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United States District Court, S.D. New York

August 10, 2004.

ERIC SMALLS, Petitioner,

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


Pro se petitioner Eric Smalls seeks a writ of habeas corpus from his October 2, 1998 conviction of three counts of first degree burglary, three counts of first degree robbery, one count of first degree attempted burglary, eight counts of first degree sexual abuse, and sentence to an aggregate term of thirty-two years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) See People v. Smalls, 287 A.D.2d 277, 277, 731 N.Y.S.2d 16, 16-17 (1st Dep't), appeal denied, 97 N.Y.2d 685, 738 N.Y.S.2d 309 (2001). Smalls' ninety-three page habeas petition raises "two" grounds: ineffective assistance of trial counsel (Pet. at 49-88) and ineffective assistance of appellate counsel (Pet. at 13-48). (See also Smalls 6/21/04 Traverse.) Each of those claims, however, has numerous subparts — hence a ninety-three page petition. This is yet "another case where petitioner's lengthy laundry-list of claims `suggests the poverty of his position.'" Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *1 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); accord Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *1 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 438 (S.D.N.Y.) (Wood, D.J. & Peck, M.J.) (quoting Cooper v. New York State Dep't of Human Rights, 986 F. Supp. 825, 829 (S.D.N.Y. 1997)), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

The parties have consented to decision of the petition by me as a Magistrate Judge pursuant to 27 U.S.C. § 636(c). (Dkt. No. 16: Consent Form.)

  For the reasons set forth below, Smalls' habeas petition is DENIED.


  Petitioner Eric Smalls was arrested on October 14, 1996 while trying to escape from an attempted burglary, when undercover officers noticed his suspicious behavior and recognized him as fitting the description of the suspect wanted in three prior burglaries with sexual abuse of the victims. (Dkt. No. 13: State Br. at 2.) Between late July and October 1996, Smalls broke into the apartments of three single women living in upper Manhattan, stole property, threatened each victim with a knife, and sexually abused them. (State Br. at 2.) After Smalls' arrest, he initially was released after two victims could not identify him from a line-up, but later rearrested when DNA analysis of his sneakers connected him to one of the victims. (State Br. at 2.)

  The Evidence at Smalls' Trial

  The July 24, 1996 Attack on S.S.*fn1

  In July 1996, S.S. lived at 270 Seamon Avenue in Inwood in a third floor apartment in a building with a recessed entrance from the street and no doorman. (S.S.: Trial Transcript ["Tr."] 54-56.) She filled her prescriptions at the local Rite Aid drugstore on Broadway and shopped at the local Dynasty Supermarket two doors down from the pharmacy. (S.S.: Tr. 55, 79.) On the night of July 23, 1996, S.S. went to bed between 10:30 and 11 p.m. with no lights on in her apartment and two windows open in the living room. (S.S.: Tr. 57-58.) She awoke somewhere between 4:20 and 4:30 a.m. due to "the sensation some one was standing in the door of [her] bedroom," and opened her eyes to see "some one standing in the door of [her] bedroom" with nothing obstructing her view of the individual. (S.S.: Tr. 58, 72.) Through the darkness, she saw that he was "wearing dark sneakers, blue jeans, a dark colored shirt and [a] very light Members Only type jacket," and was "about six feet tall," weighed "about 170 pounds," and "was athletically built but not heavily muscled." (S.S.: Tr. 73.) His skin tone was a "little rough," and "dark with a warm brown undertone," he had "short" hair, was "not heavily bearded," and "smelled very strongly of alcohol." (S.S.: Tr. 74-75.) S.S. screamed, and the person moved to the right side of the bed and told her "shh" and "put one hand over [her] mouth and another hand over [her] throat." (S.S.: Tr. 58-59.) He asked her where her money was, and she "told him the money was in the kitchen." (S.S.: Tr. 60.) As she walked down the hallway leading to the kitchen, the man kept his arm around her neck "like a chokehold," and "took out a knife and he poked the side of [her] neck with it." (S.S.: Tr. 60-61.) S.S. described the knife as having a four or five inch blade "where you pull the blade out, [and it has] a place for your finger to attach to pull the blade out." (S.S.: Tr. 62-63.)

  After seeing the knife, S.S. stopped screaming and the man walked her into the kitchen where she gave him her wallet. (S.S.: Tr. 63-64.) Her attacker fondled her right breast and slipped his left hand in the "pant hole" of her underwear, "felt around" the "outside of [her] vagina" and made "little gurgling noises." (S.S.: Tr. 67-68.) Up to this point, the attacker's "tone" had not been "hostile or violent," but when S.S. told him "no" and to stop, his tone changed and he "sounded angry" and said "don't say no to me." (S.S.: Tr. 68-69.) S.S. "stopped saying no to him" and tried to reason with him, telling him that "he had what he came for" and "if he left now [she] wouldn't say anything to anyone." (S.S.: Tr. 69.) He told S.S. to take him to the front door. (S.S.: Tr. 69-70.) He followed her to the door with his knife at her neck and his other arm around her throat, made S.S. open the door for him and left. (S.S.: Tr. 70-71.) After he left, S.S. called the police. (S.S.: Tr. 71-72.) She determined that her attacker had climbed into her apartment through the living room window. (S.S.: Tr. 81-82.)

  S.S. viewed a photo array in April 1997, and identified Smalls and another individual as looking familiar. (S.S.: Tr. 87-88, 92.) In a line-up on May 15, 1997 she picked out Smalls, and when asked how she recognized him, she said that she remembered him entering her apartment, not from seeing his picture in a New York Times article about his arrest months before. (S.S.: Tr.75-77, 90-91, 100.) Additionally, at trial S.S. pointed to and identified the Smalls as her attacker. (S.S.: Tr. 83-84.)

  On cross-examination, defense counsel pointed out that her attacker was only in her apartment for a short period and that it was dark. (S.S.: Tr. 86-87.) He also asked other questions to cast doubt on her identification of Smalls. (S.S.: Tr. 88-92, 95, 97-98.) The September 25, 1996 Attack on K.W.

  In September 1996, K.W. was living at 62 Park Terrace West, in Inwood, the same neighborhood as S.S. (K.W.: Tr.106.) She lived in a first-floor apartment in a building with a recessed entrance from the street and no doorman. (K.W.: Tr. 107-09.) She also shopped at the same local Rite Aid drugstore and Food Dynasty Supermarket. (K.W.: Tr. 108, 153-54.)

  K.W. went to sleep on a futon in her living room at around 11:00 p.m. on the night of Tuesday, September 24, 1996, with her kitchen window part-way open, which she believes is how the intruder entered. (K.W.: Tr. 110-11, 132.) She awoke at around 3:15 a.m. and "saw a man, a stranger standing there, looking at" her, and with the only light coming from the kitchen behind him, she could only see his silhouette, not his face. (K.W.: Tr. 112-13, 130) K.W. immediately told the man to leave and stood up, but he came towards her and "quickly made [her] turn around," so that he was behind her, and he put "his arm around [her] throat." (K.W.: Tr. 112-14.) He pulled out a "sharp" object and held it against her neck. (K.W.: Tr. 114-15.) K.W. told her attacker, "I'm going to cooperate completely." (K.W.: Tr. 115.) He asked her "where is your money?" (K.W.: Tr. 115.) K.W. indicated that it was on the desk in the same room, and her attacker walked her over to the desk, still holding one arm around her throat and with the other holding a knife to it. (K.W.: Tr. 115.)

  K.W. gave him her wallet containing $35 and spare cash she kept in an envelope. (K.W.: Tr. 116.) He asked "where is the man of the house?," and K.W. told him that she lived alone. (K.W.: Tr. 117.) He next asked if she had anything else, and she took him to the bedroom, as he continued to walk behind her, and showed him her jewelry. (K.W.: Tr. 118.) He took only one necklace, and K.W. started naming other things, including a camera and tape player, but he "didn't respond at all." (K.W.: Tr. 118-19.) As they walked back to her living room, he "pulled out the electrical connection" of the answering machine, mistaking it for the phone cord. (K.W.: Tr. 126.) When they walked back to her futon, he put his hand "in the front of [her] genital area." (K.W.: Tr. 120-21.) K.W. begged, "please don't do that, you have everything you want," and he told her, "I don't have everything I want." (K.W.: Tr. 121.) He told her to lie down and "pushed [her] down too." (K.W.: Tr. 121.) He reassured her that he would not hurt her, and he lay down "behind" her on the futon. (K.W.: Tr. 122.) With his right hand he touched her breasts, and he inserted the other into her vagina and rectum. (K.W.: Tr. 122.) At this point, she could see that his skin was "medium brown." (K.W.: Tr. 122.)

  When he was finished, he stood her up and walked her into the bedroom and told her not to call the police because he lived in the neighborhood. (K.W.: Tr. 124-25.) He left her in the bedroom and walked out the front door. (K.W.: Tr. 125.) As soon as he left, K.W. called the police. (K.W.: Tr.130.) K.W. was able to estimate that her attacker was taller than 5'8", "kind of average height for a man," not "heavy," had an "urban African-American accent," "spoke quietly," "smelled of alcohol," and did not appear angry during their encounter. (K.W.: Tr. 127-29.) On October 14, 1996, she viewed a line-up but was not able to identify anyone because she had not seen her attacker's face. (K.W.: Tr. 147-50.) The October 5, 1996 Attack on I.M.

  In October 1996, I.M. lived at 251 Seaman Avenue in Inwood. (I.M.: Tr. 186.) She lived alone in a second floor one-bedroom apartment in a building with a recessed entrance from the street and no doorman. (I.M.: Tr. 188-89.) Like S.S. and K.W., she shopped at the local Rite Aid pharmacy and Food Dynasty grocery store. (I.M.: Tr. 187.)

