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LEAKE v. SENKOWSKI

United States District Court, S.D. New York


June 30, 2004.

EDWARD LEAKE, Petitioner,
v.
DANIEL A. SENKOWSKI, Superintendent, Respondent.

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Edward Leake brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Westchester County Supreme Court, Leake was convicted of Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the Second Degree, and two counts of Criminal Possession of a Weapon in the Third Degree. He was sentenced as a second violent felony offender to a total of 31 years to life in state prison. He is currently incarcerated pursuant to that judgment at Clinton Correctional Facility in Dannemora, New York. For the following reasons, the petition should be denied.

I. FACTUAL BACKGROUND

  This case arose out of a fight that broke out shortly before midnight on November 19, 1991, at the intersection of Fifth Avenue and Third Street in Mount Vernon, New York. The fight resulted in the stabbing death of William Fitzgerald.

  A. Pretrial Hearing

  A pretrial hearing was held to determine the validity of Leake's arrest in his home, the admissibility of identification evidence and of Leake's statements to the police, and the scope of cross-examination if Leake chose to testify at trial.

  1. The People's Case

  Detective James Garcia testified that during the early morning hours of November 20, 1991, he was called at home to investigate Fitzgerald's death. (Garcia: Hr'g Tr. I. 17-18; Hr'g Tr. II. 22-24).*fn1 From interviewing witnesses, he learned that Leake might have been involved in the incident. (Garcia: Hr'g Tr. I. 20; Hr'g Tr. II. 24-25). Around 3:30 or 4:00 a.m., Detective Garcia and four other officers went to Leake's apartment at 160 Warburton Avenue, Apartment 18E in Yonkers, New York. (Garcia: Hr'g Tr. I. 19-20, 23; Hr'g Tr. II. 33-34). Detective Garcia knocked on the door and Leake opened it. (Garcia: Hr'g Tr. I. 20; Hr'g Tr. II. 35-36). Detective Garcia identified himself and asked if they could speak to him about an incident in Mount Vernon earlier that evening. Leake said "fine" and let the officers into his apartment. (Garcia: Hr'g Tr. I. 21; Hr'g Tr. II. 36-38, 70, 121-22). Detective Garcia noticed another male lying on a mattress in the apartment so he asked Leake if he would come to the Mount Vernon Police Headquarters. Leake agreed. (Garcia: Hr'g Tr. I. 21-22; Hr'g Tr. II. 38-41, 44). Leake got dressed and accompanied the officers to the police station. (Garcia: Hr'g Tr. I. 22-24; Hr'g Tr. II. 42-43, 122-25).

  Upon arriving at police headquarters, Leake was taken to a conference room where Detective Garcia advised him of his Miranda rights. (Garcia: Hr'g Tr. I. 25-26; Hr'g Tr. II. 72-73, 126-27). After the Miranda card was read to Leake, he signed it, acknowledging that it had been read to him. (Garcia: Hr'g Tr. I. 27-30, 45-46; Hr'g Tr. II. 74, 80-81). He signed the card a second time, acknowledging that he understood his rights and that he wished to speak with the detectives. (Garcia: Hr'g Tr. I. 30-31; Hr'g Tr. II. 74, 81-83). Detective Garcia, Detective Daniel Fischer, and Lieutenant Robert Astornio then began questioning Leake. (Garcia: Hr'g Tr. I. 32; Hr'g Tr. II. 84). Detective Garcia testified that he brought in coffee and doughnuts during this interview. (Garcia: Hr'g Tr. II. 128).

  During the questioning, Leake stated that he had been in Mount Vernon earlier that night to visit a friend named "Eddie." (Garcia: Hr'g Tr. I. 32). He initially denied having any problems with anybody. (Garcia: Hr'g Tr. I. 32-33). After about an hour of questioning, Leake conceded that when he was with his friend Eddie Brown on Third Street, he had gotten into a fight. (Garcia: Hr'g Tr. I. 33-34; Hr'g Tr. II. 85-86). Leake first denied that there had been any weapon involved but later admitted that one of the individuals had a knife that Leake had taken. (Garcia: Hr'g Tr. I. 34).

  Leake then gave the following account of the events of the previous evening. He was walking on Third Street with Brown. When they passed a pool hall, Brown encountered a person with whom he had earlier had an altercation and the two started fighting again. (Garcia: Hr'g Tr. I. 34-35). Leake tried to break up the fight and others became involved. (Garcia: Hr'g Tr. I. 35). At one point, Leake saw an individual come at him with a knife, which he blocked with his hand, knocking the knife to the ground. (Garcia: Hr'g Tr. I. 35). Leake picked up the knife, which was four inches long and silver, and started swinging it at people who came close to him. (Garcia: Hr'g Tr. I. 35-36). He stated that he thought he might have stabbed two or three people. (Garcia: Hr'g Tr. I. 36). The only person he saw on the ground, however, was Brown, whom he helped into a car. (Garcia: Hr'g Tr. I. 36). An unidentified person drove Leake home. Leake did not know where Brown was dropped off. (Garcia: Hr'g Tr. I. 36).

  Detective Garcia then informed Leake that someone had been killed and that another individual had been stabbed and was in the hospital. (Garcia: Hr'g Tr. I. 37; Hr'g Tr. II. 91). He asked Leake if he would like to give a written statement as to what occurred and Leake said that he would. (Garcia: Hr'g Tr. I. 37-38). Before Detective Garcia began typing Leake's statement onto a form, he advised Leake of his Miranda rights again and Leake signed the waiver form again. (Garcia: Hr'g Tr. I. 41-42, 46). At the conclusion of Detective Garcia's recorded questioning, at about 6:45 a.m., Leake read the statement and signed the bottom of it, acknowledging that it was true. (Garcia: Hr'g Tr. I. 44-46).

  Leake then agreed to give a statement on video. (Garcia: Hr'g Tr. I. 47-48). After Assistant District Attorney Doug Fitzmorris and Detective Garcia questioned Leake, it was discovered that the microphone for the videotaping system had not been turned on and thus no audio had been recorded. (Garcia: Hr'g Tr. I. 48-49; Hr'g Tr. II. 5-6, 11-12). As a result, Detective Garcia asked Leake if he would mind giving another statement on video, to which Leake agreed. (Garcia: Hr'g Tr. I. 49). ADA Fitzmorris did not take part in the second interview. (Garcia: Hr'g Tr. I. 50). The second videotaped interview began at 9:55 a.m. (Garcia: Hr'g Tr. I. 53-54). Both videotapes were played at the hearing. (Garcia: Hr'g Tr. I. 53; Hr'g Tr. II. 3-4).

  On cross-examination, defense counsel brought out that Detective Garcia had gotten Leake's address from Leake's parents, whose home a group of detectives visited at approximately 3:00 a.m. on November 20th. (Garcia: Hr'g Tr. II. 26-31, 68-69). When asked if he had told Mr. and Mrs. Leake that their son had been involved in a car accident, Detective Garcia stated that he did not recall saying anything about an accident. (Garcia: Hr'g Tr. II. 32).

  Detective Garcia admitted that he made no attempt to obtain an arrest warrant before going to Leake's apartment. (Garcia: Hr'g Tr. II. 70). He described Leake's appearance when he began speaking to him at his apartment as "calm" and "cooperative." (Garcia: Hr'g Tr. II. 50-51). He stated that he believed Leake understood his Miranda rights "absolutely." (Garcia: Hr'g Tr. II. 82-83). When Detective Garcia informed Leake that Fitzgerald was dead, Leake stated "that he didn't mean to hurt or kill anybody." (Garcia: Hr'g Tr. II. 91).

  Detective Garcia later executed a search warrant at 160 Warburton Avenue, recovering a pair of Bally's shoes, a pair of eyeglasses, a bloody blue sweatshirt, two green army jackets, and personal papers. (Garcia: Hr'g Tr. II. 118-19).

  Detective Dewitt Mack testified that he was called to come back to work during the night of November 19-20. (Mack: Hr'g Tr. II. 143-44). He said that when he went to 160 Warburton Avenue with the other officers, Leake let them into the apartment after they had knocked. (Mack: Hr'g Tr. II. 144-47). Detective Garcia asked Leake if he would come to police headquarters and he said, "[Y]es, . . . I would like to put my clothes on." (Mack: Hr'g Tr. II. 146). The detectives went with Leake into the bedroom where he got dressed and then they all left. (Mack: Hr'g Tr. II. 146, 148).

  Later that day, Detective Mack prepared a photo array consisting of pictures of six black males, including Leake. (Mack: Hr'g Tr. II. 149-52, 168-70). He showed this array separately to Leonard Swain, Travis Swain ("Swain"), and Ronald Ross, all of whom had witnessed or been involved in the incident. (Mack: Hr'g Tr. II. 153-54). Leonard Swain was unable to make an identification. (Mack: Hr'g Tr. II. 154, 177-80). Swain identified photograph number 1. (Mack: Hr'g Tr. II. 154-58, 180-82). Ross also identified photograph number 1. (Mack: Hr'g Tr. II. 159-63, 182-83). The photograph Swain and Ross identified was that of Leake. (Mack: Hr'g Tr. II. 180, 182). Detective Mack had received a description of the assailant from each of the three men before preparing the photo array but he had not written these descriptions down. (Mack: Hr'g Tr. II. 170-75).

  Detective Fischer testified that at about 5:45 a.m. on November 20th, he went to the Mount Vernon Hospital to see if Billy Edwards, who had been injured in the incident, could make an identification. (Fischer: Hr'g Tr. II. 231-32). Detective Fischer showed Edwards the photo array and he identified photograph number 1. (Fischer: Hr'g Tr. II. 232-36, 240-41).

  ADA Fitzmorris testified regarding his presentation of the case to the Grand Jury. (Fitzmorris: Hr'g Tr. II. 196). During the course of that presentation, ADA Fitzmorris presented the photo array to Edwards and Ross. (Fitzmorris: Hr'g Tr. II. 196-202). The prosecution introduced into evidence portions of their Grand Jury testimony concerning the identification each made of Leake. (Fitzmorris: Hr'g Tr. II. 200-03).

  2. The Defense Case

  Priscilla Leake, Leake's mother, testified that during the early morning hours of November 20, 1991, several detectives visited her home at 126 South High Street in Mount Vernon. (P. Leake: Hr'g Tr. II. 214-15). Detective Garcia told her that they were looking for Leake because he had been involved in a car accident. (P. Leake: Hr'g Tr. II. 215-16). Because she wanted to know how her son was doing, she went upstairs and called him while the detectives remained downstairs talking to her husband (P. Leake: Hr'g Tr. II. 216, 224-25). She told Leake that the detectives were looking for him and asked if he had been in a car accident. (P. Leake: Hr'g Tr. II. 216, 222). He told her that he had not been in an accident and that he would be at home. (P. Leake: Hr'g Tr. II. 217, 222).

