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BERMUDEZ v. PORTUONDO

United States District Court, S.D. New York


March 29, 2004.

FERNANDO BERMUDEZ, Petitioner, -against- LEONARD PORTUONDO, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Fernando Bermudez ("Bermudez") has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Bermudez contends that his confinement by New York state is unlawful because: i) his Fifth and Fourteenth Amendment rights were violated by impermissibly suggestive identification procedures employed by the state; ii) his Fifth, Sixth and Fourteenth Amendment rights were violated by the prosecution's failure to disclose to him, completely and timely, exculpatory evidence and documents; iii) his Fifth, Sixth and Fourteenth Amendment rights were violated by misconduct engaged in by the prosecutor; iv) his Fifth, Sixth and Fourteenth Amendment rights were violated by flawed instructions given to the jurors by the trial court; v) his Sixth and Fourteenth Amendment rights to a public trial were violated by the trial court's exclusion from the courtroom, as spectators during the trial, two former jurors; and vi) his Sixth and Fourteenth Amendment rights were violated by the ineffective assistance he Page 2 received from his trial and appellate counsel. In addition, Bermudez contends that his conviction rests upon perjured testimony, which is evidenced by post-trial sworn statements, made by the prosecution's witnesses who provided identification testimony at his trial, through which they recanted their trial testimony.

  The respondent opposes Bermudez's application for a writ of habeas corpus. He contends that petitioner's claims regarding the pretrial identification procedures, the use of perjured trial testimony and misconduct, attributed to the prosecutor, were all matters considered and reasonably rejected by the state courts. In addition, the respondent maintains that the exclusion of two former jurors from the courtroom did not infringe upon petitioner's right to a public trial. Furthermore, according to the respondent, `petitioner's claim concerning the trial court's jury instructions is procedurally barred from habeas corpus review and, in any event, is meritless. The respondent also contends that Bermudez's allegation, that the prosecutor made improper arguments at his trial, is procedurally forfeited and does not make out a claim of constitutional magnitude warranting habeas corpus relief. Moreover, the respondent claims that Bermudez cannot establish that the assistance rendered to him by either his trial or appellate counsel was ineffective. Consequently, the respondent urges that Bermudez's application for habeas corpus relief be denied.

  II. BACKGROUND

  In the late evening of August 3, 1991, Efrain Lopez ("Lopez"), a teenager on furlough from the Georgetown Correctional Facility, went to a party at the Marc Ballroom, located in the Union Square neighborhood of Manhattan. While there, Lopez had an altercation with Raymond Blount ("Blount"), a twenty-two-year-old who had come to the ballroom with a number of his Page 3 friends. During the altercation, Blount punched Lopez in the eye, and Lopez fell to the ground.

  Early the next morning, at approximately 3:00 a.m., as Blount and several of his friends exited the ballroom and proceeded to walk along University Place, Lopez and a group of his acquaintances began to follow. Suddenly, a black Nissan Pathfinder automobile moved down University Place; it interdicted the Blount group's movement along that street. A man with a cane exited the Pathfinder and demanded that Lopez identify the person with whom he had earlier had the altercation in the ballroom. Lopez responded by identifying Blount as that person. Just then, another man wearing a gold chain with a medallion and holding a hand behind his back, jogged toward Blount; he produced a gun and shot Blount once, at close range, in the abdomen. When the shot rang out, Blount and those with him began to run. Some in Blount's group were pursued and assaulted by members of the group aligned with Lopez. Shortly after the shooting, police officers and an ambulance arrived on the scene. Blount was transported by ambulance to St. Vincent's Hospital; several hours later, he expired.

  Later that day, Detective Michael Lentini, who was assigned to the Sixth Precinct Detective Squad, spoke with approximately seven persons who had been walking along University Place with Blount at the time that he was shot. Based upon those conversations, a composite description of the shooter was fashioned. The shooter was described as a male Hispanic, 16 to 26 years of age, approximately 5' 11" tall and weighing 165 pounds. A composite description of Lopez was also assembled. He was described by the witnesses as a male Hispanic, 16 years of age, approximately 5' 4" tall and weighing 120 pounds. Armed with that description, Det. Lentini, his partner, and detectives assigned to a police task force transported the seven witnesses to the New York Police Department's Manhattan "CATCH Page 4 Unit." The CATCH Unit for each borough is a depository for photographs of those persons who have committed crimes in that borough. According to Det. Lentini, witnesses are taken to a CATCH Unit when police officers believe that the witnesses might be able to identify a person who committed a crime. The Manhattan CATCH Unit is located in a police precinct on the Upper West Side of Manhattan. The unit is housed in a large room; approximately three-quarters of the room's walls are lined with file cabinets containing drawers filled with photographs. The room also has a table at which witnesses may view the photographs. In addition, the room has a desk where police personnel may sit. Each file cabinet drawer is labeled so as to identify the ethnicity, height and weight of the persons whose photographs appear within that file cabinet drawer.

  According to Det. Lentini, at first, three witnesses, Lawrence Darden ("Darden"), Nkosi Boyce ("Boyce") and Terrance Hall ("Hall"), were seated around the table; each was given a file cabinet drawer of photographs to examine. Before the witnesses were permitted to look at the photographs, each was instructed by Det. Lentini that, while looking at the photographs, he was not to speak with the others or compare notes; each was directed to summon Det. Lentini if he found a photograph of someone connected to the case. Det. Lentini explained to the witnesses that at that point he would remove the person from the company of the remaining witnesses and discuss the photograph that had been selected and the relationship of the person depicted in the photograph to the events surrounding Blount's death.

  Of the three witnesses in the room, only Darden selected a photograph and summoned Det. Lentini. The photograph that Darden selected was that of Lopez. Darden was removed from the room and questioned by the detective about the photograph he had selected and the role Page 5 the person depicted in the photograph had in the events surrounding the shooting of Blount.

  When Det. Lentini returned to the CATCH Unit viewing room, Boyce and Hall had completed their review of the photographs. They were escorted from the CATCH Unit viewing room and, according to Det. Lentini, Jaime Velasquez ("Velasquez"), Okpa lyesi ("lyesi"), Frank Kent ("Kent") and Mike Thompson ("Thompson") were brought into that room. These four witnesses were seated such that two were on each side of the viewing table and each was given a file cabinet drawer of photographs to examine. Det. Lentini instructed the four witnesses to look at the photographs, not to speak with each other and not to compare the photographs. They were told that if anyone recognized a person depicted in a photograph, Det. Lentini should be summoned and he would discuss the photograph with the person who selected it.

  As the four examined photographs, Velasquez summoned Det. Lentini. She slid a photograph across the table to him, with its face down. Referring to the photograph, Velasquez told Det. Lentini that "he was there." The person depicted in the photograph was Wilmer Rodriguez ("Rodriguez"). Det. Lentini took the photograph and contacted colleagues at the sixth precinct to advise them that Rodriguez's photograph had been selected, and to give them identifying information concerning Rodriguez that was recorded on the photograph. While Det. Lentini did this, he recalls that his partner remained in the CATCH Unit viewing room with the four witnesses as they continued to examine photographs.

  When Det. Lentini returned to the CATCH Unit viewing room, Velasquez summoned him again. Det. Lentini sat across from Velasquez and she slid a photograph toward him, face down. Velasquez then made a motion with her right hand to indicate a gun. Det. Lentini removed Velasquez from the CATCH Unit viewing room and took her into an office. Once they Page 6 were in the office, Velasquez told Det. Lentini that the person depicted in the photograph is "the guy who shot the guy." Velasquez is alleged to have made this statement although she never claimed to have observed Blount being shot. Armed with this information, Det. Lentini contacted the sixth precinct again and relayed identifying information concerning the person depicted in that photograph to his colleagues. The person depicted in that photograph was Bermudez. According to the information that accompanied Bermudez's photograph, he was 6 feet tall and weighed 205 pounds. Thereafter, all seven witnesses were transported from the CATCH Unit back to the sixth precinct.

  Later that night, beginning at approximately 9:45 p.m., Darden, Thompson, Boyce, Hall, lyesi and Kent were shown a six-person photographic array by Detective Daniel Massanova. The photographic array included petitioner's photograph. Velasquez was not asked to view the photographic array because she had selected petitioner's photograph while at the CATCH Unit. Of these six viewers, only Thompson identified the petitioner as the shooter. Hall told Det. Massanova, that of the six persons depicted in the photographic array, petitioner's photograph was of someone who Hall thought might have been present at the scene of the shooting. lyesi was a bit more definitive, declaring to Det. Massanova that petitioner's photograph was of a person who was at the scene of the shooting. For his part, Kent identified petitioner's photograph as that of "the kid with the gold chain who reached behind his back for a gun." Darden could not identify anyone depicted in the photographic array, and Boyce told Det. Massanova that none of the persons he observed in the photographic array was the shooter.

  According to Det. Massanova, he displayed the photographic array to three additional persons that evening: Jose Rodriguez ("J. Rodriguez"), David Seldidge ("Seldidge"), and Angelo Page 7 Maysonet ("Maysonet"). J. Rodriguez identified petitioner's photograph as that of "the kid with the gold chain reaching for something." Neither Seldidge nor Maysonet was able to identify anyone whose face was displayed in the photographic array.

  On August 5, 1991, Lopez was seized by detectives and held for approximately 27 hours. During that time, Lopez was interrogated, prepared three written statements for Det. Massanova, made a videotaped statement and viewed a photographic array. At approximately 11:00 p.m., on the day he was taken into custody, Lopez viewed the photographic array containing Bermudez's photograph that had been shown to the six witnesses on the preceding evening. According to Det. Massanova, Lopez selected petitioner's photograph and identified him as "the guy who shot the guy who hit me." Lopez later stated in his videotaped statement that the shooter was named "Lou" and had the nickname "Wool Lou" because he sold cocaine. Lopez explained that crack cocaine was known on the street as "Wool."*fn1

  One day later and two days after Blount was shot, Bermudez was arrested for Blount's murder. Bermudez denied any involvement in the shooting and denied being in or about the Marc Ballroom on August 3 or 4, 1991. Friends of Bermudez visited the sixth precinct after learning of his arrest and told police officers that they had been with Bermudez during the evening of August 3 and the early morning of August 4, 1991, and they had not been at or near the Marc Ballroom.

  While being held at the sixth precinct following his arrest, Bermudez was required to participate in a corporeal lineup. Kent, Thompson, lyesi and Velasquez were asked to view the Page 8 lineup and to indicate only whether he or she recognized anyone in the lineup. Each indicated a recognition of Bermudez. Hall, Darden and Boyce also viewed the lineup. Each indicated that he did not recognize anyone.

  On August 9, 1991, a New York County grand jury returned an indictment against Bermudez charging him with murder in the second degree. Thompson and Velasquez were the only witnesses to the events of August 3 and 4, 1991, whom the prosecutor had testify before the grand jurors.

  After Bermudez's indictment, and prior to the commencement of his trial, he made an application to the trial court that evidence concerning the pretrial identification procedures employed by the state be suppressed at his trial. Bermudez alleged that impermissibly suggestive means were used to ensure that he would be identified as Blount's shooter. In response to that application, the trial court held a hearing on December 20, 1991. Detectives Lentini and Massanova testified at the hearing; none of the young people who examined photographs or viewed Bermudez in the lineup testified at the hearing. The detectives described, as set forth above, the circumstances under which: (a) petitioner's photograph was selected at the police CATCH Unit; (b) a photographic array was prepared and exhibited to various witnesses at the sixth precinct; and (c) Bermudez participated in and was identified during a corporeal lineup. No evidence was elicited by the prosecution during the pretrial suppression hearing to alert the presiding judicial officer or Bermudez's counsel that the prosecution was aware, based on a statement provided by Velasquez on August 4, 1991, and based on her grand jury testimony, that Velasquez never claimed to have observed the actual shooting of Blount, although she selected petitioner's photograph and identified him to Det. Lentini as the shooter. In addition, at the time Page 9 of the suppression hearing, Bermudez's attorney was unaware that Lopez had given a videotaped statement to the prosecuting attorney and Det. Massanova during which, among other things, he reviewed the photographic array from which he had previously selected petitioner's photograph and selected it again. The prosecutor would later characterize this as a confirmatory viewing of the photographic array by Lopez.

  Based upon the hearing testimony given by Detectives Lentini and Massanova and the exhibits received in evidence at that proceeding, the trial court determined that it did not need to hear testimony from civilian witnesses respecting any independent source for their identification of Bermudez. The trial court found that the pretrial identification procedures challenged by Bermudez, as impermissibly suggestive, were conducted properly. Consequently, Bermudez's application to suppress evidence concerning those pretrial identification procedures was denied.

  Bermudez proceeded to trial before a jury. No physical evidence linking Bermudez to the murder was presented to the jury. However, the jurors learned from Velasquez and Kent that petitioner was observed by them reaching behind his back to obtain a gun after Lopez identified Blount as the person with whom he had an altercation in the Marc Ballroom. The jurors also learned from Velasquez and Kent why each was certain that it was the petitioner whom they observed.

  Velasquez told the jurors that she had seen Bermudez while inside the Marc Ballroom, as he stood approximately 15 to 20 feet from her. She recalled that her attention was drawn to him because she found him attractive. She watched him for about five minutes and observed that he was wearing a gold chain with a medallion. Later, Velasquez saw Bermudez on the street as he approached the area where Blount was standing before he was shot. Velasquez testified that Page 10 Bermudez came within ten feet of her and she noticed that he had a gun behind his back as he passed her.

  Kent told the jurors that he saw Bermudez on the street after leaving the ballroom. Kent recognized Bermudez, because of the chain and medallion Bermudez was wearing, as someone he had seen two weeks earlier at another club. Kent stated that as Blount stood next to him on the street, he watched Bermudez as he approached Blount with his hand behind his back.*fn2

  The jurors also heard testimony from Lopez, Thompson and lyesi identifying Bermudez as the person who shot the fatal bullet at Blount. Lopez told the jury that he had known Bermudez by the nickname "Wool Lou" for approximately two years prior to August 1991. Lopez explained that he had approached Bermudez in the Marc Ballroom and told Bermudez about his altercation with Blount. Lopez recalled that Bermudez was wearing a large rope chain Page 11 with a medallion at that time.

  Upon leaving the ballroom, Lopez saw Bermudez again, and had a conversation with him. During that conversation, Lopez identified Blount to Bermudez as the person with whom he had fought earlier. Lopez informed the jurors that he watched as Bermudez walked to the occupant of a Pathfinder vehicle and had a conversation. The vehicle later traveled to the vicinity where Blount and his friends were walking. Lopez then indicated to Bermudez again who it was with whom Lopez had fought earlier. Lopez recalled that Blount put up his hands, as if to fight. Lopez testified that he saw Bermudez holding a small black gun. Lopez heard a gun shot, and then fled the scene. Earlier, when Lopez made his videotaped statement, he stated that he had not seen a gun. He claimed that he had only seen the flame expelled by a gunshot and then had fled the scene.

  Thompson explained to the jurors that he first saw Bermudez in the ballroom. Thompson stated that he looked at Bermudez's face, although his attention was drawn to Bermudez because of the gold chain and medallion he was wearing. Thompson recalled that he also saw Bermudez on the street, after Thompson left the ballroom. Thompson testified that he observed Bermudez remove his hand from behind his back and reveal a .25 caliber handgun. Thompson stated that he watched Bermudez's face as Bermudez shot Blount.

