United States District Court, N.D. New York
April 7, 2004.
JASON GRAHAM, Petitioner,
THOMAS RICKS, Superintendent, Respondent
The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. State Court Proceedings
According to the testimony adduced at trial, during the early morning
hours of August 20, 1995, as Aneesha Brace, Demere Hannah and Lee Johnson were leaving the parking lot of an Albany, New York nightclub, a
fight broke out between Johnson and one of Hannah's friends.
See Transcript of Trial of Jason Graham (1/27/97) ("Trial Tr.")
at 314-17.*fn1 During the course of that fight, Hannah pulled a handgun
out of his coat pocket. Trial Tr. at 317. He then fired a shot, causing
Johnson to flee the scene.*fn2 Trial Tr. at 317-18. Later that day,
petitioner Jason Graham approached Karim Maye and asked him if he could
provide Graham with a gun.*fn3 Trial Tr. at 329-30. During that
conversation, Graham indicated that he needed the gun because someone had
shot at his cousin, Johnson.*fn4 Trial Tr. at 330. Karim Maye indicated
that he could not provide Graham with a gun, Trial Tr. at 330, and was
informed by Graham later that day that he "had got [ten] what he needed,"
Trial Tr. at 330-31,*fn5 and that he intended to "deal with" Hannah.
Trial Tr. at 331.
In the afternoon of August 22, 1995, Aleek Young observed Graham in front of a convenience store on Livingston Avenue in Albany, New
York. Trial Tr. at 390-91. After Young overheard some individuals stating
that Johnson was a "pussy" who was not "going to do anything," Trial Tr.
at 393, Graham indicated that he would "take care of what he got to do"
and that he was not concerned about African-Americans from the New York
City area. Trial Tr. at 392-93.*fn6 Graham then lifted up his shirt,
revealing the presence of a handgun. Trial Tr. at 393-94.
Between 4:00 p.m. and 4:30 p.m. on August 22, 1995, Charles Teator, a
taxicab driver, drove his cab around a Honda automobile ("Honda"). Trial
Tr. at 164-67. Soon after passing that car, Teator heard gunshots and
observed, through his rear view mirror, shots being fired from the
passenger side of the Honda. Trial Tr. at 167-69. Although Teator could
not identify the man who had shot the victim, both Wayne Blanchard and
Young testified that Graham was the individual whom they observed shoot
the victim, Hannah, on August 22, 1995.*fn7 Trial Tr. at 241-42; 396-97.
After Hannah fell to the ground, Johnson backed the car up, and Graham fired several more shots at Hannah.*fn8 Trial
Tr. at 242-43.
Frank Dixon was also near the scene of the crime in the late afternoon
of August 22, 1995. Trial Tr. at 185-88. He testified that after hearing
gunshots, he observed a "brown . . . light tannish color," Honda being
driven toward him in an erratic manner. Trial Tr. at 186-90. Dixon
noticed that the driver of the car was a young black male with short hair
and a moustache, Trial Tr. at 189, a description which closely matched
the physical appearance of Johnson at that time. Trial Tr. at 206-07,
At approximately 5:45 p.m. that same day, Graham, Jerome Walker and
Lynwood Maye went to a neighborhood softball field. Trial Tr. at 269-70.
Walker testified that at that time, Lynwood Maye stated that he had been
informed by Graham that he had killed Hannah. Trial Tr. 270-71. Walker
further testified that Graham thereafter admitted his complicity in the
crime to Walker. Trial Tr. at 272-74.
Teator, the cab driver, had written down the license plate of the
vehicle from which he observed the shots being fired and gave that
information to the authorities. Trial Tr. at 172-75. A subsequent
investigation revealed that the Honda was registered to Desiree Graham, Trial Tr. at 200, who, when
questioned about the car, indicated that her son, Lee Johnson, typically
drove the automobile. Trial Tr. at 201. Detective Charles Mulrooney of
the Albany Police Department thereafter began searching for Johnson.
Trial Tr. at 202. Detective Mulrooney eventually located Johnson, who,
when questioned by Detective Mulrooney, was able to inform the
authorities where the Honda had been parked. Trial Tr. at 204. He also
stated that he owned that automobile, and removed the keys to that car
from his pocket and gave them to Detective Mulrooney. Trial Tr. at
On April 23, 1996, an Albany County grand jury returned a two count
indictment against Graham, charging him with both the intentional and
depraved indifference murder of Hannah. See Appendix in Support
of Appeal ("App.") at A1-2. Graham was tried before a jury as to these
charges in a trial which commenced on January 27, 1997, with Albany
County Court Judge Thomas A. Breslin presiding. At the conclusion of that
trial, the jury found Graham guilty of intentionally murdering Hannah.
Trial Tr. at 530-32. On March 13, 1997, Judge Breslin sentenced Graham
principally to a term of twenty-five years to life imprisonment.
See Sentencing Transcript (3/13/97) ("Sentencing Tr.") at 8.
Prior to perfecting his appeal of his conviction and sentence to the
New York State Supreme Court Appellate Division, Third Department,
Graham filed a motion to vacate his judgment of conviction pursuant to
New York's Criminal Procedure Law ("CPL"), Section 440.10 ("CPL § 440
Motion"). In that application, Graham claimed through counsel that: i)
the prosecutor violated Graham's right to due process and a fair trial by
withholding Brady material;*fn9 ii) Graham received
ineffective assistance of trial counsel and iii) the combination of the
Brady violations and the ineffectiveness of Graham's counsel
deprived Graham of his right to a fair trial. See Memorandum of
Law in Support of CPL § 440 Motion (5/15/99) at 14-15. The District
Attorney opposed that application, and by Decision and Order dated March
31, 2000, Judge Breslin denied Graham's CPL § 440 Motion in its
entirety. See App. at pp. A302-10 ("March, 2000 Decision").