  On Friday, October 4, 1996, I.M. went to sleep at about 11:00 p.m., leaving the living room window halfway open. (I.M.: Tr. 189-91.) In the middle of the night, at around 3:00 a.m., she suddenly awoke because she "felt somebody up on me and covering [her] mouth." (I.M.: Tr. 191, 210-11.) She started screaming and the attacker "put a pillow over [her] head and suffocated" her while using his other hand to put a knife to her throat. (I.M.: Tr. 191-92, 194.) She saw that the knife was about four or five inches, and thicker at one end. (I.M.: Tr. 195-96.) As she fought back, the knife cut the palm of her hand, and she began bleeding. (I.M.: Tr. 192.) Her hand continued dripping blood because her blood is thin due to heart medication. (I.M.: Tr. 196-97, 230.)

  Her attacker "demanded jewelry and money," and she gave him her engagement ring, wedding ring and watch. (I.M.: Tr. 197.) She discovered that he already had her purse in "a knapsack," and he gave it to her to go through, but she noticed and told him that he had already removed her wallet; he answered, "yeah, blame it on me." (I.M.: Tr. 198-99.) As her hand continued dripping blood, I.M. told the attacker she needed water, and he "took" her to the bathroom, but would not let her turn on the light in order to keep his face hidden. (I.M.: Tr. 199-201.) He repeatedly told her during this time, "Don't look at my face," and she could not see it because the room was dark. (I.M.: Tr. 199.) After she washed her hand, he "pushed" her back to the bedroom and "pulled [her] pants down and threw [her] face down on the bed." (I.M.: Tr. 202.) She started telling him, "please don't hurt me, don't do this to me." (I.M.: Tr. 203.) He "started fondling [her] breast" and inserted his finger into her vagina and rectum. (I.M.: Tr. 203-05.) When she told him not to do this to her since she had children, he asked their ages. (I.M.: Tr. 204.) She told him they were "[a]bout 29 and 31," and "he said they are about [his] age." (I.M.: Tr. 204.) As he touched her, he asked when her husband was coming home, and I.M. told him "we're separated." (I.M.: Tr. 208.) Finally, he let her go. (I.M.: Tr. 206.) The attacker asked "where is the phone" and, after I.M. pointed to it, he "cut the cable of the phone and told [her] don't call the police . . . I'm observing you. I live nearby." (I.M.: Tr. 207, 209.) He "grabbed [her] again and with the knife in [her] throat and said take me to the door now." (I.M.: Tr. 210.) After he left, she called her family, and her daughter took her to the hospital to treat her sliced hand (I.M.: Tr. 211.) The police interviewed her at the hospital. (I.M.: Tr. 226-27.) The only thing she could identify about her attacker was that he had "dark skin," wore "a cap backward," "smelled of alcohol," wore "a knapsack," and his shoes made no noise when he walked across her wooden floors. (I.M.: Tr. 213-16.)

  On October 14, 1996, I.M. viewed a line-up, but she was unable to recognize anyone. (I.M.: Tr. 227-28.) On October 30, 1996, I.M. went to the Medical Examiner's office and gave blood for DNA analysis. (I.M.: Tr. 229.)

  On cross-examination, defense counsel brought out that the police dusted her apartment but did not find Smalls' prints. (I.M.: Tr. 235-36.) Counsel also pursued, as he had with the other witnesses, that she had given her address to the Rite Aid pharmacist. (I.M.: Tr. 240-41; Johnson: Tr. 406-07.) The October 14, 1996 Attack on Ella Johnson*fn2

  On October 14, 1996, Ella Johnson lived in an apartment on the first floor of 67 Park Terrace East, a non-doorman building in an "isolated," "residential area" in Inwood. (Johnson: Tr. 380-82, 385-86.) Like the other three victims, she shopped at the local Rite Aid and Food Dynasty stores. (Johnson: Tr. 380-81, 389.)

  During the evening of October 14, 1996, Ella Johnson was asleep in her bed when she was suddenly awakened by a "thud or shaking of [her] window." (Johnson: Tr. 388-91.) She looked at the clock in her VCR and saw that it was about 4:00 a.m. (Johnson: Tr. 392.) When she looked at the bedroom window that she had left ajar, she saw the silhouette of a person. (Johnson: Tr. 391-92, 404.) She jumped up, turned on the light, ran towards the image, but changed her mind and headed back to her bed. (Johnson: Tr. 392.) Looking out the window, she saw "the person running south" and noticed he was wearing a "shirt or a sweater" and no hat. (Johnson: Tr. 393-95, 400-01, 404.) Johnson did not phone the police to tell them what happened until later that morning. (Johnson: Tr. 401.) She viewed a line-up later that day, October 14, 1996, and selected individual number "[t]hree" because she "recognized that the build was similar" to her attacker's build, but she was not certain. (Johnson: Tr. 401-03.) Smalls' Arrest and Identification,*fn3 and the DNA Evidence

  From midnight to 8:00 a.m. on October 14, 1996, Sergeant James West was in charge of an undercover team of officers looking for a serial burglar who had sexually attacked and robbed three single women living alone in apartments in an elevated residential area of the 34th precinct. (West: Suppression Hearing ["H."] 6-7, 10; West: Tr. 422-24, 426, 452-54; Maric: Tr. 471, 489-90; Pinzone: Tr. 503.) The prior attacks had all occurred within one block of each other between 1:00 a.m. and 5:00 a.m. (West: H. 7-8; West: Tr. 424-25, 456.) Sgt. West had been given a description of the attacker as a black male, early twenties, thin to muscular build, from 5'10'< to 6' tall, soft spoken with alcohol on his breath, carrying some type of bag, and armed with a folding knife. (West: H. 8-9; West: Tr. 424-25, 454-56.)

  On October 14, 1996 at approximately 4:00 a.m., Sgt. West and Officer Maric, both dressed in plain clothes, received a radio transmission from Officer Pinzone to be aware of an individual heading their way who fit the suspect's description. (West: H. 12; Maric: H. 66; West: Tr. 428-30, 456; Maric: Tr. 474; Pinzone: Tr. 503-04.) As a man approached them from the steps leading up to the elevated residential area, Sgt. West and Officer Maric followed him as he walked North on Park Terrace East, Ella Johnson's street. (West: H. 12-13; West: Tr. 430; Maric: Tr. 474-76.) Sgt. West and Officer Maric noticed that he was a black male in his early twenties of a thin build, wearing a backpack. (West: H. 12-13; West: Tr. 433.) The officers followed him for several blocks, but lost sight of him when he turned the corner on 216th or 217th Street, and the officers could not find him when they searched the alleys. (Maric: H. 67; West: Tr. 431, 433-35, 457; Maric: Tr. 476-77.) During the period he was out of sight, Ella Johnson was asleep in her bed and was awakened by someone trying to break into her apartment. (Johnson: Tr. 392.)

  The officers returned to their car and began circling the area when, at approximately 4:30 a.m., they spotted the individual walking southbound on Park Terrace East back towards the steps. (Maric: H. 68; West: H. 13-14; West: Tr. 431-32, 435, 457; Maric: Tr. 478.) Sgt. West and Officer Maric got out of their car and followed him on foot. (Maric: H. 69; West: H. 14-15; Maric: Tr. 479.) Eventually, Sgt. West called out "Police, can I talk to you for a second?" (Maric: H. 69; West: H. 15; West: Tr. 435, 437, 459-60, 464; Maric: Tr. 479.) In response, the individual started "walking very quickly," then "took off running down the steps" while "trying to take off the backpack that he's carrying." (West: H. 15; Maric: H. 69-70; West: Tr. 436-37, 441, 460, 474; Maric: Tr. 479; Pinzone: Tr. 506-07.) While radioing for backup, Sgt. West and Officer Maric chased the individual down the steps, then east on 215th Street, south to 214th Street, and next back towards Broadway. (Maric: H. 71; West: Tr. 437-39; Maric: Tr. 479-80; Pinzone: Tr. 505-06.) Meanwhile, Police Officers Colon and Weinberg responded to the backup call, intercepted the individual in their car, and pursued him on foot. (Pinzone: H. 129-30; Maric: Tr. 480; Colon: Tr. 423-24.) Finally, the exhausted individual just stopped and sat down on a park bench and the officers approached him. (Maric: H. 72; Pinzone: H. 130; West: Tr. 440, 466; Maric: Tr. 480.)

  Officer Pinzone picked up the individual's backpack and gave it to Sgt. West. (Pinzone: H. 148-49; West: H. 19-20; West: Tr. 441; Pinzone: Tr. 510.) Sgt. West, knowing that the serial robber carried a knife, felt the backpack to see if it contained any weapons. (West: H. 20; West: Tr. 441-42, 464.) Upon feeling something that felt like a folding knife, he opened the backpack and found a folding knife with a four- to five-inch blade knife, and also found a tube of penis-desensitizing cream. (West: H. 20-21; West: Tr. 442; Maric: Tr. 480-81.)

  Before being read his rights, the individual was asked a series of questions to ascertain whether he was the man they sought. (Maric: H. 82.) Responding to why he had run, the individual said "I've had dealings with the police before. I'm on parole." (West: H. 17; see West: Tr. 467.)*fn4 The officers also asked him to identify himself and explain what he was doing in the area. (West: H. 17; West: Tr. 447.) He responded that his name was Eric Smalls, and said that he was drunk and had gotten off at the wrong subway stop. (West: H. 17; West: Tr. 448-47.) Sgt. West noticed Smalls was "[s]oft spoken," "well spoken" with "a military manner of speaking" and had "alcohol on his breath." (West: H. 19; West Tr. 451-52; Bonilla: Tr. 535.) Sgt. West was familiar with the neighborhood, and he knew that Smalls' subway story was suspicious because it meant Smalls had apparently walked seven blocks north of the 207th Street stop, where he claimed he mistakenly exited the train, instead of walking south to the Dyckman Projects where he lived. (West: H. 18-19; West: Tr. 447-51.) "[K]nowing that certain parolees have restrictions," such as "prohibitions against drinking and carrying weapons and certain hours of the evening they are not suppose to be out," Sgt. West decided to bring Smalls back to the station house, where they arrived at about 5:00 a.m. (West: H. 22.)