  Iyesi told the jurors that he saw Bermudez inside the ballroom. Thereafter, as lyesi was exiting the ballroom, he saw Bermudez and Lopez engaged in a conversation. Later, after he had completed his testimony, lyesi was approached outside the courtroom by three men, one of whom claimed to be petitioner's brother. The men told lyesi that Bermudez was innocent and that lyesi's identification of Bermudez was mistaken. Page 12

  For his part, and consistent with the position he took with law enforcement officials from the moment of his arrest, Bermudez presented an alibi defense to the jury. He and several of his friends recounted how they had spent the late evening and early morning hours on August 3 and 4, 1991, dining and driving around Manhattan in a recently refurbished automobile that Bermudez had acquired on August 3, 1991, with the help of his father. Bermudez denied knowing Lopez and also denied that he was known by the nickname "Wool Lou." He explained that his nickname was "Most," a moniker that had been bestowed upon him because, among his friends, he could eat the most and attract the most women. Darden, Boyce and Hall, witnesses who had not identified petitioner as the shooter, also testified on his behalf at the trial. None of them stated that he had concentrated on the shooter's face at the time of the shooting. Bermudez also called character witnesses to testify about his reputation in the community for peacefulness, to demonstrate that it would not be likely that he would be involved in violent behavior.

  The jury convicted Bermudez for murder in the second degree. After the verdict was announced, outbursts emanated from friends and family members of the petitioner and a threat was made to the prosecutor.

  Prior to the date on which he was to be sentenced, Bermudez made a motion before the trial court that the jury's verdict be set aside because of newly discovered evidence that could not have been procured prior to trial, and which was of such a nature that if it had been presented to the trial jury a probability existed that the verdict would have been more favorable to Bermudez. Although styled as a motion brought pursuant to New York's Criminal Procedure Law ("CPL") § 440.10(g), the motion was deemed by the trial court to be one brought pursuant to CPL § 330.30, since a motion brought pursuant to CPL § 440.10 would have been premature at that Page 13 juncture, given that no judgment had been entered against Bermudez.

  In any event, the trial court considered the petitioner's newly discovered evidence. It consisted principally of sworn statements by three female acquaintances of Lopez, with whom he had socialized at the Marc Ballroom on August 3 and 4, 1991. They claimed to know the person nicknamed "Wool Lou;" two of the women alleged that "Wool Lou" was also known by the nickname "Chino." One of the women provided a Manhattan address for "Wool Lou," but she explained that, during the late summer of 1991, "Wool Lou" had left New York for Virginia. Each of the women stated that Mike Gaynor ("Gaynor"), an investigator employed by Bermudez's trial counsel, had shown her photographs of Bermudez. Each claimed never to have seen Bermudez in or about the Marc Ballroom on August 3 or 4, 1991, although two of the women alleged that they had been with Lopez continuously while he was in the ballroom and were with him when he left it.

  The motion also contained a sworn statement from J. Rodriguez, the man whose Nissan Pathfinder automobile was at the scene of Blount's shooting. He stated that he did not see Blount's shooter, and did not see Bermudez near his vehicle on August 4, 1991. He, too, was shown Bermudez's photograph by Gaynor, but reported that he had never before seen Bermudez. Moreover, J. Rodriguez alleged that the substance of the sworn statement that he submitted in support of Bermudez's CPL § 330.30 motion had been provided to and recorded in written form by the police.

  Bermudez's trial counsel submitted an affirmation in support of the motion. In that document, he maintained that the prosecution had never provided him with any statement that law enforcement officials had obtained from J. Rodriguez. Therefore, he contended, Page 14 "exculpatory" information had been withheld from Bermudez resulting in an unfair trial.

  The remaining affidavit that accompanied Bermudez's CPL § 330.30 motion came from a flower vendor who was working on University Place at the time that Blount was shot. He recalled hearing a gunshot on August 4, 1991, and observing a crowd of approximately 25 people gather. After viewing three photographs of Bermudez that Gaynor displayed to him, the flower vendor determined that Bermudez was not among the crowd of people he had observed on August 4, 1991.

  After considering Bermudez's CPL § 330.30 motion, and the prosecution's opposition to it, the trial court denied the motion. Bermudez was subsequently sentenced to 23 years to life in prison.

  After the judgment of conviction had been entered, Bermudez made a motion in the trial court, pursuant to CPL § 440.10, that the judgment of conviction be vacated. However, the trial court found that the moving papers were imperfectly drawn and that the exhibits annexed thereto were not what they purported to be. As a result, it rejected the motion without prejudice to it being filed anew. Thereafter, a second CPL § 440.10 motion was filed.

  Bermudez's second CPL § 440.10 motion requested that the judgment of conviction entered against him be vacated because of: (a) newly discovered evidence; and (b) prosecutorial misconduct. The motion was accompanied by affidavits from, among others, Lopez, lyesi, Thompson, Kent and Velasquez, the five witnesses whose testimony formed the core of the prosecution's case against Bermudez at his trial. Messrs. Lopez, lyesi, Thompson and Kent swore through their affidavits that the identification testimony they gave during the trial was false and had been secured through threats and pressure that either Det. Massanova or the assigned Page 15 prosecutor brought to bear upon them. For example, in two affidavits, one dated September 22, 1992, and the other dated August 6, 1993, Lopez maintained that Det. Massanova advised him that Bermudez was a drug dealer and that if Lopez did not identify Bermudez's photograph as that of Blount's shooter, Lopez would be charged as the shooter. Lopez also explained, in contravention of the videotaped statement he made to Det. Massanova and the assigned prosecutor as well as his trial testimony, that "Wool Lou" is not Bermudez but is Luis Munoz ("Munoz") and, furthermore, Munoz shot Blount. However, in May 1992, four months before he signed his September 1992 affidavit, in a recorded telephone conversation with Gaynor, Lopez denied that the police had threatened or coerced him and he reaffirmed that Bermudez was "Wool Lou."

  Iyesi's affidavit is dated July 23, 1993. In the affidavit, lyesi recounted that he advised Det. Massanova that Blount's shooter was a man with a slim build like lyesi's. In addition, lyesi stated that he selected Bermudez when he viewed a lineup on August 6, 1991, because Bermudez had a fade-style haircut. lyesi recalled that he expressed to detectives and to the assigned prosecutor his doubt that Bermudez was Blount's shooter. However, the assigned prosecutor, according to lyesi's affidavit, pressured him into identifying Bermudez at the trial by threatening to send lyesi to jail if he refused to do so. lyesi also recalled that the prosecutor made references to lyesi's pending criminal case and to assistance that might be rendered to lyesi to dispose of that matter in order to "convince" lyesi to identify Bermudez at the trial.

  Iyesi claimed that he felt powerless, confused and afraid, due to the prosecutor's power and his temper, and, based on those reasons, he agreed to give identification testimony at Bermudez's trial. lyesi also noted, in his affidavit, that he had been shown 17 photos of Hispanic Page 16 males by counsel who was then assisting Bermudez with his CPL § 440.10 motion. From those photographs, lyesi selected Munoz's photograph and was told that Munoz was known by the nickname "Wool Lou." lyesi also selected a photograph of a person he observed on August 4, 1991, wearing a chain with a medallion. He was advised that the person depicted in that photograph was named Spencer Rivera and went by the nickname "Spenny."

  Thompson's affidavit also contained a description of the shooter. In that document, Thompson described the shooter as a person of approximately 5' 8" to 5' 9" in height, who weighed approximately 160 pounds, was skinny with hazel eyes and had a fade-style haircut. Thompson recalled seeing a photograph of Bermudez while at the CATCH Unit and stated that he selected Bermudez subsequently, when viewing the lineup, because of his recollection of the Bermudez photograph that he had seen at the CATCH Unit. In December 1991, prior to Bermudez's trial, Thompson recalled meeting with the assigned prosecutor at his office to prepare for the trial. At that time, Thompson remembers that he expressed to the prosecutor a reluctance to testify because he doubted his identification of Bermudez was accurate. Thompson explained that his doubt was based on the fact that it was dark and late when Blount was shot and, that during the lineup procedure, he had only seen Bermudez in a seated position; therefore, he could not observe his entire body. Thompson indicated that, when he told the prosecutor of his reluctance to testify, the prosecutor yelled at him and reminded Thompson of his own involvement with the criminal justice system. At that time, Thompson had a criminal charge pending against him. Thompson's recollection is that the prosecutor made it clear that he could help Thompson if Thompson would help him.

  Thompson's reluctance to testify at the trial persisted. As a result, the prosecutor Page 17 requested that the trial judge issue a material witness warrant for Thompson's arrest. The warrant was issued and executed; thereafter, Thompson was brought to the prosecutor's office by police officers. There, he and Kent met with the assigned prosecutor to prepare their trial testimony. Thompson maintains that, when he was called to testify at the trial, he was angry and unsure about what to do because, as he looked at Bermudez in the courtroom, he thought to himself that Bermudez was not the person who had shot Blount. Thompson claims that he said what the prosecutor told him to say at the trial. However, Thompson maintains that following the prosecutor's instructions was a mistake, since Bermudez was not the person who shot Blount.

  On December 19, 1991, the date on which the trial court held the pretrial suppression hearing, the criminal charge that was pending against Thompson was dismissed, because the assistant district attorney assigned to handle that matter determined that she lacked sufficient evidence to prosecute him. Bermudez's prosecutor maintains that the determination not to prosecute Thompson was not the result of any intervention on his part. Moreover, he points out that, inasmuch as the charge that was pending against Thompson was dismissed prior to Bermudez's trial, it could not have been used as leverage to extract any particular testimony from Thompson that was detrimental to Bermudez.

  Kent's affidavit corroborated Thompson's recollection of certain events; Kent was also arrested pursuant to a material witness order. Kent's affidavit indicated that in January 1992, after he was arrested pursuant to a material witness warrant and brought to the prosecutor's office, Bermudez's prosecutor used pressure to secure trial testimony from him and from Thompson. Kent claimed that, even though he expressed a reluctance to testify, because he could not say positively that Bermudez was at the scene of the shooting, the prosecutor employed Page 18 "some strong persuasion," under which Kent agreed to testify against Bermudez. Kent now says that testifying against Bermudez was a mistake.

  For her part, Velasquez explained, through her affidavit dated August 21, 1993, that she no longer believed that her testimony linking Bermudez to the shooting of Blount was accurate. She explained that she had been shown 21 color photographs of male Hispanics by counsel representing Bermudez in connection with his CPL § 440.10 motion. "Something clicked inside [her] when [she] saw these photographs." Velasquez stated in the affidavit that she was able to remember things about the shooting incident more clearly in August 1993 than when they first happened. While she believed previously that Bermudez was the person whom she observed at the scene of Blount's shooting, wearing a chain with medallion and reaching for a gun, she realized, by August 1993, that Bermudez was not that person. Velasquez claimed that when she identified Bermudez during the lineup on August 6, 1991, it was based upon a quick glance at him and her remembrance of the photograph of him that she had seen at the CATCH Unit. Furthermore, Velasquez recalled that when she testified at Bermudez's trial, she tried to avoid looking at him. She explained in her affidavit that she was frightened because she had been told that Bermudez was a "big drug dealer who could hurt [her]." Therefore, according to Velasquez, she wanted to do the right thing at the trial and she did "what [she] came prepared to do," that is, testify against Bermudez. However, she realizes that her identification testimony at Bermudez's trial was a mistake.

  Six months prior to executing her affidavit, Velasquez had contacted the prosecutor. Velasquez reported to him that she was receiving telephone calls from Bermudez's parents and his brother. She stated that they asked her repeatedly to sign a document in return for money. Page 19

  Moreover, Velasquez alleged that the person with whom she spoke on the telephone and who claimed to be the petitioner's brother, intimated that he could have harmed her already, had he wanted to do so.

  The prosecutor contacted Bermudez's trial counsel and asked him to appear before the trial judge with: petitioner's parents, his brother and counsel's investigator, Gaynor, so that the court might hear Velasquez's allegations and, thereafter, direct Bermudez's family members and the investigator to refrain from contacting Velasquez and the other trial witnesses. On the date the trial judge was scheduled to meet with the parties, Bermudez's trial counsel advised the court that, due to another commitment, he could not attend the conference. Neither petitioner's family members nor his attorney's investigator appeared at court for the conference.

  The affidavits prepared by lyesi, Thompson, Kent and Velasquez all contained descriptions of the identification procedure at the CATCH Unit that contrasted sharply with the description provided by Det. Lentini of an orderly, regulated and police-monitored process, lyesi, Thompson, Kent and Velasquez each recalled being together and viewing photographs with Hall, Darden and Boyce. They recalled discussing various photographs that were contained in the file cabinets at the CATCH Unit that were of persons whom they knew. They also recalled that when photographs of persons who appeared to have been among those in or about the Marc Ballroom were selected from the file cabinet drawers, the photographs were circulated and discussed openly, as the viewers remarked about whether the person depicted in a particular photograph was present on University Place at the time of the incident. Absent from the affidavits submitted by lyesi, Thompson, Kent and Velasquez is any clear indication concerning whether police personnel were with them throughout the time that they viewed photographs at Page 20 the CATCH Unit.

  Darden and Boyce, who also submitted affidavits in support of Bermudez's CPL § 440.10 motion, like the others who were transported to the CATCH Unit, described the atmosphere there very differently from the way Det. Lentini did. Darden and Boyce corroborated those statements in affidavits submitted by the others that described a communal review of photographs at the CATCH Unit, with police officers present in the vicinity of the viewers, but not monitoring closely the activities of those who were viewing the photographs. They also corroborated the statements made by the others that various photographs were discussed freely and openly, as they were removed from the file cabinet drawers at the CATCH Unit. Darden's affidavit indicated that at first, he, Hall and Boyce were examining photographs alone and that they were joined later by the other viewers. Darden noted that, when he discovered Lopez's photograph, Thompson and lyesi, who were looking over his shoulder, began shouting "that's him; that's him." However, Darden made no mention in his affidavit of the fact that Velasquez selected two photographs at the CATCH Unit.

  Boyce, who submitted two affidavits in support of Bermudez's CPL § 440.10 motion, also recounted a meeting he had with counsel to Bermudez. During that meeting, 21 photographs were shown to Boyce. Boyce selected the photograph of the person he claims shot Blount, although Boyce testified at Bermudez's trial that he did not see the shooter's face. The person whose photograph Boyce selected as being that of Blount's shooter was identified to him as "Wool Lou."

  Elizabeth Munoz, who identified herself as Munoz's sister, also submitted an affidavit in support of the motion. In that document, she acknowledged that her brother was known as Page 21 "Wool Lou." Furthermore, she stated that Lopez had lived in her grandmother's home along with her and her brother. Moreover, she indicated that in the Fall of 1991, her brother had relocated to another state.

  Bermudez also sought relief through his CPL § 440.10 motion based on violations of New York law that requires the prosecution to surrender to the defense statements made by the prosecution's witnesses prior to their testifying at a hearing or a trial. See People v. Rosario., 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961); CPL § 240.45. In the motion, the petitioner alleged that, prior to the pretrial suppression hearing, the defense was not provided with an unredacted copy of Lopez's videotaped statement, although Det. Massanova made statements on that videotape concerning identification procedures that were the subject of his testimony at the suppression hearing. Petitioner's motion also alleged that the prosecution had failed to meet its obligations under Brady v. Maryland, 378 U.S. 83, 83 S.Ct. 1194 (1963), to disclose to petitioner's trial counsel material exculpatory information within the prosecution's possession. Among the things petitioner relied upon, in connection with this branch of his CPL § 440.10 motion, were: the prosecution's failure to disclose a copy of Lopez's videotape without all references to the location where Lopez's grandmother resided, the vicinity that "Wool Lou" frequented, redacted; the prosecution's failure to provide him with a stenographic transcription of the audio portion of the Lopez videotaped statement; the prosecution's failure, prior to trial, to provide him with a copy of the photographic array containing the photograph of Rodriguez or the photographic array containing the photograph of J. Rodriguez; the prosecutor's failure to elicit testimony concerning Hasani Woodard's ("Woodard") participation in the pretrial identification Page 22 procedures and her failure to link Bermudez to the shooting incident that occurred on August 4, 1991.

