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DIAZ v. GIRDICH

United States District Court, S.D. New York


June 1, 2005.

EDDIE DIAZ, Petitioner,
v.
ROY GIRDICH, Superintendent, Upstate Correctional Facility, Respondent.

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

  1. The People's Case

  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, 125-26).

  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 prosecutor, pursuant to which he would receive a misdemeanor disposition of his case with no jail time in exchange for his cooperation in the Diaz case. (See Ramos: Tr. 117).

  2. Diaz's Case

  Based upon his observations, the detective who processed Diaz's arrest indicated on the arrest form that Diaz's eyes were brown. (See Caceres: Tr. 521-24). Diaz was also exhibited to the jury so that the jurors could see his eye color. (See Tr. 525-26).*fn2

  B. Verdict and Sentencing

  On February 2, 2001, a jury convicted Diaz of one count of Murder in the Second Degree under N.Y. Penal Law § 125.25(2), three counts of Attempted Murder in the Second Degree under N.Y. Penal Law §§ 110.00, 125.25, and Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03. See Tr. #19 at 219. On February 26, 2001, Diaz was sentenced to 25 years to life on the murder count, 5 years on each attempted murder count, and 15 years on the weapon possession count, with the attempted murder sentences to run concurrently with each other and consecutively to the murder sentence, and with the weapon possession sentence to run concurrently with the other sentences. See Transcript, filed December 10, 2004 (Docket #11), at 16-17.

  C. Diaz's Direct Appeal

  In August 2002, through new counsel, Diaz appealed his conviction to the Appellate Division, First Department, raising the following two grounds for relief:

Point I: [Diaz's] conviction was against the weight of the evidence where the victims' identifications of [him] were not credible, and [his] supposed jail house confession to a crack addicted drug dealer was not believable (U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; C.P.L. § 470.15).
Point II: [Diaz's] conviction must be reversed because he has been precluded from appellate review of the Wade ruling by the People's loss of the line up photographs and the photo arrays, where there was no testimony concerning the appearance of the individuals in the line ups and arrays, and the court, which summarily denied suppression, made no findings on this issue (U.S. Const. Amend. XIV; N.Y. Const. Art. I, § 6).
Brief for Defendant-Appellant, dated August 2002 (reproduced as Ex. 7 to Affidavit in Opposition, filed December 10, 2004 (Docket #8) ("Opp. Aff.")) ("Pet. App. Brief"), at 12, 15.

  The second claim related to a hearing that had been held prior to trial pursuant to United States v. Wade, 388 U.S. 218 (1967), in connection with a motion filed by Diaz to suppress certain identification testimony. See Opp. Aff. ¶¶ 6-7. The court had denied Diaz's motion. See Transcript, filed December 10, 2004 (Docket #16), at 200. In the appeal brief, Diaz asserted that his counsel had requested the photo arrays and lineup photographs admitted at the suppression hearing from the Bronx County District Attorney's Office but that the District Attorney's Office informed his counsel that the items requested could not be located. Pet. App. Brief at 5 n. 4. After receiving Diaz's brief, however, the District Attorney's Office located the material requested, and thereafter mailed color photocopies of the photographs of the lineup and photocopies of the photo array reproductions to Diaz's counsel. See Opp. Aff. ¶ 10; Letter from David S. Weisel to Mark Zeno, Esq., dated January 13, 2003 (reproduced as Ex. 4 to Opp. Aff.); Letter from David S. Weisel to Mark Zeno, Esq., dated February 4, 2003 (reproduced as Ex. 5 to Opp. Aff.). Diaz's counsel then wrote a letter to the Appellate Division stating that Diaz was "respectfully withdraw[ing] Point II of the brief that [was] filed on [his] behalf" in light of the fact that the District Attorney's Office had produced the lineup photographs and photo arrays. See Letter from Mark W. Zeno to the Hon. Catherine O'Hagan Wolfe, dated March 3, 2003 (reproduced as Ex. 6 to Opp. Aff.) ("March 3 Letter"). Because of this letter, the prosecution made no argument in its brief to the Appellate Division regarding the pre-trial identification hearing. See Respondent's Brief, dated March 2003 (reproduced as Ex. 3 to Opp. Aff.), at 3 & n. 3.