  Detective Bonilla of the Special Victims Squad, who was investigating the series of prior attacks, read Smalls his Miranda warnings, and Smalls refused to answer any questions other than pedigree information. (Bonilla: H. 88-89; Bonilla: Tr. 530-31.) Smalls said he was twenty-six years old, five feet eleven inches tall, and weighted about 170 pounds. (Bonilla: H. 89-90; Bonilla: Tr. 535.) Around noon later that day, October 14, 1996, Detective Bonilla conducted separate lineups viewed by I.M., K.W., and Ella Johnson. (Bonilla: Tr. 537-38.) S.S. did not view the line-up on that day because she was out of the country. (Bonilla: Tr. 538.) Smalls chose to stand in position number three at the line-up. (Bonilla: Tr. 537, 540-41.) I.M. and K.W. were unable to make an identification; however, K.W. recognized Smalls' voice, and she asked numbers three and six to reread a statement because they sounded like her attacker. (Bonilla: H. 91-92; Bonilla: Tr. 541-42.) The fourth victim, Ella Johnson, said that "it possibly could be number three [i.e., Smalls] but she wasn't sure." (Bonilla: H. 91-92.)

  A search warrant was issued for Smalls' home on October 14, 1996, the day of his arrest. (Bonilla: Tr. 542-43.) None of the items stolen from the victims' apartments were found in Smalls' apartment. (Bonilla: Tr. 571.) The police recovered four pairs of sneakers, one of which had a spot of blood on the eyelet. (Bonilla: Tr. 543-44, 459-50.) On October 30, 1996, the sneaker with blood was sent to Cellmark Laboratory for testing, along with the knife from Smalls' knapsack and a sample of I.M.'s blood obtained from her on October 30, 1996. (Bonilla: Tr. 552-53, 556; Flaherty: Tr. 644-47.) Dr. Charlotte Word, Deputy Laboratory Director at Cellmark who oversees the work done by the scientists, testified that her lab conducted DNA analysis on all of the items received. (Word: Tr. 653, 661, 669, 673-74.) An insufficient amount of DNA was recovered from the knife for analysis, but the blood on the sneaker was analyzed. (Word: Tr. 675.) The DNA results from the blood on the sneaker and I.M.'s blood were consistent with each other. (Word: Tr. 682.) The results showed that the chance of another individual besides I.M. having the same DNA as that found on Smalls' shoe would be one in fourteen billion Caucasian individuals, one in sixty-one billion African Americans, one in forty-one billion Hispanics. (Word: Tr. 686-87.)

  Six months later, on April 15, 1997, S.S., the third victim, viewed a photo array, where she said her attacker was "possibly number six or five and that she would have to see the person in person to be able to make sure." (Bonilla: H. 94-95; Bonilla: Tr. 557.) Smalls was number five in the photo array. (Bonilla: H. 95.) On May 15, 1997, a line-up was conducted, and Smalls chose to stand in number three again after consulting with his former attorney. (Bonilla: H. 96-97; Bonilla: Tr. 557-58.) The line-up included five fillers who were all black males of a slim or medium build, who matched Smalls as "best as possible at the time." (Bonilla: H. 97; Bonilla: Tr. 557, 566-67.) Pictures were taken of the line-up at the time, with one given to Smalls' attorney, and the other was xeroxed and filed, but it was later "misplaced" before the suppression hearing. (Bonilla: H. 98-99; Bonilla: Tr. 558-603.) The xerox copy was admitted, but it only showed "silhouettes." (H. 99-102.) At the line-up, S.S. said she recognized "number three" — Smalls — as the "person who came into [her] apartment." (S.S.: Tr. 76-77; Bonilla: H. 100.)

  After the pretrial suppression hearing, on May 15, 1998 Justice Leibovitz issued a sixteen-page decision, denying Smalls' motion to suppress the evidence recovered from him due to an alleged unlawful search and seizure, his statements to the police, and S.S.'s line-up identification. (Dkt. No. 14: Martland Aff. Ex. A: Justice Leibovitz 9/15/98 suppression hearing decision.)*fn5 Justice Leibovitz found that the police had "lawfully stopped" Smalls and were "permitted to clarify the situation through brief pre-Miranda questioning." (Ex. A: Justice Leibovitz decision at 7.) Justice Leibovitz found that Sergeant West "reasonably feared that the knapsack contained the weapon" and was permitted to feel the bag, and once he felt the knife he was permitted to open the bag and remove the knife. (Id. at 9-10.) Justice Leibovitz found that "the police had probable cause to arrest [Smalls] for the prior burglaries" because of the "match of time, location and the suspect's description," and also had probable cause to arrest him "on an independent ground, violation of parole." (Id. at 10-11.) Concerning the photo array viewed by S.S., the court found that the photo array was fair because a copy of the array showed that "the fillers fairly resembled him," and S.S.'s "inability to choose between defendant and a filler demonstrated that the procedure was fair." (Id. at 13.) Justice Leibovitz determined "that the May 15th lineup itself was not suggestive." (Id. at 14.) "While the loss of the original copies of the lineup photographs may give rise to a presumption of suggestiveness, any such presumption was overcome by the information on the lineup expense report and the testimony of Detective Bonilla." (Id.) The fillers all had "similar builds, wore short hair and were seated to minimize discrepancies," and overall had a "sufficient resemblance" so that any discrepancies between goatees and mustaches and hair length "were minor details." (Id. at 14-15.) Smalls' Defense

  At trial, although Smalls' counsel presented no witnesses, he tried to establish through cross-examination of the prosecution's witnesses the theory that Smalls was framed by the police. Counsel suggested through cross-examination that the DNA evidence did not solve the case because the sneakers were tampered with and someone placed I.M.'s blood on the shoe. (Bonilla: Tr. 575-77; Flaherty: Tr. 650-51; Word: Tr. 689.) Defense counsel pointed out that Smalls' fingerprints were not found in any victim's apartment, and there were discrepancies in the descriptions of the attacker given by the each victim. (Peruzza: Tr. 719; Bonilla: Tr. 578, 588-92.) Defense counsel pointed out that S.S., who was the only victim to positively identify Smalls in a line-up, had read a story in the New York Times in January 1997 about the suspect which included a photograph of Smalls, before she made her line-up identification. (S.S.: Tr. 94; Bonilla: Tr. 583-88.) Defense counsel also suggested an alternate suspect, with a criminal record, who worked at the neighborhood drugstore. (E.g., Bonilla: Tr. 593-95.)*fn6

  In his summation, defense counsel charged that the jury must place great scrutiny on the "credibility of those live witnesses who testified" and said there were "serious contradictions in testimony that goes to explain whether, in fact, you can believe these witnesses." (Defense Summation: Tr. 754, 766.) Defense counsel also suggested that "tampering went on" with the items presented as evidence in order to solve the case. (Defense Summation: Tr. 755-56.) In response, the prosecutor's summation highlighted the solid evidence and attacked the defense conspiracy claim, asking "why would the police want to frame Eric Smalls?" (State Summation: Tr. 789-90.) The prosecutor asked, "Why create a scapegoat here? Why frame an innocent man here?" (State Summation: Tr. 791.)

  Verdict and Sentence

  Smalls was convicted of all counts: three counts of first degree burglary, three counts of first degree robbery, one count of first degree attempted burglary, and eight counts of first degree sexual abuse. (Verdict: Tr. 930-36.) Smalls was sentenced on October 2, 1998 as a second felony offender, and given an aggregate term of thirty-two years imprisonment. (Sentencing Transcript ["S."] 7-8, 17-19.)

  Smalls' Direct Appeal

  On appeal, Smalls' new appointed counsel argued that: (1) his guilt was not proved beyond a reasonable doubt and, in any event, his conviction was against the weight of the evidence (Ex. B: Smalls 1st Dep't Br. at 18-22), and (2) the trial court had improperly ruled that Smalls' trial counsel had opened the door to Smalls' statement to police that he was on parole (id. at 23-33). Smalls also filed a pro se supplemental brief in which he argued that: (1) the police were not justified in stopping him or in searching his backpack (Ex. C.: Smalls Pro Se Supp. 1st Dep't Br. at 2, 7-15), and (2) the trial judge should have sanctioned the prosecution for the loss of the photograph of the May 15, 1997 line-up, which constituted a Rosario violation (id. at 2, 15-17.)

  On October 9, 2001, the First Department affirmed Smalls' conviction, holding: The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Moreover, we conclude that the evidence was overwhelming. In addition to reliable identification testimony and evidence of unique modus operandi, DNA testing established that a victim's blood was found on defendant's sneakers.


Defendant's cross examination of a detective suggesting that defendant had an innocent reason for fleeing when approached by the police, as well as his recross-examination of the detective about whether he had knowledge of defendant's thoughts at the time of his arrest, opened the door to the admission of defendant's statement that he ran from the police because he was on parole.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.
People v. Smalls, 287 A.D.2d 277, 277, 731 N.Y.S.2d 16, 16-17 (1st Dep't 2001) (citations omitted).

  The New York Court of Appeals denied leave to appeal on December 20, 2001. People v. Smalls, 97 N.Y.2d 688, 738 N.Y.S.2d 304 (2001).

  Smalls' C.P.L. § 440.10 Motion

  On or about October 8, 2002, Smalls filed a pro se C.P.L. § 440.10 motion to vacate the judgment of conviction.*fn7 Smalls argued that: (1) the prosecution committed a Rosario violation by failing to provide S.S.'s statement and Detective Aponte's notes prior to the suppression hearing; (2) there was "newly discovered" exculpatory evidence; and (3) Smalls had received ineffective assistance of trial counsel. (See Ex. I: State § 440 Opp. Br. at 1; Ex. J: Justice Silverman decision at 1.) Justice Silverman denied Smalls' C.P.L. § 440.10 motion on December 20, 2002. (Ex. J: Justice Silverman decision denying § 440 motion.) Justice Silverman held that S.S.'s statement and a detective's notes did not constitute Rosario material with respect to the suppression hearing because "these individuals did not testify at the suppression hearing." (Ex. J: Justice Silverman decision at 1-2.) In addition, "[s]ince the issue was already raised — or could have been raised — on [Smalls'] direct appeal, it must now be denied pursuant to CPL 440.10(2) (a, c)." (Ex. J: Justice Silverman decision at 2.) Justice Silverman found that it was not clear what "newly discovered evidence" Smalls was claiming had been made available since the close of trial. (Ex. J: Justice Silverman decision at 2.) Finally, Justice Silverman found there was "no basis to defendant's claim of ineffective assistance of [trial] counsel" because "[t]he trial record and Court file reveal that defense counsel made appropriate pretrial motions, conducted a competent examination of witnesses, and generally presented a proper defense." (Justice Silverman decision at 2.) Justice Silverman did not fault counsel's line of questioning and found that counsel provided "meaningful representation," as required by New York law, and "counsel's efforts should not be second-guessed." (Ex. J: Justice Silverman decision at 3.)