  The trial court characterized the petitioner's CPL § 440.10 motion as a document raising "nearly innumerable arguments and innuendo in a scattershot effort to locate a valid attack on the guilty verdict." The trial court found petitioner's motion papers to be "a maelstrom of confusing arguments, often presented in stream of consciousness form." Without holding a hearing, the court determined that the recantations by the prosecution's trial witnesses "appeared to be thoroughly unreliable and obtained under dubious circumstances." The court found that the petitioner's remaining contentions were not supported by the record evidence or were matters about which no timely objections had been made. Therefore, the motion was denied. Bermudez then made a motion to reargue, which the trial court also denied.

  Bermudez was granted leave to appeal to the New York State Supreme Court, Appellate Division, First Department, from the judgment of conviction and the denial of his CPL § 440.10 motion. In the Appellate Division, Bermudez raised six grounds upon which he urged that court to upset his conviction: 1) the trial court erred when it denied, without a hearing, the CPL § 440.10 motion based upon newly discovered evidence consisting of the trial witnesses' recantations; 2) the identification of Bermudez was obtained through the use of impermissibly suggestive identification procedures; 3) the identification of Bermudez was obtained as a result of police and prosecutorial misconduct that violated Bermudez's rights to due process and to a fair trial; 4) the exclusion from the courtroom of two excused jurors violated Bermudez's right to a public trial; 5) the prosecution violated its obligations under Rosario and Brady by failing to provide Bermudez with: a) a copy of the Lopez videotaped statement, prior to the pretrial Page 23 suppression hearing, b) an unredacted copy of the Lopez videotaped statement or a copy of the transcript of the audio portion of that videotape prior to trial, and c) statements made by identification witnesses indicating their lack of certainty with respect to their identification of Bermudez.

  Bermudez also alleged that he was denied a fair trial because of improper statements the prosecutor made during his final argument to the jurors. Among other things, the prosecutor characterized Bermudez as a "spoiled brat" whose parents catered to his every need. The prosecutor told the jurors repeatedly that the witnesses who testified on Bermudez's behalf, in support of his alibi defense, lied. Their testimony, according to the prosecutor, was "cooked up," that is, fabricated and the product of manipulative conduct employed by Bermudez and members of his family. Moreover, the prosecutor described the work of Bermudez's trial counsel as an exercise in distraction through the use of "smoke and mirrors."

  The Appellate Division affirmed petitioner's conviction unanimously. It also found that Bermudez's request that the trial court vacate the judgment of conviction, on the grounds of newly discovered evidence and acts of police and prosecutorial misconduct, was properly denied inasmuch as "the motion was based entirely on the affidavits of recanting witnesses, which the [trial] court properly rejected, relying on the inherent unreliability of recantations . . . as well as the highly suspicious circumstances, viewed in context of events at the trial, under which these recantations occurred." People v. Bermudez, 243 A.D.2d 367, 667 N.Y.S.2d 901 (App. Div. 1st Dep't 1997). The court explained that the affidavits were unworthy of belief and, therefore, it determined to reject each of Bermudez's various claims which were supported by facts asserted in those affidavits. The Appellate Division also found that the remarks made by the prosecutor, Page 24 in his closing arguments to the jury, at which Bermudez took umbrage, were all proper. The court declared that all the remaining contentions raised by Bermudez had been considered and found to be lacking in merit.

  Thereafter, Bermudez applied for leave to appeal from the Appellate Division's determination to the New York Court of Appeals. Bermudez urged that court to grant his application because the lower state courts had erred in finding that due process did not require that a hearing be held before Bermudez's post-judgment motion, made pursuant to § CPL 440.10, could be decided. Bermudez also alleged that the identification procedures employed by law enforcement officials involved in his case were impermissibly suggestive and that the pretrial suppression hearing held by the trial court was compromised by false testimony given by Det. Lentini concerning events at the CATCH Unit. In addition, Bermudez requested that the New York Court of Appeals review his case because of prosecutorial misconduct consisting of withholding Brady and Rosario material and making improper statements to the jury during closing arguments. Bermudez also argued that the prosecutor had secured the testimony of some witnesses improperly.

  The New York Court of Appeals denied Bermudez's application for leave to appeal from the determination of the Appellate Division. See People v. Bermudez, 91 N.Y.2d 923, 670 N.Y.S.2d 405 (1998). That court also denied Bermudez's application that it reconsider its determination to deny him leave to appeal. See People v. Bermudez, 92 N.Y.2d 847, 677 N.Y.S.2d 78 (1998).

  Bermudez then returned to the trial court with a new CPL § 440.10 motion seeking to have his conviction vacated. He alleged that newly discovered evidence created a reasonable Page 25 probability that he would be acquitted if a second trial were held. He also revisited some of the claims of prosecutorial and police misconduct that had been cited in his earlier applications to the trial court for post-trial relief. Among other things, Bermudez alleged, as he had earlier, that the report prepared by Det. Massanova of the responses he received from witnesses to the shooting incident when the detective displayed photographic arrays to them contained erroneous information; therefore, according to Bermudez, the detective's testimony at the pretrial suppression hearing was not accurate. Bermudez also alleged that the integrity of the pretrial suppression hearing was further compromised by inaccurate testimony given by Det. Lentini. In this connection, Bermudez relied upon affidavits he received from Woodard and her mother. Woodard was an acquaintance of Velasquez and was with her at the time that Blount was shot. Woodard's affidavit explained that she was summoned to the sixth precinct and was taken from there, along with other witnesses to the shooting incident, to the Manhattan CATCH Unit where she reviewed photographs. Bermudez claimed that, to the extent Det. Lentini's pretrial suppression hearing testimony did not discuss Woodard's role at the CATCH Unit and, further, to the extent that Det. Massanova struck Woodard's name from his report and her comment that she could not identify anyone when looking at a photographic array, the prosecution had withheld exculpatory information from Bermudez and permitted Detectives Lentini and Massanova to give inaccurate testimony to the court during the pretrial suppression hearing. In addition, Bermudez alleged that Woodard's failure to recognize him, while she was reviewing photographs made available to her by law enforcement officials, supported his alibi defense and undermined Velasquez's testimony. Page 26

  Bermudez also noted that the prosecution had failed to disclose to him that Kent had a prior criminal history at the time he testified at Bermudez's trial. Furthermore, Bermudez also noted that the prosecution had failed to disclose that Lopez had been abusing drugs at the time that Blount was shot. Moreover, Bermudez alleged that individual descriptions of Blount's shooter had been obtained by law enforcement officers from witnesses who were at the scene of the shooting, but were never surrendered to him; all that he received was a composite description.

  In support of his motion, Bermudez included an affidavit from Wilfredo Maldonado ("Maldonado"). Lopez had testified at the trial that Maldonado had introduced him to "Wool Lou," a fact that Maldonado denied in his affidavit. Through his affidavit, Maldonado reported seeing several of his neighborhood acquaintances on August 3, 1991, gathering before traveling to the Marc Ballroom. Maldonado stated that, as the group assembled, beer was consumed and marijuana was smoked. Maldonado recalled that some of those assembled had firearms and were awaiting the arrival of "Wool Lou" before heading to the ballroom. Maldonado indicated that he did not travel with the group to the ballroom because he had just been married to Lopez's cousin and intended to spend the evening at home with her.

  Maldonado's affidavit indicated that on August 4, 1991, during the early morning hours, Lopez visited Maldonado's apartment. At that time, Maldonado observed that Lopez had been hit in the face. According to Maldonado, Lopez explained that he had been involved in an altercation at the Marc Ballroom and had asked some of his acquaintances to "get even." Lopez informed Maldonado that a shooting had occurred, but Lopez stated that he was unaware of whether anyone had been killed. In the affidavit, Maldonado declared that Bermudez was "innocent." Maldonado explained that he knew this because he had not seen Bermudez among Page 27 the people who were gathering in Maldonado's neighborhood on August 3, 1991, intending to travel to the Marc Ballroom. Moreover, according to Maldonado, Bermudez is not "Wool Lou."

  For his part, the prosecutor maintained that much of the "newly discovered evidence," that Bermudez relied upon in bringing this CPL § 440.10 motion, was not newly discovered information at all. For example, he pointed out that in Bermudez's first CPL § 440.10 motion, Woodard's failure to identify him was discussed. In addition, the errors noted in Det. Massanova's report, particularly as it pertained to the striking of the notation which made reference to Woodard, had also been raised in that earlier CPL § 440.10 motion. The prosecutor also found Lopez's affidavit to be a rehash of claims that had been previously made by him in an affidavit through which he recanted his trial testimony. Since the court had previously considered that information and rejected it, the prosecutor saw no reason why the information should be credited in connection with the instant CPL § 440.10 motion.

  The prosecutor also urged the court to find that the affidavit submitted by Maldonado should not be given much weight because Maldonado had not been present at the scene of the shooting. Therefore, among other things, Maldonado had no basis upon which to determine that Bermudez was innocent.

  With respect to Bermudez's claim that the prosecutor had failed to disclose that Kent had a prior criminal history at the time he testified at Bermudez's trial, the prosecutor explained that he was unaware that Kent's true surname was Marchany and, therefore, had not conducted a criminal history check using that surname. The criminal history check that he had conducted was based on the surname Kent and that search did not yield a positive result. Page 28

  The trial judge denied Bermudez's CPL § 440.10 motion. In doing so, the court noted that, although a few new arguments had been presented by Bermudez through the motion, most of the arguments had previously been presented to the court and rejected. However, after considering all of the arguments raised by Bermudez, the court found the motion to be baseless. Bermudez made an application for leave to appeal from the decision rendered on his CPL § 440.10 motion. That application was denied by a justice of the Appellate Division.

  Thereafter, Bermudez made an application for a writ of error coram nobis in the Appellate Division. The basis for the motion was Bermudez's contention that his appellate counsel had failed to render effective assistance to him by failing to urge that Bermudez's conviction be overturned because of ineffective assistance Bermudez received from his trial counsel. In particular, it was alleged that Bermudez's trial counsel had: 1) failed to conduct a proper cross-examination of prosecution witnesses; 2) failed to object when the prosecutor made improper comments in his closing argument to the jury; 3) failed to object to testimony from witnesses that indicated that Bermudez had been incarcerated at the time of his trial; 4) failed to request a comprehensive instruction from the court on the issue of identification and failed to highlight the dangers inherent in stranger identification testimony when he made his closing argument to the jury; 5) failed to request that the trial court instruct the jury concerning the Fifth Amendment privilege invoked by certain prosecution witnesses; 6) failed to object when the prosecutor placed his own credibility at issue during his closing argument to the jury; 7) failed to request that the pretrial suppression hearing be reopened when he learned, at the trial, of a previously undisclosed pretrial identification procedure; 8) failed to request that the trial court instruct the jury that Lopez was an accomplice at law, based upon actions he took just prior to Page 29 Blount's shooting; and 9) referred to Bermudez, while examining witnesses, in a manner that suggested that he credited certain aspects of the prosecution's case. Bermudez also alleged that his appellate counsel was ineffective for not raising, on direct appeal, claims that had not been preserved for appellate review because Bermudez's trial counsel had not registered an appropriate objection.

  While the application for a writ of error coram nobis was pending, Bermudez returned to the trial court and made another motion pursuant to CPL § 440.10. Through that motion, he asked the trial judge to vacate his conviction because his trial counsel had rendered ineffective assistance to him. In that regard, Bermudez presented to the trial court all of the deficiencies in his trial counsel's performance that had already been presented to the Appellate Division through his application for a writ of error coram nobis.

  Bermudez's application for a writ of error coram nobis was denied by the Appellate Division. His CPL § 440.10 motion alleging ineffective assistance of counsel was denied by the trial court and leave to appeal from that determination was denied by a justice of the Appellate Division. The instant application for a writ of habeas corpus followed.

  To address the application made by Bermudez for a writ of habeas corpus, the Court held a hearing in accordance with Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts. The determination to hold a hearing was motivated, in part, by petitioner's claim that he is innocent of the crime for which he was convicted and that his conviction rested upon witness perjury, as demonstrated through the post-trial recantations that have been made by the identification witnesses who testified for the prosecution at his trial. The Court was mindful that no hearing had ever been held in the state courts to explore the reliability Page 30 of the recantations. At the hearing held in connection with the instant application, Bermudez testified in his own behalf. Furthermore, Thompson, lyesi, Velasquez, Kent (Marchany), Darden, Boyce and Lopez were called as witnesses by the petitioner. In addition, Detectives Lentini and Massanova, the prosecutor at Bermudez's trial, the trial judge and Maldonado also testified.

  Thompson, who at the time he appeared before the Court was a 30-year-old married man with children, testified that he had received a degree from the John Jay College of Criminal Justice in Deviant Behavior and Social Control and was employed by Columbia University as Coordinating Manager for Pediatrics in the Pediatric Department. Thompson recounted the events that led to his being on University Place at the time that Blount was shot. He recalled a street scene in which "a whole bunch of guys [were] arguing and there was a whole bunch of commotion." He remembered a black jeep mounted the sidewalk as he and his friends walked toward a bodega. He testified that a heavy-set Hispanic man exited the jeep; then Lopez, whom he referred to as "Shorty," appeared and, in response to a question from the Hispanic male who had exited the jeep, pointed toward Blount. At that point, Thompson recalled that a man came out of a crowd and shot Blount. Thompson then fled the scene with his friends. However, before he could extricate himself from the scene, he was set upon and beaten.

  Later, police officers who responded to the scene seized him. However, Velasquez and Woodard explained to the officers that Thompson had been a victim and not the perpetrator of any crime. Thompson testified further that he, Kent, lyesi and Boyce were taken by police officers to view photographs at the Manhattan CATCH Unit. Thompson explained that he was very tired and wanted to go home but that the officers urged him and the others to examine the photographs because their friend had been killed. Thompson described a scene at the CATCH Page 31 Unit in which he and the others were "laughing and joking around" as they looked at the photographs. He recalled that he, Kent, lyesi, Velasquez, Woodard, Boyce and Darden viewed the photographs together. As they did so, Velasquez selected a photograph and remarked that the person depicted in that photograph was cute.

  Thompson stated that after viewing photographs at the Manhattan CATCH Unit, he was asked to view a lineup. Thompson seemed to suggest that he viewed the lineup immediately after leaving the CATCH Unit, but the lineup was conducted two days after Thompson left the CATCH Unit. Prior to viewing the lineup, Thompson recalled that a police officer showed him the photograph that Velasquez had selected of the person whom she claimed was cute. The officer asked Thompson whether the person depicted in the photograph was "the guy." Thompson responded negatively and informed the officer that the person depicted in the photograph was the person whom Velasquez had indicated earlier was cute. Thompson testified that the officer responded that Thompson should "pick him out, pick him out, pick him out." At that point, according to Thompson, the officer pointed to Hispanic men who were seated in the lineup and asked if he recognized any of them. Thompson recalls that he asked the officer whether the person who was depicted in the photograph was among those seated in the lineup. The officer asked Thompson to whom he was referring and Thompson responded that he was referring to the person in the lineup who was "number two." Thompson told the officer that "number two" was the person who was depicted in the photograph. Thompson was then asked by the officer whether "number two" was at the scene of the shooting and Thompson testified that he informed the officer that he had never seen "number two" before. Thompson stated that Page 32 he had not seen Bermudez at the Marc Ballroom and that Bermudez was not the person who shot Blount.

  Thompson also testified about encounters he had with the prosecutor assigned to handle Bermudez's case. Shortly after viewing the lineup, Thompson stated that he met with the prosecutor and was questioned by him about the events surrounding the shooting incident. Thompson testified that when he told the prosecutor what he had observed during that incident, he also told the prosecutor that he was not sure about his recollections. At that point, Thompson recalled that the prosecutor produced his "rap sheet" and told him that he was aware that Thompson had been "on the streets doing robberies" and that if Thompson were to help the prosecutor, the prosecutor would help Thompson.

