The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Eddie Diaz, currently an inmate at the Upstate Correctional
Facility in Malone, New York, brings this petition for writ of
habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following
a jury trial in the New York State Supreme Court, Bronx County,
Diaz was convicted of one count of Murder in the Second Degree
(N.Y. Penal Law § 125.25(2)), three counts of Attempted Murder in
the Second Degree (N.Y. Penal Law §§ 110.00, 125.25), and one
count of Criminal Possession of a Weapon in the Second Degree
(N.Y. Penal Law § 265.03). He was sentenced to prison terms of 25
years to life on the murder count, 5 years on each attempted
murder count, and 15 years on the weapon possession count. The
attempted murder sentences run concurrently with each other and
consecutively to the murder sentence. The weapon possession
sentence runs concurrently with the other sentences. For the
reasons stated below, Diaz's petition should be denied. I. BACKGROUND
A. Evidence Presented at Trial
During the summer of 1998, Luis Gomez and Julio Garcia were at
a party at Garcia's house. (See Gomez: Tr. 43, 74; Garcia Tr.
243).*fn1 Also present at the party was Miguel Perez, (see
Gomez: Tr. 43), who later became Diaz's co-defendant at trial and
who was convicted of the same charges. See Transcript, filed
December 10, 2004 (Docket #19) ("Tr. #19"), at 222-23. Garcia and
Perez got into a fight with one another at the party. (See
Gomez: Tr. 43, 77; Garcia: Tr. 214-16). Gomez broke up the fight.
(Gomez: Tr. 44; Garcia: Tr. 216). Garcia had seen Perez, whom he
knew as "Pinky," several times over a six or seven month period,
including after the party. (See Garcia: Tr. 229-30, 243-46).
In September 1998, Garcia observed Perez and Diaz hanging out
together on Bathgate Avenue in the Bronx. (See Garcia: Tr.
247-48). Garcia had previously seen Diaz "around the
neighborhood" over a period of several months and knew him by the
name of "China." (See Garcia: Tr. 214-15). On October 13, 1998,
Garcia observed Perez and Diaz driving on his block. (See
Garcia: Tr. 219). At that time, the two men stopped their car,
looked at Garcia, and continued on driving. (Garcia: Tr. 219).
Later that same day, at approximately 4:30 p.m., Gomez, Garcia,
and Garcia's young daughter were riding in Gomez's car in the
vicinity of 183rd Street and Bathgate Avenue. (See Gomez: Tr.
44-46; Garcia: Tr. 216-17). Gomez was driving the car, and Garcia
was in the passenger seat with his daughter. (Gomez: Tr. 46; Garcia: Tr.
217). Garcia saw Perez at the corner of 183rd Street and Bathgate
Avenue with several other individuals. (Garcia: Tr. 218). Garcia
told Gomez to continue driving, which he did. (Garcia: Tr. 218).
Garcia looked back to see two individuals get into a green car
and begin "tailgating" them. (Garcia: Tr. 218). Gomez went
through the next two lights, but the other car did the same
thing. (See Garcia: Tr. 218). At 183rd Street and 3rd Avenue,
Gomez could no longer proceed because his car was blocked by
traffic. (Garcia: Tr. 218-19). The other car, a green Acura
Legend, then pulled alongside Gomez's car approximately two to
five feet away. (See Gomez: Tr. 46-48; Garcia: Tr. 219). Perez
was driving the Acura and Garcia believed that it was the same
car that he had seen Perez driving on previous occasions. (See
Garcia: Tr. 219).
After pulling alongside Gomez's car, Perez said to Garcia,
"remember me now you pussy." (Gomez: Tr. 48; accord Garcia: Tr.
219). Garcia pushed his daughter down towards the floor of the
car. (See Garcia: Tr. 220). Diaz, who was wearing a black North
Face "bubble" vest or jacket, then jumped up on the passenger
seat of the car and stuck his head out of the sunroof. (See
Gomez: Tr. 49, 62; Garcia: Tr. 220, 237-38). Diaz was not wearing
a hood and Garcia observed him from approximately four feet away,
although Gomez had some difficulty observing him because Diaz was
higher than he was at that point and because Gomez was bent down.
(See Gomez: Tr. 67; Garcia: Tr. 221, 238). Diaz then pulled out
a gun, cocked it back, and pointed it out of his car. (See
Gomez: Tr. 50; Garcia: Tr. 220). Gomez attempted to move his own
car forward, but it stalled. (Gomez: Tr. 51; Garcia: Tr. 220).