  Leake also testified on his own behalf. He testified that he had lived at 160 Warburton Avenue in Yonkers since October 1991. (Leake: Hr'g Tr. II. 248). Prior to that, he had lived with his parents at 126 South High Street in Mount Vernon. (Leake: Hr'g Tr. II. 249). When Leake's mother called him early in the morning of November 20, 1991, she told him that some police officers had woken her up looking for him because he had been in a car accident. (Leake: Hr'g Tr. II. 250-51). The officers arrived at Leake's apartment approximately 15 minutes after that call. (Leake: Hr'g Tr. II. 251).

  Leake's version of his encounter with the detectives was as follows: the police knocked on his door and said, "[P]olice, open up." (Leake: Hr'g Tr. II. 252). He said that he would but that he wanted to put pants on before he opened the door. (Leake: Hr'g Tr. II. 252). The police knocked harder and louder and said, "[O]pen up now." (Leake: Hr'g Tr. II. 252). He went straight to the door wearing just his underwear. (Leake: Hr'g Tr. II. 252). As Leake turned the knob to open the door, the police pushed the door open and he jumped back. (Leake: Hr'g Tr. II. 252). They told him to stay facing the wall and three or four officers ran into his apartment. (Leake: Hr'g Tr. II. 252). Detective Garcia asked him if he had been in Mount Vernon that night and Leake responded that he had but that he had not been involved in a car accident. (Leake: Hr'g Tr. II. 253). Detective Garcia told Leake they wanted him to come to the police station to talk. Leake responded that this was his home and asked, "[W]hy can't you ask me questions here?" (Leake: Hr'g Tr. II. 253). Leake heard one of the detectives respond, "you can make it harder on yourself or you can make it easy on yourself." (Leake: Hr'g Tr. II. 253-54). Because he needed to get dressed, Leake went towards the bedroom to get his clothes. (Leake: Hr'g Tr. II. 254-55). The officers followed him to the room and then stopped him before he entered the room, insisting on going in first. (Leake: Hr'g Tr. II. 254-55). They asked Leake what he wanted to wear and got clothing for him out of the closet. (Leake: Hr'g Tr. II. 255). After getting dressed, Leake was taken out of the apartment by two officers holding his arms. (Leake: Hr'g Tr. II. 255).

  Leake was taken to the Mount Vernon Police Headquarters, where he was put into a room and the officers "kept asking [him] questions." (Leake: Hr'g Tr. II. 257). When they asked him what happened in Mount Vernon that night, he "told them a few times that if [they] didn't know, [they] wouldn't have [him] here." (Leake: Hr'g Tr. II. 257). Leake told the officers that maybe he would talk in the morning if they arrested him and put him in a cell to sleep. (Leake: Hr'g Tr. II. 257-58). Leake testified that he dozed off during the questioning because he had taken a sleeping medication. (Leake: Hr'g Tr. II. 257). He claimed that a couple of times he fell asleep at the table and one of the officers banged on the table to wake him up. (Leake: Hr'g Tr. II. 258-59). He testified that he was "confused [and] scared" throughout the time he gave the various statements to the police. (Leake: Hr'g Tr. II. 261). During questioning by ADA Fitzmorris, Leake first learned that one of the men involved in the fight had died. (Leake: Hr'g Tr. II. 261-62).

  On cross-examination, Leake testified that in November 1991 he was living with Tony Jones. (Leake: Hr'g Tr. II. 270). Although Leake had gotten married in June 1991, he had never "really" lived with his wife. (Leake: Hr'g Tr. II. 271-72). Once the officers entered his apartment, Leake "figured" that he was being restrained when he was told to stay facing the wall and when he was prevented from entering his bedroom or closet without two officers going in before him. (Leake: Hr'g Tr. II. 275). He further believed he was being restrained when his arms were held as he was escorted to the car and felt he was "mistreated when they walked into my house at that time of night." (Leake: Hr'g Tr. II. 275).

  With respect to the questioning that took place at the station, Leake complained that the officers would not let him get some sleep before talking, that they would not give him any food, and that they would not give him a lawyer. (Leake: Hr'g Tr. II. 285). Leake acknowledged that on the videotapes Detective Garcia appeared courteous towards him. (Leake: Hr'g Tr. II. 266). Also, he acknowledged that in the videotapes he never appeared to be dozing off or otherwise indicated that he wanted to get some sleep. (Leake: Hr'g Tr. II. 267-68, 285). However, Leake maintained that Detective Garcia did not give him anything to eat until he said that he was not going to do the second video until he got something to eat. (Leake: Hr'g Tr. II. 266). On cross-examination, Leake asserted for the first time "I asked to go home and to speak to a lawyer . . . and I didn't get that." (Leake: Hr'g Tr. II. 267). According to Leake, during the first videotape (the one without recorded sound) he asked Detective Garcia, "[W]here is the lawyer?" (Leake: Hr'g Tr. II. 285-86).

  At the end of the second taped statement, Detective Garcia asked Leake whether he had anything to say or add. (Leake: Hr'g Tr. II. 277). Leake responded:

  Only the fact that I was really in the wrong place at the wrong time because usually [at] 11 o'clock I would be in the bed because I work, you know, long hours every day of the week and missing one hour is enough. I wish I was home tonight. You know, my intention[] was not to hurt no one. (Leake: Hr'g Tr. II. 277-78). He never said anything about being mistreated. (Leake: Hr'g Tr. II. 276-79). In fact, when Leake was asked, "Were you treated well?," he answered, "Yes." (Leake: Hr'g Tr. II. 280). Leake acknowledged that he was read his Miranda rights but maintained that Detective Garcia asked him questions prior to reading him the rights card. (Leake: Hr'g Tr. II. 280-84, 286-88). Leake further testified that at his apartment and at the precinct, he was not willing to cooperate with the police. (Leake: Hr'g Tr. II. 297-98).

  The prosecution also cross-examined Leake about his prior convictions and prior contacts with the police. In 1980, the police called Leake and asked him to come to the station concerning a burglary. (Leake: Hr'g Tr. II. 268-69). Leake immediately went to the station as requested and eventually pled guilty to Burglary in the First Degree and two counts of Rape in the First Degree. (Leake: Hr'g Tr. II. 269-70). His plea involved three similar scenarios in which he was charged with breaking into apartments and sexually assaulting female tenants. (Leake: Hr'g Tr. II. 305-13). Leake admitted that he had broken into an apartment in the building where he was living at the time and had sexually abused the woman living there. (Leake: Hr'g Tr. II. 305-07, 311-12). He denied committing the two other burglaries and rapes and denied ever testifying in the Grand Jury in connection with any crime. (Leake: Hr'g Tr. II. 307-18).

  3. The People's Rebuttal Case

  Because Leake's testimony that he asked for a lawyer during the first videotaped statement was the first time such an issue had been raised, the court allowed the People to present rebuttal on this point. (Hr'g Tr. II. 319-24). ADA Fitzmorris testified that he first met with Leake at around 8:00 a.m. on November 20, 1991. (Fitzmorris: Hr'g Tr. II. 330). He was present for the first videotaped statement and subsequently learned that the audio portion of the statement had not been recorded. (Fitzmorris: Hr'g Tr. II. 330). During this interview, Leake "most definitely [did] not" ask or otherwise indicate that he wished to speak to an attorney. (Fitzmorris: Hr'g Tr. II. 331). On cross-examination, ADA Fitzmorris stated that at some point during the statement he may have left the room to get Leake a glass of water. (Fitzmorris: Hr'g Tr. II. 334-35).

  4. Hearing Decision

  The trial judge issued an oral decision following the close of testimony on January 4, 1993. The judge concluded that Leake "was not in custody at the apartment on Warburton Avenue, that he willingly accompanied police officers to the Mount Vernon police headquarters for questioning and that before any questioning took place he was given his complete warning[s] under Miranda and made a knowing and voluntary waiver of his rights to remain silent and to be represented by counsel during the questioning." (Hr'g Tr. II. 382). The judge determined that the police did not use coercive behavior or deprive Leake of sleep so as to overbear his free will. (Hr'g Tr. II. 382). The judge found Leake's testimony that he had asked for an attorney to be not credible. (Hr'g Tr. II. 382-83). Accordingly, the motion to suppress Leake's written statement, verbal statements, and two videotaped statements was denied. (Hr'g Tr. II. 383).

  With respect to the identification evidence, the trial judge found that there was "nothing improper in the pretrial identification procedures." (Hr'g Tr. II. 383-87). Therefore, the motion to suppress the identification testimony of Swain, Ross, and Edwards was also denied. (Hr'g Tr. II. 385, 387).

  The judge also heard from the parties and made rulings regarding the prosecution's ability to cross-examine Leake regarding his prior convictions should he testify at trial. (Hr'g Tr. II. 388-411). The judge refused to allow cross-examination regarding a 1980 incident in which Leake entered a woman's apartment and sexually abused and threatened her on the ground that the incident was too remote in time. (Hr'g Tr. II. 405-06). But the judge ruled that the People would be permitted to cross-examine Leake regarding two incidents on the same day in 1981 in which he broke into the apartments of two women and raped them. Leake pled guilty to two counts of Rape in the First Degree in connection with these crimes and served nine years in prison. (Hr'g Tr. II. 405-07).

  B. The Trial

  The following evidence was presented at trial:

1. The People's Case
  During the evening of November 19, 1991, Edwards and Swain were standing on the sidewalk in front of a pool hall — Nice Guys Game Room — near Third Street and Fifth Avenue in Mount Vernon, New York. (Edwards: Tr. 188-89, 192; Swain: Tr. 448-49). Robert Dubose*fn2 and Brown pulled up in front of them in a tan car. (Edwards: Tr. 189-90; Swain: Tr. 450). Dubose got out of the car and walked away. (Edwards: Tr. 189-90). Swain approached Brown, who had remained sitting in the car, and started punching Brown in the face. (Edwards: Tr. 189-91; Swain: Tr. 450-51). Swain explained that he punched Brown because he had heard that Brown had thrown a drink on Swain's girlfriend at a party three nights prior. (Swain: Tr. 447-48, 451). Dubose got back in the car and Dubose and Brown drove away. (Edwards: Tr. 191; Swain: Tr. 451). Ross, a friend of Edwards and Swain, also witnessed this incident and testified to seeing Swain punch Brown in the face. (Ross: Tr. 345-49). Later that evening, at around 10:00 or 10:30 p.m., Edwards was again standing on the sidewalk at Third Street and Fifth Avenue. (Edwards: Tr. 194-95). Ross was again present. (Ross: Tr. 350-54). Edwards saw Dubose drive up the street in the same tan car, make a U-turn, stop, and get out of the car. (Edwards: Tr. 194-97). Then Edwards noticed a blue car with four occupants come up the street and pull into a gas station. (Edwards: Tr. 196-97). Brown and a friend got out and approached Edwards. (Edwards: Tr. 197-99). Edwards did not know Brown's friend, who was wearing a hooded sweatshirt and a green army-type coat. (Edwards: Tr. 198; Ross: Tr. 354). At trial, Edwards, Ross, and Swain all indicated that Leake was the friend with Brown. (Edwards: Tr. 219-20; Ross: Tr. 353-54; Swain: Tr. 454-55). As Brown approached, he was putting on gloves and saying repeatedly, "I'm going to beat the crap out of you." (Edwards: Tr. 216). Edwards replied, "[W]ho is you talking to?," to which Brown responded, "I'm talking to you." (Edwards: Tr. 216-17). When Edwards stepped down off the curb ready to fight, Brown stated, "[G]o in and get your man, I want to fight your man first." (Edwards: Tr. 217). So Edwards went into the pool hall and got Swain. (Edwards: Tr. 217; Swain: Tr. 452-53). At some point while Edwards was outside, he noticed Fitzgerald walking down the street. (Edwards: Tr. 217). Swain did not notice Fitzgerald, with whom he had gone to school, when he came outside. (Swain: Tr. 456-57).