  Thompson testified that he was reluctant to testify at Bermudez's trial because he was not certain that Bermudez had shot Blount. While he could not remember definitely, Thompson believed that on the same day that he testified at Bermudez's trial, he had met with the prosecutor. At that time, according to Thompson, the prosecutor advised him that among the first things he would be asked to do when he entered the courtroom to testify would be to "point out the defendant."

  Thompson acknowledged that at Bermudez's trial, he told the jury that he believed he had seen Bermudez both within and outside the Marc Ballroom. He also acknowledged testifying at the trial that Bermudez had produced a gun and had shot Blount. However, during the hearing held in connection with the instant application for a writ of habeas corpus, Thompson explained that his testimony identifying Bermudez as Blount's shooter was not correct. He explained that the testimony was "forced" and "coaxed." He explained, further, that he testified at the trial in an Page 33 attempt to shield his own involvement with the criminal justice system from his mother. Thompson stated that he did not wish to disappoint his mother by having her learn that he was committing crimes. Therefore, he "went along with what the DA and the police officers told me [] to do." Thompson also stated that, when he testified at Bermudez's trial, he was unaware whether the criminal charge that had been pending against him had been dismissed or whether it was still a pending charge. Thompson testified that, in identifying Bermudez as the shooter, he had "made an honest mistake" because he was "scared," "young," and "ignorant."

  Under cross-examination, Thompson's ability to recall events accurately was tested. For example, Thompson was asked about his appearance before the grand jury that returned an indictment against Bermudez and he did not remember testifying before that body. He recalled that the photographs at the CATCH Unit were in binders and not in file cabinet drawers. He testified that Blount was wearing a hat on the day he was shot but Thompson could not recall any of the other clothing that Blount was wearing nor could he recall whether Blount's hat had the single color brown — as others had testified — or whether it was multicolored. Furthermore, Thompson could not recall testifying at Bermudez's trial that Bermudez was the person he had observed at the scene of the shooting wearing a "Gucci" chain.

  Thompson was also asked whether he had ever advised the trial judge that he was being forced by the police and the prosecutor to identify Bermudez as Blount's shooter, to which he responded negatively. Thompson explained that he did not inform the trial court of the pressure that had been placed on him because he was scared.

  Iyesi, who was also 30 years old at the time of the habeas corpus hearing, testified that he is a graduate of the John Jay College of Criminal Justice. lyesi works at the North Side Center Page 34 for Child Development. He stated that he had recently changed his first name from Okpa to Paul.

  Iyesi recalled that, on the night Blount was shot, he was standing a few feet from him. Prior to the shooting, lyesi had seen Lopez, whom he also referred to as "Shorty," speaking with a person who was approximately 5' 8" or 5' 9" tall and who weighed between 150 and 160 pounds. lyesi was familiar with Lopez because he had seen him previously at various clubs and parties. lyesi testified that he watched as a person who had been speaking with Lopez crossed the street and shot Blount. lyesi testified, further, that later, while at the sixth precinct, he spoke with Det. Massanova and described Blount's shooter as being between 5' 8" and 5' 9" tall and weighing approximately 150 to 160 pounds. Like Thompson, lyesi recalled being transported from that precinct along with Velasquez, Woodard, Kent, Darden and Boyce to the Manhattan CATCH Unit, where they sat around a table together and looked at photographs. lyesi stated that the photographs were in a "index library-type regimen" and as he and his friends sat "flipping through the pictures" they were talking with each other about whether certain persons whose photographs they were finding had been present at the scene. According to lyesi, they were laughing and telling jokes.

  lyesi recalled that, initially, no police officers remained with him and the others as they examined the photographs. However, he remembered that the group had been instructed that a police officer should be summoned if anyone found a photograph of a person who was involved in the shooting incident. As the group was searching for photographs, lyesi testified that they were hungry and tired.

  Iyesi recalled that Darden was the first to select a photograph of a person who was involved in the shooting incident. The photograph that he selected was that of Lopez. lyesi Page 35 testified that the group of viewers were in agreement that Lopez had been present at the scene of the shooting, so Darden summoned a police officer. The police officer who joined them admonished them for speaking and advised them that they should cease talking as they continued to search for photographs. lyesi stated that the officer then left the room. However, because the group continued to talk and to discuss whether certain persons whose photographs were selected from among those they were reviewing had been present at the scene of the shooting, an officer entered the room where they were seated and remained there with them. That officer also directed lyesi and the others not to speak with each other. lyesi testified that Velasquez also selected a photograph while the group was together in the CATCH Unit. She selected a photograph of Bermudez. However, the record evidence shows that Velasquez selected two photographs, not one, as lyesi recalled.

  Later, when lyesi was asked to view a corporeal lineup, he testified that he selected Bermudez from among those who were in the lineup because Bermudez's hair was cut in a style similar to that of the shooter. Furthermore, Bermudez's eyes and his eyebrows resembled those of the shooter. lyesi stated that he had not seen Bermudez at the Marc Ballroom and had never seen him before viewing him in the lineup. This testimony contradicted directly trial testimony that lyesi had given. At the trial, lyesi testified that he had seen Bermudez many times at clubs in Manhattan and he testified extensively about Bermudez's facial features.

  At the habeas corpus hearing, lyesi testified that when he met the assigned prosecutor at the sixth precinct, the prosecutor told him that the shooter had been apprehended and, because lyesi had a prior criminal history, he should "do the right thing" because the prosecutor could "either make [him] or break [him]." Page 36

  When Iyesi saw Bermudez stand during his trial, lyesi stated that he knew that Bermudez was not the shooter because he was bigger than the shooter. However, notwithstanding his observation that Bermudez was bigger than the shooter, lyesi testified as he did at the trial because he recalled that the prosecutor had told him that evidence existed to prove that Bermudez shot Blount. lyesi explained: that was "pretty much it in a nutshell . . . I felt if you have the evidence then the evidence is going to convict him, and that's the end of it."

  Iyesi indicated that he did not tell the trial judge of his misgivings about Bermudez being the shooter because of his youth and because the prosecutor had given him to understand that evidence existed to prove Bermudez's guilt. On the strength of that representation, lyesi stated that he testified as he had at Bermudez's trial even though he did not believe Bermudez was the shooter.

  Iyesi also testified about encounters he had with attorneys and an investigator who were working on Bermudez's behalf, after the trial had been completed. He recalled meeting with one of Bermudez's attorneys in July 1993 and being shown a photographic album. From that album, lyesi selected the photograph of a person whom he believed to be Blount's shooter. The person depicted in the photograph selected by lyesi was later identified to him as Munoz.*fn3

  When Kent*fn4 was called to testify at the hearing, he, too, described the atmosphere at the CATCH Unit. He recalled being taken there by police officers along with Thompson, lyesi, Velasquez and others. Kent did not recall that any police officers were present while he and the Page 37 others looked at photographs. He testified that Velasquez selected a photograph of a person and announced to the other photograph viewers that he was cute. Kent, like lyesi, made no mention of the fact that Velasquez selected two photographs at the CATCH Unit. After viewing the photograph, Kent thought that the person depicted in that photograph looked like the man with his hand behind his back wearing a "Gucci" chain who approached him and others outside the Marc Ballroom. Kent stated that later, when he was asked to view a lineup, he selected Bermudez from among the participants in the lineup because of his facial hair. In his post-trial affidavit, Kent claimed that he selected Bermudez from the lineup because he was the only young Hispanic person in the lineup and because he had seen his photograph at the CATCH Unit. Kent maintained that, when he selected Bermudez, from among those in the lineup, he had never seen Bermudez before. This claim contradicted Kent's trial testimony in which he recalled seeing Bermudez on the street after exiting the ballroom and that he had seen him two weeks before that at another club.

  Kent indicated that he had been reluctant to testify at Bermudez's trial. He recalled that prior to testifying at the trial, he and Thompson had spoken with an investigator employed by Bermudez. Kent recalled, further, that the investigator attempted to plant the idea that he and Thompson had identified the wrong person as Blount's shooter. However, Kent felt that the investigator was not telling him the truth. Although Kent was reluctant to testify at the trial, during the habeas corpus hearing, he stated that the prosecutor told him that he had to testify. Kent recalled that the prosecutor told him that police officers would be sent to arrest him and to bring him to court to testify, an eventuality that came to pass.

  After the trial was completed, Kent was contacted by attorneys who were working on Page 38 Bermudez's half. They told him that he had "locked up the wrong guy" and "testified against the wrong guy." Kent stated that he discussed Bermudez's height and weight with the attorneys and was shown various photographs by them. Among the persons depicted in the photographs shown to Kent was a person that he felt looked more like the shooter than Bermudez because, according to Kent, the shooter was slim.

  Kent stated that when he testified at Bermudez's trial, he thought that his testimony "was correct." However, now he doubts that Bermudez shot Blount.

  At the habeas corpus hearing, Velasquez recounted events that occurred on University Place after she and the others had exited the Marc Ballroom. She recalled observing two men exit a Nissan Pathfinder vehicle. She testified that one had a cane and a gun. The other, whom she said looked like Bermudez, was approximately 5' 9" or 5' 10" tall, was "fit" and had light skin and eyes. That person, according to Velasquez, did not have a gun.

   Velasquez also testified about traveling from the sixth police precinct with Woodard, Thompson, lyesi, Darden and Boyce to the CATCH Unit. She did not indicate that Hall was also transported to the CATCH Unit. Once there, Velasquez stated that they were placed in a room and asked to view photographs to determine whether they could identify anyone who had been at the scene of Blount's shooting. Velasquez recalled that police officers went in and out of the viewing room. Moreover, she remembers three periods when no officers remained in the viewing room.

   Velasquez selected two photographs, while at the CATCH Unit, of men who looked alike. Velasquez did not testify that Darden had been the first to select a photograph. One photograph that Velasquez selected depicted Bermudez and the other, she learned later, was the Page 39 photograph of Rodriguez. Velasquez stated that she discussed the similarity in resemblance of the two men with the others who were viewing photographs and they agreed with her that the two men resembled each other. No other witness at the habeas corpus hearing mentioned this discussion. Velasquez testified that one of the persons depicted in the photographs was "cute" and had tried to speak with her while she was inside the Marc Ballroom. However, due to the similarity in the men's appearances, she could not determine which was the one whom she had seen inside the Marc Ballroom. Velasquez recalled that after she had selected Bermudez's photograph, police officers showed it to the others who had accompanied her to the CATCH Unit and asked them if the person depicted was "the guy." However, according to Velasquez, the officers did not show the photograph of Rodriguez to any of the others who were also examining photographs.

   Velasquez also testified about viewing the corporeal lineup. She stated that Det. Massanova told her prior to her viewing the lineup that "he's going to look different." Velasquez testified further that she understood this to mean that she should select whomever she saw that "looks a little bit like him . . . because he is not going to look the same." Velasquez explained that she had not witnessed the shooting and had made that known while she was at the sixth precinct. However, she selected Bermudez while viewing the lineup because the prosecutor and Det. Massanova's partner told her to pick whomever looked similar, presumably to the person who walked past her on the street with his hand behind his back. Therefore, she selected Bermudez, although she indicated that she had never seen him before, because his photograph resembled that of someone she had seen earlier at the Marc Ballroom.

   At the habeas corpus hearing, Velasquez stated that she had no doubt that Bermudez was Page 40 not present at the scene of the shooting. Furthermore, she recalled telling the prosecutor, prior to testifying at Bermudez's trial, that she did not think that Bermudez "is the guy" although Bermudez looked similar to him. However, according to Velasquez, the prosecutor told her that Bermudez was a drug dealer and that he and his family were "like gangsters" and that they could hurt her. He also told her that Bermudez would look different at the trial but "it's him . . . point him out to the judge." Velasquez testified that the prosecutor urged her to "just do what you got to do, go up there, do what you got to do." However, when Velasquez saw Bermudez at the trial, she realized, based upon his skin color, that she had made a mistake; Bermudez was not the person she had seen at or about the time Blount was shot. Velasquez contends that because of her youth, her ignorance of the court system, and her own prior brush with the law, she felt pressured and compelled to testify that Bermudez was involved in Blount's shooting although she realized, at the time of his trial, that he had not been.

   Velasquez also testified about harassing telephone calls she received from Gaynor, the investigator employed by Bermudez. However, it was not altogether clear that Velasquez realized that Gaynor was working on Bermudez's behalf and was not employed by the prosecutor. Velasquez stated that, some time after the trial had been concluded, she informed the prosecutor that she was receiving unwelcome telephone calls from Gaynor. Thereafter, the prosecutor had her travel to court for a meeting with the trial judge. However, Velasquez recalled that when the prosecutor took her to the courtroom to see the judge, he instructed her not to speak with the judge.

   Velasquez also recalled that in 1993, she met with an attorney who was assisting Bermudez because the prosecutor was attempting to have her execute a document indicating that Page 41 the shooter was 6 feet tall and not 5'10".

   Velasquez denied receiving any telephone calls from members of Bermudez's family. However, Velasquez's testimony at the habeas corpus hearing, concerning post-trial contacts she had with Bermudez's family, was inconsistent with a statement she made in a March 1993 affidavit she gave to Bermudez's counsel. In that document, Velasquez indicated, among other things, that she had been contacted about her trial testimony by Harry Bermudez, the petitioner's brother. At that time, Velasquez claimed that Harry Bermudez had indicated to her that he had no intention of harming her, for if he had wanted to do so, he would have done so already.

   When Darden testified at the habeas corpus hearing, he corroborated the testimony given by Kent, Thompson, lyesi and Velasquez that, while at the CATCH Unit, they were free to talk among themselves as they viewed the photographs communally. Darden recalled that police officers walked in and out of the viewing room as he and the others examined the photographs. Darden recalled that when he selected Lopez's photograph, he was taken out of the viewing room by a police officer. This testimony was consistent with Det. Lentini's testimony. While Darden did not see the face of the person who shot Blount, he stated that, by using his "peripheral vision," he saw the shooter's chest area and was able to observe the clothing the shooter was wearing. Darden recalled that the shooter was approximately 5' 7" tall, 150 pounds in weight and had a thin build. Darden stated that he told the prosecutor that the shooter was either 5' 8" or 5' 9" tall and weighed approximately 150 to 170 pounds.

   Boyce, who described Blount as his best friend, described the chaotic scene outside the Marc Ballroom as he, Blount, Hall, Darden, Thompson, Velasquez, Kent and lyesi traveled along University Place just prior to Blount's shooting. Boyce testified that "a mob of people" Page 42 approached him and the others. He recalled that a man who had his hand behind his back said to Blount "you knocked out Shorty" and, shortly thereafter, the same man shot Blount and fled. Boyce testified that he went to the hospital where Blount had been taken and from there he was transported by police officers to a police precinct where he was told to write a statement. He also testified about being at the CATCH Unit with Hall, Darden, Velasquez, lyesi, Kent and Thompson. However, Boyce's testimony concerning his recollection of events at the CATCH Unit differed from that of the other CATCH Unit photograph viewers who testified at the habeas corpus hearing, and, to some extent, differed from what he recorded in a 1993 affidavit. In the affidavit, Boyce stated that he, Hall and Darden examined photographs simultaneously at the CATCH Unit and were joined later by Velasquez, Kent and Thompson. At the habeas corpus hearing, Boyce did not identify a period when he, Hall and Darden examined photographs at the CATCH Unit independent of the other four viewers. He stated that the seven persons who were transported to the CATCH Unit by the police examined the photographs together. In addition, while Boyce recalled that he and the others talked as they examined the photographs, he also recalled, unlike the others, that police officers remained in the viewing room continuously. Boyce also recalled that later, when he viewed a lineup, each of the lineup fillers stepped forward to a window, one at a time, so that he was able to determine the lineup participants' heights. This testimony contradicted the testimony given by others who viewed the lineup; they recalled that the lineup participants remained seated. Boyce's testimony also contradicted testimony given by Det. Massanova, who stated that all of the lineup participants were seated in order to minimize any difference in their heights.