  On April 22, 2003, the Appellate Division unanimously affirmed the conviction. People v. Diaz, 304 A.D.2d 448, 448 (1st Dep't 2003). In an opinion addressing solely Point I of Diaz's brief, the court ruled that "[t]he verdict was not against the weight of the evidence." See id. The court stated:

Issues of credibility, including the weight to be given to the backgrounds of the People's witnesses and any benefits a witness received for his testimony, were properly considered by the jury and there is no basis upon which to disturb its determinations. Defendant was identified by two witnesses and confessed to a third.
Id. (internal citation omitted).

  By letter application dated June 2, 2003, Diaz sought leave to appeal to the New York Court of Appeals. See Letter from Mark W. Zeno to the Hon. Judith Kaye, dated June 2, 2003 (reproduced as Ex. 8 to Opp. Aff.) ("Leave Letter"), at 1. Diaz's leave application asked the court to "consider each of the issues raised in defendant-appellant's brief before the court below." Id. at 2. On July 14, 2003, Diaz's application for leave to appeal to the New York Court of Appeals was denied. People v. Diaz, 100 N.Y.2d 580 (2003).

  D. Diaz's Habeas Petition

  Diaz timely submitted this petition for writ of habeas corpus on June 28, 2004. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed June 28, 2004 (Docket #1) ("Petition"). Diaz's petition raises the same two grounds for relief that were set forth in his brief to the Appellate Division, including his claim contained in Point II of the brief relating to the pre-trial suppression hearing. See id. at 5. With respect to his claim concerning the weight of the evidence, Diaz's petition states that he is relying "upon the facts and supporting argument raised in his direct appeal." Id. (citation omitted). Respondent opposed the petition in papers filed December 10, 2004. See Opp. Aff.; Memorandum of Law (annexed to Opp. Aff.) ("Resp. Mem."). In response, Diaz filed a traverse on January 20, 2005. See Traverse, filed January 20, 2005 (Docket #21) ("Traverse").

  II. APPLICABLE LEGAL PRINCIPLES

  A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254

  A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims . . . with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (internal quotation marks and citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered to be "adjudicated on the merits" even if it fails to mention the federal claim and no relevant federal case law is cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (internal quotation marks omitted); accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005) ("This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether the court has alluded to federal law in its decision.")

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409. In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief, a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

  B. Exhaustion

  Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); accord Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented that claim to each available level of the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a habeas petitioner must invoke "one complete round of the State's established appellate review process"). The petitioner must also have fairly presented the federal nature of his claim to the state courts. See Baldwin, 541 U.S. at 29; Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971); Daye, 696 F.2d at 191. The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). III. DISCUSSION

  A. Weight and Sufficiency of the Evidence

  1. Weight of the Evidence

  Diaz claims that his conviction was against the weight of the evidence because the only evidence against him consisted of identification testimony and a "jail house confession" that were not credible. See Petition at 5; accord Pet. App. Brief at 12. Specifically, Diaz argues that "[t]he weight of the evidence in [this] case shows that the victims' identification [sic] were not credible and the alleged jail house confession equally unbelievable." Petition at 5.

  This claim must be rejected. To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a ruling that violates federal law. See, e.g., Estelle, 502 U.S. at 68. An argument concerning the "weight" of the evidence, however, is grounded purely in state law. See N.Y. Criminal Procedure Law § 470.15(5). Thus, such a claim is not cognizable on federal habeas review. See, e.g., Howie v. Phillips, 2004 WL 2073276, at *3 (S.D.N.Y. Sept. 17, 2004); Brown v. Fischer, 2004 WL 1171277, at *6 (S.D.N.Y. May 27, 2004) (Report and Recommendation), adopted by, Order, filed August 9, 2004 (Docket #9 in 03 Civ. 9818); Glisson v. Mantello, 287 F. Supp. 2d 414, 441 (S.D.N.Y. 2003); Wilson v. Senkowski, 2003 WL 21031975, at *8 (S.D.N.Y. May 7, 2003) (Report and Recommendation), adopted by, Order, filed May 29, 2003 (Docket #20 in 02 Civ. 231); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence."), cert. denied, 476 U.S. 1123 (1986). 2. Sufficiency of the Evidence

  The respondent assumes arguendo that a liberal construction of Diaz's Appellate Division brief would reflect that Diaz exhausted his claim that the evidence was insufficient to support his conviction. See Resp. Mem. at 9. We too will assume that Diaz has exhausted his available state court remedies with respect to this claim. Nonetheless, to the extent that Diaz's submissions could be construed as making an argument that the evidence presented at trial was insufficient to support his conviction, see Petition at 5; Traverse ¶ 6; Pet. App. Brief at 12, this claim too must be rejected.

