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January 28, 2004.

MICHAEL JONES, a/k/a MICHAEL JEFFERIES, Petitioner, -against- THOMAS RICKS, Superintendent, Upstate Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner Michael Jones, an inmate at the Clinton Correctional Facility,*fn1 seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held Page 2 oral argument by telephone conference on January 23, 2004. For the reasons set forth below, the petition is denied,
  At around 12:55 a.m. on February 12, 1998, 17-year-old Sharita Dunn and her 27-year-old friend, Lyndell McDuffie, were waiting for the bus on the corner of St. John's Place and Buffalo Avenue in the Crown Heights section of Brooklyn. As they waited, Jones approached them with his right hand in his pocket, looked at Dunn, and told them to give him all of their money and jewelry. The women gave Jones their jewelry and some of their money. Jones then pulled the butt of a gun out of his waistband and told the women to give him more or else he would shoot them. The women gave him the rest of their money, at which point Jones walked away. Dunn immediately called the police from a nearby payphone. Later that morning, Dunn and McDuffie identified Jones from photo arrays, in a procedure that is a subject of this petition. Nine days later, Dunn identified Jones in a lineup (a photograph of which is attached to respondent's opposition memorandum) that was indisputably fair.

  Jones was charged with two counts each of robbery in the first degree, robbery in the third degree, grand larceny in the fourth degree, petit larceny, and menacing in the second degree. He was convicted by a jury of two counts of robbery in the first degree and sentenced, as a second felony offender, to two concurrent terms of imprisonment of 15 years.

  Jones appealed his judgment of conviction to the Appellate Division, Second Department, claiming that a substantial portion of the identification evidence at his trial should not have been admitted because the government had failed to show that the pretrial identification Page 3 procedures used by the police were free from taint. On May 29, 2001, the Appellate Division unanimously affirmed Jones's judgment of conviction, holding:
Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress identification testimony. The lineup at which the defendant was identified was sufficiently attenuated in time from the prior photographic identification procedure to nullify any possible taint resulting from the photographic array.
People v. Jones, 725 N.Y.S.2d 877 (2d Dep't 2001). Jones sought leave to appeal the Appellate Decision's decision to the New York Court of Appeals, which was denied on August 17, 2001. People v. Jones, 96 N.Y.2d 920 (2001) (Levine, J.). Jones now petitions for a writ of habeas corpus on the grounds that (1) he was arrested without probable cause, (2) the identification procedures used by the police were unduly suggestive, and (3) the government violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to preserve and turn over the photo array in which Jones was initially identified.


 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has Page 4 interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000): see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S. Ct 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Page 5 Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)). Page 6

 B. Jones's Claims

  1. Arrested Without ...

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