   Boyce also testified that when he viewed the lineup, police officers asked him repeatedly Page 43 about one of the lineup participants and demanded to know if that person was the shooter. Boyce stated that he told the officers that the person on whom they were concentrating was not the shooter.

   Lopez testified at the habeas corpus hearing; he was incarcerated at that time. He reaffirmed the position he had previously set forth in affidavits: that Bermudez did not shoot Blount and that Bermudez is not "Wool Lou." Lopez recalled being held at the sixth precinct so long that he saw the sun come up twice. While being held in the precinct, Lopez stated that the only food he received was a sandwich that the officers allowed his sister to bring to the precinct. Lopez recalled that he was not permitted to have any contact with his family or anyone else while he was detained at the sixth precinct. Lopez testified that Det. Massanova placed three photographs before him and "he kind of like directed me to pick the middle picture." The person depicted in the middle photograph was Bermudez. According to Lopez, he attempted to explain to the detectives exactly what happened on August 3, 1991, during the late evening hours and into August 4, 1991, during the early morning hours, but "they did not want to hear that." Lopez recalls that Det. Massanova threatened to charge him either with murder or with being an accessory to that crime. Lopez recalled that the detective "just kind of like dictated everything" so Lopez "fabricated the story to make it fit the way they wanted to make it seem and that's how it went." However, as noted earlier, just months after the trial had concluded, Lopez told Bermudez's investigator that he had not been subjected to police coercion.

   Lopez denied that he was shown a photographic array containing six photographs including that of Bermudez. Rather, as noted above, he recalled being shown three photographs and being urged to select Bermudez's photograph from among the three. Lopez claimed that, Page 44 while his videotaped statement was being recorded, the photographs shown to him during that event were different from the photographs he had examined previously and from which he had previously selected Bermudez's photograph. However, on the videotape Lopez acknowledged that he had seen the photographic array before. Moreover, he exclaimed that it was number two before the array was shown to him. Lopez never testified that the three photographs that he was shown were numbered. Lopez indicated that, during the recording of his videotaped statement, he was concerned that he might be charged with a crime. He recalled that the prosecutor threatened to ensure that bail in the amount of $200,000 would be fixed as a requirement for Lopez's release.

   At the hearing, Lopez testified that after his altercation with Blount, a group of Hispanic males approached him and asked him what had happened to him. "So I started talking to them. So I guess we were going to go beat them up. And that's what led to what happen." At the trial, Lopez testified that after his altercation with Blount, he sat alone and did not speak with anyone. However, in the videotaped statement he gave to the prosecutor and Det. Massanova, Lopez recounts how he spoke with "Wool Lou" and two girls he knew from his neighborhood and at that point "Wool Lou" asked him what happened to him.

   Moreover, at the hearing, Lopez stated that prior to the shooting he identified Blount to an unidentified man whose skin tone was slightly darker than Lopez's, who was approximately 5' 5" or 5' 6" tall, with straight hair and a thin build. Thereafter, he recalled that a commotion began and a shot rang out. However, in a 1996 affidavit he prepared, Lopez stated that he identified Blount to his friend "Luis" and that he did not know that "Luis" had a gun and would shoot Blount. Page 45

   Lopez described "Wool Lou" as being between 5' 7" and 5' 8" tall and, at the time when Blount was shot, weighing approximately 140 pounds. He stated that "Wool Lou", had a complexion similar to his own and had straight hair. Lopez's description of "Wool Lou's" height and weight differed from the description he gave of the shooter in his first written statement while in police custody. In that written statement, Lopez claimed that he had witnessed the shooting and described the shooter as 6 feet tall, 180 pounds, wearing a white shirt with black designs, beige shorts and a big gold chain with a medallion. In the second written statement Lopez provided to the police, in August 1991, he gave the same description of the shooting event and the shooter. However, he added that he knew the shooter by the name "Wool Lou."

   Lopez maintained that when he testified at Bermudez's trial, and identified him as the shooter, his testimony was false. He explained that he believed that he had to identify Bermudez as the shooter because it was too late to go backwards and change his testimony because he had committed to a story for the police and the prosecutor. Lopez acknowledged that when he consulted with an attorney concerning his written agreement with the prosecution concerning his testimony at the Bermudez trial, he never told the attorney that Bermudez was not the shooter. Lopez explained that his conscience is bothering him now because he testified falsely at Bermudez's trial and that is why he has recanted his trial testimony.

   Maldonado appeared on behalf of the petitioner at the habeas corpus hearing. At that time, he was incarcerated. He stated that prior to becoming incarcerated, he was employed as a stage hand. Maldonado acknowledged that Lopez was his wife's cousin. He stated that in 1991, he and his wife resided on Amsterdam Avenue, between West 88th and West 89th Streets. Maldonado recalled that on August 3, 1991, he saw Lopez and Munoz, whose nickname Page 46 Maldonado knew to be "Wool Lou," at approximately mid-afternoon. At that time, Maldonado recalled that Munoz and Lopez were together with others at a school yard located at Columbus Avenue and West 91st Street. According to Maldonado, the group was discussing plans to attend a party at the Marc Ballroom. Although Maldonado indicated that he was invited to join the group, he declined to do so because it was his wedding day and because he sensed there might be trouble at the Marc Ballroom.

   Early the next morning, between 4:00 a.m. and 5:00 a.m., Lopez appeared at Maldonado's apartment. Maldonado observed that Lopez was bruised about his face and concluded that Lopez had been in a fight. Lopez indicated to Maldonado that he needed a place to stay because there was a problem. Lopez did not elaborate concerning what the problem was. Maldonado testified that he did not know a person named Fernando Bermudez. However, he came to know the name from his grandfather, who lives in the Inwood section of Manhattan near where Bermudez's family resides. One day while his grandfather was dining, he overheard a discussion about Bermudez's case. He also overheard his grandson's name being mentioned. Maldonado stated that his grandfather approached the people who had mentioned his grandson's name and learned how his grandson was involved in Bermudez's case. Thereafter, Maldonado was contacted by Bermudez's counsel. In 1996, Maldonado executed an affidavit for Bermudez's counsel. In that document, he recalled seeing the group gathering to travel to the Marc Ballroom on August 3, 1991, between the hours of 8:00 p.m. and 9:00 p.m. This contradicted his hearing testimony. Furthermore, Maldonado noted in his affidavit that when he left the group, they were still waiting for others to join them. However, Maldonado indicated in his affidavit that he knew that Bermudez did not join the group. Page 47

   Bermudez's trial counsel was also called as a witness at the habeas corpus hearing. Counsel indicated that at the time of the pretrial suppression hearing, he was not aware that the Lopez videotape existed, even though he had made a demand through an omnibus pretrial motion for all Rosario material. He testified, further, that he was unaware that the videotape contained an identification component in which Lopez viewed a photographic array that contained Bermudez's photograph. Bermudez's trial counsel recalled that he received the videotape either just prior to or immediately after jury selection for Bermudez's trial had been completed. Moreover, he stated that he was never given a transcript of the audio portion of the videotape. The videotape that trial counsel received contained redactions. All references to Lopez's address and that of his grandmother were removed from the videotape. Therefore, counsel claimed that neither he nor his investigator learned of these addresses until Lopez testified at the trial.

   Bermudez's trial counsel testified that, during the trial, when lyesi stated that he had examined photographs at the CATCH Unit in the company of Darden, Boyce and Hall, contradicting the testimony Det. Lentini gave at the suppression hearing — that Darden, Boyce and Hall had been removed from the CATCH Unit viewing room before lyesi had been brought into that room — he did not make a motion that the pretrial suppression hearing be reopened. He testified, further, he did not make such an application when he heard Lopez testify at the trial that he had been asked to identify Bermudez while the videotaped statement he provided to Det. Massanova and the prosecutor was being recorded. Bermudez's trial counsel indicated that he could not recall why he did not make those applications to the trial judge. However, he explained that he did not have "the exact testimony in front of him" for use at the trial and, therefore, he was unable to "at that time . . . really compare what was said at the trial and Page 48 what had been said at the pretrial suppression hearing." He explained further that, although he had been retained to represent Bermudez, Berinudez's family had run out of money to fund the defense and the trial judge had denied counsel's request that Bermudez be provided daily a copy of the proceeding transcripts at state expense.

   Bermudez's trial counsel also testified that he did not make use of a police fingerprint report that had been provided to him to challenge the trial testimony of a police crime scene investigator who claimed that no search for fingerprints had been conducted and that such a search was unnecessary. That report indicated that latent fingerprints that had been recovered from the scene of the crime by law enforcement officials had been compared to Bermudez's fingerprints with negative results.

   Bermudez's trial counsel acknowledged, through his habeas corpus hearing testimony, that although the defense theory of the case was that Bermudez had not been in and about the Marc Ballroom during the late evening hours on August 3, 1991, or the early morning hours of August 4, 1991, the questions he put to some of the trial witnesses either placed Bermudez at the scene or implied that Bermudez had in fact been present at that location. No strategic explanation was offered by trial counsel for examining trial witnesses in this manner.

   Bermudez's trial counsel was also questioned about his failure to object to certain statements made by the prosecutor in his closing argument to the jury. Successor counsel to Bermudez alleged that the prosecutor's comments were improper. Trial counsel explained that it was his wont and a strategic decision not to object during prosecution summations because it tended to cause a greater degree of attention to be focused on the improper remarks than might otherwise be the case. However, he stated that he regrets not having objected to the prosecutor's Page 49 summation in the instant case because the prosecutor's summation "went a little bit beyond the bounds."

   In addition to the witnesses who were called by Bermudez to testify at the habeas corpus hearing, the respondent also elicited testimony from witnesses in order to demonstrate that Bermudez's application for a writ of habeas corpus should be denied.

   Det. Lentini was one of the witnesses the respondent called to testify in opposition to Bermudez's request for a writ of habeas corpus. He stated that he and Detective Billy FitzPatrick escorted Boyce, Hall and Darden to the CATCH Unit, which is located in the 20th precinct on West 81st or West 82nd Street and Columbus Avenue, in Manhattan. He recalled that officers from the Manhattan South Homicide Unit transported four other witnesses to the CATCH Unit. Det. Lentini stated that he was told that the persons he transported were looking for a "mutt and jeff team of Hispanics. The taller of the two was 16 to 26 years of age, 5' 11" and approximately 165 pounds.

   As he had during the suppression hearing, Det. Lentini maintained that the persons transported to the CATCH Unit to look at photographs were divided into two groups. The first group, consisting of three persons, was seated separately "as best as we could" at one table, two on one side and one on the other. He testified consistently with the testimony that he gave during the pretrial suppression hearing that the witnesses were told not to talk to each other and to summon him by raising a hand if any one of them found a photograph of someone whom he recognized. It was explained to the witnesses that, at that point, the viewer would be removed from the presence of the others and would talk with Det. Lentini privately. Page 50

   While the first group of viewers was examining photographs at the CATCH Unit, Det. Lentini testified that he believed the remaining four witnesses were kept in the precinct's detective squad room. Det. Lentini testified further that Det. FitzPatrick remained at the administrative desk in the viewing room throughout the period that photographs were being examined by the viewers. However, Det. Lentini conceded that he did not know what the viewers' behavior was while he was out of the viewing room.

   Det. Lentini recalled that Darden selected Lopez's photograph and was removed from the viewing room so that he and the detective might speak. Thereafter, the four other witnesses, who had been brought from the sixth precinct to the CATCH Unit, were taken into the viewing room. Det. Lentini stated that they were given the same ground rules for examining photographs as had been given to the three witnesses who preceded them into the viewing room.

   Det. Lentini recounted how Velasquez selected a photograph, which he later learned was that of Rodriguez. The detective testified, as he had previously, that Velasquez indicated that the person depicted in the photograph "was there." Later, when she selected another photograph and he removed her from the room so that he might speak with her about it, Det. Lentini testified that Velasquez told him that she was "sure" that the person depicted in the photograph was the shooter. Furthermore, he recalled that Velasquez asked him, in sum and substance, "who's this cutie" as she referred to the photograph. Det. Lentini stated that Velasquez did not show the photograph to anyone else who had been transported from the sixth precinct to examine photographs at the CATCH Unit.

   Det. Lentini was asked about the seating arrangements in the CATCH Unit. He testified that there was one table located in the viewing room and that Darden, Hall and Boyce were Page 51 seated around that table. The detective's testimony on that point was consistent with the testimony that he had given during the pretriar suppression hearing. However, in an affirmation submitted in response to one of Bermudez's CPL § 440.10 motions, the trial prosecutor stated that, at the pretrial suppression hearing, Det. Lentini had testified that there were two tables in the CATCH Unit viewing room, and that Darden was seated at one table while Hall and Boyce were seated at the other.

   Det. Massanova also testified in support of the respondent's opposition to Bermudez's application for a writ of habeas corpus. He recalled that when he started his tour of duty in the sixth precinct, on August 4, 1991, he learned that a homicide had occurred and that the police patrol sergeant had received a description of the perpetrator from witnesses "known to the department." The description obtained by the sergeant was of a male Hispanic, 5' 9" tall and approximately 20 years of age. Det. Massanova stated that he was not aware that a police department form DD5, completed with respect to Darden, listed the same height for the perpetrator, but listed the shooter's weight as approximately 150 pounds.

   Det. Massanova also recalled that later that day, he spoke with Velasquez, who gave him a description of Blount's shooter. According to Det. Massanova, Velasquez described the shooter as 6 feet tall, 185 pounds and approximately 20 to 21 years of age. She stated that the shooter had been wearing a white t-shirt with black letters, light blue or beige shorts and had a Caesar style haircut. She recalled that the shooter's hair was black and curly and, according to Velasquez, he had a slight mustache and was cute. Det. Massanova recorded this description in his memo book and communicated that description to other members of the Sixth Precinct Detective Squad. Det. Massanova testified that after Velasquez selected Bermudez's photograph Page 52 at the CATCH Unit, he obtained Bermudez's name and his "rap sheet" from police headquarters.

   On August 5, 1991, Det. Massanova located Lopez in a school yard on West 92nd Street, and took him to the sixth precinct. He advised Lopez of his Miranda rights and interrogated Lopez for approximately 5 to 6 hours of the 24 hours that he stated Lopez spent at the precinct prior to giving a videotaped statement to the detective and the assigned prosecutor. Det. Massanova's records indicated that Lopez had arrived at the sixth precinct at approximately 8:00 p.m. Approximately two hours later, at 10:15 p.m., Lopez made the first of three written statements that he would give to the police. Det. Massanova recalled that he prepared the statements, based upon his conversations with Lopez, and then Lopez signed them. In one of the written statements, Lopez indicated that he remembered talking with the shooter before he heard a shot fired.

   Lopez, like Velasquez provided Det. Massanova with a description of the shooter. According to the detective, Lopez described the shooter as a light-skinned Hispanic male, approximately 21 years old, 6 feet tall and 180 pounds. Lopez also stated that the shooter had black hair which he wore in a "faded" hairstyle that was flat on top. Lopez described the clothing the shooter was wearing. He stated that the shooter was wearing beige or cream colored shorts and a white shirt with black designs on it. Moreover, the shooter wore a big gold chain with a large round gold plate on it.

   When asked whether Lopez was free to leave the precinct after he was brought there, Det. Massanova indicated that, although Lopez was being held in connection with a homicide investigation, he never asked to leave the precinct. Therefore, the issue of whether he would have been permitted to leave never arose. Det. Massanova testified that while Lopez was at the Page 53 police precinct he was allowed to sleep in the detective's office.

