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June 29, 2005.

DAVID MURRAY, Petitioner,
SUSAN SCHULTZ, Superintendent, Mid Orange Correctional Facility, Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Kimba M. Wood, United States District Judge:

Pro se petitioner David Murray seeks a writ of habeas corpus from his December 18, 2001 conviction of two counts of third degree criminal sale of a controlled substance and one count of third degree criminal possession of a controlled substance, and sentence to five to ten years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) See People v. Murray, 308 A.D.2d 397, 397, 764 N.Y.S.2d 626, 627 (1st Dep't 2003), appeal denied, 1 N.Y.3d 599, 776 N.Y.S.2d 231 (2004).

  Murray's habeas petition raises the same two grounds that he raised on appeal before the First Department, alleging that he was denied his right to due process and a fair trial: (1) when, during redirect examination of a key witness, the prosecutor developed a theory of events beyond the scope of both direct and cross-examination (Pet. ¶ 13(1)) and (2) by prosecutorial misconduct during summation (id. at ¶ 13(2)).

  For the reasons set forth below, Murray's habeas petition should be DENIED.


  The Prosecution's Case at Trial

  The prosecution's case rested primarily on the testimony of Officer Edward Simonetti, who witnessed Murray exchanging drugs for money with two individuals during separate transactions on April 4, 2001. (E.g., Simonetti: Trial Transcript ["Tr."] 233-37.) Four other police officers testified about Murray's subsequent arrest while in possession of $35 and ten glassine envelopes of heroin,*fn1 as well as the arrest of the two individuals identified as buyers in the transactions. (See, e.g., Fontanez: Tr. 362-64; Caban: Tr. 373-74; Jeselson: Tr. 387-88; Papa: Tr. 398.)

  Officer Simonetti's Testimony

  Direct Examination

  On direct examination, Officer Simonetti testified that his "Street Narcotics Enforcement Unit" team observed Murray selling drugs while conducting an "observation post operation" initiated in response to complaints about drug dealing by area residents. (Simonetti: Tr. 224, 228, 232-37.) During the operation, Officer Simonetti and six other police officers traveled to 118th Street and 7th Avenue in Manhattan. (Id. at 227-28.) Officer Simonetti, accompanied by another officer who did not testify, perched on the rooftop of a nearby building with a pair of binoculars and scanned the area below for "anybody who looked suspicious." (Id. at 228-29, 247.) The remaining five officers comprised the apprehension teams, and remained on the ground to arrest any individuals that Officer Simonetti identified as buying or selling drugs. (Id. at 227-28.)

  Officer Simonetti testified that Murray initially drew his attention because he was "standing by a garbage pail and a light post with absolutely no other purpose than walking in circles." (Id. at 233.) Three minutes after arriving at his rooftop post, Officer Simonetti saw another man approach Murray and purchase drugs from him. (Id. at 228, 233.) Officer Simonetti radioed a description of the buyer to the apprehension team, which arrested the buyer, identified as Eddie King, and recovered two glassine envelopes of "Shock"-branded heroin. (Id. at 233-36; Fontanez: Tr. 362-64.)

  A short while later, Officer Simonetti saw a second man, identified after his arrest as Anthony Allen, approach Murray and engage in conversation. (Simonetti: Tr. 237.) Officer Simonetti testified that after the two men conversed,
I then saw Mr. Murray take the white envelopes, give them to the man, the man gave him money, placed it into his pocket. Then . . . they had another brief conversation. They had a transaction for the envelopes and the money again.
(Id. at 237-38.) Officer Simonetti radioed their descriptions to the apprehension team officers who arrested Murray and Allen. (Caban: Tr. 373; Jeselson: Tr. 387.) Allen possessed eight glassine envelopes of "Shock" heroin. (Simonetti: Tr. 240; Caban: Tr. 374). Murray dropped ten envelopes of "Shock" heroin to the ground when confronted by an officer, who recovered the dropped heroin and arrested Murray. (Jeselson: Tr. 387-88.)

  The area where the drug sales occurred was 930 feet from a school. (Simonetti: Tr. 265-66.)