  Brown and Swain began "shadow boxing," swinging punches at one another but not causing any harm. (Edwards: Tr. 218; Ross: Tr. 355; Swain: Tr. 456). Edwards became concerned that Brown was trying to tire Swain out so he said, "I'm not going to let you fight him, you're trying to tire him out. If you want to fight someone, fight me." (Edwards: Tr. 220; Ross: Tr. 355, 368-69). According to Edwards, Leake then got involved by proposing that the four men go around the corner. (Edwards: Tr. 221). Leake and Brown were insisting that they wanted to fight while Edwards was insisting that they fight him rather than Swain. (Edwards: Tr. 221-22). Edwards then punched Brown in the mouth and Brown fell on Edwards. (Edwards: Tr. 222-23; Ross: Tr. 369; Swain: Tr. 457). Edwards "dragged" Brown to the corner and Edwards and Brown continued to fight (Edwards: Tr. 222-24; Ross: Tr. 369-70), with Edwards knocking Brown out at some point (Swain: Tr. 506).

  According to Edwards, while he was fighting Brown he noticed Leake moving behind him and he also noticed Fitzgerald hitting somebody. (Edwards: Tr. 224-25). Then Fitzgerald hit Brown. (Edwards: Tr. 225). Fitzgerald also hit Leake in the head several times and Edwards said to Fitzgerald, "Hit him again and you should be able to put him out." (Edwards: Tr. 225, 320-22). Then Edwards saw Leake hit Fitzgerald in the ribs from behind. (Edwards: Tr. 225-27). Fitzgerald grabbed his side. (Edwards: Tr. 226-27). Then Leake ran behind Edwards and hit him in the back with what Edwards thought was a pipe as Edwards was still beating up Brown. (Edwards: Tr. 227-29). Edwards went after Leake, who started running down Fifth Avenue, but then Edwards looked back and noticed Fitzgerald on the ground so he went back to help him. (Edwards: Tr. 229-30, 232). As Edwards approached, Brown started swinging at him again, so Edwards beat up Brown some more. (Edwards: Tr. 230). Edwards noticed Leake sneaking up on him again, so Edwards said he was "going to beat the crap out of" Leake as well — at which point Leake and Brown ran towards their car and left. (Edwards: Tr. 230, 233). Edwards then discovered that he had been stabbed in the back and went to the emergency room. (Edwards: Tr. 234-35). According to Swain, after Edwards and Brown went to the corner to fight, Leake went towards Edwards and Swain pushed Leake away. (Swain: Tr. 458). Leake started backing up, pulled out a knife from behind his back, and tried to cut Swain. (Swain: Tr. 458, 464). Swain described the knife as a "hunting knife." (Swain: Tr. 464). Swain jumped out of the way and the next thing he knew, Leake was coming at him again with the knife. (Swain: Tr. 458-59). This second time, Swain again moved out of the way and Leake stabbed Edwards in the back as Edwards was beating up Brown. (Swain: Tr. 459). Then Leake and Brown ran towards the blue car parked at the gas station and drove away. (Swain: Tr. 460). Swain took Edwards to the hospital. (Swain: Tr. 460-61). Swain did not see Leake stab Fitzgerald but saw Fitzgerald later at the hospital. (Swain: 461-62).

  Ross also saw Leake pull out a knife from behind his back. (Ross: Tr. 356, 371). Ross described the knife as a "big hunting knife," like the kind used in the movie "Rambo." (Ross: Tr. 373). He saw Leake stab Fitzgerald in the side. (Ross: Tr. 356, 374-75). Ross took the keys to the tan car from Dubose and drove Fitzgerald to the hospital. (Ross: Tr. 357-58, 376).

  Dr. Paul Koltovich treated both Edwards and Fitzgerald in the emergency room of Mount Vernon Hospital. (Koltovich: Tr. 73-74). He testified that Fitzgerald came in at about 11:00 p.m. complaining of shortness of breath and discomfort in his chest. (Koltovich: Tr. 74-75, 81-82). Doctors ascertained that Fitzgerald had multiple stab injuries to his back and probably had a collapsed lung. (Koltovich: Tr. 74-75, 81-82). Fitzgerald's condition deteriorated as his blood pressure dropped and he became unresponsive. (Koltovich: Tr. 83). Despite the efforts of doctors and surgeons, Fitzgerald died at approximately 12:40 a.m. (Koltovich: Tr. 81-85). The autopsy confirmed that Fitzgerald had two stab wounds — one in the right side of his back and one in the right side of his chest slightly below his armpit. (Roh: Tr. 631-32). The Medical Examiner concluded that in order to penetrate Fitzgerald's jacket and shirt as well as his body, "considerable force" had to have been used. (Roh: Tr. 644-45). He also concluded that if the knife was held in the right hand of the attacker, the attacker must have inflicted the wound when Fitzgerald's back was turned to the attacker. (Roh: Tr. 645-46).

  Dr. Koltovich also treated Edwards, who arrived at the emergency room shortly after 11:00 p.m. (Koltovich: Tr. 88-89, 95). Edwards was admitted to the hospital for two days for treatment of two stab wounds to his back and was released with bandages covering his wounds. (Koltovich: Tr. 95-101).

  Meanwhile, the Mount Vernon Police Department began investigating the crime. Officer William Podszus responded to South Fifth Avenue and West Third Street shortly after midnight. (Podszus: Tr. 120). At that time, the area was quiet. (Podszus: Tr. 121-22). He discovered a bloodstained, yellow sweatshirt in the gutter on the southwest corner and a black baseball hat on the southeast corner. (Podszus: Tr. 122-23). He also saw bloodstains on the pavement and on the sidewalk. (Podszus: Tr. 122, 129). He marked and roped off the crime scene. (Podszus: Tr. 123). Officer Podszus did not find any weapons after a thorough search of the area. (Podszus: Tr. 142).

  Detective Garcia testified that he was called back to work at approximately 1:00 a.m. on November 20, 1991. (Garcia: Tr. 524). At about 3:15 or 3:30 a.m., he and four other detectives went to 160 Warburton Avenue, Apartment 18E in Yonkers where he had learned that Leake was residing. (Garcia: Tr. 525). Detective Garcia knocked and Leake answered the door. (Garcia: Tr. 526). He identified himself and said that they would like to speak to Leake and Leake let them into the apartment. (Garcia: Tr. 527). Once in the apartment, Detective Garcia noticed another person there, so he told Leake he would like him to come to headquarters to discuss an incident that occurred in Mount Vernon. (Garcia: Tr. 528). Leake, who was dressed in shorts and an undershirt, responded, "I'll put some clothes on." (Garcia: Tr. 527-28). Detective Garcia and another detective entered a back room with Leake where Leake picked out a jumpsuit and put it on. (Garcia: Tr. 528-29). Then they all left the apartment and drove in two cars to police headquarters. (Garcia: Tr. 529).

  Leake was brought to a conference room and Detective Garcia read him his Miranda rights. (Garcia: Tr. 530-31, 533). Leake signed and dated the Miranda card. (Garcia: Tr. 531-32, 534). Detective Garcia then asked Leake if he had been in Mount Vernon that night and if he had any problems there. (Garcia: Tr. 534). For about an hour, Leake denied being in Mount Vernon. (Garcia: Tr. 534-35). Leake was told that many people had witnessed the incident and that he had been identified by people who knew him. (Garcia: Tr. 535). Leake then stated that he had been with a friend, Eddie Brown, and eventually admitted that they had been in an altercation in Mount Vernon. (Garcia: Tr. 536).

  Leake described the altercation as follows. He was walking down Third Street with Brown. When they passed a pool hall, a person exited the pool hall, approached Brown, and started to box with Brown in the street. (Garcia: Tr. 537). Then somebody hit Leake in the back of the head and "everybody started fighting in the street." (Garcia: Tr. 537). Someone came at Leake with a knife and he blocked the knife with his hand, knocking the knife to the ground. (Garcia: Tr. 537). Leake picked up the knife and started swinging it back and forth in his right hand (Garcia: Tr. 537-38). Leake stated that he felt he might have stabbed one or two people. (Garcia: Tr. 538). At some point, Leake saw Brown on the ground, went over to him, and picked him up, and they both ran and jumped into a car. (Garcia: Tr. 538). Leake was dropped off at home and stated that he did not know where Brown was dropped off. (Garcia: Tr. 538).

  Leake described the knife as silver, with an approximately four-inch-long blade that locked open. (Garcia: Tr. 538-39). Leake said that he dropped the knife before getting in the car. (Garcia: Tr. 539). Leake reported that his left hand had been cut when he blocked the knife. (Garcia: Tr. 540). He showed Detective Garcia his hand and Detective Garcia testified that there was a "very slight scratch mark" on it. (Garcia: Tr. 539-40). Polaroid photographs taken of Leake's hand on November 20, 1991 were introduced into evidence. (Garcia: Tr. 558-60). Detective Garcia did not observe any other injuries on Leake. (Garcia: Tr. 560).

  Leake's oral statement was later reduced to writing by Detective Garcia and signed by Leake. (Garcia: Tr. 540-50). This statement included additional information regarding Leake's attempts to break up the fight. (Garcia: Tr. 548). Detective Garcia then informed Leake that one of the people he stabbed had died and that he was under arrest for murder. (Garcia: Tr. 550-51).

