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June 2, 2005.


The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



William Crenshaw ("Crenshaw") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  The conviction at issue in the instant habeas petition stems from the armed robbery of Robert Harris ("Harris"), a parking lot attendant for All-Right Parking in the City of Rochester. On the morning of May 2, 1997, Harris was working in his booth when a black male wearing a pair of camouflage pants and a camouflage jacket entered the booth, drew a gun, and demanded the money that Harris was counting at the time. When Harris dropped the money, the robber grabbed it and ran towards Franklin Street. Harris chased the perpetrator across the street and observed him run past the drive-through window of a bank located across the street. At that point, Harris abandoned his pursuit of the robber and asked a parking meter monitor to call 911. A mounted police officer with the Rochester Police Department happened to be in the vicinity and responded to the scene. Harris informed him that the robber was a black male with a short build wearing camouflage pants and a camouflage jacket. Harris described the gun as a small, dark-colored automatic pistol. The description was broadcast, and, almost simultaneously, another police officer saw a person matching the description jogging a short distance from the robbery scene and dressed in camouflage pants and a blue hooded sweatshirt. The suspect, later identified as Crenshaw, was carrying a camouflage jacket under his arm. The second police officer stopped his car and called out to Crenshaw that he wished to speak with him. Crenshaw glanced at the officer and began running away down Lyndhurst Street. Crenshaw leapt over a fence and ran through some backyards, whereupon the officer lost sight of him.

  About a minute and a half later, Crenshaw was apprehended by Officer Peterson, also a member of the Rochester Police Department. Officer Peterson had responded to the 911 broadcast. No gun was found on Crenshaw's person, but currency in various denominations (one ten-dollar bill, one five-dollar bill, and twenty-five one-dollar bills) were discovered. Harris had reported that he was not sure of the exact amount of money stolen, but he remembered that it was mostly one-dollar bills. The police brought Crenshaw back to the crime scene where Harris, without hesitation, identified him as the robber.

  When he was brought to the police station for questioning, Crenshaw gave a false name and claimed not to be the robber. He explained that he was in the area because he was looking to have a "quick fuck" with a woman named "Monique" before he had to go see his regular girlfriend. However, he was unable to provide the police with the woman's last name or address. Crenshaw claimed that he was a "dope dealer," not a robber, and that the money found in his pockets was proceeds from selling "weed." He stated that "on the street," buyers paid him for five-dollar bags of "weed" with one-dollar bills. Crenshaw also accused the police of stopping him solely because he was black.

  Crenshaw testified in his own behalf before the grand jury which indicted him on one count of first degree robbery. During the subsequent suppression hearing, the court held admissible Crenshaw's statements to the police, the show-up identification, and the physical evidence seized at the time of his arrest.

  At Crenshaw's jury trial, the defense called Deborah Eabron ("Eabron"), who was at the drive-through window of a nearby bank and who told the police that she had seen Harris chasing a man in dark-colored clothing. Eabron, who had not seen the man's face and could not identify the robber, testified for the defense at trial. At trial, she described the robber as wearing a "green waist jacket [sic] and dark pants, either black or dark, navy." T.267.*fn1

  The jury returned a verdict convicting Crenshaw of one count of first degree robbery as charged in the indictment. He was sentenced as a second felony offender to a determinate sentence of twenty years incarceration.

  The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on December 27, 2000. People v. Crenshaw, 278 A.D.2d 897 (4th Dept. 2000). The New York Court of Appeals denied leave to appeal on April 16, 2001. People v. Crenshaw, 96 N.Y.2d 799 (2001). Crenshaw collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 which was denied by the trial court. Crenshaw also challenged the performance of his appellate counsel by means of an application for a writ of error coram nobis which was summarily denied by the intermediate appellate court.

  Crenshaw filed his initial habeas petition in this Court on or about August 15, 2002. Thereafter, the petition was held in abeyance so that he could return to state court in order to exhaust a claim of ineffective assistance of appellate counsel in an application for a writ of error coram nobis. Crenshaw filed his amended habeas petition on or about April 3, 2003. For the reasons set forth below, I conclude that none of the claims raised in Crenshaw's initial petition or amended petition warrant habeas relief.*fn2


  Standard of Review

  To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000). Merits of the Petition

  1. Brady violation

  Crenshaw contends that he was improperly indicted because certain allegedly exculpatory material was not provided to him prior to the grand jury's deliberations, namely, the investigative report completed by Officer McNamara in which he states that eyewitness Eabron saw Harris, the robbery victim, chasing a "male black wearing dark colored coat & pants" [sic]. See A.185. According to Crenshaw, the report is exculpatory on its face because it described the suspect being chased as wearing clothes substantially different from the description of the robber's clothes given by the victim to the police. On direct appeal, the court rejected this claim, finding that the report did not contain exculpatory evidence.

  To the extent that the prosecution knows of material evidence favorable to a criminal defendant, it has a due process obligation to disclose that evidence. See, e.g., Kyles v. Whitley, 514 U.S. 419, 431 (1995); Brady v. Maryland, 373 U.S. 83, 87 (1963) ("Brady") (holding that suppression by the prosecution of evidence favorable to the accused "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution"). Brady matter includes not only exculpatory evidence going to the heart of the defendant's guilt or innocence, but also impeachment evidence having the potential to undermine the credibility of a significant prosecution witness. See, e.g., Giglio v. United States, 405 U.S. 150, 154-55 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959) (A "jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.").

  On the facts before me, I can find no violation of the mandates set forth in Brady and its progeny. First of all, I question whether the report in fact was exculpatory; there is no reason why army-green camouflage-patterned clothing could not also be described as dark-colored. More important, there was no "withholding" within the meaning of Brady. A defendant is not entitled to have the prosecutor turn over all potentially exculpatory and impeaching material on demand, let alone prior to the meeting of the grand jury. All that the Constitution requires is that the material be disclosed in time for its effective use at trial. United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible or desirable to specify the extent or timing of [the] disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence when disclosure is made."), and, inter alia, United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985) (same); United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (same); United States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983) (same); United States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982) (same); United States v. Pollack, 534 F.2d ...

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