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April 7, 2004.

JASON GRAHAM, Petitioner,
THOMAS RICKS, Superintendent, Respondent

The opinion of the court was delivered by: NEAL McCURN, Senior District Judge



  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, 473.

  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 203-04.

  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 (2001).

  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 proceeding.
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." ...

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