Graham thereafter perfected his direct appeal and, by permission of the
Appellate Division,*fn10 also appealed the denial of his CPL § 440
Motion to the Third Department. In that appeal, Graham argued that: i)
Blanchard's in-court identification of Graham was improper in light of
the unconstitutionally suggestive procedures utilized by the authorities
in obtaining Blanchard's pre-trial identification of Graham; ii) the prosecution wrongfully
withheld Brady material from the defense; iii) Graham was
denied the effective assistance of counsel because his trial attorney
labored under a conflict of interest; and iv) the combination of the
foregoing deprived Graham of his right to a fair trial. See
Appellate Brief (8/30/00) ("App. Br."). The District Attorney filed a
brief in opposition to the combined appeal, and, in its decision entered
on May 31, 2001, the Third Department affirmed Graham's conviction and
sentence in all respects. People v. Graham, 283 A.D.2d 885 (3rd
Dept. 2001). New York's Court of Appeals thereafter denied Graham's
application for leave to appeal. People v. Graham, 96 N.Y.2d 940
II. Proceedings in this Action
Graham, through counsel, filed a petition for habeas corpus pursuant to
28 U.S.C. § 2254 in this District on March 1, 2002, Dkt. No. 1,*fn11
together with a supporting memorandum of law, see Dkt. No. 7
("Supporting Mem."). United States Magistrate Judge Gustave J. DiBianco
promptly directed the respondent to file a response to the petition. Dkt.
No. 2. The Office of the Attorney General for the State of New York ("Attorney General"), acting on
respondent's behalf, thereafter filed an answer and memorandum of law
requesting dismissal of the petition. See Dkt. Nos. 10-11.
Graham's counsel then filed a reply memorandum in further support of the
petition. Dkt. No. 13.
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court
may not grant habeas relief to a state prisoner on a claim:
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim
1) resulted in a decision that was contrary to,
or involved an unreasonable application, of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
2) resulted in a decision that was based on a
unreasonable determination of the facts in light
of the evidence presented in the State court
28 U.S.C. § 2254(d): see also Miranda v. Bennett.
322 F.3d 171
, 177-78 (2d Cir. 2003); Bovette v. LeFevre,
246 F.3d 76
, 88 (2d Cir. 2001). A state court's decision is "contrary to"
established Supreme Court precedent if it applies a rule that contradicts
Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362
, 405-06 (2000). Moreover, a
federal court is not to consider whether the state court's determination
was merely incorrect or erroneous, but instead whether it was
"objectively unreasonable." Williams, 529 U.S. at 409; see
also Sellan v. Kuhlman, 261 F.3d 303
, 315 (2d Cir. 2001);
Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The
Second Circuit has noted that this inquiry admits of "[s]ome increment of
incorrectness beyond error," though "the increment need not be great[.]"
Francis S. v. Stone, 221 F.3d 100
, 111 (2d Cir. 2000).
Additionally, the AEDPA also requires that in any federal habeas corpus
proceeding, "a determination of a factual issue made by a state court
shall be presumed to be correct [and t]he applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1): see also Bovette, 246
F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
B. Substance of Graham's Petition
1. Brady Claims
In his first ground for relief, Graham claims that his Brady
rights were violated by the prosecution. Specifically, he claims that the
prosecutor wrongfully failed to disclose to the defense a statement made by
Lynwood Maye to a police detective in which Lynwood Maye had indicated
that Walker's statement that, while at the softball field, Graham
admitted to having shot Hannah, was a lie. See Petition at
Ground One; Supporting Mem. at 9-10. In his third ground, Graham argues,
inter alia, that the prosecution violated his Brady
rights when it failed to timely provide the defense with the "rap sheet"
of Blanchard. See Petition at Ground Three.
Respondent claims that Lynwood Maye never made the statement
characterizing Walker's statement as a lie and that, in any event, no
Brady violation occurred. Dkt. No. 11 at 12-16. Respondent
further claims that petitioner's argument that he is entitled to habeas
relief due to the prosecution's failure to timely disclose the "rap
sheet" of Blanchard is without substance. Id. at 23-24.
i. Clearly Established Supreme Court Precedent
In Brady, the Supreme Court held "that 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."
Id., 373 U.S. at 87. To prove a Brady violation, a
habeas petitioner must establish that: a) the evidence at issue was favorable to the accused either because it was exculpatory or could
have impeached a prosecution witness; b) the evidence was suppressed by
the prosecution either willfully or inadvertently; and c) prejudice
ensued from the withholding. Moore v. Illinois, 408 U.S. 786,
795 (1972) (citing Brady): see also Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
ii. Contrary to, or Unreasonable Application of,
Supreme Court Precedent
In denying the aspect of Graham's CPL § 440 Motion relating to
Lynwood Maye's statement, Judge Breslin noted that the only evidence
which supported this aspect of Graham's application was a document signed
by Lynwood Maye "two years after the trial" before a "witness" who did
not indicate that she was "authorized to administer an oath or
affirmation." March, 2000 Decision at 3. Judge Breslin then concluded
that there was "no evidence that the prosecutor withheld exculpatory
evidence" and denied this aspect of Graham's application as "lacking in
merit." Id. at 4. Judge Breslin also denied Graham's claim
regarding Blanchard's "rap sheet," concluding that such document was not
Brady material and that, in any event, the defense utilized the
information on that sheet to impeach Blanchard during cross-examination.
See March, 2000 Decision at 2-3. The Appellate Division did not specifically mention Graham's argument
regarding Lynwood Maye's statement which challenged the veracity of
Walker's statement in its decision denying Graham's appeal. However, that
court concluded its decision by finding that his "remaining contentions"
were "without merit." Graham, 283 A.D.2d at 890. Since there is
no basis for believing that the Appellate Division rejected this claim on
non-substantive grounds, the adjudication was "on the merits," and
therefore such decision is to be reviewed under the deferential standards
prescribed in 28 U.S.C. § 2254(d)(1). See Sellan, 261 F.3d
In addressing Graham's argument regarding Blanchard's "rap sheet," the
Appellate Division found that even assuming, arguendo, that
such document constituted Brady material, there was "no basis
to disturb County Court's underlying conclusion that the evidence, if
disclosed prior to the hearing, would not have affected its ultimate
decision on the suppression motion." Graham, 283 A.D.2d at
888-89 (citations omitted).
Since the rule announced in Brady is clearly established for
purposes of the AEDPA. see Huber v. Schriver, 140 F. Supp.2d 265,
274 (E.D.N.Y. 2001); Brooks v. Artuz, 97 CIV. 3300, 2000
WL 1532918, at *5 (S.D.N.Y. Oct. 17, 2000) (state court decisions "were
not contrary to, or objectively unreasonable applications of the law clearly established by the Supreme Court in
Brady and its progeny") (citations omitted), this Court must
determine whether the above-referenced decisions rejecting Graham's
claims are contrary to, or an unreasonable application of,
To prevail on a Brady claim, a party must initially establish
that the evidence sought, in fact, existed. United States v.
