United States District Court, S.D. New York
June 1, 2005.
EDDIE DIAZ, Petitioner,
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,
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.
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.
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
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
For the foregoing reasons, Diaz's petition should be denied. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
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