  Detective Garcia later asked Leake if he would give a statement on video and Leake agreed. (Garcia: Tr. 551). During the videotaped statement, Detective Garcia again advised Leake of his Miranda rights and then proceeded to question him along with ADA Fitzmorris. (Garcia: Tr. 552-53). Afterwards, Detective Garcia discovered that the microphone had not been turned on during the videotaping so no sound had been recorded. (Garcia: Tr. 552-53). Leake agreed to give another statement on video, which was played for the jury. (Garcia: Tr. 553-56). On the second videotape Leake stated that he never intended to hurt anybody. See Brief for Respondent, undated (reproduced as Ex. 9 to Memorandum of Law and Respondent's Exhibits, filed October 17, 2003 (Docket #14) ("Resp. Mem.")), at 16-17.*fn3

  At the close of the People's case, defense counsel moved for a trial order of dismissal, arguing that the People had failed to prove that Leake intended to hurt or kill anyone. (Tr. 652-53). The trial court found the evidence to be legally sufficient and denied the motion. (Tr. 655-56).

  2. The Defense Case

  The defense presented only one witness, Allen Brown, the uncle of Eddie Brown. (A. Brown: Tr. 668-69). Allen Brown took pictures of Eddie Brown sometime after the November 20, 1991 incident. (A. Brown: Tr. 671-75). The photographs had been taken to the police department on December 2, 1991 and remained in the possession of law enforcement personnel. (Tr. 681-82). They had not been turned over to the defense by the prosecutor. (See Tr. 677-78).

  3. Verdict, Post-Trial Motions, and Sentencing

  The jury found Leake guilty of Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the First Degree, and two counts of Criminal Possession of a Weapon in the Third Degree. They found him not guilty of Attempted Assault in the First Degree, Attempted Assault in the Second Degree, and a third count of Criminal Possession of a Weapon in the Third Degree. (Tr. 944-46).

  At the sentencing hearing, the trial court modified the jury verdict, reducing Leake's conviction of Assault in the First Degree to Assault in the Second Degree. (Sentencing: Tr. 7). Then, Leake made a pro se motion for his counsel to be relieved which was granted. (Sentencing: Tr. 8-22). Defense counsel was instructed to remain in the courtroom for the remainder of the sentencing hearing. (Sentencing: Tr. 21-23).

  Leake made an oral motion to set aside the verdict on the following grounds: (1) despite Leake's requests, defense counsel failed to seek a jury charge on temporary and lawful possession of a weapon or on attempted unlawful possession (Sentencing: Tr. 8-9, 24); (2) defense counsel refused to bring Leake's extreme emotional disturbance to the court's attention or request a charge on extreme emotional disturbance (Sentencing: Tr. 9, 24-28); (3) trial counsel refused to bring inconsistencies in the testimony of the People's witnesses to the jury's attention (Sentencing: Tr. 28-32); (4) defense counsel failed to present defense witnesses and demonstrated that he knew "basically nothing about this case" (Sentencing: Tr. 32-34); (5) the trial court denied Leake his right to a fair hearing (Sentencing: Tr. 34-36); (6) the verdict was against the weight of the evidence (Sentencing: Tr. 36-37); and (7) the first videotape was tampered with and "everything said was totally exculpatory in nature" (Sentencing: Tr. 38-40). The court denied Leake's motion, finding that there was sufficient evidence to support the conviction and that there was nothing in the record indicating ineffective assistance of counsel. (Sentencing: Tr. 43-44).

  Leake was sentenced as a second violent felony offender to 25 years to life for Murder in the Second Degree, a consecutive sentence of six to 12 years for Attempted Murder in the Second Degree, a concurrent sentence of two and one-half to five years for Assault in the Second Degree, and two concurrent sentences of two to four years on the two counts of Criminal Possession of a Weapon in the Third Degree. (Sentencing: Tr. 63-65). The total sentence imposed was 31 years to life in prison. (Sentencing: Tr. 65).

  C. Post-Trial Freedom of Information Act Request

  Leake had been on parole at the time of the Fitzgerald murder. After trial, through a Freedom of Information Act request, Leake discovered a memorandum in his file at the New York State Department of Parole, dated shortly after the murder, containing the following notation:

On 11/20/91 [Leake] was arrested for Murder: [with] intention. He admits guilt in this offense, but stated that he was only defending himself against 6 male attackers. Det. Mack of Mount Vernon P.D. confirms [Leake's] statement. ADA Fitzmorriss [sic] of Westchester County District Attorneys [sic] Office has requested that we not proceed with violation process due to sensitive nature of this arrest.
State of New York — Executive Department — Division of Parole, Case Summary, dated December 30, 1991 ("Parole Memorandum") (reproduced as Ex. B to Application for Leave to Appeal to Court of Appeals, dated February 12, 1998 ("Leave App.") (reproduced as Ex. 5 to Resp. Mem.)); see also Brief of Defendant-Appellant, undated ("Pet. App. Brief") (reproduced as Ex. 7 to Resp. Mem.), at 23-25. At the bottom of this memorandum is written, "Due to the request of the D.A.'s Office we are requesting No Delinquency Pending Court Action." Parole Memorandum.

  II. PROCEDURAL HISTORY

  A. Leake's Appeal and First Section 440 Application

  Through appointed counsel, Leake appealed his conviction to the Appellate Division, Second Department. The brief submitted by counsel raised the following six grounds for appeal:

1. Did the trial court err in admitting hearsay statements of a third party which had a negative impact on [Leake's] justification defense? 2. Did the court err in not suppressing statements which were taken as the fruits of an illegal arrest and which were further taken after [Leake] asserted his right to remain silent and to get a lawyer?
3. Did the court err in not sanctioning a tardy production of Brady material?
4. Did the People commit a serious Brady and Rosario violation in failing to reveal a Division of Parole memorandum which contained exculpatory material as well as a statement of a witness who testified at a preliminary hearing?
5. Did the court err in its denial of a motion for a trial order of dismissal and a later motion to set aside the verdict where it appears there was insufficient evidence of intent?
6. Did the trial court improperly charge the jury on the defense of justification in that it referred to the defense as "self-defense" where the evidence showed that [Leake] may have been defending a third person?
Pet. App. Brief at 2. In addition, Leake submitted a pro se supplemental brief, which raised the following three issues:
1. Did the failure of the investigatory agency to collect blood samples which [were] potentially exculpatory, deny [Leake's] rights under the Constitution of the United States and h[i]nder his due process rights to submit a complete defense[?]
2. Did the Court commit a serious error in allowing the jury to view and possibly speculate to what was being said in [a] 55 minute video without sound[?]
3. Amendment to attorney[']s original Brief (point II)
Should [an] arresting detective be required to seek [a] warrant befor[e] seeking [an individual] known to him to be a suspect and especially when he seeks that suspect at his place of residence as required by the New York State Constitution Amendments[?]
Pro Se, Supplemental Brief of Defendant/Appellant, undated ("Supp. Brief") (reproduced as Ex. 8 to Resp. Mem.), at 1. He later elaborated that his third ground for appeal was a claim that his rights were violated under Payton v. New York, 445 U.S. 573 (1980). See id. at 10-12.

  While his appeal was pending, Leake filed a pro se motion to vacate his sentence pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. See Notice of Motion to Vacate Judgment, dated October 4, 1995 (reproduced as Ex. 12 to Resp. Mem.). He argued for a reversal of his conviction based on (1) ineffective assistance of trial counsel; (2) the prosecutor's failure to turn over information possessed by Leake's parole officer; and (3) the failure to test Leake's clothes for blood samples. Memorandum of Law [in Support of Motion to Vacate], dated October 4, 1995 ("First 440 Motion") (reproduced as Ex. 14 to Resp. Mem.), at 2-15. The trial court dismissed this motion. With respect to the ineffective assistance issues, the court stated:

Sufficient facts appear on the record with respect to whether or not defense counsel should have requested the Court to order testing of evidence and whether failure to call witnesses constituted ineffective assistance of counsel. As this motion was made at a time when the defendant had an opportunity to advance the same argument for appellate review, these issues come under the parameters of [CPL §] 440.10(2)(b) and dismissal is therefore mandated.
Decision and Order, dated August 8, 1996 ("First 440 Decision") (reproduced as Ex. 10 to Resp. Mem.), at 2. As for Leake's argument regarding the Parole Memorandum, the court rejected the claim that counsel was ineffective for not discovering the prosecutor's communications with his parole officer, stating that Leake "fail[ed] to advance any argument as to how his counsel was incompetent." Id. at 3. The court also stated that, to the extent Leake was arguing that the action constituted prosecutorial misconduct, Leake "failed to show how he was in any way prejudiced by this action or how it was in any way improper." Id. The respondent states that leave to appeal this decision was ultimately denied by the Appellate Division on January 13, 1997. See Affidavit of Joseph M. Latino, filed October 17, 2003 (Docket #13) ("Latino Aff."), at 8.

  On December 9, 1996, the Appellate Division, Second Department affirmed Leake's conviction on direct appeal, holding: Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish [Leake's] guilt beyond a reasonable doubt. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15(5)). Further, the court's charge, as a whole, properly conveyed to the jury the correct standard to be applied concerning the [Leake's] justification defense (see, People v. Adams, 69 N.Y.2d 805, 806; People v Perez, 214 A.D.2d 592).

 

[Leake's] remaining contentions, including those raised in his pro se brief, are either unpreserved for appellate review or without merit.
People v. Leake, 234 A.D.2d 392, 392 (2d Dep't 1996).

  Thereafter, through retained counsel, Leake sought leave to appeal to the New York Court of Appeals, raising all six issues raised in the counseled brief to the Appellate Division (incorporating the arguments made in Point 3 of the pro se brief) as well as raising a prosecutorial misconduct claim with respect to the blood evidence (similar to that raised in Point 1 of the pro se brief). Leave App. at 9-21. In addition, arguments were added regarding: (1) ineffective assistance of trial and appellate counsel, id. at 4-7; (2) additional Brady and Rosario violations for failing to produce statements of Eddie Krenshaw, an eyewitness to the crime, id. at 7-8; (3) the absence of evidence in the record as to why a sworn juror was removed on the day trial began, id. at 8-9; and (4) inconsistencies between the testimony of the Medical Examiner and other testimony regarding the type of weapon used in the crime, id. at 9. The failure to raise these arguments below was attributed to ineffective assistance of appellate counsel. See id. at 4-9. The arguments Leake had made in his pro se brief with regard to the 55-minute silent videotape were abandoned. See Letter to James M. Parkison from Leake, dated June 24, 2001 (annexed to Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed August 14, 2001 (Docket #1) ("Petition")), at 1 (stating that this issue was unexhausted and therefore requesting that it be disregarded). Leave was summarily denied on March 27, 1998. People v. Leake, 91 N.Y.2d 942 (1998).