  In its decision affirming Diaz's conviction, the Appellate Division held that "[t]he verdict was not against the weight of the evidence." Diaz, 304 A.D.2d at 448. While the Appellate Division did not set forth an explicit holding concerning the sufficiency of the evidence, a federal court must apply the deferential 28 U.S.C. § 2254(d) standard to the state court's "implicit holding." See Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 541 U.S. 1047 (2004); see also Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (statute satisfied "so long as neither the reasoning nor the result of the state-court decision contradicts" governing Supreme Court law). Here, the Appellate Division's explanation that the conviction was not against the "weight" of the evidence meant a fortiori that it found that the evidence was sufficient to support a conviction. See Torres v. Greene, 290 F. Supp. 2d 396, 400 n. 4 (S.D.N.Y. 2003). Because the Appellate Division's determination that the evidence presented at trial was sufficient to support a conviction was "on the merits," the deferential standard of review articulated in 28 U.S.C. § 2254(d) applies. The Due Process Clause of the Fourteenth Amendment prohibits a criminal conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364 (1970). A court reviewing a sufficiency of the evidence claim must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted); see also Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) ("[A]ll possible inferences that may be drawn from the evidence must be construed in the prosecution's favor.") (citing cases). To prevail, the petitioner must show that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324 (footnote omitted); accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). In conducting this review, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court will "defer to the jury's assessments of both of these issues." Maldonado, 86 F.3d at 35 (citing cases); accord Rosa v. Herbert, 277 F. Supp. 2d 342, 347 (S.D.N.Y. 2003) ("[T]he court must defer to the jury's assessments of the weight of evidence and the credibility of witnesses.") (citation omitted); Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("[T]his court is not free to make credibility judgments about the testimony . . . or to weigh conflicting testimony.") (citing cases). A habeas petitioner challenging the sufficiency of the evidence underlying his conviction, therefore, bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citations omitted), cert. denied, 515 U.S. 1136 (1995). Viewing the evidence in the light most favorable to the prosecution, a "rational trier of fact" could have found Diaz guilty beyond a reasonable doubt. Jackson, 443 U.S. at 324. Gomez and Garcia identified Diaz as the shooter at a pre-trial lineup. (See Gomez: Tr. 53-54; Garcia: Tr. 224). Prior to the lineup, Gomez and Garcia had an opportunity to view Diaz at the scene of the crime during daylight hours from close range. (See Gomez: Tr. 48; Garcia: Tr. 219, 221). Also, Garcia had previously seen Diaz in his neighborhood over a period of several months prior to the shooting and had seen Diaz and Perez driving down his block on the same day as the shooting. (See Garcia: Tr. 214-15, 219). Gomez and Garcia also made in-court identifications of Diaz. (See Gomez: Tr. 49-50; Garcia: Tr. 224). The identifications of Diaz as the shooter, therefore, constituted sufficient evidence to support the conviction. See United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction.") (citations omitted), cert. denied, 441 U.S. 951 (1979); see also Tibbs v. Florida, 457 U.S. 31, 45 n. 21 (1982) ("In this case, [the victim] provided eyewitness testimony to the crimes. If the jury believed her story, the State's presentation was more than sufficient to satisfy due process."); Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) (stating that, "[w]hile [the sole eyewitness's] testimony and character were less than inspiring," his testimony was nevertheless sufficient to support a conviction due in part to the fact that the jury had the opportunity to evaluate the credibility of the witness). Moreover, the jury here had before it the additional testimony of Ramos that Diaz had confessed to the crime. (See Ramos: Tr. 111-12, 114-15).