  The First Department denied leave to appeal from the denial of the § 440.10 motion on July 10, 2003. People v. Smalls, No. M-570, 2003 N.Y. App. Div. LEXIS 8167 (1st Dep't July 10, 2003). Smalls' Coram Nobis Petition to the First Department

  Smalls filed a coram nobis petition with the First Department on October 1, 2002 claiming his appellate counsel was ineffective for: (1) failing to assert that trial counsel was ineffective (Ex. M: Smalls Coram Nobis Petition at 3-21, 47); (2) "failing to raise some valuable evidences to support" the argument that Smalls' guilt had not been proven beyond a reasonable doubt (id. at 21-26); (3) "failing to raise the illegal search and seizure" issue (id. at 26-35); (4) "failing to raise the Miranda warning" issue (id. at 35-37); (5) "failing to raise the Wade Hearing and reopening of the Wade Hearing issues" (id. at 37-42); (6) not arguing that the "trial court had erred in not allowing trial counsel to call complainants to testify during Wade Hearing" (id. at 42); (7) "failing to raise the judicial misconduct issue" (id. at 42-45); (8) not raising the Rosario and Brady issues (id. at 45-47); and (9) "failing to submit a reply brief and to give an oral argument" (id. at 49).

  The First Department denied Smalls' coram nobis petition on June 19, 2003, citing People v. de la Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987). People v. Smalls, 306 A.D.2d 958, 762 N.Y.S.2d 866 (1st Dep't 2003); see also Ex. O: 6/19/03 1st Dep't decision. The New York Court of Appeals denied leave to appeal on October 23, 2003. People v. Smalls, 100 N.Y.2d 645, 769 N.Y.S.2d 211 (2003); see also Ex. P: Court of Appeals Certificate denying leave to appeal.

  Smalls' C.P.L. § 440.20 Motion to Vacate His Sentence

  On June 11, 2003, Smalls moved pursuant to C.P.L. § 440.20 to set aside his sentence of thirty-two years because it exceeded "the maximum aggregated term of 30 years" under Penal Law § 70.30. (Ex. Q: Smalls C.P.L. § 440.20 Motion ¶ 6). On October 21, 2003, Justice Fried denied Smalls' motion. (Ex. R: Justice Fried's decision denying § 440.20 motion). The First Department denied leave to appeal on March 4, 2004. People v. Smalls, No. M-5489, 2004 N.Y. App. Div. LEXIS 2431 (1st Dep't Mar. 4, 2004). (See also Ex. S: D.A.'s 2/26/04 letter opposing leave to appeal; Ex. T: 1st Dep't decision denying leave to appeal.)

  Smalls' Federal Habeas Corpus Petition

  Smalls submitted a ninety-three page petition for a writ of habeas corpus, asserting that both his trial and appellate counsel were ineffective for numerous reasons. (Dkt. No. 2: Pet.; see also Smalls 6/21 Traverse.) Smalls' petition asserts that appellate counsel was ineffective for failing to raise: (1) the Miranda issue about his statements (Ex. U: Pet. at 13-15, 62-71);*fn8 (2) the Wade pretrial identification issue (id. at 15-20); (3) the judicial misconduct issue (id. at 20-26); (4) failing to submit a reply brief or give oral argument (id. at 26); and (5) failing to raise claims that trial counsel was ineffective in numerous ways (id. at 28-61).

  Smalls' petition asserted direct claims of ineffective trial counsel, as follows: (1) failing to cross-examine Detective Bonilla about various things (id. at 48-51); (2) failing to cross-examine the complainants about prior inconsistent statements (id. at 51-53); (3) counsel had a conflict of interest because he forced Smalls to tell his mother certain information (id. at 54-56); (4) failing to call character witnesses (id at 56-58); and (5) failing to investigate (id. at 58). Smalls also raises claims of (a) newly discovered evidence (id. at 72-73), (b) Rosario/Brady violations about the suppression hearing (id. at 77-81), and (c) insufficiency of the evidence (id. at 82-88).



  Before the Court can determine whether Smalls is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . 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)(1)-(2).*fn10

  The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn11 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn12 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

  As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent 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 result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn13 In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ 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." Williams v. Taylor, 529 U.S. at 413, 120 So. Ct. at 1523.*fn14 However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn15 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn16 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn17 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 124 S.Ct. at 2149.*fn18

  Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn19 Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

  Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had `considered and rejected defendants' remaining claims,'" AEDPA deference applies.); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference.").*fn20 "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn21 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

  In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).


  A. The Strickland Standard In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.*fn23


Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort 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. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).*fn24

  Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 So. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.*fn25

  The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

  Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the `totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

  The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.*fn26

  In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.*fn27 As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.

  B. Strickland and Appellate Counsel

  The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764 (2000).*fn28 A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *18 n. 30 (S.D.N.Y. May 31, 2002) (Peck, M.J.) (discussing the issue of whether a federal or state standard should apply), report & rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18, 2004). Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).*fn29 Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d 347, 371-72 (S.D.N.Y. 1999) (Patterson, D.J. & Peck, M.J.).*fn30 Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

  C. Strickland and the AEDPA Review Standard

  For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant `clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d 78, 95 & n. 8 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(d)(1)).*fn31 "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also `clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 4 (2003).


  Smalls alleges a long list of trial counsel errors, many of which fall into the rubric of trial strategy, and the rest deficient performance. The Second Circuit has consistently stated that the court will not "`second-guess matters of trial strategy simply because the chosen strategy has failed.'" Lake v. Portuondo, No. 00-2150, 14 Fed. Appx. 126, 128, 2001 WL 830583 at *1 (2d Cir. July 25, 2001), cert. denied, 535 U.S. 999, 122 S.Ct. 1565 (2002); accord, e.g., Smith v. Keane, No. 95-2480, 101 F.3d 1392 (table), 1996 WL 364539 at *3 (2d Cir. July 2, 1996), cert. denied, 519 U.S. 969, 117 S.Ct. 396 (1996); United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *40 (S.D.N.Y. June 3, 2003) (Peck, M.J.). Rather, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and must presume that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065-66 (1984); see also, e.g., United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) ("[A]n appellate court on a cold record should not second-guess [counsel's trial conduct] decisions unless there is no strategic or tactical justification for the course taken."), cert. denied, 526 U.S. 1164, 119 So. Ct. 2059 (1999).

  Smalls' claims concerning the decisions his trial counsel made regarding questioning, objections, summation, witnesses presented, and the numerous other alleged failures are all part of the particular trial strategy adopted by his counsel, and counsel cannot be faulted for pursuing a trial strategy even if hindsight shows it was unsuccessful. See, e.g., Quinones v. Miller, 2003 WL 21276429 at *40-42 (& cases cited therein).

  This Court has carefully read the entire trial transcript in this case and cannot say that trial counsel's strategy and performance possessed shortcomings of a constitutional magnitude. Contrary to Smalls' assertion, the Court finds that trial counsel pursued a competent (albeit ultimately unsuccessful) trial strategy of highlighting the inconsistencies in the witnesses' testimony as he challenged the credibility of the evidence and suggested that his client was framed. Furthermore, even if Smalls could show deficient performance, his claim would fail under the second prong of the Strickland review test. In light of the overwhelming evidence, including DNA evidence, against Smalls, Smalls cannot show prejudice as a result of his trial counsel's performance. His counsel's trial strategy, implying that Smalls was framed, seemed to be the only one that had any chance of success in light of the DNA evidence. The Court will discuss some (but not all) of Smalls' specific ineffectiveness claims in greater detail. A. Trial Counsel's Performance During Cross-Examination and Investigation of the Case

  Smalls alleges that his counsel's inept cross-examination of Sergeant West improperly opened the door to damaging testimony that his client was on parole (Ex. U: Pet. at 41), and his failure to cross-examine Detective Bonilla about the ownership of the confiscated sneakers was also an error (Pet. at 49).

  Smalls' trial counsel attempted to show that the police had no basis to detain and arrest Smalls by questioning Sgt. West as to why Smalls was running from the police on the night of his arrest. (E.g., Tr. 466-67.) One can hardly blame trial counsel for attempting to further his theory that his client was framed by showing that the police had no basis to stop him, even if that attempt backfired. See, e.g., Bilzerian v. United States, No. 96-2920, 125 F.3d 843 (table), 1997 WL 603470 at *2 (2d Cir. Sept. 30, 1997) ("Defense counsel's decisions were part of a reasonable trial strategy, that simply did not work. [On cross-examination, c]ounsel understandably tried to rebut damaging testimony, only to find their decision led to more harmful evidence. This decision does not fall below a level of reasonableness."), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365 (1999); Avila v. Butler, No. 02-0739, 2003 WL 22939237 at *6 (N.D. Cal. 2003) (Any error in counsel's performance was "not so serious as to rise to the level of a constitutional violation" when counsel asked an open-ended question that elicited testimony that the defendant was on parole. Moreover, no prejudice resulted because the jury was instructed not to consider the information on "`parole as relating to the guilt or innocence of the defendant.'"); see also, e.g., Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) ("Decisions about `whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature' and generally will not support an ineffective assistance claim."); United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) ("[T]he conduct of examination and cross-examination is entrusted to the judgment of the lawyer, and an appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification for the course taken."), cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) ("Decisions whether to engage in cross-examination, and if so to what extent and in what manner, are similarly strategic in nature."), cert. denied, 484 U.S. 1061, 108 S.Ct. 1018 (1988); Charles v. Foltz, 741 F.2d 834, 840 (6th Cir. 1984) (Counsel was not ineffective for eliciting "bad background" information that the defendant had been denied parole and escaped from prison.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *42 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("One can hardly blame [trial counsel] for attempting to shake the detective's story, even if that attempt backfired.").