  Murray's defense counsel cross-examined Officer Simonetti in an attempt to establish that Allen was actually the seller during both transactions and that Murray simply bought some heroin for personal use during the second transaction. To support this theory, Murray's attorney first focused on Murray and Allen's similar appearances by eliciting descriptions of both men from Officer Simonetti. (Simonetti: Tr. 308-09, 313-14.) Officer Simonetti testified that both Murray and Allen were over 50 years old, 5'9" tall, and 160 pounds. (Id. at 309, 313-14.) Each had a beard and mustache and wore black leather jackets and hats. (Id. at 300-01, 308-09.)

  Defense counsel attempted to discredit the accuracy of the suspects' descriptions that Officer Simonetti had radioed to the apprehension team. (E.g., id. at 271-77.) When Officer Simonetti testified he had accurately described Murray's attire during those transmissions, defense counsel challenged him with a form, completed by Sgt. Caban based on the seller's description that Officer Simonetti radioed from his observation post, that appeared to contradict those descriptions. (Id. at 279-82, 296-97, 306-07.) Although Murray wore blue jeans and a black sweater when arrested, the form indicated that the seller wore black pants and a blue sweatshirt.*fn2 (Id. at 279-80, 303-06.)

  Finally, Murray's attorney interrogated Officer Simonetti at length about the relative quantities of cash and narcotics found on Murray and Allen. (Simonetti: Tr. 323-27, 333-34.) Officer Simonetti acknowledged that although the heroin Murray sold had a street value of $100, he was arrested with only $35 in cash. (Id. at 323, 333). Meanwhile, Allen possessed $207, including forty-seven one-dollar bills. (Id. at 324.) When defense counsel asked Officer Simonetti why he thought Allen had so much cash, Officer Simonetti testified that it was "the beginning of the month. . . . A lot of people get paid or get their checks in the beginning of the month." (Id. at 324-25.) Defense counsel confronted Officer Simonetti with an evidence voucher on which Officer Simonetti had indicated the money was illegal proceeds from the sale of narcotics. (Id. at 325-26.) Officer Simonetti stated that at the time he completed the voucher, he believed "[i]t could have been possible" that Allen had been selling heroin. (Id. at 327.) He also acknowledged that he originally charged Allen with possession with intent to sell rather than simple possession. (Id. at 325.) Re-direct Examination

  On re-direct examination, the prosecutor and Officer Simonetti had the following exchange over defense objections:
[A.D.A CABRERA]: Are you familiar with the term "reup"?
[Defense Counsel] YUCEVICIUS: Judge, objection.
A. Yes.
MR. YUCEVICIUS: Beyond the scope of cross-examination.
THE COURT: Overruled.
Q. What does "reup" refer to?
A. Basically, when a dealer starts to run out, his supplier will either come along either some time during the day and relieve him of some money and give him some more product, more drugs to sell. That is a "reup."
Q. And in this case, is that something that may have happened here?
MR. YUCEVICIUS: Objection, judge.
THE COURT: Sustained. Don't ask him to speculate, please.
(Simonetti: Tr. 339-40.) The prosecutor did not further pursue this line of questioning. (See id. at 340.)

  Re-Cross Examination

  On re-cross examination, defense counsel apparently sought to preempt the prosecution from arguing that the transaction between Murray and Allen constituted the type of "reupping" exchange that Officer Simonetti had described on redirect. (Simonetti: Tr. 345.) Murray's counsel asked Officer Simonetti about the exact mechanics of the exchange between Murray and Allen. (Id. at 345-46.) Officer Simonetti testified that he had seen Murray and Allen "give each other drugs and money" rather than simply engaging in a one-way drug sale. (Id. at 346.) Officer Simonetti claimed he had "stated that in direct in the beginning. . . . I said I saw several transactions of money and drugs when I was first examined." (Id.)

  Defense counsel also challenged Officer Simonetti with the initial and amended felony complaints against Murray and Allen. (Id. at 346-47.) The reports contained no suggestion that Murray and Allen were working together. (Id. at 347-48.) Officer Simonetti acknowledged that he had not previously advanced a "reupping" theory or charged Murray and Allen with working together to sell drugs. (Id. at 346-48.)

  Defense Motions

  After the close of the prosecution's case, the trial judge denied the defense's motion for a mistrial. (Tr. 400-01, 403.) The defense ...

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