Ashley, 41 Fed.Appx. 240, 2002 WL 734764, at *1 (10th Cir. Apr. 26,
2002) (party failed to prove Brady violation where he failed to
demonstrate that material which formed basis of Brady claim
existed):*fn12 United States v. Kennedy. 819 F. Supp. 1510, 1518 (D.
Colo.) (citation omitted), aff'd mem. sub nom. United States v.
Byron, 994 F.2d 747 (10th Cir. 1993); United States v.
Libutti, Crim. No. 92-611, 1994 WL 774648, at *5 (D.N.J. Oct. 25,
1994) (to prevail on Brady claim, party must, inter
alia, establish that exculpatory information existed).
In opposing the CPL § 440 Motion, Assistant District Attorney Paul
A. Clyne, Esq. ("ADA Clyne"), who prosecuted the underlying criminal
case, declared in his affirmation that he had spoken with Lynwood Maye at
the beginning of Graham's trial, and that "at no time did Lynwood Maye
assert that Jerome Walker's account was `a lie.'"*fn13 See
Affirmation in Opposition to CPL § 440 Motion at ¶ 3.
In the present case, petitioner has not established that the
information relating to Lynwood Maye's statement to the detective existed
either prior to or during Graham's trial. Specifically, as Judge Breslin
noted, the statement in which Lynwood Maye claims that Walker's account
of Graham's confession was false was not made until two years
after Graham's criminal trial commenced.
Compare Trial Tr. at 1 (noting that trial commenced on January
27, 1997 with Appendix in Support of CPL § 440 Motion ("CPL
§ 440 App.") at A191-92 (indicating that Lynwood Maye's statement was
signed on February 5, 1999). Moreover, even assuming, areuendo,
that Lynwood Maye had made this statement to the prosecutor prior to
Graham's trial, the Court notes that the suppression of exculpatory
evidence*fn14 does not amount to a constitutional violation unless the evidence is material, i.e., "if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
Strickler, 527 U.S. at 280 (citations omitted); see also
United States v. Bagley, 473 U.S. 667, 682 (1985);
Boyette, 246 F.3d at 91 (citing Bagley);
Chisholm, 2004 WL 315226, at *5 (citing Strickler);
Livingston v. Herbert, 00-CV-1698, 2002 WL 59383, at *3
(N.D.N.Y. Jan. 3, 2002) (Homer, M.J.), adopted, (N.D.N.Y.
Jan. 25, 2002) (Kahn, J.), aff'd, (2d Cir. Sept. 11, 2002).
Petitioner claims, in both his supporting memorandum and reply brief,
that the foregoing evidence was material. See Dkt. No. 7 at
12-13; Dkt. No. 13 at 8-10. However, in light of all of the evidence
presented against Graham at his criminal trial, this Court finds that
even if the defense had been aware of Lynwood Maye's claim that Walker's
statement about Graham's confession was a lie, there is no reasonable
probability that the result of his trial would have been different.
Specifically, the evidence presented at trial established that a few days
before he was killed, Hannah had been involved in an altercation
involving Graham's cousin, Johnson. Trial Tr. at 317-18, 330-31. Shortly
before Hannah was shot, Graham displayed a handgun to Young, stating that he was
"going to get one of those" African-Americans from the New York City
area, Trial Tr. at 392, a statement which the jury could have reasonably
concluded was a reference to Hannah. Trial Tr. at 313. Johnson typically
drove the automobile that was observed by various witnesses as the one
used during the homicide. Trial Tr. at 164-67, 186-90, 201. Additionally,
the description Dixon gave the authorities regarding the driver of the
car used during the homicide matched the physical appearance of Johnson
at that time, Trial Tr. at 206-07, 473, and Johnson both knew where the
car had been parked after the homicide and gave the authorities the keys
to the automobile, which were in his pocket. Trial Tr. at 203-04. The
shots fired at Hannah came from the passenger side of the car. Trial Tr.
at 179, 242, 272-73, 397. Finally, both Blanchard and Young specifically
testified that they observed Graham shoot Hannah on August 22, 1995.
See Trial Tr. at 241-42; 396-97.*fn15 In light of the
foregoing, the undersigned finds that Graham has not demonstrated that
even if Lynwood Maye had made the statement challenging the veracity of
Walker's statement, there is no reasonable probability that, had such evidence been timely disclosed to the defense, the
result of the proceeding would have been different.
In sum, this Court concludes that petitioner has not demonstrated that
either prior to or during the course of Graham's trial, the prosecution
was aware of Lynwood Maye's belief that Walker's statement about Graham's
confession was a lie. Additionally, even if Graham had established (which
he did not) that the prosecutor knew of that information prior to or
during the course of Graham's trial and had suppressed same, the
undersigned concludes that petitioner has not proven that there is a
reasonable probability that, had such evidence been disclosed to the
defense in time for its effective use at Graham's trial, the result of
that proceeding would have been different. Therefore, petitioner has
necessarily failed to demonstrate that the denial by the state courts of
Graham's Brady claim relating to Lynwood Maye's statement is
either contrary to, or an unreasonable application of, Brady.
Therefore, the first ground in the petition is denied.
With respect to petitioner's claim relating to the prosecution's
alleged failure to timely disclose Blanchard's "rap sheet," see
Petition at 20, this aspect of Graham's petition appears to overlook the
firmly established principle that "as long as a defendant possesses
Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law
simply because it did not produce the evidence sooner." In re United
States (United States v. Coppa), 267 F.3d 132, 142 (2d Cir. 2001)
("Coppa"); United States v. Earls, No. 03 CR. 0364,
2004 WL 350725, at *8 (S.D.N.Y. Feb. 25, 2004) (citing Coppa);
United States v. Patterson, No. 02 CR. 0283, 2002 WL 31890950,
at * 11 (S.D.N.Y. Dec. 27, 2002) (citing Coppa). Thus, "[t]here
is no Bradv violation unless there is a reasonable probability that
earlier disclosure of the evidence would have produced a different result
at trial." Coppa, 267 F.3d at 142 (citing Leka v.
Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)).
As noted by the Third Department, in the underlying criminal case,
Graham's counsel extensively utilized Blanchard's "rap sheet" at trial in
an effort to impeach his credibility. See Graham, 283 A.D.2d at
888; see also Trial Tr. at 248-51. Since Graham's counsel
possessed that document in time for its effective use during trial, the
Appellate Division properly denied this aspect of Graham's
Brady claim. Thus, petitioner has not established that this
aspect of the Third Department's decision is either contrary to, or an
unreasonable application of, Brady. Therefore, this portion of
petitioner's third ground for relief must be denied.
2. Ineffective Assistance of Counsel In his second ground, Graham claims that his trial attorney, James
Milstein, Esq., who at the time of petitioner's trial worked for the
Albany County Public Defender's Office ("PDO"), labored under a conflict
of interest while he was representing Graham, and therefore rendered
ineffective assistance of counsel. Specifically, petitioner contends that
Attorney Milstein was aware that Walker was working at a local McDonald's
restaurant at the time he claimed to have been near a softball field
listening to Graham confess to the killing, and that Attorney Milstein
failed to utilize this information because another attorney at the PDO at
which Attorney Milstein worked, Anthony Maney, Esq., had previously
represented Walker at a parole revocation hearing, thereby creating
conflicting duties of loyalty. Petition at ¶¶ 206-07.
Respondent argues that Graham has failed to establish that Attorney
Milstein suffered from a conflict of interest which affected his
performance at Graham's trial. Specifically, he argues that there is no
evidence that Attorney Milstein possessed, but failed to utilize,
information that would have impeached Walker's claim that Graham
confessed to committing the crime. Dkt. No. 11 at 16-20.
i. Clearly Established Supreme Court Precedent
The Sixth Amendment to the United States Constitution provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence." U.S. Const.,
Amend. VI. To establish a violation of this right to the effective
assistance of counsel, a habeas petitioner must typically show both: a)
that counsel's representation fell below an objective standard of
reasonableness, measured in the light of the prevailing professional
norms; and b) resulting prejudice that is, a reasonable probability that,
but for counsel's unprofessional performance, the outcome of the
proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 688-90 (1984); Wiggins v. Smith, ___ U.S. ___,
123 S.Ct. 2527, 2535 (2003) ("the legal principles that govern claims of
ineffective assistance of counsel" were established by the Supreme Court
Moreover, a criminal defendant's Sixth Amendment right to counsel
includes a right to conflict-free representation. See Wood v.
Georgia, 450 U.S. 261, 271 (1981) ("Where a constitutional right to
counsel exists, our Sixth Amendment cases hold that there is a
correlative right to representation that is free from conflicts of
interest"). When a party establishes that his defense counsel labored
under an actual conflict of interest, he need only demonstrate that the
conflict "adversely affected his lawyer's performance" in order to prove
a violation of his Sixth Amendment right to effective counsel.
Cuyler v. Sullivan, 446 U.S. 335, 348-50(1980).
ii, Contrary to, or Unreasonable Application of,
Supreme Court Precedent
In denying Graham's ineffectiveness claims, the Appellate Division
contrary to defendant's contentions, there is no
proof that Milstein was aware at trial of records
previously obtained by Maney in his prior
representation of Walker which might demonstrate
that Walker was actually at work at the time that,
as he testified, defendant confessed to him
defendant's role in this murder. Thus, there is no
record support for defendant's claim that Milstein
possessed, but failed to use, these records in his
defense at trial or was affected by a conflict of
interest. To the extent that defendant could be
said to have raised the issue on his CPL 440.10
motion, we are not persuaded by defendant's claim
that Milstein's failure to discover and use this
evidence denied him of meaningful representation.
Graham, 283 A.D.2d at 889-90.
Since the rules set forth in both Strickland and
Cuyler qualify as "clearly established Supreme Court precedent,
see Williams, 529 U.S. at 391 (Strickland standard
is clearly established); Sellan, 261 F.3d at 309 (same),
Eisemann v. Herbert, 274 F. Supp.2d 283, 300 (E.D.N.Y. 2003)
(Strickland and Cuyler are both "clearly established
federal law, as determined by the Supreme Court of the United States"),
this Court must determine whether the Third Department's decision rejecting Graham's ineffectiveness claim is either
contrary to, or an unreasonable application of, the above-referenced
The Second Circuit has noted that there are three levels of conflicts
of interest to be considered in evaluating an ineffective assistance of
counsel claim alleging such a conflict: a) a per se conflict,
which does not require a showing of prejudice; b) an actual conflict of
interest that carries a presumption of prejudice; and c) a potential
conflict of interest that requires a finding of both deficient
performance by counsel and prejudice. See United States v. John Doe
No. 1, 272 F.3d 116, 125 (2d Cir. 2001) (citation omitted),
cert. denied sub nom. Findley v. United States,
537 U.S. 851 (2002); see also Casso v. United States, No. 00-CV-6973,
2001 WL 1517537, at *2 (E.D.N.Y. Nov. 20, 2001) (citing
Per se conflicts of interest exist only where trial counsel
is not authorized to practice law, see Solina v. United States,
709 F.2d 160, 164 (2d Cir. 1983), or is implicated in the very crime for
which his client is on trial, see United States v. Cancilla,
725 F.2d 867, 870 (2d Cir. 1984).*fn16 Since Graham has not established
the existence of either of these two limited circumstances, no per
se conflict of interest existed.
Petitioner appears to argue that his trial counsel labored under an
actual conflict of interest. Specifically, he notes that at the time
Walker heard Graham confess to the crime, Walker was participating in the
work release program of the Hudson Correctional Facility. Petition at
¶ 101.*fn17 In September, 1995, Walker informed his parole officer
that while participating in that program, Walker worked from 2:30 p.m. to
10:30 p.m., Thursday through Tuesday. Petition at ¶¶ 95-98; see
also Violation of Release Report relating to Walker ("Violation
Report") (reproduced in CPL § 440 App. at A199-201).*fn18 On
December 18, 1995, Attorney Maney, who at the time was employed by the
PDO, represented Walker at a parole revocation hearing which arose out of
a charge that Walker had violated the terms of his parole. CPL § 440
App. at A1 96. During the course of his representation of Walker,
Attorney Maney negotiated an agreement with the Division of Parole
whereby Walker's parole would only be revoked for a period often months
as a result of his parole violations, rather than the three years
permitted as a result of his conduct, if Walker cooperated with the prosecution at Graham's trial. Id.; Trial Tr. at 299.