  Smalls claims that his trial counsel also erred in failing to further investigate and cross-examine Detective Bonilla as to whether the sneakers confiscated by Detective Bonilla belonged to another occupant of Smalls' home. (Pet. at 49.) Smalls asserts that the lack of such investigation "denied petitioner the opportunity to create reasonable doubt and build on the theory about the officers planting blood on the sneaker." (Pet. at 49.) He claims that his family, who lives with him, would have testified that he and his father shared shoes. (Pet. at 49.) Pointing the finger at Smalls' own father — who clearly could not have been the attacker since he was too old — was hardly a strategy likely to recommend or endear Small to the jury. B. Trial Counsel's Alleged Failure to Call Witnesses

  Smalls believes his trial counsel erred in not calling several witnesses. He asserts that his counsel should have called prior defense counsel Bridgette Richmond, the attorney present when Smalls was picked at the May 15, 1997 line-up. (Pet. at 36). Smalls points out that Richmond was present when S.S. viewed the line-up and identified Smalls as her attacker, and that Richmond "would have testified to the differences between the fillers and petitioner" and would have contradicted the testimony from Detective Bonilla regarding their similarities. (Pet. at 36.) However, in Richmond's memo describing the events of the line-up, Richmond stated that her objections to the fillers were "mostly that they had more facial hair and goatees and about the hair." (Pet. Ex. 11: Richmond 5/15/97 memo.) Richmond additionally noted that two fillers looked older than Smalls, and one looked younger. (Id.) Smalls believes he suffered prejudice because this testimony would have created a "reasonable doubt with respect to Detective Bonilla's testimony about the fairness of the line-up and to the remainder of his testimony." (Pet. at 36-37.)

  Such testimony would not have shown unfairness in the line-up viewed by S.S. Indeed, Richmond testified at the suppression hearing, but the trial judge found the lineup to have been fair. The result was not likely to be different before the jury a trial. Moreover, as a matter of law, the Second Circuit has held that "there is no requirement that . . . in line-ups the accused must be surrounded by persons nearly identical in appearance." United States v. Reid, 517 F.2d 953, 965 n. 15 (2d Cir. 1975); accord, e.g., Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *19 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Roberson v. McGinnis, 99 Civ. 9751, 2000 WL 378029 at *7 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 271 (S.D.N.Y. 2000) (Peck, M.J.).*fn32 "`Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.'" Gossett v. Henderson, 87 Civ. 5878, 1991 WL 135601 at *2 (S.D.N.Y. July 18, 1991), aff'd, 978 F.2d 705 (2d Cir. 1992), cert. denied, 510 U.S. 997, 114 S.Ct. 564 (1993). The cases in which lineups have been held to be suggestive are those where the witness has identified a certain feature of the perpetrator, and the lineup fillers do not have that feature (e.g., if the victim said the perpetrator had a beard or mustache, and the fillers are clean shaven and defendant is not). See, e.g., Ennis v. Walker, 2001 WL 409530 at *21; Roberson v. McGinnis, 2000 WL 378029 at *8 (citing cases). Here, the victims had not described any specific feature of the perpetrator. Moreover, Smalls' trial counsel pursued a different strategy of attacking the credibility of the line-up identification by demonstrating a potentially more serious flaw, namely that S.S. had viewed a picture of the attacker in the newspaper before she made her line-up identification.

  Next, Smalls claims his counsel should have called character witnesses to show Smalls' good character. (Pet. at 56.) Smalls contends that trial counsel should have called "petitioner's women friends to testify that he never engaged in any sexual deviant behavior nor was he ever violent towards them" and to discuss his education and participation in the military. (Pet. at 57.) Smalls speculates that this testimony would create a reasonable doubt in the jury's minds that he would commit the crimes. (Pet. at 56.) This is a baseless assertion. "A trial counsel's `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.' Because of this inherently tactical nature, the decision not to call a particular witness generally should not be disturbed." United States v. DeJesus, No. 01-1479, 57 Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003) (Counsel's decision not to call a character witness was grounded in strategy and not deficient, "even though [defendant] requested that she do so and provided her with contact information for potential witnesses."), cert. denied, 538 U.S. 1047, 123 S.Ct. 2110 (2003); see also, e.g., United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357 (1987).*fn33 The decision not to call a character witness in order to deny the prosecution the opportunity to contradict that impression is part of trial strategy, not an error in it. See, e.g., Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *26-27 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (counsel not ineffective for not calling a witness whose testimony was cumulative and may have exposed weaknesses in the defense's case.). As this Court has previously held, "`[t]he decision of whether to call or bypass a particular witness is a question of trial strategy which courts will practically never second-guess. . . . In the instant case, the testimony of any of these witnesses may have as likely exposed inconsistencies and weaknesses in defendant's case as have lent support to Petitioner's defense. Additionally, a defendant's conclusory allegations about the testimony of uncalled witnesses are insufficient to demonstrate prejudice.'" Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (quoting Ozuru v. United States, No. 95 CV 2241, 1997 WL 124212 at *4 (E.D.N.Y. Mar. 11, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998), cert. denied, 525 U.S. 1083, 119 S.Ct. 828 (1999)); accord, e.g., Montalvo v. Annetts, 2003 WL 22962504 at *27; Skinner v. Duncan, 2003 WL 21386032 at *40. Here, if counsel presented a character witness, the prosecution would have been able to present detailed evidence that Smalls was on parole for committing a similar crime while he was in the military. It was not unreasonable for Smalls' trial counsel to refrain from calling a character witness whose testimony would open the door to harmful attacks by the prosecution. See, e.g., United States v. DeJesus, 2003 WL 193736 at *3 (counsel properly made strategic decision not to call a character witness in order to prevent the prosecution from attacking defendant's character.); Krutikov v. United States, 00 CV 6103, 2004 WL 1555269 at *1 (E.D.N.Y. July 12, 2004) (counsel not ineffective for failing to call a character witness where petitioner fails to identify "how [the] testimony would have altered the outcome of the trial."); see also, e.g., Montalvo v. Annetts, 2003 WL 22962504 at *26-27; Skinner v. Duncan, 2003 WL 21386032 at *40.

  "Generally, the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation. . . . [T]he habeas court `will not secondguess trial strategy simply because the chosen strategy has failed . . .,' especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial." Jones v. Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995) (citations omitted), aff'd, No. 95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30, 1995).*fn34

  In light of the extremely strong evidence against Smalls, including DNA evidence connecting him to one of three identical attacks, any deficiency by counsel still would not satisfy the second Strickland prong, of showing that Smalls was prejudiced.

  Smalls' habeas claim that trial counsel was ineffective for his choice of witnesses is denied.

  C. Trial Counsel's Alleged Failure to Object to Improper Statements by the Prosecutor

  Smalls asserts that his trial counsel failed to object to the prosecutor's distortions of the record and improper statements that were "deliberate misrepresentations of the facts." (Ex. U: Pet. at 37.)

  "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.'" Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *25 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (quoting Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109 (1987)); accord, e.g., United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied, 516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991).*fn35 Stated another way, "the law is settled that `federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S.Ct. 230 (1994).*fn36

  To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blissett v. LeFevre, 924 F.2d at 440; accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is important `as an initial matter to place th[e] remar[k] in context'"); United States v. McCarthy, 54 F.3d 51, 55 (2d Cir. 1995); United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986).*fn37

  Here, however, Smalls is the one who has misinterpreted the trial record. The examples he claims are improper misrepresentations in fact accord with the evidence that was presented. The most questionable prosecutorial action the Court can find among those Smalls alleges is the prosecutor's reference to the defendant as a "hunter" in his opening statement. (Tr. 21, 22; Pet. at 37.) Other examples of alleged prosecutorial misconduct include the prosecutor's asking an officer what he "concluded" when the defendant appeared to be trying to remove his backpack as he looked around the street. (Tr. 507; Pet. at 37.) Smalls believes the prosecutor delivered an improper summation by misrepresenting the reasons why Johnson and K.W. did not provide a positive identification of the suspect from the line-up. (Pet. at 50; Tr. 827.) Also, Smalls states that the prosecutor's summation improperly stated that I.M. saw her attacker with a backpack when she never stated that at trial. (Pet. at 37.) Yet, contrary to Smalls' belief, I.M. did testify at trial that her attacker wore a "knapsack." (I.M.: Tr. 213-216.) Smalls asserts his counsel should have objected to all of these statements, and his failure to object was error. (Pet. at 37.) None of the comments cited by Smalls were improper, and all were "within `the four corners of the evidence'" presented at trial. Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *57-58 (S.D.N.Y. June 3, 2003) (Peck, M.J.).

  Furthermore, this Court finds that even if there was error in the People's summation, Smalls' trial counsel was not ineffective because any error was harmless in view of the brief and isolated nature of the comments, and the overwhelming evidence of Smalls' guilt including DNA evidence. See, e.g., Rao v. Artuz, No. 97-2703, 199 F.3d 1323 (table), 1999 WL 980947 at *2-3 (2d Cir. Oct. 22, 1999) ("strength of the evidence against the petitioner" was enough to "bar[] the conclusion that he suffered actual prejudice as a result of the prosecutor's remarks"); Tankleff v. Senkowski, 135 F.3d 235, 253 (2d Cir. 1998) ("[S]everity of the prosecutor's misconduct . . . was mitigated by the brevity and fleeting nature of the improper comments" and "the evidence was [not] so closely balanced that the prosecutor's comments were likely to have had a substantial effect on the jury"); Herrera v. Lacy, No. 95-2800, 112 F.3d 504 (table), 1996 WL 560760 at *2 (2d Cir. Oct. 3, 1996) ("While some improper statements were made . . ., the misconduct was not so severe that it was not rendered harmless by the court's curative instruction and the substantial evidence of [petitioner's] guilt."); Bentley v. Scully, 41 F.3d 818, 824-25 (2d Cir. 1994) (denying prosecutorial misconduct claim where prosecution presented "compelling evidence" against petitioner and alleged misconduct was both brief and isolated), cert. denied, 516 U.S. 1152, 116 S.Ct. 1024 (1996).*fn38 Additionally, needless objections to the "hunter" description and the prosecutor's questioning of the police officer would only serve to highlight the statements for the jurors. Counsel may have reasonably chosen not to object in order to avoid highlighting the testimony, which the jury likely failed to notice (as it consisted of only a single, fleeting reference).*fn39 In any event, considering the strength of the evidence against Smalls, he cannot show prejudice from any of the trial counsel errors he alleges.

