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MOORE v. GREINER

United States District Court, S.D. New York


October 19, 2005.

JAMAL MOORE, Petitioner,
v.
CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

MEMORANDUM OPINION AND ORDER

I have reviewed the attached Report and Recommendation of United States Magistrate Judge Debra Freeman, dated April 18, 2005 ("R&R"), which recommends that Moore's pro se habeas petition, brought under 28 U.S.C. § 2254, be dismissed. For the following reasons, the R&R is adopted in full and the petition is dismissed.

  In a letter dated May 1, 2005, and an accompanying Memorandum of Law, petitioner objects to Magistrate Judge Freeman's findings regarding the first five of the six grounds raised in his petition, which are as follows: (1) the trial court's admission of evidence of narcotics in petitioner's apartment deprived him of due process; (2) the trial court's admission of evidence that Felipe Garcia, an alleged unindicted accomplice, refused to speak with the police deprived petitioner of due process; (3) by using the allegedly false testimony of Vanessa Vigo, an eyewitness, in the grand jury proceedings and at trial, the prosecutor deprived petitioner of due process; (4) the prosecutor's misconduct at trial, including statements made by the prosecutor during summation, deprived petitioner of due process;*fn1 (5) newly discovered evidence shows that John Mobley, a friend of petitioner, committed perjury; and (6) the conviction was against the weight of the evidence which was legally insufficient to support the verdict. See R&R at 9.

  I have carefully reviewed Moore's May 1, 2005 letter and his Memorandum of Law, as well as the R&R. Most of his objections are simply re-arguments of the grounds first raised in his petition. For example, Moore's first and second claims are challenges to evidentiary rulings made by the trial court. In his petition, Moore argued that evidence of the drugs found in his apartment "had no probative value and was without any legitimate purpose." Appendix to Petition Under 28 USC § 2254 For Writ Of Habeas Corpus By A Person In State Custody ("Appendix") at 1. In his objections, Moore states that "the admission of drug evidence had no probative value. It did not establish the identity of the murderer, his intent, his method, the absen[c]e of mistake, or any other probative reason that may allow, absent a showing of undue prejudice, for the introduction of uncharged crimes." 5/1/05 Letter at 2. With regard to Garcia's silence, Moore argued in his petition that "evidence of an alleged co-conspirator's invocation of his right to remain silent and to counsel, interjected by the [P]eople and by the Trial Court prejudiced the defendant's right to Due Process and a fair trial." Appendix at 1. In his May 1, 2005 letter, petitioner objected "on the ground that the admitted evidence of Garcia's refusal to speak with the authorities on the advice of counsel violated his constitution[al] right to due process." 5/1/05 Letter at 2. The majority of Moore's objections similarly mirror arguments first made in his petition.

  With regard to Moore's first two claims, Judge Freeman noted that a habeas court cannot consider claims of improper admission of evidence unless the petitioner has shown that the alleged errors deprived him of a fundamentally fair trial. See id. at 10-11. Judge Freeman found that given the totality of the evidence introduced at trial, neither of Moore's first two claims of evidentiary error are of sufficient constitutional magnitude to be cognizable in a habeas proceeding. See id. at 14. Given the overwhelming evidence of Moore's guilt, I agree with this finding. Judge Freeman found petitioner's third and fourth claims to be unexhausted but deemed exhausted and procedurally barred because he did not include them in his letter requesting leave to appeal to the Court of Appeals. See id. at 15-17. Moore argues that his claims are not procedurally barred and even if they were, failure to review them would result in a fundamental miscarriage of justice. To invoke this narrow exception, a petitioner must show "actual innocence" meaning "factual innocence, not mere legal insufficiency." Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998). Moore has made no such showing. Instead of offering any new evidence demonstrating "actual innocence," Moore merely states, in conclusory fashion and without any supporting rationale, that failure to review the claims would result in a fundamental miscarriage of justice. See 5/1/05 Letter at 7, 9. Because Moore has not shown cause and prejudice or actual innocence, Judge Freeman was correct in finding that he cannot overcome the procedural bar.*fn2 These claims are therefore not cognizable on habeas review. With regard to Moore's fifth claim, Judge Freeman noted that one of the prosecution's witnesses, John Mobley, only partially recanted his trial testimony; he did not recant testimony that after the homicides, petitioner confessed to him that he had just shot two people. See id. at 29. For a petitioner to demonstrate that he was denied due process because of a witness's false trial testimony, he must show: (1) that the false testimony was material; and (2) but for the false testimony, he "would most likely not have been convicted." Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003). Given that Mobley's recantation was only partial, Moore has not demonstrated that Mobley's recanted testimony was material or that he would most likely not have been convicted without that testimony. Moore's fifth claim is therefore dismissed despite his objection that the testimony recanted by Mobley was very material because the remaining evidence against him was weak.*fn3 See United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979) (stating that the "testimony of a single eyewitness is generally sufficient to support a conviction").