  B. Leake's Second Section 440 Application

  In July 1999, Leake filed a second pro se motion to vacate the judgment. See Notice of Motion Pursuant to C.P.L. § 440.10 Subd. (1)(c) and (h), dated July 12, 1999 (reproduced as Ex. 17 to Resp. Mem.). Leake again argued that (1) the State violated Brady in failing to retrieve blood spatters from the crime scene and to have them tested to see if they matched Leake's blood; and (2) the prosecutor knowingly presented false evidence to the jury by arguing that all the blood found on the crime scene belonged to the victim and by arguing that if Leake's version of the events were true, one would expect to find evidence of a cut or gash. Memorandum of Law [in Support of Motion to Vacate], dated July 12, 1999 ("Second 440 Motion") (reproduced as Ex. 19 to Resp. Mem.), at 4-13.

  The trial court again denied Leake's motion stating that "there is no legal basis to grant the relief which defendant seeks." Decision and Order, dated August 16, 2000 ("Second 440 Decision") (reproduced as Ex. 15 to Resp. Mem.), at 2-3. Citing CPL § 440.10(2)(b), the court noted that "[o]n two prior occasions" Leake unsuccessfully argued that defense counsel failed to request testing of the blood evidence and that Leake improperly failed to advanced his current claims with respect to the blood evidence on appellate review. Id. at 3. According to the respondent, leave to appeal this decision was denied by the Appellate Division on February 7, 2001. See Latino Aff. at 8. C. The Instant Petition

  Leake submitted the instant Petition for writ of habeas corpus to this Court's Pro Se Office on March 30, 2001. See Petition at 1. While the Petition might at first blush appear to be untimely with respect to a number of issues, Leake had previously filed a habeas corpus petition on April 19, 1999, as discussed in an Opinion and Order issued earlier in this action. See Opinion and Order, filed August 14, 2003 (Docket #8), at 3. That first petition was thereafter dismissed without prejudice in order to allow Leake to pursue his state court remedies, provided he promptly returned to federal court once these remedies were exhausted. See id. at 2-3. Because Leake complied with this directive, the earlier Opinion and Order equitably tolled the statute of limitations and accepted the instant Petition as timely under 28 U.S.C. § 2244(d)(1). Id. at 4-5.

  Leake's Petition raises six grounds for relief: (1) the erroneous admission of hearsay evidence severely prejudiced his defense; (2) Leake's statements should have been suppressed; (3) the trial court erred in not imposing sanctions for Brady violations regarding exculpatory photographs; (4) the People withheld the Parole Memorandum, thereby violating Leake's rights under Brady and Rosario; (5) the People failed to prove the intent element of Murder in the Second Degree; and (6) the court erred in its charge to the jury. See Petition at 5-6 (including continuation sheets); see also Memorandum of Law [in Support of Traverse], filed January 5, 2004 (Docket #17) ("Traverse"), 7-17, 20-29.

  The Traverse, submitted in response to the respondent's opposition to the Petition, raises three additional grounds for relief: (1) the People's failure to collect, preserve, and test blood samples violated Leake's due process rights; (2) material evidence regarding blood samples adduced at trial was false and was, prior to the entry of judgment, known to the prosecutor or the court to be false; and (3) trial counsel was ineffective. Traverse at 18-19, 30-32. Given the liberal construction to be afforded pro se filings and the applicability of the liberal amendment policy reflected in Fed.R.Civ.P. 15(a), see, e.g., Littlejohn v. Artuz, 271 F.3d 360, 363-64 (2d Cir. 2001), the Court construed Leake's Petition as raising these three additional claims and directed the respondent to file a supplemental brief addressing them. See Order, filed March 15, 2004 (Docket #18) ("Order"); see also Supplemental Memorandum of Law, filed April 23, 2004 (Docket #19) ("Resp. Supp. Mem."); Petitioner's Reply to Respondent's Supplemental Memorandum of Law, filed May 21, 2004 (Docket #21).*fn4

  In addition, the Court directed Leake's trial counsel, Peter Paul Insero, to submit an affidavit addressing Leake's claim of ineffective assistance regarding the decision not to call Brown and Dubose as witnesses. Order at 2. Insero submitted an affidavit, see Attorney's Affirmation, dated April 7, 2004 ("Insero Affirm."), and Leake replied, see Reply to Attorney's Affirmation, filed May 21, 2004 (Docket #20) ("Reply to Insero Affirm.").

  III. APPLICABLE LEGAL PRINCIPLES

  A. Standard of Review

  Under the Antiterrrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The Second Circuit has held that for a state court decision to constitute an "adjudication on the merits," the state court need only base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to the federal aspect of a claim or to any federal law for AEDPA's deferential standard to apply. Id. at 312.

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). The Williams Court also held that habeas relief is only available under the "unreasonable application" clause "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409. Moreover, a state court's determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

  In this case, some of the claims at issue were adjudicated by the Appellate Division as being "either unpreserved for appellate review or without merit." Leake, 234 A.D.2d at 392. In such a situation, where the decision does not disclose which claim has been rejected on which ground, the Second Circuit has held that the standard of review on federal habeas corpus depends on whether it is clear from the record that the particular issue has been properly preserved in the state courts. See Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). Where the habeas court finds that the issue has clearly been preserved, the deferential AEDPA standard applies. See Ryan v. Miller, 303 F.3d 231, 245-46 (2d Cir. 2002). Where it is not clear that the issue has been preserved, a pre-AEDPA — that is, de novo — standard of review applies. See Miranda, 322 F.3d at 178. In a recent case, however, the Second Circuit appears to have questioned the vitality of the Miranda holding. See Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003). Rather than enter into this thicket, we will simply apply the more favorable de novo standard to the claims that fall into this category inasmuch as, even under this standard, the claims fail.

  B. Exhaustion

  AEDPA provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). "The exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts." Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (internal quotation marks and citations omitted), cert. denied, 464 U.S. 1048 (1984). This requirement is satisfied "if the legal basis of the claim made in state court was the `substantial equivalent' of that of the habeas claim." Id. at 192 (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)).

  IV. DISCUSSION

  A. Erroneous Admission of Hearsay Evidence

  Leake's first claim is that certain hearsay evidence was erroneously admitted, thereby severely prejudicing his defense. Petition at 5; Traverse at 20-24. Although Leake made this argument to the Appellate Division and to the Court of Appeals, he arguably did not present this claim as raising any federal issue. See Pet. App. Brief at 8-15; Leave App. at 10-13.

  Under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., Estelle, 502 U.S. at 68.

  Rather than parse whether the state courts were alerted to the federal nature of the claim, however, the Court will exercise its option to simply adjudicate the claim on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). Federal habeas review of claims based on the erroneous admission of evidence is permitted only if the alleged error deprived the petitioner of a "fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). To obtain relief, the petitioner has the burden of showing that an evidentiary error "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 775 (1946)); accord Edmonds v. McGinnis, 11 F. Supp.2d 427, 435 (S.D.N.Y. 1998).

  Leake argues that the admission, through Edwards' testimony, of Brown's statement that Brown was "going to beat the crap out of [Edwards]" (Edwards: Tr. 216) prejudiced Leake's defense because it caused the jury to speculate that Leake was an aggressor in the fight, thereby undermining his defense of justification. Traverse at 20-24. But it cannot be said that the admission of this evidence either deprived Leake of a fair trial or had a substantial effect on the jury's verdict. First, the statement does not even implicate Leake's own state of mind; rather, it at most addresses only Brown's intentions. Second, the statement was of minimal relevance because the record was already clear that the fight began as a dispute between Brown and Swain. Swain, after all, had punched Brown earlier in the evening in Edwards's presence (Edwards: Tr. 189-91; Swain: Tr. 450-51) and Brown had come back to the scene accompanied by Leake (Edwards: Tr. 196-99, 219-20; Ross: Tr. 353-54; Swain: Tr. 454-55). Moreover, regardless of who was the initial aggressor, the evidence demonstrated that Leake escalated the fight by pulling out a weapon. (Swain: Tr. 458, 464; Ross: Tr. 356, 371). Leake, of course, confessed to wielding the knife, to erratically swinging it at anyone who came close to him, and to potentially stabbing one or two people. (Garcia: Tr. 537-38). Given such evidence, the admission of Brown's statement — even if it is properly viewed as inadmissible hearsay — cannot be said to have had a "substantial and injurious" effect on the jury, thereby preventing Leake from having obtained a fair trial. B. Failure to Suppress Leake's Statements

  Leake next argues that he is entitled to habeas relief because the Mount Vernon Police Department violated his Payton rights and therefore the trial court erred in not suppressing his subsequent written and videotaped statements. Traverse at 7-10. Payton held that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." 445 U.S. at 576.

  As detailed above, a pretrial hearing was conducted in this case to determine the admissibility of Leake's oral, written, and videotaped statements to the police. The hearing was originally cast as a Huntley hearing to determine only whether Leake had been read his Miranda rights and whether he had knowingly and voluntarily waived such rights prior to giving his statements. (See Hr'g Tr. I. 3; Hr'g Tr. II. 51). During the hearing, defense counsel successfully argued that the scope of the hearing should be broadened to include Payton issues. (See Hr'g Tr. II. 51-67).

  After hearing testimony that Leake was not arrested pursuant to a warrant (Garcia: Hr'g Tr. II. 70) and that Leake resided at 160 Warburton Avenue, Apartment 18E (P. Leake: Hr'g Tr. II. 220; Leake: Hr'g Tr. II. 248-49), the trial court determined that Leake "was not in custody at the apartment on Warburton Avenue, [and] that he willingly accompanied police officers to the Mount Vernon police headquarters for questioning" (Hr'g Tr. II. 382). Accordingly, the court rejected Leake's Payton argument and denied his motion to suppress his various statements to the police. (Hr'g Tr. II. 383).

  Leake raised the argument that his arrest violated Payton on his direct appeal and in seeking leave to appeal to the Court of Appeals. See Pet. App. Brief at 15-20; Supp. Brief at 10-12; Leave App. at 13-15. Thus, this claim has been exhausted. Habeas relief may not be granted with respect to this claim, however, under the doctrine articulated in Stone v. Powell, 428 U.S. 465, 494 (1976), which bars federal habeas review of Fourth Amendment claims where the State has provided an opportunity for "full and fair" litigation of the Fourth Amendment claim. This doctrine applies to bar habeas review of claims made under Payton. See, e.g., Nunez v. Duncan, 2003 WL 22284182, at *10 (E.D.N.Y. Aug. 20, 2003); Taylor v. Kuhlmann, 36 F. Supp.2d 534, 549 (E.D.N.Y. 1999); Shaw v. Scully, 654 F. Supp. 859, 863-65 (S.D.N.Y. 1987). In light of Stone, the Second Circuit has held that review of Fourth Amendment claims in federal habeas corpus petitions may be undertaken only in two circumstances: (1) "[i]f the state provides no corrective procedures at all to redress Fourth Amendment violations," or (2) "where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process." Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978); accord Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).