Garcia ducked and Diaz shot at the car several times. (See
Gomez: Tr. 51; Garcia: Tr. 220, 240). The car in which Perez and
Diaz were driving made a U-turn and left the scene. (See
Garcia: Tr. 221-22). None of the three occupants of Gomez's car were struck by any
bullets, although the car itself had two or three bullet holes.
(See Gomez: Tr. 52-53; Garcia: Tr. 221, 223). A bystander,
however, was struck in the head by one of the bullets and killed.
(See Gomez: Tr. 51; Garcia: Tr. 221-22, 233-34; Albert: Tr.
32-33; Senzamici: Tr. 257-59; Milewski: Tr. 369, 374). The
bystander was identified as Anthony Singleton. (Albert: Tr. 33;
Senzamici: Tr. 258; Singleton: Tr. 3-4).
Following the shooting, Gomez drove his car home. (Gomez: Tr.
52). Neither he nor Garcia immediately contacted the police to
report the shooting because they were "scared." (See Gomez: Tr.
63-64, 87; Garcia: Tr. 223, 234).
On October 17, 1998, the police received a telephone call
regarding the Singleton homicide. (Schiffman: Tr. 281). The
caller, who identified himself as "Scar Face," named the shooter
as "China" and the driver of the vehicle as "Pinky." (Schiffman:
Tr. 441, 444). The caller stated that he had seen "China" in a
car the previous day and described him as a male Hispanic with
green eyes. (Schiffman: Tr. 445-46). Garcia testified that he had
called the police identifying himself as "Scar Face" and told
them that "somebody had died" and that he knew "who did it."
(Garcia: Tr. 252-54).
On October 29, 1998, Diaz was arrested in connection with
Singleton's murder. (See Karpati: Tr. 332-34). As part of the
processing of the arrest, Diaz informed police that his alias was
"China Man." (Caceres: Tr. 308-09). On the same day he was
arrested, Diaz was the subject of two lineups. (See Caceres:
Tr. 306). Garcia and Gomez separately viewed the lineups and
identified Diaz as the shooter. (See Gomez: Tr. 53-54; Garcia:
Tr. 224; Caceres: Tr. 307). Gomez "was sure that [he] picked the
right person" at the lineup and did so based on what he observed at the scene. (Gomez: Tr. 68). Gomez and Garcia also
looked at photo arrays and Garcia identified the shooter from the
photographs. (Gomez: Tr. 72-73; Garcia: Tr. 234).
From October 30, 1998 to November 2, 1998, Diaz and his
"ex-brother-in-law," Rudolpho Ramos, were lodged in the same unit
at the Bronx House of Detention. (See Biggs: Tr. 266-67, 272;
Ramos: Tr. 109-11). Ramos was Diaz's "ex-brother-in-law" because
he was the father of Diaz's sister's child. (Ramos: Tr. 110).
Ramos was being held in connection with a drug arrest and Diaz
was being held on the charges arising from this case. (Ramos: Tr.
110-11). Ramos testified that he sometimes hit Diaz's sister and
that he was once addicted to crack-cocaine. (Ramos: Tr. 122,
While in the Bronx House of Detention, Diaz told Ramos that
"they got him for killing some kid" and admitted that he was the
one that did the shooting. (Ramos: Tr. 110-11, 115). Diaz
explained to Ramos that he had been "hanging out" on 183rd Street
and Bathgate Avenue with "his friend" when "some guys they had
problems with passed by in [a] car." (Ramos: Tr. 111; accord
Ramos: Tr. 113-14). Diaz told Ramos that he followed the
individuals in a car and caught up with them at 181st Street and
3rd Avenue, at which point he "jumped out [of] the car and
started shooting at the car." (Ramos: Tr. 111-12; accord Ramos:
Tr. 114). Diaz also told Ramos that he dismantled the gun and
threw it away. (Ramos: Tr. 115). Diaz informed Ramos that he was
wearing a grey sweatshirt with a hood over his head and that his
clothing would prevent people from being able to identify him.
(Ramos: Tr. 133).
Ramos did not immediately report this conversation to anyone.
(See Ramos: Tr. 121, 126). Ramos attended Diaz's arraignment in
connection with the murder charge with members of the Diaz
family. (Ramos: Tr. 163, 167). After Ramos was arrested on a
bench warrant for failing to appear in court, he informed his attorney of the
conversation he had with Diaz and provided a statement to the
District Attorney's Office. (Ramos: Tr. 126-29). At the time he
gave his statement to the District Attorney, Ramos did not have a
"deal" with respect to his own case. (Ramos: Tr. 116-17).
Subsequently, however, Ramos entered into a written agreement,
signed by himself, his attorney, and the ...