  Finally, in his sixth ground, Moore asserts that his conviction was against the weight of the evidence and that the evidence was legally insufficient to support the verdict. Judge Freeman correctly notes that a "weight of the evidence" claim is a state law claim that is not cognizable in a federal habeas proceeding. See R&R at 29. With regard to Moore's sufficiency of the evidence claim, Judge Freeman found that claim to be procedurally barred. See id. at 30. I agree with Judge Freeman's analysis and conclusions regarding these claims. Accordingly, petitioner's sixth ground is dismissed.

  For the reasons stated above, I hereby accept and adopt the thoughtful and thorough Report and Recommendation in full and dismiss Moore's habeas petition. Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits but merely "`that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Middleton v. Attorneys General of the States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)). Petitioner has made no such showing. Accordingly, I deny a certificate of appealability. The Clerk of the Court is directed to dismiss the instant petition and close this case.

  SO ORDERED. INTRODUCTION

  Pro se petitioner Jamal Moore*fn4 ("Petitioner"), seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in New York Supreme Court, New York County. Upon a jury verdict, Petitioner was found guilty of two counts of Murder in the Second Degree. (Petition ("Pet."), filed July 7, 2002,*fn5 at 1; Memorandum of Law in Opposition to Petition ("Resp. Mem."), filed Nov. 19, 2002, at 1.) Petitioner was sentenced to two consecutive, indeterminate prison terms of from 25 years of life. (Resp. Mem. at 1.) At the time he filed his habeas petition, Petitioner was incarcerated at Green Haven Correctional Facility in Stormville, New York (see Pet.), although he has since been transferred to Upstate Correctional Facility in Malone, New York.*fn6

  Petitioner challenges his conviction on several grounds. (See Appendix to Petition ("Pet. App.") at 2-11.) Respondent argues that the petition should be dismissed because the claims raised are procedurally barred, do not present federal constitutional issues, and/or are without merit. (See Resp. Mem.)

  For the reasons set forth below, I recommend that the petition be dismissed in its entirety.

  FACTUAL BACKGROUND

  As the full trial transcript has not been made available to the Court, the facts set forth herein are primarily taken from Respondent's summaries of the evidence presented at trial. (See Resp. Mem.; Respondent's Answer & Appendix ("Resp. Ans."), filed Nov. 19, 2002 (Dkt. 9).) Petitioner has not filed a reply to Respondent's papers, despite having been given an opportunity to do so, and thus the Court has no reason to question the accuracy of Respondent's recitation of this evidence.

  Petitioner was convicted of the murder of two men, William Santana Guzman (also known as "Cheche"), and Ismael Delacruz ("Delacruz"). (See Resp. Mem. at 1.) In May 1995, these two men were found together, both with gunshot wounds, in a parked car on West 148th Street in Manhattan. (See id. at 7-9.) The prosecution proceeded at trial on the theory that Petitioner had been hired to kill Delacruz by another man, Felipe Garcia ("Garcia"), who, about one month earlier, had been beaten up by Delacruz in a fistfight. (See id. at 6.) As part of its case, the prosecution presented two key witnesses, John Mobley ("Mobley"), a friend of Petitioner's, who testified that Petitioner had confided in him regarding the murder plan before it was executed and then later confessed to the murders, and Vanessa Vigo ("Vigo"), who testified that, from her apartment overlooking West 148th Street, she had witnessed Petitioner commit the shootings. (See id. at 6-9, 11.)

  More specifically, the evidence at trial apparently included testimony by Mobley that, on one evening in April or early May 1995, Petitioner showed Mobley a black, medium-sized, automatic gun and confided that he was going to be paid by Garcia to kill someone who had been in a fight with Garcia. (Id. at 6.) The evidence also showed that Garcia had been in a fight with Delacruz in April 1995. (Id.)