  Neither circumstance applies here. First, New York State has a procedure for litigating Fourth Amendment claims. See CPL §§ 710.10-.70. Second, Leake actually utilized the State's process both through his participation in the pretrial suppression hearing and on direct appeal. Accordingly, Leake's Payton claim cannot be reviewed by this Court. See, e.g., Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002) ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief."); Capellan, 975 F.2d at 70 n. 1 ("`[F]ederal courts have approved New York's procedure for litigating Fourth Amendment claims . . . as being facially adequate.'" (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989))); Nunez, 2003 WL 22284182, at *10; Taylor, 36 F. Supp.2d at 549; Shaw, 654 F. Supp. at 863-64.

   C. Failure to Impose Brady Sanctions with Respect to Photographs

   Leake argues that he is entitled to habeas relief because the People violated Brady v. Maryland, 373 U.S. 83 (1963), by wrongfully withholding photographs showing the extent of Eddie Brown's injuries and because the trial court erred in not imposing sanctions for this violation. Petition at 6; Traverse at 11-14.*fn5 Leake has exhausted his state law remedies with regard to this claim. See Pet. App. Brief at 20-23; Leave App. at 15-17.

   In order to establish a Brady violation, "`[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Banks v. Dretke, 124 S.Ct. 1256, 1272 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)); accord Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir. 2001). In addition, for prejudice to have resulted, any such exculpatory or impeachment evidence must have been "material either to guilt or to punishment." Brady, 373 U.S. at 87. "[T]he materiality standard for Brady claims is met when `the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Banks, 124 S.Ct. at 1276 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Due process requires that Brady material be disclosed "in time for its effective use at trial." In re United States (Coppa), 267 F.3d 132, 142 (2d Cir. 2001) (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)).

   The Appellate Division did not expressly rule on this issue, instead stating that Leake's remaining contentions "are either unpreserved for appellate review or without merit." Leake, 234 A.D.2d at 392. Inasmuch as this particular issue was preserved, it could reasonably be assumed that the Appellate Division's ruling was on the merits of the claim, which would implicate the deferential standard of review in 28 U.S.C. § 2254(d). In any event, the claim fails even under a de novo standard of review.

   Leake's defense at trial was justification: he argued both that he was defending himself from someone who came at him with a knife and that he was defending Brown who was being severely beaten. (See Tr. 757, 763-65, 768, 771). Brown's uncle, Allen Brown, was called as a defense witness to authenticate photographs he took of Brown after the November 20, 1991 incident. (A. Brown: Tr. 671-76). Prior to Allen Brown's testimony, defense counsel moved for a mistrial based on the fact that he had not been shown these photographs until the week before Detective Garcia's testimony. (Tr. 620-21). The trial court stated that it considered these photographs Brady material because of their potential to support a defense of justification but held that there was no prejudice caused by the People's failure to turn them over to defense counsel earlier. (Tr. 623-24). The court also noted that it was the People's position throughout the trial that Brown was in fact severely beaten in the presence of Leake. (Tr. 623). The People agreed to stipulate that the photos were received by the police department on December 2, 1991 and had been in their continuous custody. (Tr. 678-82).

   Leake has failed to demonstrate any prejudice arising out of the People's failure to provide these photographs at an earlier time. The defense was aware of the photographs in time to make effective use of them at trial as they themselves offered the photographs into evidence. Cf. Leka, 257 F.3d at 100-03 (disclosure only days before trial of the name and address of an off-duty police officer who had witnessed the murder was "too little, too late"). Leake's only argument in this regard is that he was deprived of the opportunity to cross-examine witnesses, particularly Edwards, regarding the extent of the injuries inflicted on Brown and "the viciousness of the beating." Traverse at 12-14. But he fails to show that the extent of Brown's injuries was a material issue at trial, given that Edwards openly admitted that he repeatedly struck Brown. (Edwards: Tr. 222-24, 230, 320-22). In addition, defense counsel was able to elicit testimony that Edwards hit Brown first (Edwards: Tr. 276) and that Edwards knocked Brown out at some point (Swain: Tr. 506). Moreover, even if the defense had been completely unaware of the existence of the photographs during the cross-examination of the People's witnesses, nothing prevented Leake from cross-examining any witnesses on the issue of Brown's injuries or from subpoenaing the witnesses to testify on this topic further as part of the defense case. Thus, Leake's claim that the People's failure to turn over these photographs earlier constituted a Brady violation is without merit.

   D. Failure to Produce the Parole Memorandum

   Leake alleges another Brady violation based on the People's failure to turn over the Parole Memorandum that Leake discovered after his conviction. Petition at 6; Traverse at 15-17. Leake also made this argument on direct appeal to the Appellate Division and to the New York Court of Appeals. See Pet. App. Brief at 23-25; Leave App. at 18-19. In deciding the direct appeal, the Appellate Division stated that this claim was "either unpreserved . . . or without merit." Leake, 234 A.D.2d at 392. In addition, Leake presented arguments about the Parole Memorandum in his first CPL § 440.10 motion, see First 440 Motion at 10-14, apparently because it was discovered after trial and was therefore not part of the trial record. See Petition ¶ 13; see also CPL § 440.10(1)(g) (motion to vacate may be based on "[n]ew evidence . . . discovered since the entry of a judgment"). The trial court considered this claim on the merits, holding that Leake had failed to establish prejudice caused by the failure to disclose the memorandum or to demonstrate how it was improper prosecutorial conduct in any way. First 440 Decision at 3. Leave to appeal this decision was subsequently denied. See Latino Aff. at 8. Thus, Leake has fully exhausted this claim, it is preserved for habeas review under 28 U.S.C. § 2254, and AEDPA's deferential standard aplies.

   As noted, the memorandum uncovered by Leake stated as follows:

On 11/20/91 [Leake] was arrested for Murder: [with] intention. He admits guilt in this offense, but stated that he was only defending himself against 6 male attackers. Det. Mack of Mount Vernon P.D. confirms [Leake's] statement. ADA Fitzmorriss [sic] of Westchester County District Attorneys [sic] Office has requested that we not proceed with violation process due to sensitive nature of this arrest.
. . . .
Due to the request of the D.A.'s Office we are requesting No Delinquency Pending Court Action.
Parole Memorandum. Leake "submits that the People's case would have been shattered had this memorandum been released." Traverse at 15. This argument is based on Leake's assumption that the portion of the document stating "Det. Mack . . . confirms [Leake's] statement," Parole Memorandum, "possibly could mean that based on the detective's investigation, he was able to confirm that [Leake] was jumped by six men." Traverse at 16.

   If Detective Mack in fact possessed information which demonstrated that Leake "was only defending himself against 6 male attackers," Parole Memorandum, that information most certainly would constitute Brady material which, if suppressed, "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," Banks, 124 S.Ct. at 1276 (internal quotation marks and citation omitted). However, the notation does not indicate that Detective Mack, who had only a peripheral role in the case (see Mack: Hr'g Tr. II. 142-90), possessed any such exculpatory information. No evidence in the record suggests otherwise. The Parole Memorandum can be reasonably read only as indicating that Detective Mack confirmed that Leake made a statement claiming that the murder was justified. That Leake claimed to be acting in self-defense when he was questioned by authorities was not a disputed fact at trial and was presented to the jury through the testimony of Detective Garcia (Garcia: Tr. 535-39, 547-50, 556-57).

   To the extent Leake argues that the failure to produce this memorandum prior to trial is also a violation of People v. Rosario, 9 N.Y.2d 286, cert. denied, 368 U.S. 866 (1961), see Traverse at 15-17, a Rosario claim arises solely under New York State law and is therefore not cognizable on habeas review, see, e.g., Bethune v. Superintendent, Bare Hill Corr. Facility, 299 F. Supp.2d 162, 165 (W.D.N.Y. 2004); Alston v. Ricks, 2003 WL 42144, at *6 (S.D.N.Y. Jan. 7, 2003). E. Insufficient Evidence of Intent

   Leake asserts that the evidence introduced at his trial did not support a conviction for intentional murder. Petition at 6 (continuation sheet); Traverse at 25-29. The respondent contends that this is an issue purely of state law, which is not cognizable on federal habeas review, and that the claim is unexhausted. Resp. Mem. at 11; see also Resp. Supp. Mem. at 3-5. However, by arguing in the state courts that the evidence was insufficient to support his murder conviction on the element of intent, see, e.g., Pet. App. Brief at 26-28, Leake adequately presented to the state courts a federal due process challenge to the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (1979), even though counsel failed to refer to any federal right or to federal case law in the state briefs. See Daye, 696 F.2d at 194 (issue is fairly presented to the state courts if the petitioner asserted the claim "in terms so particular as to call into mind a specific right protected by the Constitution" or alleged "a pattern of facts that is well within the mainstream of [federal] constitutional litigation"). As this issue was raised before the Appellate Division and in seeking leave to appeal to the Court of Appeals, see Pet. App. Brief at 26-28; Leave App. at 19-20, it is exhausted for federal habeas purposes. In addition, the Appellate Division ruled on the merits on this claim, holding that the evidence "was legally sufficient to establish the defendant's guilt beyond a reasonable doubt." Leake, 234 A.D.2d at 392. Thus, habeas relief is not available unless this determination was "contrary to" or "an unreasonable application of" federal law. 28 U.S.C. § 2254(d).

   The Due Process Clause of the Fourteenth Amendment prohibits a criminal conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364 (1970). In light of Winship, the Supreme Court has held that when reviewing a state court conviction, a federal habeas court must consider whether there was "sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt." Jackson, 443 U.S. at 313.

   Nonetheless, it is well-established that a habeas petitioner challenging the sufficiency of the evidence underlying his conviction bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citation omitted), cert. denied, 515 U.S. 1136 (1995). To prevail, the petitioner must show that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). In conducting this inquiry, all of the evidence and all possible inferences that may be drawn from the evidence are to be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; accord Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court must "defer to the jury's assessments of both of these issues." Maldonado, 86 F.3d at 35; accord Rosa v. Herbert, 277 F. Supp.2d 342, 347 (S.D.N.Y. 2003) ("the court must defer to the jury's assessments of the weight of evidence and the credibility of witnesses"); Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("this court is not free to make credibility judgments about the testimony . . . or to weigh conflicting testimony").

