight of the evidence. However, this Court does not have the power to consider the weight of the evidence claim since in reviewing a petition for a writ of habeas corpus, a federal court may only consider whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); Wheel v. Robinson, 34 F.3d 60 (2d Cir. 1994). In making this determination, the federal courts must consider all of the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. at 319-20. Thus, unlike the intermediate appellate court in New York State, the federal courts may not independently "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony," People v. Bleakley, 69 N.Y.2d 490, 495 (1987), but must instead always view the evidence most favorably to the People without independently weighing testimony or resolving conflicting inferences. Thus, federal courts have no authority to review a petitioner's claim that the verdict is against the weight of the evidence.
Additionally, to the extent that the claim is cognizable, the Appellate Division's determination was not contrary to nor an unreasonable application of Supreme Court precedent. As noted, the Supreme Court has established that the standard for reviewing claims regarding the sufficiency of the evidence is to ask, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. "This . . . standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to the ultimate facts." Id. Bearing these principles in mind, it is apparent that the state court's decision involved a reasonable application of the Jackson standard.
Bullard does not contest that the People proved his guilt of second and third-degree possession of a weapon beyond a reasonable doubt by overwhelming evidence. Moreover, viewing the evidence in the light most favorable to the prosection, the People also established Bullard's guilt of attempted aggravated assault upon a police officer. The Appellate Division reasonable applied Jackson in reaching this conclusion.
The essence of Bullard's complaint is that the evidence was insufficient to prove the element of his intent to shoot the officer, and to cause her serious physical injury. Under New York law, "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Penal Law § 110.00. Here, the totality of the circumstances surrounding this incident supports the jury's finding beyond a reasonable doubt that Bullard shot at Officer Maher with the intent to cause her serious physical injury. Prior to Bullard firing a bullet in Officer Maher's direction, Officer Maher and her partner heard three successive gunshots and observed Bullard in possession of a weapon. Bullard then ran from the officers, who chased and were able to partially corner him. His subsequent actions in decelerating his running speed, raising his right arm, aiming a gun directly at Officer Maher, the officer who would apprehend him, and then firing that gun, taken together with his prior act of successfully firming the same weapon, evinced his intent to shoot and to seriously injure Officer Maher, an officer in full uniform with her shield displayed, who he conceded he knew or had reason to know was a police officer. In addition to Bullard's own actions, Officer Maher's testimony that Petitioner pointed and aimed the weapon directly at her, immediately before he fired a shot from that weapon, and that she took cover because she believed Bullard was attempting to shoot at her, was further evidence of his intent.
However, Bullard claims the evidence was insufficient to establish his intent to shoot or to seriously injure Officer Maher, alleging that, other than Officer Maher's testimony, there was no "additional testimony or evidence to prove  proof" of his intent (Petitioner's Memo of Law, p. 29). In support of his claim, Bullard declares "it is also significant that [Officer] Baialardo, who was in the car with [Officer] Maher, did not see [petitioner] point a gun at [Officer] Maher, let alone fire a shot at her" (Petitioner's Memo of Law, p. 31).
Under Jackson, the testimony of a single eyewitness to a crime who has had ample opportunity to view the assailant may provide proof of guilt. Here, that eyewitness testimony came from Officer Maher and, from its verdict, the jury must be assumed to have credited her account of the incident. Moreover, Officer Baialardo also testified that Officer Maher only took cover in the vehicle because Bullard "had the gun pointed at her" (T2. 383).
The ballistics evidence also clearly supported Officers Maher and Baialardo's testimony and the jury's finding that Bullard aimed his weapon at Officer Maher and fired, intending to cause the officer serious physical injury. Bullard notes that "three shells were found within about 10 feet of each other, over 200 feet from 138th Street," that the fourth shell was recovered "only about 50 feet from the other three shells," coincidentally near the intersection of Willis Avenue and 137th Street, and that no shells were found "south of 137th Street" (Petitioner's Memo of Law, p. 33).
Bullard then asserts that this evidence was "contrary" to Officer Maher's assertion that she heard three gunshots and immediately observed Bullard standing alone in the middle of Willis Avenue, between 138th and 137th Streets, and that following a brief chase, Bullard fired a single shot at Officer Maher from a position near the intersection of Willis Avenue and 137th Street (Petitioner's Memo of Law, pp. 31-34), apparently claiming that he would have run much too fast for the officers in their vehicle to cut him off a mere fifty feet away and that if he had indeed fired at Officer Maher the fourth spent shell would have been recovered much further away and south of 137th Street.
However, the cumulative trial testimony established that the approximate length of Willis Avenue, running south from 138th Street to 137th Street, slightly exceeds 263 feet. Officers Maher and Baialardo testified that immediately after hearing the first three shots, they saw Bullard standing in the middle of Willis Avenue, closer to 137th Street than 138th Street, but not yet at the intersection of Willis Avenue and 137th Street. This area, ranging from 204 to 209 feet south of 138th Street, is where the first three spent shells were recovered and confirms the officers' testimony that Bullard was standing in this spot immediately after firing the first three shots.
Officers Maher and Baialardo also testified that after a brief chase, they angled their vehicle and cut Bullard off further south of 138th Street, near the intersection of Willis Avenue and 137th Street. The fourth bullet was recovered further south of 138th Street than the other three bullets, specifically 263 feet and 7 inches south of 138th Street and "right around the intersection of 137th Street and Willis Avenue" (T2.543). Since the ballistics evidence clearly corroborates the officers' testimony that they were at this position, near the intersection of Willis Avenue and 137th Street and that Bullard was only approximately four feet away when he fired a fourth bullet and shot at Officer Maher, his contradictory claim that his speed of foot would have prevented his having fired the weapon from that position must be rejected by this Court, as the Appellate Division's determination was reasonable.
Bullard's remaining contentions, including his claim of various inconsistencies in the police officers' testimony, that one or more officers had one or more motives to lie, and that some of the testimony was "fabricated," amount to no more than standard, predictable, challenges to the credibility of those officers. A habeas court may not revisit the fact-finder's credibility determinations. Marshall v. Lonberger, 459 U.S. 422, 432-35 (1983); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996).
In sum, the Appellate Division's refusal to disturb the trial court's credibility determination was entirely reasonable and was rendered in compliance with clearly established federal law as determined by the Supreme Court of the United States. See Jackson, 443 U.S. at 318-19.
The petition for a writ of habeas corpus is denied.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
It is so ordered.