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July 23, 2003


The opinion of the court was delivered by: Jack Weinstein, Senior District Judge


The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was charged and tried on numerous counts relating to a robbery at a jewelry store in Queens on October 5, 1995, at approximately 12:25 p.m. Witnesses to the robbery told detectives that three black males, armed and wearing ski masks, entered the store with guns drawn and robbed the store of about $28,000 in cash and $5000 in jewelry. When entering the store, one of the perpetrators put a gun to the stomach of Jay Diaz, a patron, and forced him into the store. After the robbery the perpetrators fled the store, got into a red or maroon Mazda 626 automobile and drove off. As they were running from the store, one of them exchanged gunfire with the store owner. The store owner was not hurt, but his shot shattered the rear window of the getaway car.

At approximately 2:00 p.m. that same day, a car fitting the description of the getaway car — a maroon Mazda 626 with the rear window shot out — was found abandoned in Queens. Inside the car detectives found items apparently connected to the robbery, including latex gloves [ Page 2]

and ski caps. The car was traced to petitioner.

At 2:30 p.m., petitioner's girlfriend, Esther Jimenez, reported to the police that petitioner's car had been carjacked from her at approximately 11:30 a.m. At the request of the police, petitioner and Jimenez agreed to come to the precinct. They were brought by police in separate squad cars. Upon arriving at the police station, petitioner and Jimenez were put in separate rooms. According to Jimenez, she was then accused of lying about the carjacking. Jimenez was then arrested and charged with falsely reporting the caracking incident. Petitioner was informed that Jimenez had been arrested, and then agreed to be photographed. At about 9:30 p.m., petitioner's photo was put in an array and shown to witness Diaz, who identified petitioner as the person who had put a gun to his stomach. At approximately 11:50 p.m., Diaz identified petitioner in a line-up.

At the trial, Diaz testified that the man who put a gun to his stomach — and whom he identified as petitioner — had a beard and braided hair, held a ski mask in his hand, and was wearing a hood. A detective testified, however, that Diaz and other witnesses told him at the crime scene that the man who held a gun to Diaz was wearing a black ski mask. The detective further testified that Diaz had not described the perpetrator's hair, beard or facial characteristics at the initial crime scene interview.

The prosecution also presented evidence that petitioner's car had been used for the robbery. The prosecution did not call another eye witness, Lenny Gonzalez, to testify. Petitioner sought a missing witness charge from the court, noting that Gonzalez was standing next to Diaz at the time during which Diaz testified that he had a view of the perpetrator, and that Gonzalez told detectives at the scene that he felt he could identify the perpetrator. When shown petitioner in a line-up, Gonzalez did not identify petitioner as the perpetrator. The trial court refused to [ Page 3]

give a missing witness charge.

Petitioner did not testify in his own defense. The defense case consisted solely of the testimony of Jimenez, who described being carjacked and then aided by petitioner following the incident.

Petitioner was convicted of all counts submitted to the jury: robbery in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. He was sentenced as a second felony offender to 12 years in prison.

Petitioner's conviction and sentence were affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.

In the instant application for a writ of habeas corpus, petitioner claims (1) that his due process rights were violated by the prosecutor's misconduct when the prosecutor made multiple improper and prejudicial remarks, including vouching for the credibility of witnesses, mischaracterizing and distorting witness testimony, shifting the burden of the alibi witness onto petitioner, and indicating that the alibi witness lied; (2) that he was denied his right to counsel at the line-up; (3) that he was denied due process when the trial court refused a missing witness charge and refused to allow the defense to allude to the prosecution's failure to call a promised witness; and (4) that he was denied a fair and impartial hearing to determine whether identification evidence was gained as a direct product of illegal police procedures.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a [ Page 4]

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." 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme 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." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ 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. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." ...

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