Graham argues that because the PDO (through Attorney Maney) had
represented Walker at the parole revocation hearing, that office,
including Attorney Milstein, owed Walker a duty of loyalty,*fn19 which
included not compromising the "deal" Attorney Maney had negotiated with
the Division of Parole. Petition at ¶ 94. Graham alleges that so as
"not to expose [the PDO's] client's testimony as perjurious," regarding
the softball field confession, Attorney Milstein failed to question
Walker about the inconsistency between that testimony and the information
Walker had provided to his parole officer regarding his scheduled work
hours during the work release program. Petition at ¶¶ 94-104, 206;
see also Trial Tr. at 269, 272-73; Violation Report at
In order to prove that his attorney suffered from an actual conflict of
interest during the course of his representation, Graham must demonstrate
the existence of three distinct elements. See United States v.
Berger, 188 F. Supp.2d 307, 333 (S.D.N.Y. 2002) (citing United
States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)). First, he must
establish that an "actual conflict of interest" existed, i.e., that "the attorney's and defendant's interests diverge[d]
with respect to a material factual or legal issue or to a course of
action." Berger, 188 F. Supp.2d at 333 (citing Winkler v.
Keane, 7 F.3d 304, 307 (2d Cir. 1993)). He must then establish that
an "actual lapse in representation" resulted from the conflict; this is
demonstrated by the existence of some "plausible alternative defense
strategy" not pursued by counsel. Berger, 188 F. Supp.2d at 333
(citing Winkler, 7 F.3d at 309). Finally, Graham must show
causation that the alternative defense strategy was "inherently
in conflict with or not undertaken due to the attorney's other loyalties
or interests." Armienti v. United States, 234 F.3d 820, 824 (2d
Cir. 2000); Berger, 188 F. Supp.2d at 333 (citing
Winkler, 7 F.3d at 309) (other citation omitted).
The Appellate Division specifically found that there was "no record
support" for Graham's claim that Attorney Milstein possessed, but
neglected to utilize, parole records relating to Walker in his defense of
Graham, or that Attorney Milstein's representation of Graham was affected
by a conflict of interest. Graham, 283 A.D.2d at 890. As noted
above, determination of factual issues made by a State court "shall be
presumed to be correct," and a habeas petitioner is required to rebut
this presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Boyette, 246 F.3d at 88: see also Mask
v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000). "The touchstone for a reasonable
determination under § 2254(e)(1) is whether the determination is at
least minimally consistent with the facts and circumstances of the case."
Dawson v. Donnelly, 111 F. Supp.2d 239, 245 (W.D.N.Y. 2000)
(citations and internal quotations omitted).
As petitioner argues, since Attorney Milstein questioned Walker about
his participation in the work release program at the time of trial,
Attorney Milstein was necessarily aware of the fact that Walker
participated in that program. See Dkt. No. 13 at 12; see
also Trial Tr. at 284-91. Additionally, in his affirmation in
support of Graham's CPL § 440 Motion, Thomas Marcelle, Esq. declared
that the PDO's office was in possession of documents relating to Walker's
parole (including the Violation Report) prior to Graham's trial.
See Affidavit of Thomas Marcelle, Esq. (5/15/99) at ¶¶
93-96. The foregoing is some evidence that Attorney Milstein, an attorney
with the PDO, had access to the Violation Report prior to Graham's trial.
However, petitioner has not rebutted, by clear and convincing evidence,
the Third Department's explicit finding that Attorney Milstein actually
"possessed, but failed to use" Walker's parole records to rebut his
testimony regarding the time at which he claimed Graham confessed to the killing. Graham, 283 A.D.2d at 890.*fn21
Moreover, the record reflects that Graham's counsel vigorously
cross-examined Walker and attempted to impeach his credibility by noting
that he had previously been convicted of criminal possession of a
controlled substance and had violated the terms of both the work release
program and his parole. Trial Tr. at 286-91.*fn22 In light of Walker's
prior trial testimony that he had already finished working before he
accompanied Graham and Lynwood Maye to the softball field, see
Trial Tr. at 269, even if Attorney Milstein had actually been aware of
the information contained in the Violation Report which indicated that
Walker was scheduled to be at work during the time he testified he was at
a softball field, Attorney Milstein could only have utilized that
information to further impeach Walker, and not, as petitioner suggests,
as proof that Walker was actually at work during the time Graham admitted
to Walker that petitioner had killed Hannah.*fn23 This Court concludes that petitioner has not established that his trial
attorney's interests diverged from those of Graham. Specifically, he has
not established that Attorney Milstein was aware of the information
contained in the Violation Report at the time of Graham's trial,
resulting in a divergence of interests relating to the issue of Walker's
whereabouts at approximately 5:45 p.m. on August 22, 1995.*fn24 Thus,
the claimed conflict of interest between Attorney Milstein and Graham is
purely hypothetical and cannot form a basis for finding that an actual
conflict of interest existed. See Quince v. Crosby,
360 F.3d 1259, ___ (11th Cir. 2004) ("A mere hypothetical conflict will not
suffice to establish a violation under Cuyler") (citations omitted);
United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)
("Without a showing of inconsistent interests, any alleged conflict
remains hypothetical, and does not constitute ineffective assistance")
(citation omitted); Burden v. Zant, 24 F.3d 1298, 1305 (11th
Cir. 1994) ("A speculative or merely hypothetical conflict of interest
does not yield a Sixth Amendment violation") (citing Cuyler);
see also United States v. Persico, No. 84 CR. 809, 1990 WL
3218, at *6 (S.D.N.Y. Jan. 5, 1990) (citing Cuyler) (other
citation omitted); United States v. Hopkins, 43 F.3d 1116,
1119 (6th Cir.) (no actual conflict of interest where attorney was
unaware of facts giving rise to claimed conflict), cert.
denied, 514 U.S. 1135 (1995).