   Det. Massanova's notes revealed that on August 5, 1991, at approximately 11:00 p.m., Lopez viewed a photographic array. The photographic array contained Bermudez's photograph. That photograph was assigned the number two. Lopez identified the number two photograph in that photographic array as depicting the shooter. Lopez stated that shooter was known to him by the name "Wool Lou." Det. Massanova indicated that Lopez also stated that "Wool Lou" frequented the vicinity behind the building where Lopez's grandmother lived. When Lopez was asked whether he was familiar with the nickname "Most," he responded negatively. Det. Massanova explained that he asked Lopez that question because shortly after Bermudez was brought to the sixth precinct, at approximately 3:00 a.m., on August 6, 1991, he learned that Bermudez's nickname was "Most."

   During the habeas corpus hearing, Det. Massanova denied showing Lopez any photographs of Bermudez apart from the photographic array discussed above. He also denied forcing or inducing Lopez to select Bermudez's photograph from the photographic array. Det. Massanova was asked whether he made or caused any investigation to be made in the neighborhood that Lopez stated "Wool Lou" frequented, and Det. Massanova responded that neither he nor the assigned prosecutor had made or caused such an investigation to be undertaken.

   In or around March 1992, after Bermudez had been convicted, Det. Massanova spoke with Gaynor, the investigator whom Bermudez's trial counsel had employed. Gaynor gave Det. Massanova "Wool Lou's" true name, his address and his telephone number. Det. Massanova indicated to Gaynor that he would follow up on the information, but before doing so, he would Page 54 have to consult with the prosecutor who had been assigned to handle Bermudez's trial. Det. Massanova also revealed to Gaynor that, in his view, Lopez should have been charged with an offense, based upon his involvement in the events that led to Blount's shooting. However, Det. Massanova told Gaynor that after he discussed this matter with the assigned prosecutor, the prosecutor determined that no charges should be lodged against Lopez.

   The assistant district attorney who prosecuted Bermudez testified that at 7:00 a.m., on August 6, 1991, he was notified of the Blount homicide. He arrived at the sixth police precinct at 10:30 a.m. and was told that a lineup was going to be conducted. Following the lineup, the prosecutor spoke with the witnesses who had viewed the lineup, some of whom had failed to recognize anyone in the lineup. The prosecutor explained that, after speaking to the witnesses, he determined to give grand jury subpoenas to Velasquez and Thompson because Velasquez had seen the shooter inside the Marc Ballroom and had also seen him reach behind his back for a gun while they were in the street. It was his impression that, among the identifying witnesses, Velasquez appeared to be the most intelligent. He explained, further, that he gave Thompson a grand jury subpoena because he had actually seen the perpetrator shoot Blount.

   The prosecutor recalled participating with Det. Massanova in a videotaped interview of Lopez. At that time, the prosecutor was aware that Lopez had a criminal history but he did not know whether any of the other witnesses who were at the sixth precinct also had criminal histories. In addition, the prosecutor testified that information had come to him that Lopez had been overheard discussing the prospect of getting someone to "take care of the person who had punched Lopez inside the Marc Ballroom. The prosecutor was uncertain whether this information had come from any of the seven witnesses who had been brought to the sixth Page 55 precinct to aid the police in identifying Blount's shooter. In any event, the prosecutor explained that he had decided not to charge Lopez with any crime because he had no evidence that Lopez had the requisite intent to kill Blount. He explained further that Lopez had said that he thought "Wool Lou" was just going to punch Blount and beat him up. The prosecutor also testified that he did not recall that any disagreement with Det. Massanova had arisen over his decision not to charge Lopez with a crime.

   When asked if he had ever directed anyone to search for a person named "Wool Lou" in connection with the investigation into the Blount homicide, the prosecutor indicated that he had not.

   The prosecutor also discussed the events that occurred immediately following lyesi's testimony at Bermudez's trial. He recalled that after lyesi had identified Bermudez during the trial, lyesi was approached by several people outside the courtroom who then spoke with him. The prosecutor asked lyesi if he knew the people with whom he had been speaking and lyesi responded that one of them had identified himself as Bermudez's brother. That person told lyesi that he had identified the wrong person. The prosecutor recalled that lyesi expressed concern and indicated that he felt intimidated by the encounter with Bermudez's brother. The prosecutor testified, further, that in conversations with Thompson and Kent, they revealed that lyesi had discussed with them being approached by Bermudez's family after he testified. Thompson and Kent also told the prosecutor that Bermudez's investigator had spoken with them and advised each that the wrong man was being prosecuted. This, coupled with his knowledge of lyesi's encounter with Bermudez's brother immediately after lyesi identified Bermudez at the trial, prompted the prosecutor to request that the trial judge execute material witness arrest warrants Page 56 for Thompson and Kent because they had expressed to him a reluctance to testify at the trial. However, the prosecutor conceded that he never asked either Thompson or Kent whether his reluctance to testify was because of some uncertainty about his prior identification of Bermudez as the perpetrator of Blount's shooting.

   The prosecutor indicated that when the material witness arrest warrant was executed against Thompson, an imitation gun was recovered from Thompson's room by the police officers who arrested him. The prosecutor stated that he never told Thompson that Thompson would be charged with an offense arising out of his possession of that imitation gun.

   The prosecutor also testified that additional information came to him that persons associated with Bermudez were engaging in conduct that he believed to be inappropriate. For example, prior to Bermudez's sentencing in September 1992, the prosecutor was contacted by Blount's mother who told him that an investigator associated with Bermudez had tried to visit her. She reported to the prosecutor that she was fearful. The prosecutor also testified that in January 1993, Velasquez contacted him via telephone to report that she had received a telephone call from a person who identified himself as Bermudez's brother. That person, according to the prosecutor's recollection of his conversation with Velasquez, offered her money to sign something and, as noted earlier in this writing, told Velasquez that if he had wanted to he could have "gotten" her already.

   The prosecutor's recollection, that Velasquez had contacted him in January 1993, was inconsistent with an affirmation he had submitted in opposition to a CPL § 440.10 motion that Bermudez had made. That affirmation, dated September 1994, indicated that Velasquez contacted the prosecutor in February 1993. In any event, as noted above, the prosecutor Page 57 contacted Bermudez's trial counsel after hearing from Velasquez and attempted to have a conference with the trial judge so that the court might instruct Bermudez's investigator and his family members to refrain from contacting witnesses who had testified for the prosecution at Bermudez's trial.

   In the Spring of 1993, the prosecutor learned that Bermudez had secured new counsel. The prosecutor recalled that he spoke with Bermudez's counsel and advised her that neither Velasquez nor any of the other witnesses who had testified on behalf of the prosecution wanted to be contacted by Bermudez's family. Later, during the summer, counsel to Bermudez informed the prosecutor that she had secured affidavits from the identification witnesses who testified at Bermudez's trial. She indicated that the witnesses had recanted their identification testimony. The prosecutor stated that Bermudez's counsel asked him to vacate Bermudez's conviction. After the prosecutor received the recanting affidavits from Bermudez's counsel, he testified that he "reached out" to Velasquez. However, Velasquez told him that she needed to speak with someone before speaking with him. Later, the prosecutor received a telephone call from Bermudez's counsel, a follow-up voice-mail message from her and a letter from a different attorney who indicated that he represented Velasquez. The prosecutor made no attempt to contact the attorney who claimed to represent Velasquez and he never heard from Velasquez again. The prosecutor acknowledged that he had never received any communication from any of the other identification trial witnesses, who had prepared recantation affidavits for Bermudez's counsel, indicating that anyone had forced or coerced the affiants into executing those affidavits.

   The trial judge testified at the habeas corpus hearing. He recounted the events that prompted him to direct the prosecutor, Velasquez, Bermudez's counsel and members of Page 58 Bermudez's family to appear before the court, post-trial, after he had learned that Velasquez was receiving unwelcome communications from persons associated with Bermudez. He recalled that when Velasquez came to court with the prosecutor, Velasquez's demeanor confirmed for the judge that she was very upset at having been contacted by the petitioner's family and associates and did not want to be contacted by them in the future. The trial judge reported, as has been noted earlier in this writing, that Bermudez's counsel contacted the court and advised that, because he was occupied with another case, he could not appear in court, and none of Bermudez's family members or his investigator attended the court session.

   The trial judge also testified that Bermudez's trial stood out in his mind because of the repeated interruptions in the trial occasioned by outbursts from Bermudez's family. In particular, the judge recalled that, when the verdict was returned, Bermudez's family stood and began to scream at the jury; as a result, they had to be removed from the courtroom. In addition, the judge stated that one day, during the trial, after he exited the courthouse, Bermudez's family intercepted him. It appeared to the judge that they had been waiting for him. He recalled that Bermudez's family wanted to discuss the case with him, but he refused to do so.

   III. DISCUSSION

   Where a habeas corpus petitioner's federal claim has been reviewed on the merits by a state court, 28 U.S.C. § 2254(d) provides that the petitioner's application for a writ of habeas corpus must be denied unless 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; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The Supreme Court has advised that the Page 59 phrase "clearly established Federal law" means "the holding, as opposed to the dicta, of that court's decision as of the time of the relevant state-court decision." Williams v. Taylor. 529 U.S. 362, 412, 120 S.Ct. 1495, 1523 (2000).

   A state court decision on a federal claim is "contrary to" clearly established federal law as determined by the Supreme Court when "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 the case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, 120 S.Ct. at 1523. A state court decision is an "unreasonable application of clearly established Supreme Court law when a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principal to the facts of [a] prisoner's case." Id. With respect to 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." Williams. 529 U.S. at 411, 120 S.Ct. at 1522. In this circuit, "[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." Francis S. v. Stone. 221 F.3d 100, 111 (2d Cir. 2000)(internal quotation marks omitted).

   In Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001), the court noted that with respect to the deference that is to be accorded a state court's adjudication of a claim on the merits, "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." Id. at 312. When a state Page 60 court does this, a federal court entertaining an application for habeas corpus relief must defer to the state court's decision on the federal claim in the manner set forth at 28 U.S.C. § 2254(d)(1), regardless of whether the state court explicitly refers to either the federal claim or to relevant federal case law. See id. at 312.

  Pretrial Identification Procedures

   Identification testimony should not be admitted at a trial when the identification procedure employed to produce the identification is "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." United States v. Bautista, 23 F.3d 726, 729 (2d Cir. 1994)(quoting Stovall v. Denno. 388 U.S. 293, 302, 87 S.Ct. 1967, 1972 [1967]).

   Pretrial identification testimony should be excluded from a trial "only if it was both produced through an unnecessarily suggestive procedure and unreliable." Bautista, 23 F.3d at 729. An identification procedure that was unnecessarily suggestive may still yield identification testimony that is admissible at trial "if when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability." United States v. Simmons. 923 F.2d 934, 950 (2d Cir. 1991). "Reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite. 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977).

   Bermudez contends that his Fifth and Fourteenth Amendment rights were violated by the state's use of impermissibly suggestive identification procedures that increased the likelihood of misidentification. A pretrial suppression hearing was held in the state trial court at which Bermudez challenged, as impermissibly suggestive, the identification procedures employed by the police officers who were assigned to investigate Blount's death. See United States v. Wade, Page 61 388 U.S. 218, 87 S.Ct. 1926 (1967). The trial court, after hearing testimony from Detectives Massanova and Lentini, found that it was not necessary to hear from civilian witnesses to determine whether they had an independent source for identifying Bermudez as the perpetrator of the crime. The trial court found that the identification procedures were properly conducted by the law enforcement officers and, accordingly, Bermudez's pretrial suppression motion was denied and testimony regarding the identification of Bermudez as the perpetrator was received at his trial. The Appellate Division affirmed the trial court's determination.

   When evaluating an application for a writ of habeas corpus, a federal court is required to accord a presumption of correctness to the factual findings made by a state court. See 28 U.S.C. § 2254(e)(1). Matters such as whether a witness was able to observe the crime or was distracted or whether a witness gave a thorough and accurate description are among the issues to which the statutory presumption applies. However, the constitutionality of a pretrial identification procedure is not solely a question of fact; it is a mixed question of law and fact. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307 (1982).

   Here, Bermudez challenges the pretrial identification procedures as unduly suggestive and, therefore, constitutionally infirm because, he alleges, the prosecution's identification witnesses viewed photographs at the CATCH Unit together and openly discussed them. Therefore, according to Bermudez, rather than making independent identification determinations based upon their respective observations in and about the scene of the shooting, the witnesses reached consensus on the selection of his photograph after being influenced by the comments and expressed recollections of all those witnesses who were present in the CATCH Unit viewing room. Page 62

   Furthermore, Bermudez contends that, having circulated and discussed his photograph at the CATCH Unit, when the witnesses were later shown a photographic array at the sixth precinct, after returning there from the CATCH Unit, they were not viewing his photograph for the first time, as was suggested during the pretrial suppression hearing held in the trial court, but were in fact viewing his photograph for a second time. Therefore, Bermudez argues, the selection made by each witness from the photographic array was tainted by the witness' CATCH Unit experience. Moreover, Bermudez argues that the lineup that was subsequently conducted was also compromised by the communal photographic review process that was allowed to exist at the CATCH Unit.

   For his part, the respondent maintains that the identification procedures used in the instant case were not impermissibly suggestive. The respondent points for support to Det. Lentini's testimony which, he contends, unlike the testimony of the civilian witnesses, remained virtually unchanged between the time of the suppression hearing and the time of the habeas corpus hearing. The respondent notes that Det. Lentini had every incentive to employ procedures at the CATCH Unit that would avoid jeopardizing any identification of persons who were involved in Blount's shooting.

   While the Court credits Det. Lentini's testimony that he instructed the witnesses to review the photographs silently and independently, whether those instructions were followed scrupulously is doubtful. The witnesses were young people who had recently experienced a traumatic event, Blount's shooting and the melee that ensued. It is likely that, as they recalled at the habeas corpus hearing, they did not sit in the CATCH Unit impassively, but spoke to each Page 63 other about the photographs they uncovered of people they knew or recognized from the shooting incident.

   In any event, the controversy over whether the viewing of photographs at the CATCH Unit was an orderly, regulated and police-monitored activity or whether it was, as most of the witnesses claim, a session that was monitored sporadically by police officers and one in which they selected photographs and discussed them openly in deciding whether a photograph depicted someone who was involved in the shooting incident, might have been resolved through the testimony of Det. FitzPatrick. He is the officer that Det. Lentini says remained in the viewing room constantly while Det. Lentini did not. It is notable that the respondent did not call Det. FitzPatrick as a witness at the habeas corpus hearing. It is reasonable to infer from his absence from the hearing that his testimony, concerning the atmosphere and the activities at the CATCH Unit, would not corroborate fully that of Det. Lentini, but might support the recollections of the witnesses that the atmosphere at the CATCH Unit was not the orderly, regulated and police-monitored one that was presented to the trial court during the pretrial suppression hearing. The respondent is correct when he observes that the post-trial affidavits of the witnesses and their habeas corpus hearing testimony contain many inconsistencies. The witnesses appeared to recall incorrectly the sequence of some of the identification procedures. For example, Thompson's testimony seemed to suggest that the lineup procedure occurred immediately following his trip to the CATCH Unit, although two days separated those events. In addition, the witnesses were not in agreement about who was present at the CATCH Unit. Three witnesses, Thompson, Velasquez and lyesi, identified Woodard as among those who examined photographs at the CATCH Unit, but they failed to include Hall as a CATCH Unit participant. Furthermore, Page 64 Woodard's presence at the CATCH Unit was not corroborated by either: (a) police records that identify those persons who were taken to the CATCH Unit; or (b) Det. Lentini's testimony. Moreover, Darden and Boyce confirmed through their hearing testimony that Hall viewed photographs with them at the CATCH Unit; however, they did not mention Woodard.

   Boyce testified that all seven witnesses viewed photographs together at the CATCH Unit. However, in his 1993 post-trial affidavit, Boyce identified only Hall and Darden as the persons with whom he examined photographs at the CATCH Unit. In addition, Boyce and Darden failed to testify at the hearing that Velasquez selected two photographs while at the CATCH Unit. Boyce's and Darden's failure to mention this fact, when considered with Boyce's 1993 affidavit, supports Det. Lentini's testimony and relevant police records that show that Hall, Darden and Boyce viewed the CATCH Unit photographs separately from the other witnesses.