  Diaz contends that the evidence presented at trial was insufficient because Ramos, Gomez and Garcia were not "credible" witnesses. See Pet. App. Brief at 12. According to Diaz, the identification testimony of Gomez and Garcia was "highly suspect" because both witnesses had a limited opportunity to view the shooter at the scene. See id. at 13. Diaz also alleges that the trial witnesses were not credible because of alleged inconsistencies in their testimony, the failure of Gomez and Garcia to immediately report the events in question to the police, Gomez's signing of a notarized statement prior to trial supposedly exonerating Diaz as the shooter (see Gomez: Tr. 92-93), and the fact that Ramos testified pursuant to a cooperation agreement. See Pet. App. Brief at 12-15.

  These arguments, however, amount to nothing more than an attack on the manner in which the jury weighed the evidence presented at trial and, specifically, the jury's decision to credit the testimony of Gomez, Garcia and/or Ramos. As discussed, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court will "defer to the jury's assessments of both of these issues." Maldonado, 86 F.3d at 35; accord Rosa, 277 F. Supp. 2d at 347; Fagon, 717 F. Supp. at 979-80; see also Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) ("`[F]ederal habeas courts are not free to reassess the fact? specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'") (quoting Anderson v. Senkowski, 1992 WL 225576, at *3 (E.D.N.Y. Sept. 3, 1992), aff'd, 992 F.2d 320 (2d Cir. 1993)). Thus, these arguments do not support habeas relief.

  Diaz further asserts that the evidence presented at trial was insufficient because there was no physical evidence connecting him to the shooting. See Pet. App. Brief at 12, 15. But "there is no requirement that eyewitness testimony be corroborated by physical evidence." Simpson v. Portuondo, 2001 WL 830946, at *9 (S.D.N.Y. July 12, 2001) (Report and Recommendation) (citing cases), adopted by, Order, dated August 20, 2002 (Docket #10 in 01 Civ. 1379); accord Sides v. Senkowski, 281 F. Supp. 2d 649, 659 (W.D.N.Y. 2003).

  In sum, the evidence presented at trial was sufficient for a "rational trier of fact" to find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319. Because the decision of the Appellate Division affirming Diaz's conviction was not "contrary to" nor an "unreasonable application of" federal law, habeas relief must be denied.

  B. Failure to Produce Identification Evidence

  In his petition, Diaz asserts that he is entitled to habeas relief because he "has been precluded from appellate review" of the trial court's ruling denying his pre-trial motion to suppress identification testimony "due to the People's loss of the line up photographs and the photo arrays." See Petition at 5. Diaz originally made this same argument in his brief to the Appellate Division. See Pet. App. Brief at 15-16. Diaz's appellate counsel subsequently withdrew this claim, however, when the District Attorney's Office produced the requested materials. See March 3 Letter.

  As previously discussed, a federal habeas petitioner is required to have presented each claim to all available levels of the state courts. See, e.g., Baldwin, 541 U.S. at 29. Here, Diaz's claim is unexhausted because his counsel explicitly withdrew the claim from the Appellate Division's consideration. Cf. Espejo v. Artuz, 2000 WL 1863488, at *3 (E.D.N.Y. Dec. 18, 2000) (issues raised by petitioner in his first appellate brief were "clearly unexhausted" because that brief was withdrawn and the issues were not presented in petitioner's second brief). Nor did he raise this claim in his leave application to the Court of Appeals inasmuch as he sought consideration only of "the issues raised in [his] brief before the court below." Leave Letter at 2. Under New York law, Diaz is now barred from raising this issue in the New York State courts on direct review. See, e.g., St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004) (per curiam), cert. denied, 125 S. Ct. 871 (2005); see also N.Y. Court Rules, § 500.10(a) (only one leave application available). Diaz is also foreclosed from bringing this claim in the state courts as a collateral attack on his conviction because the claim could have been raised — and, indeed, originally was raised — on his direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c). Because Diaz no longer has remedies available in state court, this claim is deemed both exhausted and procedurally barred. Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). As a result, this Court is precluded from considering Diaz's claim "unless [he] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim? will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The existence of "cause" may be proved by a showing that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); accord Coleman, 501 U.S. at 753. To establish "a fundamental miscarriage of justice," the petitioner must show that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496.

  Diaz's submissions to this Court make no showing of cause for his default. Nor does Diaz demonstrate — or even argue — that he is "actually innocent" of the crimes for which he has been convicted. As a result, this claim is barred from federal habeas review.

  Conclusion

 

For the foregoing reasons, Diaz's petition should be denied. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard J. Holwell, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Holwell. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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