  D. Trial Counsel's Alleged Failure to Give a Competent Summation

  Smalls faults his counsel for delivering an "incompetent and incomplete" summation, and points out that his counsel even stated, "I may forget to raise certain issues that are of importance in this case . . ." (Defense Summation: Tr. 751; Pet. at 38.) Smalls has taken this statement out of context, as his trial counsel was actually instructing the jurors to scrutinize the credibility of all the evidence presented and discussed in the People's Summation. (Dkt. No. 13: State Br. at 51.) Smalls alleges that nearly every possible argument attacking the evidence should have been made in his counsel's summation. (Pet. at 38-40.) But a defense attorney is not required to rehash every fact or argument in his summation, and is presumed to make "strategic choices." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066. In fact, his trial counsel appropriately argued that Smalls' guilt had not been proven beyond a reasonable doubt, stressed that the jurors must consider the inconsistencies of the identification statements made by the victims, and argued that the police may have tampered with the DNA evidence. (Defense Summation: Tr. 753, 755-77; see pages 16, 36 above.)

  The Court has read the entire trial transcript. Defense counsel conducted thorough cross examinations and presented a competent closing argument despite the overwhelming DNA evidence against his client. Trial counsel was not ineffective. See, e.g., Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir. 1993) ("A reading of the record clearly shows that [petitioner's] trial counsel's performance was not objectively unreasonable, nor did it result in prejudice."), abrogated on other grounds by Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690 (2003); Jeremiah v. Artuz, 181 F. Supp.2d 194, 203 (E.D.N.Y. 2002) (examining "counsel's overall performance" and finding no ineffective assistance where "[t]rial counsel ably presented petitioner's justification defense throughout the trial and attempted in cross-examination to develop grounds for questioning the testimony of prosecution witnesses that was harmful to petitioner's defense. Counsel also helped elicit petitioner's trial testimony in an intelligible fashion. His summation was an organized and coherent presentation of the defense position which focused on the justification defense. Notwithstanding the apparent strength of the prosecution's case, counsel forcefully urged the jury to find a reasonable doubt based on an evaluation of the evidence and gaps in the evidence. . . . [E]ven assuming that counsel committed an oversight or error in judgment . . . petitioner was not deprived of his right to the effective assistance of counsel. . . .").*fn40 This Court finds that the defense delivered a competent summation that did not fall below the objective level of reasonableness used to measure counsel's performance. In light of the overwhelming evidence against Smalls, and Smalls' vague and conclusory assertions as to trial counsel's alleged deficiencies, Smalls' claim of ineffective assistance is meritless and is denied.

   E. Smalls' Remaining Ineffective Trial Counsel Claims Fail Because They Are All Conclusory and Vague

   Smalls' remaining allegations of errors include that his counsel did not request time to review the New York Times article, failed to object to missing lineup photos, and performed no voir dire of the jury regarding the specific newspaper article. (Ex. U: Pet. at 42-45.) These claims are vague and conclusory, and, in any event, Smalls has not shown that he suffered prejudice as a result.

   It is well established that conclusory allegations, such as these, are insufficient to meet the rigorous standard under Strickland v. Washington. See, e.g., United States v. Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (petitioner's affidavit making allegations in a "conclusory fashion" failed to demonstrate that counsel's decision not to call a witness was unreasonable), cert. denied, 502 U.S. 826, 112 So. Ct. 93 (1991); Angel v. Garvin, 98 Civ. 5384, 2001 WL 327150 at *8 (S.D.N.Y. Apr. 3, 2001) (citing cases) ("A habeas petition may be denied `where the allegations are . . . vague, [or] conclusory . . ."); Slevin v. United States, 98 Civ. 0904, 1999 WL 549010 at *5 (S.D.N.Y. July 28, 1999) (§ 2255 case; "Petitioner's conclusory allegations that counsel evinced `a general lack of preparation' do not demonstrate that absent the alleged errors, the outcome of the trial would have been different. Petitioner has not elaborated on how counsel's alleged general lack of preparation prejudiced the outcome of his trial. Accordingly, such purported lack of preparation cannot be deemed ineffective assistance of counsel."), aff'd, 234 F.3d 1263 (2d Cir. 2000); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *19 (S.D.N.Y. May 8, 2002) (Peck, M.J.).*fn41 Here, Smalls alleges that if his attorney had read the Times article in advance, he would have seen police officer quotes that contradicted evidence presented at trial. (Pet. at 42.) Specifically, he points to a quote from Lieutenant Carney, Commanding Officer of the Manhattan Special Victims Squad, stating that the victims "never got to look at him." (Pet. at 42; Pet. Ex. 15: N.Y. Times article.) Smalls claims that this statement should have been brought to the jurors' attention to undermine the eyewitness identification given by S.S., because if it had, there is a reasonable probability the result of the trial would be different. (Pet. at 42.) The Court disagrees.

   Similar testimony was given by Detective Aponte, who stated that he recorded in his notes that S.S. did not see her attacker's face. (Aponte: Tr. 694.) This very evidence thus was before the jury, and they chose to believe S.S. "The failure to call cumulative or repetitive witnesses is neither ineffective nor prejudicial." Skinner v. Duncan, 2003 WL 21386032 at *38 (citing cases); see, e.g., United States v. Luciano, 158 F.3d at 660 ("The decision not to call a particular witness is typically a question of trial strategy that appellate courts are ill-suited to second guess." Where the witness defendant asserts counsel should have called "would have testified in a manner corroborative of another witness[,] counsel might well have regarded the testimony as unnecessarily cumulative."), cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *26 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (rejecting claim that counsel was ineffective for failing to call alibi witness whose testimony would have been cumulative of photographs in evidence and was consistent with the prosecution's theory.).*fn42 Smalls further alleges that his trial counsel erred in his failing to object that the missing photographs of the May 15, 1997 line-up were Rosario and Brady material. (Pet. at 44, 77.) Under Brady v. Maryland and its progeny, prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material either to guilt or to punishment. See, e.g., Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667, 676, 682, 105 S.Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963).*fn43

   "There are three components of a true Brady violation: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued." Strickler v. Greene, 527 U.S. at 281-82, 119 S.Ct. at 1948.*fn44 Here, the Court need not decide whether the first two prongs were satisfied, since Smalls cannot show prejudice. Even if the defense were able to cast some doubt on S.S.'s identification of Smalls, the DNA evidence (combined with all victims' general description of their attacker, which matched Smalls, and the common modus operandi), was proof positive of Smalls' guilt.

   Smalls' assertion that trial counsel was ineffective for not voir during the jury about the Times article and that the jurors might have learned from reading the article that he was on parole for a prior crime is speculative. Regardless of whether the jurors learned about his parole from the article, the same information concerning his parole status was presented at trial, as Smalls knows (because he faults his counsel for opening the door to it), and the jury was instructed to consider that evidence "sole[ly]" on the "issue of the defendant's actions," i.e., running from the police, and not as evidence of his propensity to commit the present crimes. (E.g., Tr. 468-69.) Thus, Smalls can show no prejudice since (1) the same information was in evidence at trial, (2) the evidence against him was strong, and (3) the trial judge gave a limiting instruction about his parole status, and a jury is presumed to follow the court's instructions. See, e.g., Greer v. Miller, 483 U.S. 756, 767 n. 8, 107 S.Ct. 3102, 3109 n. 8 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence . . ., unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions."); Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709 (1987) ("juries are presumed to follow their instructions").*fn45

   F. Trial Counsel's Aggregate Performance Does Not Amount to Deficient Performance Prejudicing Smalls

   As noted above (see page 31 above), any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the `totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. 668, 695-96, 104 S.Ct. 2052, 2069 (1984); see page 31 above.

   Strickland, of course, teaches that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. Even if Smalls' trial counsel's actions resulted from error rather than strategy, trial counsel's performance must still be accorded a certain degree of deference, as the Sixth Amendment does not guarantee "error-free, perfect representation," Morris v. Garvin, No. 98-CV-4661, 2000 WL 1692845 at *3 (E.D.N.Y. Oct. 10, 2000), but merely a "wide range of professionally competent assistance," Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. Smalls must show that trial counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; see, e.g., Smith v. Robbins, 528 U.S. 259, 284, 120 S.Ct. 746, 763 (2000) ("`We address not what is prudent or appropriate, but only what is constitutionally compelled.'") (quoting United States v. Cronic, 466 U.S. 648, 665, n. 38, 104 S.Ct. 2039, 2050 n. 38 (1984)); Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3126 (1987) (same); United States v. Di Tommaso, 817 F.2d 201, 216 (2d Cir. 1987) (although, "[t]o put it charitably," trial counsel's performance did not "furnish[] a full model for aspiring advocates," it did not fall outside the "wide range of reasonable professional assistance"); Wise v. Smith, 735 F.2d 735, 739 (2d Cir. 1984) (defendant "was not entitled to a perfect defense, and the cumulative effect of the errors and omissions that we might find do not amount to a denial of effective assistance of counsel").*fn46 The Court, as noted above, has read the entire trial transcript. Clearly, trial counsel was no Clarence Darrow or Arthur Liman. But judged in context and without the benefit of hindsight, trial counsel's performance as a whole did not constitute ineffective assistance in violation of Smalls' Sixth Amendment rights. Moreover, applying the deferential AEDPA standard, this Court cannot say that the § 440 court and First Department's rejection of Smalls' ineffective counsel claims constituted an objectively unreasonable application of Supreme Court precedent. See, e.g., Jones v. Stinson, 229 F.3d 112, 121 (2d Cir. 2000) (although Second Circuit might have found error had question been presented on direct review, under deferential AEDPA standard the appellate division's ruling was held not objectively unreasonable).