   In New York, a person is guilty of Murder in the Second Degree when "[w]ith the intent to cause the death of another person, he causes the death of such person or of a third person." N.Y. Penal Law § 125.25(1). "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." Id. § 15.05(1). Leake contends that both his conviction for Murder in the Second Degree (for Fitzgerald's death) and his conviction for Attempted Murder in the Second Degree (for Edwards's injuries) are improper because the People failed to prove that he had the requisite intent beyond a reasonable doubt. Traverse at 29.*fn6

   Sufficient evidence existed, however, to show that Leake had the requisite intent. With respect to Fitzgerald, Edwards saw Leake hit Fitzgerald in the ribs from behind. (Edwards: Tr. 225-27). Ross saw Leake stab Fitzgerald in the side. (Ross: Tr. 356, 374-75). With respect to Edwards, Edwards testified that Leake hit him in the back (with an object that at the time he thought was a pipe). (Edwards: Tr. 227-29). Swain testifed that Leake stabbed Edwards in the back with a knife. (Swain: Tr. 459). From this testimony, the jury could easily infer that Leake acted with the "conscious objective" of committing the acts in question and thus acted intentionally. See, e.g., United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction"), cert. denied, 441 U.S. 951 (1979); see also Tibbs v. Florida, 457 U.S. 31, 45 n. 21 (1982) ("In this case, [the victim] provided eyewitness testimony to the crimes. If the jury believed her story, the State's presentation was more than sufficient to satisfy due process."). Certainly, Leake has not met his burden of establishing that "no rational trier of fact could have found proof of [his intent] beyond a reasonable doubt," Jackson, 443 U.S. at 324. F. Error in Charge to the Jury

   Leake's next argument is that the trial court erred in referring to the justification defense as "self-defense," when in fact it includes the defense of others. Petition at 6 (continuation sheet); see also N.Y. Penal Law § 35.15. Although this issue was raised to both the Appellate Division and the Court of Appeals, no federal issues were raised in either application. See Pet. App. Brief at 28-29; Leave App. at 20. As a result, the respondent now argues that this ground for relief raises only a state law issue not reviewable by this Court. Resp. Mem. at 11.

   "The adequacy of a jury charge is ordinarily a matter of state law." Hoover v. Senkowski, 2003 WL 21313726, at *9 (E.D.N.Y. May 24, 2003); see also Blazic v. Henderson, 900 F.2d 534, 541-43 (2d Cir. 1990) (although failure to charge jury on justification defense was error of state law, error did not constitute grounds for federal habeas relief). The Second Circuit has repeatedly held that "`[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)). To warrant habeas relief, the petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973).

   Leake does not argue that the entire charge on the defense of justification was infected with error. See, e.g., Leave App. at 20. Rather, he contends only that in one instance, the court labeled the defense as "self-defense" without referring to the defense of a third person. Id.; see Tr. 871 ("So the first duty of the jury under the defense of self-defense when it is raised is to determine who was the initial aggressor, the victim or the defendant."). Leake does not dispute that in other portions of the charge, the court made clear that justification encompasses both defense of self and defense of a third person. (See Tr. 869-72, 874, 876-77).

   A review of the charge indicates that the trial court offered the term "self-defense" merely as a shorthand name for the justification defense. (See Tr. 867-68 ("you must then turn to consider the defense known in our law in New York as justification or which is commonly referred to as self-defense")). The court repeatedly referred to defense of another person as being part of the justification defense. (Tr. 869-72, 874, 876-77). The Appellate Division addressed this issue on Leake's direct appeal, citing to New York case law and holding that "the court's charge, as a whole, properly conveyed to the jury the correct standard to be applied concerning the defendant's justification defense." Leake, 234 A.D.2d at 392 (citations omitted).

   Given the trial court's clear instructions, Leake has not demonstrated that any error in the trial court's instruction on justification "infected the entire trial" resulting in a conviction that "violates due process," Cupp, 414 U.S. at 147. Thus, habeas relief is unavailable for this claim.

   G. Failure to Collect, Preserve, and Test Blood Samples

   Leake makes several claims relating to his complaint that there was a failure to collect and test blood samples found at the scene of the crime and on his clothes. See Traverse at 18-19, 30-32. Determining whether these claims have been exhausted or procedurally defaulted is complicated by the fact that Leake raised the issue of the failure to test the blood samples in the context of several different claims in the state courts: (1) as a Brady claim, see Supp. Brief at 7-8; Second 440 Motion at 4-8; (2) as a claim that the prosecutor knowingly presented materially false evidence, see First 440 Motion at 14-15; Leave App. at 6-7, 20-21; Second 440 Motion at 9-13; and (3) as an ineffective assistance of counsel claim, see First 440 Motion at 2-8; Leave App. at 6-7. In his Traverse, Leake presents these same three issues. See Traverse at 18 ("The People's failure to collect and preserve potentially exculpatory evidence (blood samples), violated Petitioner's due process rights."); id. at 30 ("Material evidence adduced at trial [regarding blood evidence] . . . was false and . . . known by the prosecutor . . . to be false."); id. at 32 (referring to his first CPL § 440.10 motion, which raised, inter alia, counsel's ineffectiveness for failing to have the blood tested and for allowing the prosecutor to elicit false testimony).

   The evidence relevant to the blood sample issue is as follows: Officer Podszus arrived at the crime scene shortly after midnight on November 20, 1991 to look for any evidence. (Podszus: Tr. 120). He testified that he saw bloodstains on the pavement and on the sidewalk (Podszus: Tr. 122, 129) and that photographs of the crime scene showed the area where these bloodstains were found (Podszus: Tr. 131-34). No blood samples were collected at the scene. (See Podszus: Tr. 163-64; see also Tr. 154 (statement by prosecutor that "there were no samples collected and no samples submitted to the laboratory")). Pursuant to a search warrant, Detective Garcia recovered "one blue bloody sweatshirt" and other clothing from Leake's apartment. (Garcia: Hr'g Tr. II. 118-19). The blood on these items was never tested to determine whose blood it was.

   The basic argument underlying all of Leake's blood sample claims is: (1) blood samples should have been collected from the scene and from Leake's clothes and (2) had they been tested, they would have demonstrated that Leake was also injured in the altercation, supporting his defense and proving false the prosecutor's suggestion that Leake's version of the events belied common sense (see Tr. 795-96). Leake presented this argument in one form or another to every state court that heard his case.

   For purposes of addressing the grounds for habeas relief, we will address the issues as Leake presented them in his Traverse. While the respondent has argued that some of these claims are procedurally barred, Resp. Mem. at 10-11; Resp. Supp. Mem. at 12-16, it is not necessary to reach this question inasmuch as a federal habeas court may "hurdl[e] the procedural questions to reach the merits of a habeas petition" where the underlying issue is "easily resolvable against the habeas petitioner, whereas the procedural-bar issue involve[s] complicated issues of state law." Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002) (internal quotation marks and citation omitted).

   1. Failure to Preserve Exculpatory Evidence

   Leake argues that the prosecution violated Brady by not preserving the evidence so that it could be tested for Leake's own blood. Traverse at 18-19. To establish a Brady violation, "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Banks, 124 S.Ct. at 1272 (internal quotation marks and citation omitted).

   Leake fails to demonstrate either that the blood evidence, if preserved and tested, would have been "favorable to" him or that prejudice resulted from the failure to preserve and test it. The only evidence or even claim as to Leake's wounds involved Leake's claim that he deflected the knife with the palm of his left hand (See Garcia: Tr. 539-40). And the only testimony with respect to his hand was that there was a "scratch" on it. (Garcia: Tr. 540). Photographs introduced into evidence were described as showing the same thing. (Garcia: Tr. 560). Had there been some trace of Leake's blood found on the clothes or on the pavement, this would have added nothing to Leake's defense as Leake has not disputed that the only wound that he received was to his left hand See, e.g., Traverse at 19. If there were blood on the clothing or the pavement, it would have shown at most that the scrape, described by Detective Garcia and shown in the photographs, was capable of producing some testable amount of blood. Thus, this is hardly a case where the evidence "could reasonably [have been] taken to put the whole case in such a different light as to undermine confidence in the verdict," Banks, 124 S.Ct. at 1276 (internal quotation marks and citation omitted).

   2. Introduction of Materially False Evidence

   Leake argues that the prosecution presented false evidence during the prosecutor's summation. Traverse at 30-31. Leake's complaint revolves around the prosecution's argument that Leake's justification defense should be discredited (Tr. 777, 779-80, 783, 792-98). As part of this argument, the prosecutor stated:

Yes, the evidence does show that [Leake] had a scrape or a scratch on his left hand But is that what common sense would tell you you would expect to see if a person had caught a knife in the fashion he described? Wouldn't you expect to see a gash, a cut, something that was actually bleeding, something that was actually oozing if it occurred the way that Eddie Leake described it?
(Tr. 795-96). From this, Leake argues that the prosecutor "deliberately mislead [sic] and lied" to the jury by denying that Leake had cut his hand Traverse at 30. Previously, Leake had faulted the prosecutor for "stat[ing] to the jury that all of the blood in the crime scene photographs belonged to the victim, when, in fact, there was no evidence submitted at trial concerning the collecting and testing of blood samples." Leave App. at 6-7. However, the record reflects that the prosecutor made no such statement.

   To obtain habeas relief as a result of remarks by the prosecutor during summation, the remarks must involve some sort of "misconduct." E.g., Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852 (1991). In addition, the petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments . . . had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994), cert. denied, 516 U.S. 1152 (1996); accord Greer v. Miller, 483 U.S. 756, 765 (1987) (prosecutorial misconduct violates a defendant's due process rights only when it is "of sufficient significance to result in the denial of the defendant's right to a fair trial" (internal quotation marks and citations omitted)); Bohan v. Kuhlmann, 234 F. Supp.2d 231, 269 (S.D.N.Y. 2002), aff'd, 2003 WL 21401287 (2d Cir. June 16, 2003), cert. denied, 124 S.Ct. 1420 (2004). Leake has not met this burden.

   The prosecutor's argument was consistent with the only evidence in the record regarding Leake's wounds: the testimony of Detective Garcia and the photographs introduced of Leake's hand taken hours after the incident (Garcia: Tr. 539-40, 559-60). There is no allegation, let alone evidence submitted by Leake, that this testimony was false or that the prosecutor otherwise allowed false evidence to be presented. Because Leake has not pointed to any statement made by the prosecutor that was not based on record evidence, he cannot show that the prosecutor's statements during summation constituted "misconduct" or were in any way improper. 3. Ineffective Assistance of Counsel for Failing to Have Blood Tested and for Allowing the Prosecutor to Present False Evidence

   Incorporating by reference his arguments in the state court, see Traverse at 32 (incorporating Point I of First 440 Motion), Leake argues that his counsel was ineffective for failing to test the blood evidence and for allowing the prosecutor to make improper remarks about his injuries. First 440 Motion at 3, 5, 7-8. Establishing ineffective assistance of counsel requires a petitioner to show: (1) "that counsel's representation fell below an objective standard of reasonableness"; and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Massaro v. United States, 538 U.S. 500, 505 (2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.").

