The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Jose Torres brings this petition for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx
County Supreme Court, Torres was convicted of one count of Burglary in
the Second Degree. He was sentenced as a second felony offender to ten
years in state prison. Torres is currently incarcerated pursuant to that
judgment in Sing Sing Correctional Facility in Ossining, New York. For
the reasons below, the petition should be denied.
On September 9, 1996, Carmen Madera came home from work to find her
bedroom in disarray and some jewelry, compact discs, and clothing missing
from her apartment. (Madera: Tr. 555, 557-64). Madera's three children
were in the apartment watching television but they had not noticed the
missing items. (Madera: Tr. 570-71). Madera called the police and Officer
Richard Rogich from the Latent Print Unit responded. (Madera: Tr. 564-65;
Rogich: Tr. 498,
513-14). Upon investigation, Officer Rogich determined that someone
had picked the front door lock and entered the apartment. (Rogich: Tr.
514-15). Officer Rogich dusted for fingerprints and was able to lift
eight sets of prints from items in the apartment. (Rogich: Tr. 516-26).
He also took the fingerprints of Madera and her children so they could be
eliminated as perpetrators. (Rogich: Tr. 526-27).
Detective William Collins of the Latent Print Unit received the prints
taken by Officer Rogich the following day. (Collins: Tr. II. 3, 15).*fn1
First, he examined them using a magnifying glass and determined that five
of the prints were of no value, meaning they could not be identified
under any circumstances. (Collins: Tr. II. 15, 19-21). Detective Collins
entered the three remaining prints one-by-one into a computer system
called SAFIS (State Automated Fingerprint Identification System), which
produces a list of possible matches. (Collins: Tr. II. 22-24). Comparing
the latent prints lifted from Madera's apartment to the inked
fingerprints on file of the possible matches, Detective Collins
identified two of the fingerprints as belonging to Jose Torres.
(Collins: Tr. II. 24-26). The third latent print from the apartment did
not match any prints on file. Detective Collins also later compared the
latent prints from the crime scene to inked prints of Torres taken after
his arrest in this case. (Collins: Tr. II. 25-27; Lang: Tr. 487-94). One
print, lifted from the side of a jewelry box in Madera's bedroom, matched
Torres's left thumb and another, lifted from a different jewelry box also
in Madera's bedroom, matched Torres's left ring finger. (Collins: Tr.
II. 26-27; Rogich: Tr. 524-26).
Madera testified that she did not know Torres or give him permission to
enter her home. (Madera: Tr. 568-69). Torres did not call any witnesses.
The jury found Torres guilty of Burglary in the Second Degree. (Tr.
635). Torres was sentenced to a determinate sentence often years to run
consecutively with a previously imposed sentence on another case.
(Sentencing Tr. 15-16).
B. Torres's Direct Appeal
On appeal to the Appellate Division, First Department, Torres raised
the following three issues:
1. Was appellant's conviction against the weight
of the evidence when he was only connected to the
burglary by a stray fingerprint that was never
conclusively tied to him or otherwise adequately
explained? (U.S. Const., amends. VI, XIV; N.Y.
Const., art. I, § 6).
2. Did the prosecutor violate Batson[v. Kentucky.
476 U.S. 79 (1986)], when she used 90% of her
peremptory challenges to strike nine of the 11 black
women from the jury panel? (U.S. Const., amend. XIV;
N.Y. Const., art. 1, § 11; C.P.L. § 270.25).
3. Was the sentence of 10 years' incarceration
consecutive to a previously imposed sentence of 7 !/2
to 15 years' incarceration excessive given defendant's
background and the nature of the offense?
Brief of Defendant-Appellant, dated July 2001 ("Pet. App. Div. Brief)
(reproduced as Ex. 1 to Affidavit in Opposition to Petition for Writ of
Habeas Corpus, filed August 1, 2003 ("Opp. Aff.")), at 2, 11, 19. With
respect to the first issue, Torres's brief on appeal also challenged the
legal sufficiency of the evidence against him inasmuch as it cited to
Jackson v. Virginia. 443 U.S. 307
(1979). See id. at 11. 18.
On February 14, 2002, the Appellate Division unanimously affirmed
Torres's conviction. People v. Torres. 291 A.D.2d 267 (1st Dep't 2002).
In holding that "[t]he verdict was not against
the weight of the evidence," the court stated that "[t]he fingerprint
expert sufficiently stated the facts underlying his opinion that two
latent fingerprints recovered from the burglarized premises matched those
of defendant." Id. at 267. The court declined to review Torres's Batson
claim because Torres's arguments that the race-neutral explanations
offered by the prosecutor were pretextual were "unpreserved." Id. The
court went on to state, "[w]ere we to review these claims, we would find
that the court properly found the explanations to be nonpretextual." Id.
As for his third claim, the court found no basis for reducing Torres's
By letters dated February 26, 2002 and March 4, 2002, Torres sought
leave to appeal from the New York Court of Appeals with respect to all of
the issues raised in his brief to the Appellate Division. See Opp. Aff.
¶ 8. On May 10, 2002, leave was denied. People v. Torres. 98 N.Y.2d 656
C. The Instant Habeas Petition
Torres timely filed this petition for writ of habeas corpus on May 12,
2003. He argues that his conviction was against the weight of the
evidence, that the evidence adduced at trial was legally insufficient to
support his conviction beyond a reasonable doubt, and that the
prosecutor's use of peremptory challenges violated Batson. See Petition
for Writ of Habeas Corpus, filed May 12, 2003 ("Petition"), at 5-6.
Torres has properly exhausted his state law remedies as he has fairly
presented the constitutional nature of these claims to each of the state
courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982)
(en bane), cert. denied, 464 U.S. 1048 (1984).
Under the Antiterrrorism and Effective Death Penalty Act of 1996
("AEDPA"), a petition for writ of habeas corpus may not be granted with
respect to any claim that has been "adjudicated on the merits" in the
state courts unless the state court's adjudication: "(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." 28 U.S.C. § 2254(d). The
Second Circuit has held that for a state court decision to constitute an
"adjudication on the merits," the state court need only base its decision
on "the substance of the claim advanced, rather than on a procedural, ...