   Even assuming arguendo that each of Smalls' complaints about trial counsel had merit (which they do not), he cannot establish prejudice. Smalls' counsel faced a nearly impossible task of trying to overcome overwhelming evidence that his client had committed a string of crimes. Smalls was identified in a line-up and in court by one victim (S.S.), and irrefutable DNA evidence proved that another victim's blood was on his sneaker. He was apprehended in the vicinity where all the attacks occurred on the night of an attempted fourth attack. Additionally, his unique modus operandi was sufficient to connect him to all the attacks.

   Smalls' claim of ineffective assistance of trial counsel is denied in its entirety. IV. SMALLS' INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM IS DENIED

   Adding to his long list of claimed deficiencies of trial counsel, Smalls also alleges a long list of reasons why he was denied effective assistance of appellate counsel. Smalls claims that his appellate counsel was ineffective for failing to raise: (1) a Miranda warning/Huntley claim (Ex. U: Pet. at 13-15); (2) a Wade Hearing/identification claim (Pet. at 15-20); (3) a judicial misconduct claim (Pet. at 20-26); (4) failing to submit a reply brief and give an oral argument (Pet. at 26); (5) ineffective trial counsel claims (Pet. at 28-61); and (6) a claim that his guilt was not proven beyond a reasonable doubt (Pet. at 82-88).

   A. Failing to Raise a Miranda Warning/Huntley Hearing Claim

   According to Smalls, the police who apprehended him should have given him Miranda warnings before asking him why he had been running, and his response about his parole status should have been excluded from evidence. (Ex. U: Pet. at 13.) Smalls alleges that his appellate counsel erred in failing to raise this claim on appeal. (Pet. at 13-15.)

   Miranda warnings are not required for threshold-type questioning done in the line of routine police investigation of crimes or suspicious conduct occurring in the streets. E.g., Fiorienza v. Sullivan, 85 Civ. 0592, 1985 WL 6089 at *7 (S.D.N.Y. Sept. 3, 1985). In applying Miranda, the New York Court of Appeals has recognized that there is a distinction between "coercive interrogation" and "permissible street inquiry." People v. Huffman, 41 N.Y.2d 29, 32-34, 390 N.Y.S.2d 843, 845-47 (1976) (When at 4:30 a.m. a man ran away from officers and hid in bushes, it was acceptable for officer to ask, "What are you doing back here?" to clarify the nature of the situation rather than coerce a statement.). Here, when Smalls ran away from the officers and appeared to match the description of a suspect, it was permissible for the officers to clarify the situation through brief questions without the need for Miranda warnings. Additionally, the questioning of Smalls was not part of an interrogation designed to elicit incriminating responses, but merely vague questions designed to assess the danger of a suspicious situation.

   Even assuming arguendo that the pre-Miranda statements were a violation of Smalls' Miranda rights, and therefore inadmissible, any error in admitting the pre-Miranda statements was harmless error. E.g., Parsad v. Greiner, 337 F.3d 175, 185-86 (2d Cir. 2003); Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *22-23 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Cruz v. Miller, 98 Civ. 4311, 1999 WL 1144280 at *5-6 (S.D.N.Y. Dec. 2, 1999) (Jones, D.J. & Peck, M.J.), aff'd, 255 F.3d 77 (2d Cir. 2001).

   Miranda violations are subject to harmless error analysis. See, e.g., Parsad v. Greiner, 337 F.3d at 185 (error in admitting pre-Miranda statement "was harmless, as petitioner's post-Miranda statements, which we have held were properly admitted, were cumulative of his pre-Miranda statements."); Tankleff v. Senkowski, 135 F.3d 235, 245-46 (2d Cir. 1998) (applying harmless error doctrine to Miranda violation); Rollins v. Leonardo, 938 F.2d 380, 382 (2d Cir. 1991) (per curiam) (applying harmless error doctrine to Miranda violation), cert. denied, 502 U.S. 1062, 112 S.Ct. 944 (1992); Cruz v. Miller, 1999 WL 1144280 at *5.

   In Brecht v. Abrahamson, the Supreme Court held that the appropriate harmless error standard to apply on habeas corpus review of trial errors, such as the admission of evidence, is whether the error "`had substantial and injurious effect or influence in determining the jury's verdict.'" 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)); see also Parsad v. Greiner, 337 F.3d at 185 n. 5 (finding Miranda error harmless whether Brecht or Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967), harmless error "standard of review applies to post-AEDPA cases," which is an open issue in the Second Circuit).

   This Court cannot conclude that Smalls' pre-Miranda statements that he was on parole and was going home had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. at 638, 113 S.Ct. at 1722. Appealing the admission of Smalls' pre-Miranda statement would have been fruitless because the prosecution did not bring out the statement in their direct case. It was only brought out by the prosecutor after defense counsel had opened the door to the statement through cross-examination of Sergeant West. Moreover, even if the door had not been opened and admission was error, in light of the DNA evidence, the statements were not likely to influence the jury's verdict. This Court cannot say that appellate counsel erred in failing to raise the claim, nor that if he had the appeal would have been successful and, most importantly, cannot say that the First Department's decision was an unreasonable application of the Strickland standard.

   B. Failing to Raise a Fourth Amendment Claim

   Smalls asserts that he was arrested without probable cause and that the property seized and line-up identifications obtained should have been suppressed as fruits of the unlawful arrest. (Dkt. No. 1: Pet. ¶ 12(B).) However, on direct appeal in his supplemental pro se brief, Smalls raised the search and seizure claim. (Ex. C: Smalls Pro Se Supp. 1st Dep't Br. at 2.) The First Department denied Smalls' search and seizure claim as "without merit." (See pages 17-18 above.) Accordingly, the Court finds that Smalls was in no way prejudiced by appellate counsel's decision to forego a fourth amendment claim. See, e.g., Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *29 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *5 (S.D.N.Y. June 12, 2003) ("As to appellate counsel's failure to raise certain claims on direct appeal, petitioner cannot demonstrate the requisite prejudice. Petitioner's pro se supplemental brief presented all of the issues he wished to raise . . ."); Hayes v. Coombe, 96 Civ. 865, 1996 WL 650728 at *6 (S.D.N.Y. Nov. 7, 1996) ("[P]etitioner has not shown that he was prejudiced by appellate counsel's omission. Petitioner raised [the omitted] claim in his own pro se brief to the Appellate Division, and the Appellate Division considered and rejected it."), aff'd, 142 F.3d 517 (2d Cir. 1998), cert. denied, 525 U.S. 1108, 119 S.Ct. 879 (1999).

   C. Failing to Raise a Wade Hearing/Identification Claim

   Smalls argues that his appellate counsel erred in failing to raise a Wade hearing/identification issue. (Ex. U: Pet. at 15.) He asserts that the line-up in which S.S. identified him was unduly suggestive. As discussed above (see pages 39-40), "there is no requirement that . . . in lineups the accused must be surrounded by persons nearly identical in appearance." United States v. Reid, 517 F.2d 953, 965 n. 15 (2d Cir. 1975); see cases cited at page 39 & n. 32 above. As Justice Lebovitz found at the suppression hearing, the fact that Smalls had a mustache and the fillers had goatees, and Smalls' hair was a different length and texture, "were minor details." (Ex. A: Justice Lebovitz 5/15/1998 suppression hearing decision at 15.) Additionally, Justice Lebovitz found that the line-up expense report, the testimony of Detective Bonilla and the xerox copy of the lineup photo showing similar builds of all the men showed that the lineup was not unduly suggestive. (Id. at 14.)

   Smalls' appellate counsel correctly decided not to argue that the line-up was suggestive because he likely recognized, as this Court does, that the claim was meritless.

   D. Failing to Object to Judicial Misconduct

   Smalls alleges that his appellate counsel should have raised a judicial misconduct claim. (Ex. U: Pet. at 20.) Smalls refers to the objection his trial counsel made to the court's performance on a "number of occasions" that the court had "lost [its] impartiality" as the basis of his current claim. (Pet. at 20; Tr. 598.)

   The Second Circuit has repeatedly held that a trial court's hostility towards defense counsel will lead to reversal only if "`the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.'" United States v. Amiel, 95 F.3d 135, 146 (2d Cir. 1996) (quoting United States v. Robinson, 635 F.2d 981, 984 (2d Cir. 1980)).*fn47 The Second Circuit has instructed that:

The court's role is not to determine "whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid." The test is whether the jury was so impressed with the judge's partiality to the prosecution that it became a factor in determining the defendant's guilt, or whether "it appear[ed] clear to the jury that the court believe[d] the accused is guilty." United States v. Amiel, 95 F.3d at 146 (citations omitted); accord, e.g., United States v. Valenti, 60 F.3d at 946. District Courts apply these same standards on federal habeas review to claims of hostility lodged against state judges. E.g., Salahuddin v. Strack, No. 97-CV-5789, 1998 WL 812648 at *8 (E.D.N.Y. Aug. 12, 1998) ("habeas relief on the ground of judicial misconduct at the state trial level is warranted only if the federal court determines that the alleged improprieties, taken in the context of the total trial, undermined fundamental fairness to the defendant"); Jones v. Vacco, 95 Civ. 10755, 1997 WL 278050 at *6 (S.D.N.Y. May 23, 1997) (using Amiel test in habeas case).
   Smalls' claims of judicial misconduct do not rise to the level of impropriety necessary to undermine fairness in the trial. For instance, he cites the following colloquy when the prosecutor examined Detective Colon on direct:


[A.D.A.] BASHFORD: Detective Colon, do you recall what the witness was wearing that night?
[A.D.A.] BASHFORD: Do you remember if he was carrying or holding anything?
THE COURT: His answer is no.
(Colon: Tr. 528-29.) Smalls argues that this interference demonstrated impartiality favoring the prosecution, even though the answer to the question, and the judge's repetition of it, was favorable to the defense. (Pet. at 22.) Like his other examples of alleged judicial misconduct, this has no validity. In fact, the judge merely repeated an answer that favored the defense, stressing that the prosecutor's witness could not remember whether Smalls was carrying a backpack.