Additionally, since Petitioner has failed to establish that Attorney
Milstein knew of the statement contained in the Violation Report, he has
also failed to demonstrate that Attorney Milstein failed to pursue a
plausible alternative defense strategy (i.e., questioning Walker about
his whereabouts on August 22, 1995 at 5:45 p.m.) because of the alleged
conflict. See Armienti, 234 F.3d at 824; Berger,
188 F. Supp.2d at 333, or that Attorney Milstein's performance at trial was
adversely affected by the claimed conflict.
To the extent petitioner claims that a potential conflict
existed between Graham and his trial counsel, the Court notes that in
considering such a claim, the undersigned must apply the standard established in
Strickland. See John Doe No. 1, 272 F.3d at 126.
In the present case, petitioner has failed to establish either of the two
Strickland prongs. Specifically, he has not shown that Attorney
Milstein's failure to review (or obtain) the Violation Report, or discuss
that matter with Attorney Hanley during the course of Attorney Milstein's
representation of Graham, fell below an objective standard of
reasonableness, measured in the light of the prevailing professional
norms. Moreover, petitioner has not established that absent counsel's
alleged errors, the result of Graham's trial would likely have been
different, considering the totality of the evidence. In this regard, the
undersigned notes that although Walker's testimony and perceived
credibility were important to the prosecution's case, after reviewing the
trial transcripts, this Court finds that, in light of counsel's thorough
challenge to Walker's credibility during cross-examination, any
impeachment evidence regarding the time he worked at the McDonald's
restaurant on August 22, 1995 "would have had a negligible impact on
[Walker's] credibility and the trial's ultimate outcome." See
Maggard v. Gammon, 197 F. Supp.2d 1321, 1336 (D.Kan. 2002),
appeal dismissed, 2003 WL 254882 (10th Cir. 2003).
Since petitioner has not established that Attorney Milstein labored
under a per se, actual or potential conflict of interest, he
has a fortiori failed to demonstrate that the Third Department's decision denying this
aspect of Graham's appeal is either contrary to, or represents an
unreasonable application of, Strickland or Cuyler.
The Court therefore denies petitioner's second ground for relief.
3. Blanchard's Pre-Trial Identification of Graham
Petitioner next claims that prior to trial, the police impermissibly
displayed a single photograph of Graham to Blanchard in determining
whether he could identify Graham as the individual who shot Hannah, and
that, as a result, Blanchard's in-court identification of Graham violated
his right to a fair trial. See Petition, Ground Three.*fn25 In
related claims, petitioner contends that the in-court identification of
Graham by Blanchard denied petitioner his due process rights because: i)
Blanchard had previously informed the authorities on October 12, 1995
that he did not recognize the shooter;*fn26 and ii) on March 16, 1998,
Blanchard's brother, Johnny, declared in a sworn statement that on two
earlier occasions, his brother Wayne had indicated that he did not see
the individual who shot Hannah.*fn27
Respondent contends that Blanchard's in-court identification of Graham
was proper because Blanchard's pre-trial identification of petitioner was
not unconstitutionally suggestive due to Blanchard's prior relationship
with Graham. Dkt. No. 11 at 20-23.
i. Clearly Established Supreme Court Precedent
In considering a challenge to a pre-trial identification of a
defendant, courts are to consider whether the pre-trial identification
process created "a very substantial likelihood of irreparable
misidentification" at the time of trial. Manson v. Brathwaite,
432 U.S. 98, 113, 116 (1977) (internal quotation and citation omitted).
Courts must consider the totality of the circumstances relating to the
pre-trial identification, see Neil v. Biggers, 409 U.S. 188,
199 (1972), weighed against the corrupting effect of the suggestive
identification. Manson, 432 U.S. at 114. In determining whether
a witness' identification of a defendant is reliable independent of
unduly suggestive identification procedures, courts should consider:
 the opportunity of the witness to view the
criminal at the time of the crime,  the
witness' degree of attention,  the accuracy of
the witness' prior description of the criminal,  the level of
certainty demonstrated by the witness at the
confrontation, and  the length of time between
the crime and the confrontation.
Biggers, 409 U.S. at 199-200.
After considering these factors, if the court concludes that a
petitioner has failed to establish that there was "a very substantial
likelihood of irreparable misidentification," the presence of some
elements of untrustworthiness goes only to the weight of the
identification, not its admissibility. See Manson, 432 U.S. at
ii. Contrary to, or Unreasonable Application of,
Supreme Court Precedent
The Appellate Division discussed Graham's claim relating to Blanchard's
pre-trial identification in some detail. Specifically, that court noted
that during a pre-trial suppression hearing conducted by Judge Breslin,
Detective Mulrooney testified that Blanchard, without any prompting or
suggestiveness on the part of the police, provided the detective with
both the actual and "street name" of Graham. Graham, 283 A.D.2d
at 887. Moreover, Blanchard stated that he knew the petitioner for "over
ten years," and was aware that Graham was related to Johnson.
Id. The Third Department then concluded that the
"uncontroverted, albeit limited, evidence adduced at the [suppression]
hearing was sufficient to establish that [Graham] and Blanchard were `long-time
acquaintances,'" and that, "as a matter of law, Blanchard was `impervious
to police suggestion' at the time of the subject identification."
Graham, 283 A.D.2d at 887-88.
Since both Biggers and Manson are clearly
established federal law as determined by the Supreme Court, see
Kennaugh v. Miller, 289 F.3d 36, 44 (2d Cir.), cert.
denied, 537 U.S. 909 (2002), this Court must consider whether the
Third Department's decision denying this aspect of Graham's appeal is
either contrary to, or an unreasonable application, the above-referenced
Although Judge Breslin did not explicitly consider the
Biggers factors in denying defense counsel's motion to suppress
the identification testimony of Blanchard, Judge Breslin was necessarily
aware of, and specifically based his decision denying the motion to
suppress on, Detective Mulrooney's testimony at the suppression hearing.
See Pre-trial Suppression Hearing conducted in People v.
