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ANTHONY ZON, Superintendent, Wende Correctional Facility, Respondent.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Malik Muhammad petitions for a writ of habeas corpus, challenging his convictions in state court on murder and robbery charges. On July 30, 2004, I held oral argument, in which Muhammad participated by telephone. The petition is denied for the reasons set forth below. BACKGROUND

  On New Year's Eve in 1992, Muhammad robbed David King outside a small clothing store from which King sold drugs (the "store"). When King's associate, Anselm Robinson, exited the store, Muhammad held his gun to Robinson's chest, grabbing his chain necklace. When Robinson pushed the gun away, Muhammad opened fire. Robinson was mortally wounded. King was only grazed by a bullet.

  Muhammad eluded arrest for almost four years. In the summer of 1996, however, Eric and Hasheen Andrews, who were in prison, told Detective William Walsh of Muhammad's involvement in the 1992 incident. Both Andrews brothers were apparently participants in Muhammad's crimes: Eric served as a lookout while Hasheen accompanied Muhammad outside of the store. Armed with this knowledge, Detective Walsh confronted Muhammad, who was also incarcerated for an unrelated offense at the time, about the crime. While Muhammad initially denied involvement, he confessed after learning that the Andrews brothers had told Detective Walsh of his involvement in the crimes. Muhammad signed a written statement on July 1, 1996, admitting the robbery and the shooting. Two days later, he made a similar statement, this time on videotape.

  Muhammad was charged with three counts of murder in the second degree, two counts of robbery in the first degree, one count of criminal possession of a weapon in the second degree, one count of criminal possession of a weapon in the third degree and one count of assault in the second degree. A. The Trial

  At trial, King testified about the robbery and shooting. Detective Walsh testified as well. He told the jury that when he first interviewed Muhammad, he told Muhammad that the police knew of his involvement in the crimes. Detective Walsh testified that Muhammad initially denied his participation, but "[o]nce [Walsh] mentioned the names Eric Andrews and Hasheen Andrews, that [Muhammad] had spoken with these individuals in different correctional facilities, and that [Walsh] got basically the same information from them, then [Muhammad] started speaking more of this case of his involvement in it." (Tr. at 436-37.) Defense counsel did not object to this testimony.

  Detective Walsh explained that Muhammad's written statement was the result of an approximately hour-long interview in which Muhammad presented "several different versions" of the events. (Tr. at 440.) As Detective Walsh testified, "I finally got to what I believe was the truth of this investigation." (Tr. at 437.) The substance of this statement was that Muhammad had seen Robinson near the store earlier on the day of the shooting. Robinson asked him if he knew Hasheen. When Muhammad replied that he did not, Robinson starting shooting at him for no apparent reason, and Muhammad fled. Later that night, Muhammad, the Andrews brothers, and another individual returned to the store. King was standing outside, and Muhammad robbed him. Then Robinson exited the store and reached toward his waist. Muhammad thought — based on the earlier encounter — that Robinson was going to shoot him. Thus, Muhammad shot him first.

  In the videotaped statement, taken by the assistant district attorney two days after the written confession, Muhammad repeated most of what was contained in his written statement. However, in the videotaped statement, Muhammad said that he observed Robinson reaching toward his waist band while Robinson was still in the store, and Muhammad shot him through the store's glass door.*fn1

  A police officer testified at trial that the store's entrance door bore two bullet holes in the metal frame. The medical examiner testified that Robinson had gunpowder residue between his fingers, indicating that he was shot at close range. The medical examiner also confirmed that the bullet entered Robinson's pelvis area.

  In her summation, defense counsel argued to the jury that Muhammad was justified in shooting Robinson based on self-defense. Defense counsel contended that when Robinson reached toward his waist band, Muhammad understandably thought that Robinson was going to grab his gun and shoot him. Defense counsel reminded the jury that earlier on the day of the shooting, Robinson had tried to shoot Muhammad. She also reminded the jury that Robinson was a known drug dealer, and as such, he was likely to have the tools of his trade, including a gun, on his person.

  The prosecution summed up on, among other things, how Detective Walsh got Muhammad to confess to the crimes:
What I . . . see is someone who when confronted with the fact that people who know the defendant was there that night have spoken to the police, when confronted with the names Eric and Hasheen Andrews, I see a man who has made a decision to give up some information to acknowledge his involvement in this case.
* * *
So the defendant, according to Detective Walsh concedes very little. So what changes things? What changes things is the crucial moment in time in this case, ladies and gentlemen, when Detective Walsh says: Malik, you know you were there, you know what happened. I know it because I spoke to your friends, Eric and Hasheen Andrews.
And as soon as the defendant hears those names, he knows a couple of things. First of all he knows that Eric and Hasheen were there that night. They can place him at the scene. What he doesn't know is exactly what Eric and Hasheen have told the detectives in this case. But what that does is give the defendant reason now to say if I put my version out of there, if I put a spin on it, if I minimize my activity, maybe I can get some kind of benefit, the same as Eric and Hasheen.
* * *
What you have is a calculated decision. As soon as the defendant realizes you got me, how am I going to handle the situation.
(Tr. at 511, 529-30.)

  The jury found Muhammad guilty of felony murder and depraved indifference murder. He was also found guilty of robbery in the first degree and criminal possession of a weapon. He was acquitted of the charges of intentional murder and of robbery in the first degree.

  On June 24, 1997, Muhammad was sentenced as a juvenile offender to concurrent terms of imprisonment of eight years to life on each of the murder counts, and to a consecutive sentence of three to nine years for the robbery.*fn2 B. Procedural History

  Muhammad, through counsel, appealed to the Appellate Division, Second Department. He argued that his Sixth Amendment Confrontation Clause rights were violated when Detective Walsh told the jury what the Andrews brothers had related to him about Muhammad's involvement in the crime. While he acknowledged that this issue was not preserved for review, Muhammad's counsel urged the court to revisit it in the interests of justice. Relatedly, appellate counsel contended that trial counsel's failure to object to this prejudicial hearsay constituted ineffective assistance of counsel. As another basis for the claimed ineffectiveness, appellate ...

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