   The facts noted above generally make suspect the accuracy of the post-trial and hearing statements of the shooting incident witnesses and undermines the reliability of those statements, a matter that will be discussed later in this writing. However, the Court finds that the witnesses' hearing testimony was credible with respect to one issue, that, at the CATCH Unit, they freely discussed the photographs that were being reviewed and that were selected. Therefore, the Court finds that the procedures employed by law enforcement officers at the CATCH Unit did not ensure that photographic selections would be based on the independent observations and recollections of the witnesses. Rather, the witnesses' ability to discuss and to agree upon whether photographs selected were of participants in the shooting incident made the CATCH Unit exercise impermissibly suggestive and conducive to irreparable misidentification. Page 65

   However, "even grossly suggestive procedures will not require suppression of a witness' identification testimony if it is clearly reliable, independent of improper procedures." Stvers v. Smith. 659 F.2d 293, 297 (2d Cir. 1981). The circumstances under which Bermudez's photograph was identified at the CATCH Unit may have undermined the reliability of the later photographic array and in-court identifications of Bermudez as Blount's shooter. However, the trial court did not conduct a hearing to delve into this matter. Furthermore, as is discussed infra, the Court finds the witnesses' recantations unreliable. Therefore, the only credible and reliable testimony concerning the identification witnesses' ability to observe the shooter — independent of the police-arranged opportunities — is found in the trial record. There, the identification witnesses detailed their observations of the shooter inside and outside of the Marc Ballroom and Lopez testified about his relationship with the shooter and the opportunities he had to observe him beginning in 1989. Therefore, under the circumstances, the Court finds that Bermudez has not established that his right to due process was violated by clearly unreliable identification testimony.

   Bermudez contends that prior to the pretrial suppression hearing, he should have been notified that Lopez made a photographic identification of him while his videotaped interview by Det. Massanova and the assigned prosecutor was being recorded. Bermudez maintains that had such notice been provided to him, the scope of the pretrial suppression hearing would have been enlarged to explore the issue of suggestiveness as it pertained to that photographic identification procedure.

   Bermudez did not exhaust this claim in the state courts by presenting it under essentially the same legal theory as he now presents it in his application for a writ of habeas corpus. See Page 66 Dave v. Attorney General of New York, 696 F.2d 186, 192 (2d Cir. 1982). Therefore, the claim concerning notice of Lopez's videotaped identification procedure was procedurally defaulted in the state courts. As a consequence, Bermudez is required to show cause for his default and prejudice attributable thereto such that the failure to consider this federal claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 748-750, 111 So. Ct. 2546, 2564-2565 (1991). A fundamental miscarriage of justice exists when a habeas corpus petitioner is actually innocent of the charge for which he has been convicted. See Bousley v. United States. 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998).

   Bermudez alleges that he received ineffective assistance from his trial and appellate counsel and this was the cause for his default! In addition, Bermudez maintains that his defense was prejudiced because of the ineffective assistance he received from his counsel. Moreover, Bermudez contends that he is actually innocent of the charge for which he was convicted and, thus, a fundamental miscarriage of justice would attend if his federal claim were not entertained by this court. For reasons that will be addressed later in this writing, the Court is not persuaded that Bermudez received ineffective assistance from his trial and appellate counsel or that he is actually innocent. Therefore, he is not entitled to habeas corpus relief on this claim because he has not overcome the procedural default that has occurred with respect to this claim in his petition.

  Brady Violation

   "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland. 373 U.S. 83, 87, Page 67 83 S.Ct. 1194, 1196-1197 (1963). Bermudez contends that the prosecutor withheld material evidence from him by disclosing only a redacted version of Lopez's videotaped statement. The material that was redacted from the videotape contained Lopez's address and that of his grandmother. According to Bermudez, if he had had that address pretrial, he could have investigated the area in and about the location of Lopez's grandmother's home and located "Wool Lou" or other information that would have established: (a) the existence of "Wool Lou;" and (b) that Bermudez is not "Wool Lou."

   However, evidence in the record establishes that, as part of the disclosures made pursuant to Rosario, written statements given by Lopez to law enforcement officials after he was seized in connection with the investigation into Blount's shooting were disclosed to Bermudez's trial counsel. Among other things, Lopez listed the West 92nd Street address of his grandmother's home in one of those written statements; the statement is dated August 6, 1991. Therefore, Bermudez had the information that he alleges was withheld by the prosecutor through redactions made to the Lopez videotape. Since there can be no Brady violation when a criminal defendant either knew of the relevant information, see United States v. Zagari. 111 F.3d 307, 319-320 (2d Cir. 1997), or should have known the essential facts such that he could have taken advantage of any exculpatory evidence, see United States v. Gonzalez, 110 F.3d 936, 944 (2d Cir. 1997), the Court finds that this branch of Bermudez's claim is without merit.*fn5 Page 68

   Bermudez also alleges that the prosecutor failed to disclose that Thompson, Kent, lyesi and Lopez made statements to Det. Massanova and/or the assigned prosecutor in which each indicated that he was unsure of his identification of Bermudez. Bermudez alleges that this, too, was a violation of the prosecutor's obligation under Brady to disclose exculpatory evidence. The Court has a different view.

   As has been indicated earlier in this writing, inconsistencies between the witnesses' trial testimony, their post-trial affidavits and the testimony they gave at the habeas corpus hearing exist. Inconsistencies between the witnesses' post-trial affidavits and the testimony the witnesses gave at the habeas corpus hearing have persuaded the Court that the witnesses' memories are faulty and they are confused about various events that occurred at and about the scene of the shooting and thereafter.

   At the habeas corpus hearing, the trial prosecutor denied the allegations that Thompson, lyesi and Kent informed him that they were unsure of their identification of Bermudez, as well as other allegations made by these witnesses that the prosecutor had pressured or forced them to give trial testimony which is now alleged to have been false testimony. The Court observed the demeanor of the trial prosecutor as he testified at the habeas corpus hearing and found his testimony credible. Page 69

   The record evidence demonstrates that the trial prosecutor met with Thompson and Kent shortly after they had been contacted by Bermudez's investigator, Gaynor, who, according to Kent, attempted to plant the idea with Thompson and Kent that they had identified the wrong person as Blount's shooter. Thompson and Kent had also learned of lyesi's courthouse encounter with Bermudez's family members after he had concluded his trial testimony. Gaynor's attempt to influence Thompson and Kent and their knowledge of lyesi's experience with Bermudez's family made them reluctant to testify at Bermudez's trial and that is what they communicated to the prosecutor. Recognizing the importance of identification witnesses to the prosecution's case, the trial prosecutor informed Thompson and Kent that their presence at the trial and their testimony could be compelled through material witness warrants. Thereafter, to ensure that vital trial testimony would be available to the prosecution, material witness warrants were sought and obtained from the trial judge and executed against Thompson and Kent. The Court finds Thompson and Kent's allegations, that they reported to the prosecutor that they were unsure of their identification of Bermudez, to be incredible, based upon the Court's assessment of their credibility at the habeas corpus hearing and the Court's review of their trial testimony and post-trial affidavits.

   In like manner, the Court also finds lyesi's claim that he informed detectives and the trial prosecutor that he had doubts that Bermudez was Blount's shooter to be incredible, based upon inconsistencies between his trial testimony, his 1993 post-trial affidavit and his testimony at the habeas corpus hearing, through which the Court was able to observe and assess his credibility.

   At the trial, lyesi testified that he saw Bermudez inside the ballroom and later observed him engaged in conversation with Lopez when lyesi exited the ballroom. In his 1993 post-trial Page 70 affidavit, lyesi claimed to have identified Bermudez during the lineup because of the style of his haircut. He also indicated that the prosecutor pressured him into identifying Bermudez at the trial by threatening to send lyesi to jail if he refused to do so.

   During the habeas corpus hearing, lyesi testified that it was not until Bermudez stood at the trial that he realized that he had a physical build larger than the shooter's. However, Bermudez weighed approximately 200 pounds when he was arrested and placed in the corporeal lineup. The record evidence indicates that he had an athletic build because he worked out at a gym and, at one point, had been employed at a gym. Since the lineup was held in the summertime, it is reasonable to conclude that Bermudez was wearing summertime garb which would have enabled anyone to observe that he was not a man of slight build, even while he was in a seated position. Moreover, given that lyesi testified at the trial that he observed Bermudez both within and without the Marc Ballroom, he had the opportunity to see Bermudez's face and should not have had to rely upon a haircut style to make his selection when viewing the lineup, as he claimed he did in his 1993 affidavit. In fact, at the habeas corpus hearing, lyesi indicated that his identification of Bermudez at the lineup was not limited solely to his haircut style but was also made based upon lyesi's observation of Bermudez's eyes and his eyebrows, which he said resembled those of the shooter.

   In addition, it may also be the case that, like Thompson and Kent, when lyesi says the prosecutor threatened to send him to jail in order to "pressure" him into testifying at the trial, he is confusing, as Thompson and Kent apparently did, the prosecutor's ability to preserve testimony and to ensure that a reluctant trial witness will be available to testify at a trial through the use of a material witness warrant, with an improper threat to coerce testimony. Therefore, the Page 71 Court does not credit lyesi's claim that he reported to law enforcement officials any uncertainty concerning his identification of Bermudez as a participant in the death of Blount. Consequently, the Court finds that there was no Brady violation on the part of the prosecutor in relation to information communicated to him by lyesi.

   Lopez claimed that Det. Massanova threatened to charge him with either murder or with accessory to murder in order to coerce him into falsely identifying Bermudez as Blount's shooter. He also claimed that the prosecutor threatened to ensure that a high bail would, thereafter, be placed on him. As has been discussed earlier, just a few months after Bermudez's trial concluded, Lopez told an investigator working on Bermudez's behalf that he had not been coerced by police officers to link Bermudez to Blount's shooting. Several months later, Lopez reversed his position and told Bermudez's investigator that he had been subjected to police coercion. No explanation was given to the Court for Lopez's changed position. In addition, the record evidence is clear that the prosecutor determined that no basis existed for charging Lopez with a crime. Therefore, threats alleged to have come from the prosecutor concerning the amount of bail that would be sought for Lopez do not make sense. Accordingly, the Court finds that Lopez's claims are not worthy of belief. The Court finds further that Bermudez's Brady, violation claim, as it relates to Lopez, is without merit.

  Prosecutorial Misconduct

   Bermudez contends that the prosecutor's final argument to the jury contained improper and inflammatory statements that rendered his trial fundamentally unfair and violated his right to due process.

   The respondent contends, in part, that Bermudez's claim of prosecutorial misconduct Page 72 should not be entertained by the Court because Bermudez failed to argue in the state courts that the prosecutor's comments, in his closing arguments to the jury, violated Bermudez's federal constitutional rights. The respondent contends that Bermudez presented his claim as a violation of state law only and, therefore, he did not fairly present his federal claim in the state court. See Dave, supra. Moreover, according to the respondent, since Bermudez cannot raise his federal claim in another CPL § 440.10 motion, because CPL § 440.10(2)(c) bars him from doing so, he procedurally forfeited that claim and may not raise it through the instant application for a writ of habeas corpus. The Court disagrees. Given that Bermudez would be foreclosed from returning to the state court to obtain review of the instant claim through another CPL § 440.10 motion, his claim may be deemed to have been exhausted for purposes of 28 U.S.C. § 2254(b), (c). See Grey v. Hoke. 933 F.2d 117, 120-21 (2d Cir. 1991).

   "[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044 (1985). A constitutional violation may be found only where the prosecutor's comments "so infected the jury with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo. 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974). "Whether a prosecutor's improper statement during summation results in a denial of due process depends upon whether the improper statement causes substantial prejudice to the defendant." United States v. Nersesian. 824 F.2d 1294, 1327 (2d Cir. 1987). Three factors should be considered in determining whether substantial prejudice to a criminal defendant has resulted from a prosecutor's comments during summation: 1) the Page 73 severity of the misconduct; 2) the measures adopted by the trial court to cure the misconduct; and 3) the certainty of conviction absent the improper statements. See United States v. Modica., 663 F.2d 1173, 1181 (2d Cir. 1981).

   The Court has considered the above-noted factors and finds that the prosecutor's arguments during summation that attacked Bermudez's lifestyle and characterized him, among other things, as a "spoiled brat" were improper, as they had a potential for improperly arousing the jurors' emotions. The Court also finds that comments made by the prosecutor that appeared to vouch for witnesses who testified on behalf of the state were also improper. The prosecutor's summation was also littered with the personal pronouns "I" and "me" as he described his contact with defense alibi witnesses. The use of the pronouns "I" and "me," in the instant case, ran the risk of having the jurors consider, improperly, the prosecutor's truthfulness rather than whether the state's evidence was sufficient to prove beyond a reasonable doubt the charge made against Bermudez. As has been noted above, no objection was lodged by Bermudez's trial counsel during the prosecutor's summation. However; the trial court did instruct the jurors that the statements made by counsel, in the closing arguments, were not evidence and that the jurors were free to accept or to reject those statements.

   This was a case that would turn on the jury's assessment of the credibility of the witnesses offered by the prosecution and the defense. While the manner in which the prosecutor urged the jurors to reject the testimony given by witnesses offered by the defense and to accept the testimony of the witnesses offered by the prosecution left much to be desired, the Court cannot conclude that viewing the summation as a whole, in the context of a case of this nature, the errors made by the prosecutor were so substantial as to have denied Bermudez due process. Page 74

   Therefore, granting Bermudez the habeas corpus relief he seeks, based upon this claim, is not warranted.

  Jury Instructions

   Bermudez failed to raise his claim concerning the trial judge's instructions to the jury on his direct appeal following his conviction. He is now foreclosed by CPL § 440.10(2)(c) from having this claim adjudicated in the state courts. Pursuant to 28 U.S.C. § 2254(b)(2), petitioner's claim may be entertained and denied on the merits notwithstanding his failure to exhaust the claim in the state courts.

   Bermudez alleges that the trial court should have given the jurors a more comprehensive instruction concerning identification evidence. He also alleges that the trial court should have instructed the jury that Lopez was, as a matter of law, an accomplice to the crime with which Bermudez was charged. Moreover, he ascribes error to the trial court for its instruction to the jury concerning the invocation of the Fifth Amendment by certain prosecution witnesses. Bermudez maintains that the instant claim implicates his Fifth, Sixth and Fourteenth Amendment rights.

   A single instruction to a jury cannot be viewed in isolation but must be assessed in the context of the entire jury charge. In doing so, a reviewing court must determine whether a jury instruction alleged to have been infirm standing alone so infected the entire trial that a resulting conviction violates due process. See Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400 (1973).

   In the case at bar, Bermudez has not offered any evidence that a jury instruction on identification evidence is required by the Constitution to be more extensive than that which was Page 75 presented by the trial court to his jury. His complaint seems to be simply that he wanted more said to the jury about identification evidence. Given that he did not make a specific request to the trial judge to include any particular additional language and, furthermore, since he does not claim that the Constitution required more than that which was said to the jury by the trial judge, his claim lacks merit.

   The same is true with respect to that branch of the instant claim that is focused upon the trial judge's instruction to the jury respecting the invocation of the Fifth Amendment by two prosecution witnesses. The Court can discern no deficiencies in the trial court's admonition to the jury that it could not draw an inference favorable or unfavorable to either party based upon a witness' refusal to answer a question but could consider the witness' refusal in assessing the witness' general credibility.

   Moreover, a federal court may not grant habeas corpus relief based upon a jury instruction that contains state law errors. See Estelle v. McGuire. 502 U.S. 62, 112 S.Ct. 475 (1991). Accordingly, Bermudez's allegation that the trial court erred when it failed to instruct the jury that Lopez could be charged as an accomplice as a matter of law, is not a claim upon which he may obtain relief through the instant application.