Graham (10/2/96) ("Suppression Tr.") at 193-94. Moreover, even a
de novo consideration of the Biggers factors supports
Judge Breslin's ruling that Blanchard could properly make an in-court
identification of Graham. At the pre-trial suppression hearing conducted
by Judge Breslin, Detective Mulrooney described in detail Blanchard's
familiarity with Graham and what Blanchard observed on the day of the
shooting. See Suppression Tr. at 67-71, 75-79. Specifically, Detective Mulrooney testified at that hearing that
Blanchard had observed the vehicle drive up to Hannah, and that Graham
then began shooting at Hannah with a semi-automatic pistol. Suppression
Tr. at 67-68. After Hannah fell to the ground, Johnson backed the car up
and Graham continued shooting Hannah as he lay in a fetal position on the
ground. Suppression Tr. at 68.*fn28 These facts strongly suggest that
Blanchard observed Graham as he committed the crime and paid close
attention to the shooting. Additionally, the record establishes that
Blanchard knew Graham for approximately ten years, see
Suppression Tr. at 76; see also Trial Tr. at 242-43,*fn29 and
that Blanchard unequivocally informed Detective Mulrooney that the car
was driven by Johnson, with Graham shooting Hannah from the passenger
seat of the car. Suppression Tr. at 67-68.*fn30 Additionally, more than
one month prior to being shown Graham's photograph, Blanchard provided the police with a written
statement in which he clearly stated that Graham shot Hannah.
See Blanchard's Sworn Statement to the Albany Police Department
(3/20/96) at 2-3 (reproduced in CPL § 440 App. at A150-51).*fn31
Eight months, however, had passed between the time of the crime and the
date on which Blanchard identified Graham, see Suppression Tr.
at 69-70, a period of time which is clearly a negative factor to be
considered in this context. See Biggers, 409 U.S. at 201.*fn32
After considering the totality of the circumstances relating to this
issue, this Court concludes that Judge Breslin's decision allowing
Blanchard's in-court identification of Graham did not violate the general
due process standard enunciated in Manson. See
Kennaugh, 289 F.3d at 44. Moreover, the County Court's finding was
entirely consistent with the Supreme Court's holding in
Biggers.*fn33 Therefore, any claimed untrustworthiness
relating to the identification "goes only to the identification's weight, not to its admissibility."
Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998) (quoting
Manson, 432 U.S. at 116). Weight of the evidence review,
however, is a product of New York state statute and therefore merely a
state law issue. See CPL § 470.15; see also People
v. Bleakley, 69 N.Y.2d 490 (1987). It is well-established that
habeas corpus review is not available for errors of state law.
Estelle v. McGuire, 502 U.S. 62, 67-69 (1991). As such,
no cognizable federal issue is presented by a habeas claim
challenging the weight of the evidence adduced at trial. Glisson
v. Mantello, 287 F. Supp.2d 414, 441 (S.D.N.Y. 2003) (citing
Givens v. Burge, 02Civ.0842, 2003 WL 1563775, at *10 (S.D.N.Y.
Mar. 4, 2003) (collecting cases); McBride v. Senkowski,
98CV8663, 2002 WL 523275, at *4 n.2 (S.D.N.Y. Apr. 8, 2002)
(citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)).
Moreover, the Court endorses the Third Department's findings that: a)
Blanchard's October, 1995 statement to the police (in which he indicated
that he did not recognize the shooter); and b) the March, 1998 statement
written by Johnny Blanchard in which he indicated that his brother,
Wayne, twice claimed that he did not see the individual who shot Hannah, did not
establish that Blanchard's in-court identification of Graham was
unreliable. As the Third Department noted, that impeachment evidence
merely provided additional support to "the issue explored at
length at trial of Blanchard's ability and motive to identify the
shooter." See Graham, 283 A.D.2d at 889.
In light of the foregoing, the undersigned concludes that petitioner
has failed to demonstrate that the Appellate Division's decision
rejecting this aspect of Graham's appeal was either contrary to, or
represented an unreasonable application of, Manson or
Biggers. Therefore, this aspect of Graham's third ground for
relief is denied. E.g. Sides v. Senkowski, 281 F. Supp.2d 649,
654 (W.D.N.Y. 2003) (denying habeas claim where evidence demonstrated
that witness knew petitioner and there was no likelihood of
misidentification at trial).
4. Denial of Right to Fair Trial
In his final ground for relief, petitioner contends that he was denied
his right to a fair trial. See Petition at Ground Four. In this
ground, in addition to reasserting his Brady and ineffective
assistance claims, as well as petitioner's argument that Blanchard's
in-court identification of Graham as the shooter was improper, Graham
further contends that he was denied his right to a fair trial because: i)
"all of the evidence of Petitioner's guilt was manufactured by deals and bargains given to notorious career criminals;" and ii) "all of
the unbiased witnesses and physical evidence exculpated petitioner."
See Petition at Ground Four.*fn34
Respondent argues that "a jury of twelve . . . concluded that these
criminals and scoundrels . . . were telling the truth when they
fingered petitioner as the shooter," and that therefore Graham's final
ground for relief should be denied. Dkt. No. 11 at 25.
i. Clearly Established Supreme Court Precedent
"The right to a fair trial . . . has been called `the most
fundamental of all freedoms.'" Nebraska Press Ass'n v. Stuart,
427 U.S. 539, 586 (1976) (Brennan, J., concurring) (quoting Estes v.
Texas, 381 U.S. 532, 540 (1965)). "It is a right essential to the
preservation and enjoyment of all other rights, providing a necessary
means of safeguarding personal liberties against government oppression."
Stuart, 427 U.S. at 586 (citing Rideau v. Louisiana,
373 U.S. 723, 726-727 (1963)): see also Albright v. Oliver,
510 U.S. 266, 273 n.6 (1994) (a criminal defendant's right to a fair
trial is mandated by the Constitution) (citing United States v.
Agurs, 427 U.S. 97, 107 (1976)); Tavlor v. Hayes,
418 U.S. 488, 501-02 (1974). Nevertheless, where a habeas petitioner claims that
he was denied his right to a fair trial, a federal habeas court's
reviewing power is "the narrow one of due process . . . not the broad
power that [it] would possess in regard to [its] own trial court."
See Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974).
ii. Contrary to, or Unreasonable Application of,
Supreme Court Precedent
The Third Department considered and rejected the aspect of Graham's
appeal which argued that Graham's conviction was obtained by "[c]riminals
looking for deals." Compare App. Br. at ¶ 4; with
Graham, 283 A.D.2d at 889-90. This Court must therefore determine
whether this aspect of the Appellate Division's decision is contrary to,
or represents an unreasonable application of, the above-referenced
Supreme Court authority.