   Here, Leake obviously has not demonstrated the first strand: that his counsel's representation was objectively unreasonable. This is because Leake has not shown that there was any basis for counsel to believe that the testing of blood would have been of any particular benefit to Leake's defense — given that Leake's own confession referred only to an injury to his left hand (see Garcia: Tr. 540) and that the only evidence before counsel, including photographs, showed that Leake had only a scratch or scrape to that hand (see Garcia: Tr. 539-40, 559-60). While Leake states that an investigation would have supported his contention that he "slashed his left palm `hand,'" First 440 Motion at 8, counsel could reasonably have believed that the primary evidence of the injury to Leake's hand was the photograph of the hand itself — not whether some testable amount of blood might have emanated from this relatively minor wound. Furthermore, because the prosecutor's remarks regarding the injuries Leake allegedly sustained were in no way improper, counsel certainly could not have been unreasonable for not objecting to those remarks.

   Because Leake has not shown that his counsel was unreasonable in choosing not to seek tests of blood from the sidewalk or clothing or in choosing not to object during the prosecutor's summation, Leake has not made out a claim of ineffective assistance of counsel.

   H. Additional Ineffective Assistance of Counsel Claims

   Leake's remaining ground for relief is that he was denied the effective assistance of trial counsel for various other reasons. He failed to raise these grounds in his Petition for habeas relief. See Petition at 5-6 (including continuation sheets). In his Traverse, he raised these issues by referring the Court to his first motion to vacate "for a complete review of petitioner's argument." Traverse at 32. In that motion to vacate, Leake argued that trial counsel was ineffective for (1) failing to investigate Leake's parole officer; (2) not calling two eyewitnesses to the crime (Brown and Dubose) to testify on Leake's behalf; (3) failing to object to the prosecutor's presentation of evidence that Edwards was only stabbed twice when there was a third wound allegedly inconsistent with the weapon Leake used; and (4) failing to present a justification defense. First 440 Motion at 2-10. He also alleged generally that trial counsel "fail[ed] to prepare for trial, and [failed to] guard against inadmissible evidence, [failed to] understand the basi[c] principles of the criminal law, [and failed to] protect defendant's Constitutional rights [and] denied defendant equal protection of law." Id. at 2.

   The trial court reviewed Leake's first motion to vacate and dismissed Leake's claim that counsel was ineffective for failing to call two witnesses because sufficient facts existed in the record such that the claim should have been raised on direct appeal. First 440 Decision at 2. As for the ineffective assistance claim based on defense counsel's failure to investigate Leake's parole officer, the court found that Leake had failed to advance any argument as to how counsel was incompetent in this regard. Id. at 2-3. The trial court did not considered Leake's other claims. See id. at 1-3.

   The respondent argues that Leake's ineffective assistance claims have been procedurally defaulted because they were not raised in Leake's direct appeal. See Resp. Supp. Mem. at 17-21. Although New York law requires dismissal of a motion to vacate where the judgment is pending on appeal and sufficient facts appear on the record to permit adequate review of the issue, see CPL § 440.10(2)(b), the respondent's argument fails to consider that at least some of Leake's ineffective assistance claims — particularly his claim regarding counsel's failure to call two eyewitnesses — were not record-based, see, e.g., Bonilla v. Portuondo, 2004 WL 350694, at *10 (S.D.N.Y. Feb. 26, 2004) (Report and Recommendation) (holding that CPL § 440.10(2)(c) — New York's provision barring collateral review of record-based claims not raised on direct appeal — is not regularly followed with respect to ineffective assistance claims involving the failure to call witnesses); see also People v. Brown, 45 N.Y.2d 852, 853-54 (1978) ("Generally, the ineffectiveness of counsel is not demonstrable on the main record. . . . Consequently, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10."). In Leake's first CPL § 440.10 motion, he presented sworn statements from both Brown and Dubose, neither of which was part of the record on Leake's direct appeal. See Sworn Statement of Edward Brown, dated June 1, 1993 ("Brown Aff.") (annexed as Ex. C to First 440 Motion); Sworn Statement of Robert Dubose, dated June 23, 1993 ("Dubose Aff.") (annexed as Ex. D to First 440 Motion). Rather than resolving the issue of the adequacy of the state procedural bar, this Court will reach the merits of Leake's ineffective assistance claims as the claims are more simply resolved on that basis. See Dunham, 313 F.3d at 729-30.

   As noted previously, to establish ineffective assistance of counsel a petitioner must establish both deficient performance and prejudice. Strickland, 466 U.S. at 687. In evaluating the first prong, "`[j]udicial scrutiny . . . must be highly deferential'" and "`every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (alterations in original) (quoting Strickland, 466 U.S. at 689); see Dunham, 313 F.3d at 730 (according counsel a presumption of competence). In determining whether a petitioner has demonstrated prejudice caused by counsel's errors, the Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)). In addition, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. Each of Leake's claims is considered under this standard.

   1. Failure to Investigate Parole Officer

   Leake claims that counsel was ineffective for failing to investigate the parole officer identified in the Parole Memorandum that Leake uncovered after trial. First 440 Motion at 3, 6-7. But defense counsel had no reason to know of the existence of this memorandum — or consequently, that Leake's parole officer had any knowledge of the case — before or during trial. Thus, counsel could not have acted unreasonably in failing to uncover it or in failing to investigate the parole officer. Moreover, the memorandum gave no indication that the parole officer had any independent knowledge of Fitzgerald's murder. Rather, the memorandum stated merely that Detective Mack had "confirm[ed]" that Leake had made a statement that he was acting in self-defense. See Parole Memorandum. Thus, the memorandum had no particular value to Leake's defense and Leake cannot show that any failure by counsel to uncover it resulted in prejudice to him.

   2. Failure to Call Brown and Dubose as Defense Witnesses

   Leake also claims ineffective assistance based on counsel's failure to call Brown and Dubose as witnesses in his defense. First 440 Motion at 3, 6-7, 9-10. But "defense counsel's decision not to call a particular witness usually falls under the realm of trial strategy that [courts] are reluctant to disturb." Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir. 2003); accord United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) ("[C]ounsel's decision as to whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation." (internal quotation marks and citation omitted)), cert. denied, 532 U.S. 1007 (2001); see United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial."), cert. denied, 484 U.S. 958 (1987). Because such a decision "fall[s] squarely within the ambit of trial strategy, . . . if reasonably made, [it] will not constitute a basis for an ineffective assistance claim." Nersesian, 824 F.2d at 1321. Here, the statements of the witnesses themselves reflect that Leake's trial counsel and/or investigator interviewed them, had each of them waiting outside the courtroom during the trial, and nevertheless decided not to call them to testify. See Brown Aff. ¶¶ 2, 4, 5; Dubose Aff. ¶¶ 2, 4. Given that counsel's decision was made after an investigation, the face of the affidavits alone would cause this Court to afford counsel the presumption of competence and assume that his decision was based on a reasonable evaluation of their potential testimony and its ability to aid or hinder Leake's defense.

   Moreover, Insero has supplemented the state court record by submitting an affirmation as part of the briefing on this Petition explaining further the nature of his investigation of Leake's case, which included interviewing and obtaining statements from both Brown and Dubose. Insero Affirm. at 3. Insero explains:

In Leake's trial, as in any other trial I have ever been involved in, the decision to call or not to call certain witnesses depends upon a myriad of factors. Certain of these factors include: the tenor of the trial; the demeanor of the prospective witnesses; and, the potential testimony of the prospective witnesses. Other factor[s] include: the criminal records of the prospective witnesses; how the prospective witnesses will respond to cross-examination; how the jury will perceive the prospective witnesses; and, prior statements to the police and Grand Jury testimony of the prospective witnesses and how well the prospective witnesses will remember their previous statements or testimony.
. . . .
In Leake's trial, I considered these factors and only then did I make the decision not to call Dubose and Brown. . . . It was a conscious decision on my part especially in light of my knowledge of the prosecutor's intention to seek a missing witness charge if I did not call Brown. In fact, the prosecutor unsuccessfully sought such a missing witness charge.
Id. at 3-4; see also Tr. 679, 683-84, 712-16 (colloquy regarding the prosecutor's request for a missing witness charge, which was denied). Given that Insero's decision not to call Brown and Dubose as defense witnesses was made after a thorough investigation, this Court must afford counsel the presumption of competence and conclude that the decision was based on a reasonable evaluation of their potential testimony and its ability to aid or hinder Leake's defense. Leake has failed to overcome the presumption that such a strategic decision is "virtually unchallengeable," Strickland, 466 U.S. at 690.

   3. Failure to Object to Certain Testimony

   Leake argues that his counsel was ineffective because he failed to object to testimony that Edwards was stabbed only twice. First 440 Motion at 3-5. Dr. Koltovich testified that Edwards had two stab wounds in his back. (Koltovich: Tr. 96, 100). Leake contends, based on Edwards's testimony (Edwards: Tr. 240-42), that Edwards was stabbed three times — once near his right shoulder and twice near his spine. First 440 Motion at 3. And he contends without support that the third wound was inconsistent with the knife he allegedly wielded. Id. at 3-5.

   Defense counsel cross-examined both Dr. Koltovich and Edwards regarding the number of stab wounds Edwards sustained. (Koltovich: Tr. 104-07; Edwards: Tr. 260, 286). And in his closing argument, counsel pointed out the inconsistency in the testimony and argued that Edwards incurred only two wounds. (See Tr. 762 ("I submit to you, ladies and gentlemen of the jury, that he had two wounds pursuant to the testimony of the medical doctor. You can rest assured that in this age of medical malpractice suits they were very, very careful so that they didn't overlook a third stab wound.")). Defense counsel was not ineffective for accepting the testimony of a doctor and using that testimony to minimize the injuries incurred by Edwards and to cast doubt on Edwards's veracity. Nor can counsel be found ineffective for failing to argue that any third wound was inconsistent with the knife used when there was no evidence to that effect.

   4. Failure to Present a Justification Defense

   Leake's final contention, that trial counsel was ineffective in failing to present a justification defense, is premised on counsel's failure to call Brown and Dubose as witnesses and to test the evidence retrieved from Leake's house for his blood. See First 440 Motion at 7-8. Since both of these "failures" have been found not to constitute ineffective assistance of counsel, Leake's claim regarding their effect on his justification defense should also be denied.

   Finally, Leake's generalized allegations that his trial counsel was unprepared and unacquainted with basic principles of criminal and constitutional law are conclusory and unsupported by any record evidence.

   Conclusion

   For the foregoing reasons, Leake's petition should be denied.

  

PROCEDURE FOR FILING 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 have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with extra copies sent to the Hon. Sidney H. Stein, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Stein. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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