  Exclusion of Former Jurors from the Courtroom

   The Sixth Amendment affords a criminal defendant a right to a public trial. In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), the Supreme Court explained that a criminal trial may be closed to the public under four circumstances: 1) the party seeking to have the proceedings closed must advance an overriding interest that is likely to be prejudiced if closure is Page 76 not granted; 2) the scope of the closure must be limited to that which is necessary to protect the requesting party's interest; 3) the trial court must consider reasonable alternatives to closing the proceedings; and 4) the trial court must make findings that are adequate to support the closure. See Waller, 467 U.S. at 48, 104 S.Ct. at 2216.

   Bermudez's claim concerning the exclusion of two former jurors from his trial was raised in his direct appeal from his conviction. The Appellate Division found that the claim lacked merit. Therefore, in order to obtain habeas corpus relief, Bermudez must show that the state court's adjudication of the claim either 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 resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. However, Bermudez has not identified any Supreme Court decision addressing the partial closure of a courtroom under circumstances similar to those that resulted in barring the two former jurors from viewing his trial. Therefore, he has not met the burden that is imposed upon him by 28 U.S.C. § 2254(d) and is not entitled to habeas corpus relief on this claim.

  Ineffective Assistance of Counsel

   The Supreme Court has explained that the right to counsel guaranteed by the Sixth Amendment is the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984)(quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 So. Ct. 1441, 1449 n. 14 [1970]). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland. 466 U.S. at 687-696, 104 S.Ct. at 2064-2069. First, a criminal defendant must show that counsel's performance was deficient; that is, Page 77 that it fell below an "objective standard of reasonableness" measured under "prevailing professional norms." Id. at 687-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id. at 694, 2068. See also United States v. Javino. 960 F.2d 1137, 1145 (2d Cir.), cert. denied. 506 U.S. 979, 113 S.Ct. 477 (1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland. 466 U.S. at 694, 104 S.Ct. at 2068. Considerable deference is accorded counsel's performance as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. 466 U.S. at 690, 104 S.Ct. at 2066.

   When Bermudez raised his ineffective assistance of trial counsel claim in the trial court, through an application made pursuant to CPL § 440.10, it was rejected by that court because the claim could have been raised on direct appeal or in one of the motions to set aside the verdict that Bermudez had previously filed with the trial court. In rejecting the claim, the trial court relied upon CPL § 440.10(2)(c).*fn6 The Second Circuit has held CPL § 440.10(2)(c) to be an adequate and independent state law procedural ground that bars an issue from federal habeas corpus review, absent a showing of cause and prejudice or a fundamental miscarriage of justice. See Reves v. Page 78 Keane, 118 F.3d 136, 138-139 (2d Cir. 1997); Levine v. Comm'r of Correctional Servs. 44 F.3d 121, 126 (2d Cir. 1995): see also Avincola v. Stinson. 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999). Therefore, since Bermudez's claim is procedurally defaulted, and was resolved on a state law ground that was independent of the federal claim and adequate to support the judgment, see Coleman, supra, he may not obtain habeas corpus relief without showing cause for the default and prejudice or that failure to consider the claim will result in a miscarriage of justice. Bermudez's ineffective assistance of counsel claim is addressed below.

   Bermudez contends, in part, that his trial counsel rendered ineffective assistance to him because of counsel's "inept" cross-examination of prosecution witnesses that undermined the alibi defense asserted by Bermudez at his trial. Furthermore, Bermudez maintains that his trial counsel's cross-examination style conflicted with text book rules for cross-examining witnesses, in that counsel failed to craft narrowly tailored leading questions to elicit limited information that would be advantageous to his client. Rather, according to Bermudez, his trial counsel allowed witnesses to repeat their direct testimony and concentrated on trivial matters that occurred in and about the Marc Ballroom as he examined trial witnesses. Bermudez also faults his trial counsel for failing to request that the pretrial suppression hearing be reopened when he learned at the trial of a previously undisclosed pretrial identification procedure. In addition, Bermudez claims that his trial counsel rendered ineffective assistance to him by failing to object to improper comments made by the prosecutor during his closing argument to the jury. Bermudez also takes umbrage at his counsel's failure to request a more comprehensive instruction from the trial court on the issue of identification evidence and counsel's failure, when he made his closing argument to the jury, to highlight the dangers inherent in stranger identification testimony. Furthermore, Bermudez also Page 79 contends that counsel's failure to request that the trial court instruct the jury concerning the invocation of the Fifth Amendment by certain prosecution witnesses is also indicative of counsel's failure to render effective assistance to him at his trial. Bermudez also notes that while examining trial witnesses, his counsel questioned them in such a manner as to suggest that he credited certain aspects of the prosecutor's case. Bermudez contends that this, too, deprived him of the effective assistance of counsel to which he was constitutionally entitled.

   In determining whether trial counsel's conduct was deficient, the Court is required to "determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." Strickland. 466 U.S. at 690, 104 S.Ct. at 2066. Errors alleged to have been made by counsel should not be viewed in isolation but should be considered in the aggregate in determining whether counsel rendered ineffective assistance to his client. See Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Moreover, the Court must be careful to avoid falling prey to the distorting effects of hindsight.

   The Court has reviewed the record generated during the trial and also heard from trial counsel during the habeas corpus hearing. During that hearing, Bermudez's trial counsel acknowledged that some of the questions he put to trial witnesses were phrased in such a way that they placed his client in or about the Marc Ballroom or implied that he had been at the scene of the incident. However, these questions, like the questions which suggested that counsel credited certain portions of the prosecutor's case, seem to the Court, viewing the record as a whole, to have been aberrational, the result of momentary lapses, because the overwhelming majority of questions put to the trial witnesses by Bermudez's counsel were framed so as to avoid suggesting Page 80 that Bermudez was involved in the shooting incident; rather, the questions were designed to support the defense theory that Bermudez was misidentified.

   Trial counsel also explained, during the hearing, that his failure to object while the prosecutor was delivering his final argument to the jury was a strategic decision that was made to avoid drawing unnecessary additional attention to the improper comments. Strategic decisions, when reasonably made, do not form the basis for a finding of ineffective assistance of counsel. See United States v. Nersesian, 824 F.2d 1320-1321. Although counsel testified that, in hindsight, he regrets having made the decision to refrain from objecting to his adversary's summation, as noted above, in considering alleged deficiencies by counsel one must avoid the distorting effects of hindsight.

   With respect to Bermudez's claim that an application should have been made to reopen the pretrial suppression hearing when lyesi testified that he had examined photographs at the CATCH Unit in the company of Darden, Boyse and Hall and, further, when it was revealed that Lopez had made a photographic identification of Bermudez while the videotaped statement he provided to Det. Massanova and the trial prosecutor was being recorded, trial counsel testified that he could not recall why he did not request that the suppression hearing be reopened. He did explain, however, that he did not have before him the transcript of the suppression hearing for use at trial because Bermudez did not have the funds to enable it to be purchased, and the trial judge refused to provide it to him at state expense. Therefore, he could not compare what was being said at trial readily with the testimony that had previously been given during the suppression hearing. Under these circumstances, counsel's inability to recognize immediately the discrepancy between Det. Page 81 Lentini's pretrial hearing testimony and the trial testimony given by other witnesses is understandable and does not establish a claim of ineffective assistance of counsel.

   The Court has discussed earlier matters concerning the trial judge's instructions to the jury concerning identification and the invocation of the Fifth Amendment by trial witnesses. Inasmuch as the Court found that no constitutional violation occurred with respect to the jury instructions given, the Court also finds that trial counsel's failure to request a more extensive instruction on identification evidence than that which was given and his failure to request a jury instruction that addressed the dangers inherent in stranger identification testimony or concerning the invocation of the Fifth Amendment by trial witnesses was not ineffective assistance of counsel.

   In this case, trial counsel engaged an investigator to assist him in preparing for Bermudez's defense. He made a pretrial motion to suppress evidence concerning the central issue in the case, identification. Counsel delivered an opening statement in which he invited the jurors to consider evidence that would be adduced concerning mistaken identification, a shoddy police investigation and the motive Lopez had to testify falsely to avoid being charged criminally in connection with the death of Blount.

   Counsel also informed the jurors that Bermudez had an alibi. During the trial, counsel called witnesses to testify in support of the alibi. In addition, character witnesses were called to testify on Bermudez's behalf to establish that he had a reputation in his community for peacefulness and, thus, was not likely to engage in violent activity such as that which caused Blount's death.

   Counsel cross-examined Det. Massanova about his failure to investigate the neighborhood in the vicinity where Lopez's grandmother resided to determine whether a person known as Page 82 "Wool Lou" existed and could be located. He also elicited testimony demonstrating that the police never investigated Bermudez's claim that he and his friends had visited a barbeque restaurant and had remained there until closing time, which was near to the time of the shooting.

   During his final argument to the jury, Bermudez's trial counsel revisited some of the issues that he had addressed during his opening statement. He challenged the police investigation. He asked the jurors to consider inconsistencies in the witnesses' testimony concerning facial features they attributed to the perpetrator. He also emphasized that witnesses who were standing near Blount at the time he was shot could not identify Bermudez as the perpetrator of the crime.

   Although error could be assigned to some of the acts and omissions of Bermudez's trial counsel that have been highlighted in the instant application for a writ of habeas corpus, the Court finds, after considering the errors in the aggregate, that under all the circumstances, Bermudez's trial counsel's performance was not outside the wide range of professionally competent assistance to which Bermudez was constitutionally entitled.

  Ineffective Assistance of Appellate Counsel

   A criminal defendant has a right to effective assistance of counsel in the prosecution of the direct appeal from a judgment of conviction. See Evitts v. Lucey, 469 U.S. 387, 395-396, 105 S.Ct. 830, 836 (1985). The factors set forth in Strickland, that must be considered when determining whether assistance rendered by trial counsel was ineffective, are applicable to a claim of ineffective assistance of appellate counsel.

   Bermudez alleges that his appellate counsel rendered ineffective assistance to him by failing to present to the Appellate Division a claim of ineffective assistance of trial counsel. He also faults his appellate counsel for failing to raise issues on appeal that were not preserved for Page 83 appellate review. Inasmuch as the Court has determined that Bermudez's trial counsel did not render ineffective assistance to him and, further, since the Court finds that an appellate attorney's decision not to raise, on direct appeal, issues that have not been preserved for appellate review is not evidence of ineffective assistance of counsel, habeas corpus relief, based upon this claim, is not appropriate.

  Actual Innocence

   Bermudez contends that a fundamental miscarriage of justice has occurred because he was convicted for a crime of which he is actually innocent. He maintains that newly discovered evidence, that is, post-trial sworn statements by the prosecution's identification witnesses, through which they recanted their trial testimony, establishes that he is actually innocent. Therefore, according to Bermudez, his right to due process has been violated because the state court did not set aside his conviction in the face of credible recantations of material testimony.

   "Actual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998). In order to establish actual innocence, a habeas corpus petitioner must present "new, reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865 (1995). In addition, the habeas corpus petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327, 115S. Ct. at 867.

   In the state court, Bermudez alleged that his right to due process was violated by the trial court's failure to hold a hearing to test the reliability of the recantations. In his application for a Page 84 writ of habeas corpus, Bermudez has expanded his claimed due process violation to include an allegation that his conviction rests on perjured testimony. Furthermore, relying on Second Circuit precedent, see Sanders v. Sullivan, 900 F.2d 601 (2d Cir. 1990), Bermudez maintains that his right to due process was violated irrespective of whether the trial prosecutor knowingly used perjured testimony.*fn7

   To the extent that Bermudez has expanded the theory upon which his right to due process was violated, he has not fulfilled the obligation placed upon him by Dave, 696 F.2d at 192, to present essentially the same constitutional claim to the state for adjudication before raising it in a habeas corpus petition. However, in accordance with 28 U.S.C. § 2254(b)(2), a habeas corpus court can entertain such a claim and deny it on the merits.

   The Court has noted earlier in this writing that it found the witnesses who were present at the scene of Blount's shooting to be confused about the sequence of events that occurred in connection with the identification procedures employed in this case. Their confusion weakened their credibility. However, other aspects of their hearing testimony, when considered with Page 85 statements in their post-trial affidavits and other record evidence weakened their credibility further. For example: Velasquez was confused about Gaynor's employment status; she believed he was working for the prosecutor when, in fact, he was assisting Bermudez. In addition, she gave conflicting statements about whether Bermudez's family contacted her, post-trial, in an attempt to have her alter her trial testimony. Moreover, she believed her memory of the shooting incident improved over time and, therefore, she realized, in 1993, that Bermudez was not involved in Blount's death.

   Boyce's recollection of events at the CATCH Unit — in particular, who was there with him — differed from the statements contained in his 1993 affidavit. Furthermore, Boyce testified at the hearing that the lineup participants each stood and walked toward the one-way glass so that he might observe them. The overwhelming credible record evidence establishes that the lineup participants were at all times seated. Boyce's memory is faulty.

   Kent and lyesi never mentioned at the habeas corpus hearing that Velasquez selected two photographs while at the CATCH Unit, not one. In addition, Kent's testimony — and perhaps his recollection of events — appeared to be influenced to some degree by his contact with attorneys who represented Bermudez previously when he explained that those attorneys told him that he had "locked up the wrong guy."

   Darden testified at the hearing that he used only his "peripheral vision" to observe the shooter. Using that peripheral vision, he Was able to see only the shooter's chest area. From that observation, Darden stated that he was able to observe and to report to the prosecutor the shooter's height and weight. Darden's testimony concerning his peripheral vision observations of the shooter's height and weight was not credible. Page 86

   In a 1996 affidavit, Lopez stated that he pointed out Blount to his friend "Luis;" this was consistent with his trial testimony that he identified Blount to "Wool Lou." At the hearing, Lopez stated that "Wool Lou" had the same complexion as he. However, he also testified that the person to whom Blount was pointed out was short, and dark-skinned, a little darker in skin tone than Lopez. Lopez also testified that, at the time of the shooting, he had known "Wool Lou" for approximately four years; previously, he stated that he met "Wool Lou" in 1989, approximately two years before the shooting incident. In addition, shortly after the trial concluded, Lopez told Bermudez's investigator that he had not been coerced by the police to identify Bermudez falsely as the shooter. Several months later, he told Bermudez's investigator that he had been coerced. Lopez never explained these inconsistent statements. The Court found Lopez unworthy of belief.

   In order to establish his claim of actual innocence, Bermudez was required to put forth "new reliable evidence." Schlup, 513 U.S. at 324, 115 S.Ct. at 865. The evidence may include, inter alia, trustworthy eyewitness accounts.

   The Court is mindful that witness recantations of trial testimony are "looked upon with the utmost suspicion." See United States v. DiPaolo. 835 F.2d 46, 49 (2d Cir. 1987). As noted earlier, the reliability of the recantations made by the trial witnesses in the instant case were never subjected to judicial scrutiny at a state-court hearing. However, at the habeas corpus hearing held in connection with the instant application for a writ, the Court had the opportunity to observe the demeanor of each of the recanting witnesses, to assess each witness' testimony and to reach a determination about each witness' credibility.

   Bermudez has failed to meet his burden of establishing that he is actually innocent of the crime for which he was convicted by presenting new reliable evidence to the Court. The Court Page 87 finds that the new evidence from the recanting trial identification witnesses and that from the other witnesses to the shooting incident was, for the most part, not credible and, therefore, is not reliable. The evidence is not of a quality that would support granting habeas corpus relief.

   IV. RECOMMENDATION

   For the reasons set forth above, petitioner's application for a writ of habeas corpus should be denied.

   V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Preska. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann. 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd. 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson. 714 F.2d 234, 237-38 (2d Cir. 1983).


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