As petitioner correctly notes, several prosecution witnesses received
favorable treatment regarding pending criminal charges in exchange for
their testimony against Graham.
Specifically, as is discussed in more detail above, Attorney Maney of
the PDO obtained an agreement whereby Walker's parole would only be
revoked for ten months, rather than the longer period allowed by his
parole violations, in exchange for Walker's trial testimony. CPL § 440 App. at A196;
Trial Tr. at 299.
Karim Maye similarly received a plea bargain in exchange for his trial
testimony the PDO, which represented him in a prior criminal
proceeding, obtained a favorable plea agreement from the District
Attorney allowing Karim Maye to plead guilty to a misdemeanor offense
arising out of a felony drug sale charge that followed his arrest in
February, 1996. See Graham, 283 A.D.2d at 890. In a subsequent
criminal matter, Karim Maye's retained counsel negotiated a plea bargain
with the District Attorney which resulted in Karim Maye receiving a
sentence of one year imprisonment after having been arrested for first
degree robbery and the criminal possession and use of a weapon in
exchange for his trial testimony. Trial Tr. at 337-340; Graham,
283 A.D.2d at 890.
For Blanchard's cooperation at Graham's trial, Blanchard requested that
the District Attorney's office facilitate his release on parole "to a
long-term residential program" to assist Blanchard in "put[ting his] life
in order." CPL § 440 App. at A148. The District Attorney thereafter
agreed to write a letter to the Commissioner of the Department of
Correctional Services advising him of Blanchard's cooperation at Graham's
trial. Trial Tr. at 255-58.
Finally, during the cross-examination of Young, it was revealed that he had previously been arrested for the criminal possession of a
weapon in the third degree, as well as third degree criminal possession
of a controlled substance. Trial Tr. at 406-09. Young pled guilty to the
weapons possession charge and received a one year sentence following that
plea. Trial Tr. at 411. In exchange for Young's truthful testimony at
trial, the District Attorney agreed to dismiss the drug possession
charge. See CPL § 440 App. at A265.
However, petitioner's trial attorney was well aware of the foregoing
arrangements at the time of Graham's trial, and thoroughly cross-examined
each of these witnesses as to their respective agreements in an effort to
impeach their credibility. See Trial Tr. at 299 (as to Walker);
335-340 (as to Karim Maye); 255-58 (as to Blanchard) and 406-13 (as to
The fact that some of the prosecution witnesses were convicted
criminals testifying pursuant to cooperation agreements does not form a
basis for habeas relief; "the jury's decision was largely a matter of
choosing whether to believe [the defense's] version of the events or to
believe the version offered by the State. The jury chose to believe the
State's witnesses." Simpson v. Portuondo, No. 01 CIV 1379, 2001
WL 830946, at *8 (S.D.N.Y. July 12, 2001) (Peck, M.J.); see also
United States v. Tavlor, 92 F.3d 1313, 1333 (2d Cir. 1996)
("Although [the defendant] complains that the bulk of this testimony came
from cooperating witnesses, we must defer to the jury's resolution of any questions
as to the credibility of witnesses"), cert. denied,
519 U.S. 1093 (1997); Simmons v. Mazzuca, 00 CIV. 8174, 2001 WL 537086
at * 8 (jury was entitled to credit main government witness who testified
pursuant to cooperation agreement); United States v. Mason, 96
Cr. 126, 2001 WL 69442 at * 2 (S.D.N.Y. Jan. 29, 2001) (jury's action in
crediting testimony of cooperating witnesses could not be disturbed on
Petitioner's contention that the evidence of his guilt was
"manufactured by deals and bargains given to notorious career criminals,"
as well as his argument that "all of the unbiased witnesses and physical
evidence exculpated petitioner," Petition at ¶ 211, are requests by
him for this Court to conclude that the credible evidence exonerated
Graham notwithstanding the jury's finding to the contrary. However,
federal habeas courts "are not free to reassess the fact specific
credibility judgments by juries or to weigh conflicting testimony. On
collateral review this Court must presume that the jury resolved any
questions of credibility in favor of the prosecution." Ferguson v.
Walker, No. OOCIV1356, 2001 WL 869615, at *5 (S.D.N.Y. Aug. 2, 2001)
(Peck, M.J.) (internal quotations and citations omitted),
adopted, 2002 WL 31246533 (S.D.N.Y. Oct 7, 2002); see also
Bellezza v. Fischer, No. 01-CV-1445, 2003 WL 21854749, at *15
(E.D.N.Y. Aug. 6, 2003) (citations omitted); Cottrel v. New York,
259 F. Supp.2d 300, 308 (S.D.N.Y. 2003) (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)); Fagon v. Bara,
717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make
credibility judgments about the testimony presented at petitioner's trial
or to weigh conflicting testimony") (citing United States v.
Zabare, 871 F.2d 282, 286(2d Cir. 1989)).
Although Graham and his counsel fervently believe that the credible
evidence warrants the granting of the present petition, Graham has not
established that he was denied his right to a fair trial by the jury's
ultimate decision, after considering all of the testimony and other
evidence before it, to convict him of the intentional murder of Hannah.
Nor do any of the other theories asserted by petitioner in his petition
establish that he was denied his right to a fair trial. Graham has
therefore necessarily failed to demonstrate that the Third Department's
decision denying this aspect of his appeal is contrary to, or represents
an unreasonable application of, the Supreme Court precedent referenced
above. Therefore, the undersigned denies this final ground for relief.
After carefully considering all of the theories asserted by petitioner
in support of his petition, this Court concludes that Graham is not
entitled to habeas relief on any of the grounds raised in this action. Therefore,
based upon the above, it is hereby
ORDERED, that Graham's habeas petition is DENIED
and DISMISSED; and it is further
ORDERED, that the Clerk of Court serve a copy of this
Memorandum-Decision and Order upon the parties by regular mail; and it is
ORDERED, that the state court records be returned directly to
the Attorney General at the conclusion of these proceedings (including
any appeal of this Memorandum-Decision and Order filed by any party).
IT IS SO ORDERED.