   Another example of alleged judicial misconduct cited by Smalls concerns the judge's comment during the discussion about the validity of DNA testing. When the prosecutor asked the DNA expert, Dr. Word, what was the likelihood of finding another person with the same genetic composition as I.M., the expert explained that it was about one in forty-one billion while the world's population at the time was only five and a half billion. (Word: Tr. 686-87.) The judge commented, "You would have some trouble doing that," and several people in the courtroom laughed. (Tr. 687.) Smalls believes that the remark clearly showed that the "trial court had definitely stepped outside his balanced role and become an advocate for the prosecution." (Pet. at 22.) Since the math was obvious, the judge's making a joke does not render the trial fundamentally unfair. See, e.g., Perez v. Hollins, 02 Civ. 6120, 2004 WL 307271 at *11 (S.D.N.Y. Feb. 5, 2004) (trial court's actions in questioning witnesses, denigrating the defense, and making faces did not deny petitioner a fair trial); see also, e.g., Gayle v. Scully, 779 F.2d 802, 807-13 (2d Cir. 1985) (Not constitutional error when judge continuously made sarcastic remarks, including, for example, telling the defense counsel, "`Counselor, you must rise to your feet when you address the court . . . This is not a real-estate closing.'"), cert. denied, 479 U.S. 838, 107 S.Ct. 139 (1986); Robinson v. Ricks, 00 CV 4526, 2004 WL 1638171 at *16 (E.D.N.Y. July 22, 2004) (While the trial judge made certain unfortunate comments they may have shown his belief that the defendant was guilty, they were "`neither significantly helpful to the prosecution,' nor `devastating to the defense,'" and thus his conduct did not rise to the level of a constitutional violation.) According to Smalls, the judge also should have conducted a voir dire of the jury to determine whether any jurors had read the newspaper article discussing Smalls' prior conviction for "the same crime which he was on trial for." (Pet. at 24; Pet. Ex. 15: N.Y. Times article.) This overstates the article's contents. In any event, the juror's knowledge of the article is irrelevant because the jurors all agreed they could be impartial, and additionally, they were instructed by the court not to "consider anything that is outside of the evidence." (Charge: Tr. 832.) The jury is presumed to follow the court's instructions. See, e.g., Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *12 (S.D.N.Y. July 21, 2004) (Peck, M.J.) (& cases cited therein); see cases cited at pages 54-55 above. Smalls was not prejudiced by the lack of a mid-trial voir dire on the old New York Times article, and any appeal on that point would have lacked merit.

   Smalls further objects that the trial court engaged in judicial misconduct in "failing to give an expanded identification charge" (Pet. at 25), yet Smalls' trial counsel specifically stated that "[a]fter further review and consideration I do not want" an expanded identification charge. (Tr. 744.) Therefore, the court complied with the trial counsel's request to not deliver the charge. Smalls also asserts that the trial court erred in "charging the jury that they may consider evidence from another charge, when considering a different charge, solely on the issue of identification." (Pet. at 25.) However, such a charge was appropriate in this case where the People argued that the attacker's unique modus operandi was circumstantial proof of the attacker's identity as to all of the charged assaults. See, e.g., Bryant v. Bennett, 00 Civ. 5692, 2001 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.)*fn48 Here, the crimes were sufficiently similar to warrant the modus operandi identity jury charge, and the trial court properly instructed the jury that they were to use this information to establish identity, and not to commingle the evidence for the purposes of determining guilt. "Modus operandi evidence is admissible if it `bear[s] a singular strong resemblance to the pattern of the offense charged.'" United States v. Kieffer No. 02-4246, 68 Fed. Appx. 726, 729, 2003 WL 21461656 at *3 (7th Cir. June 18, 2003).*fn49 There was no error in allowing the charges as to the four separate victims to be presented in a single trial where the perpetrator's modus operandi was the same (and there was no evidence from any uncharged crime). See, e.g., United States v. Sanogo, No. 99-1627, 208 F.3d 204 (table), 2000 WL 280320 at *1 (2d Cir. Mar. 14, 2000) (It is proper for a trial court to admit evidence of prior wrongs "if it helps to prove identity of the wrongdoer or the existence of a common scheme," especially where it helps to prove a "`signature crime.'") (quoting United States v. Mills, 895 F.2d 897, 907 (2d Cir. 1990)).

   Smalls claims that his counsel should have objected to the court's misconduct in allowing Dr. Word to testify as an expert witness even though her name was not on the laboratory report. (Pet. at 23.) The judge acted well within his role as gatekeeper in allowing Dr. Word to testify as an expert witness on DNA to explain its significance to the jury. See, e.g., Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 590-91, 113 S. CT. 2786, 2795-96 (1993); see also, e.g., Spencer v. Murray, 5 F.3d 758, 763 (4th Cir. 1993) (No error in admitting testimony from three DNA experts from the company who performed the tests, including those who performed the tests, and three "independent experts not connected with" the company that performed the tests.), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208 (1994); United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir.) ("DNA profiling evidence should be excluded only when the government cannot show this threshold level of reliability in its data," and "[r]arely should [] a factual determination [of the evidence's reliability] be excluded from jury consideration."), cert. denied, 506 U.S. 834, 113 S.Ct. 104 (1992). Smalls' further objection that the court erred in "allowing the prosecution to argue in summation that the petitioner had the propensity to commit those crimes because he was on parole" is inaccurate. (Pet. at 25.) The court instructed the jury that statement about Smalls' parole status "may not be considered by [them] as any proof that the defendant has a propensity or disposition to commit crimes . . . and may be considered . . . solely as to the actions of the parties at the time the defendant was stopped by the police on October 14, 1996." (Jury Charge: Tr. 843.)

   Taken as a whole in the context of the entire trial, the trial judge's rulings and comments did not deprive Smalls of a fair trial, any appeal on this issue would have been meritless, and habeas relief is denied on this claim. See, e.g., Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *12 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.) (petitioner was not denied a fair trial even though his counsel was reprimanded by judge during trial and "some of the court's comments would have been better left unsaid.").

   E. Failing to Submit a Reply Brief and Present an Oral Argument

   Smalls alleges that his appellate counsel erred in failing to submit a rebuttal brief and present an oral argument during Smalls' direct appeal. (Ex. U: Pet. at 26.) In letters to Smalls, his appellate counsel clearly explained the appeals process and his belief that oral argument would not be beneficial in the case. (Pet. Exs. 12-14: 11/23/01, 8/17/01, 10/23/00 letters.) Counsel stated:

I will not argue your case, for several reasons. First of all, the Court will not permit me to argue the issues you have raised in your pro se brief. Second, some arguments are better presented to the Court in writing and that is true with the issues I have raised on your appeal.
I am sorry that you feel that I do not care if the Court affirms your conviction. To the contrary, I am giving your appeal its best shot at success by not doing an oral argument. (Pet. Ex. 13: 8/17/01 letter.) This clearly was a strategic decision that the Court may not second guess. Concerning a reply brief, appellate counsel advised Smalls "I did not file a rebuttal brief because there was no point in doing so." (Pet. Ex. 12: 11/23/01 letter.) Additionally, appellate counsel had advised Smalls that Smalls could raise any additional issues he wished by submitting a pro se supplemental brief, which Smalls did. (Pet. Ex. 14: 10/23/00 letter.)
   Smalls' claim fails because he has not shown failure to submit a rebuttal brief and present an oral argument is deficient, nor that he has suffered prejudice as a result of counsel's conduct. He only makes the vague statement that he was denied "the all important last written word and maybe the last spoken word." (Pet. at 26.) Smalls has not demonstrated that a reply brief or oral argument would have changed the outcome of his appeal. See, e.g., Vega v. United States, 261 F. Supp.2d 175, 177 (E.D.N.Y. 2003) (Ineffective assistance of appellate counsel claim denied where counsel submitted an appellate brief but neglected to request an oral argument, because petitioner failed to show that oral argument would have changed the results of his appeal.); Phillips v. United States, 97 Civ. 2571, 2001 WL 274092 at *5 (S.D.N.Y. Mar. 19, 2001) (discretionary decision of counsel not to present an oral argument is not objectively unreasonable nor did it prejudice petitioner). Accordingly, Smalls' claim regarding his lack of oral argument and rebuttal brief is denied.

   F. Failing to Raise Ineffective Assistance of Trial Counsel Claim

   Smalls alleges that his appellate counsel was ineffective for failing to assert ineffective assistance of his trial counsel on appeal. (Pet. at 28-61.) There are two short answers to this claim. First, this Court has already found that trial counsel was not ineffective. (See Point II above.) Second, claims of ineffective trial counsel usually are brought not on direct appeal but on a collateral C.P.L. § 440 motion,*fn50 and counsel is appointed for the direct appeal but need not bring a collateral § 440 motion for a defendant. "`The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgement under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level.'" Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *17 n36 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (quoting Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N.Y. 1987)), report & rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004).

   G. Failing to Raise the Claim that the Prosecution Failed to Prove Guilt Beyond a Reasonable Doubt

   Smalls asserts that his appellate counsel should have argued on appeal that his guilt was not proven beyond a reasonable doubt due to discrepancies in testimony to support his claim. (Pet. at 82.) However, his appellate counsel did raise this claim on direct appeal, arguing that "the prosecution failed to prove appellant's guilt beyond a reasonable doubt" and "there was considerable evidence that appellant was not the perpetrator." (Ex. B: Smalls 1st Dep't Br. at 18-22.) The First Department denied the claim. Thus, counsel did raise the claim and was not ineffective.*fn51


   For the reasons discussed above, Smalls' habeas petition is DENIED, and a certificate of appealability is not issued.


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