  Vigo apparently testified at trial that, at approximately 9:00 p.m. on May 28, 1995, from her living room window, she saw Petitioner standing across West 148th Street with his girlfriend. (Id.) According to Vigo, Petitioner and his girlfriend spoke for about five minutes and then separated. (Id. at 7.) As Vigo saw Petitioner walk toward Amsterdam Avenue, she also saw Cheche, who was a friend of hers, drive up in a burgundy car. (Id.) Cheche was in the front passenger's seat while another man, later identified as Delacruz, was driving. (Id.) Cheche and Delacruz double-parked in front of a food truck located in front of 562 West 148th Street, exited the car, bought food, and re-entered the car, switching seats. (Id. at 7-8.) Vigo watched the men begin to eat their food, with Cheche now in the driver's seat and Delacruz in the front passenger's seat. (Id. at 8.) Vigo further testified that, a few minutes later, she saw Petitioner, wearing dark pants and a black hooded sweatshirt with the hood pulled up, reappear from the direction of Amsterdam Avenue. (Id.) Petitioner passed by the burgundy car, peering into the passenger's side of the car. (Id.) He continued onto Broadway, where he spoke to some people, and then came back onto West 148th Street. (Id.) Vigo saw him proceed back to the car, draw a black, square gun, and fire several shots into the car's front passenger window. (Id.) As Petitioner then fled toward Amsterdam Avenue, Vigo saw his hood fall down, revealing his braided hair. (Id.) Another witness, Carlos Jimenez ("Jimenez"), similarly testified that, although he did not see the shooter's face, the shooter had braided hair and was wearing dark pants and a black, hooded sweatshirt. (Id. at 8-9.) According to Jimenez, the shooter continued to run toward Amsterdam Avenue, until he entered the basement of Petitioner's apartment building. (Id. at 9.)

  Shortly after 10:00 p.m., several police officers apparently responded to the scene of the shooting. (Id.) Two of the police officers found the burgundy car double-parked with its engine running and Cheche and Delacruz inside. (Id.) Cheche was already dead, and Delacruz was later pronounced dead at the hospital. (Id.) The other officers at the scene noted that the car windows were tinted, except for the windshield, and that there was a single bullet hole in the car's windshield, food in the front seat, and three shell casings from a .380-caliber automatic gun outside of the passenger's side of the car. (Id. at 10.)

  The next evening, on May 29, 1995, Mobley visited Petitioner at Petitioner's home, 560 West 148th Street, Apartment 2A. (Id. at 11.) According to Mobley's trial testimony, Petitioner then confided in Mobley that, the night before, he had shot to death two people who had been in a car on West 148th Street. (Id.) Later that night, at about 9:00 p.m., police officers arrived at the Petitioner's apartment in response to an anonymous call. (Id.) When they knocked on the door, Petitioner fled out of the back window into a backyard that led to alleyways and the street. (Id. at 11-12.) Approximately 20 minutes later, Mobley let the police into Petitioner's apartment, where an officer found "a clear plastic bag containing white power" in "the back room." (Id. at 12.) The police arrested Mobley and another person in the apartment on drug possession charges, which were later dismissed. (Id.)

  Mobley also testified at trial that, a week or two later, when he and Petitioner encountered Garcia on West 146th Street, Garcia told Petitioner, "Good job." (Id.)

  Approximately two years later, on May 19, 1997, while being interviewed about another double homicide, Vigo stated that she had information relevant to the Cheche and Delacruz murders. (Id.) Soon after, in June 1997, Vigo gave a statement to the police about what she had witnessed on May 28, 1995. (Id.) Vigo testified at trial that she had not spoken to the police earlier because she was "scared," as Petitioner lived in the neighborhood for a time after the shooting, and, even after Petitioner left the area, Petitioner's family continued to live there. (Id. at 13.) Petitioner was subsequently arrested. (Id.)

  On January 29, 1998, Detective Gerard Dimuro, Detective Elpidio DeLeon, and the trial prosecutor met with Mobley in New Jersey. By that time, Mobley was himself incarcerated and awaiting trial on felony drug charges. (Id.) During that interview, Mobley denied having any knowledge about the Cheche and Delacruz homicides. (Id.) In February 1998, however, at later meetings, Mobley told the detectives and the prosecutor what he knew about the homicides. (Id.) According to Mobley's trial testimony, the trial prosecutor told Mobley that she would speak with the New Jersey prosecutors to get Mobley's felony charges reduced to a misdemeanor, if he told the "truth." (Id.)

  After speaking with Mobley, Detective DeLeon learned that Garcia lived at 518 West 146th Street, but was incarcerated at Rikers Island on an unrelated charge. (Id.) Detective DeLeon attempted to speak with Garcia, but Garcia, "through his attorney," refused. (Id.)

  PROCEDURAL BACKGROUND

  A. Pre-Trial Proceedings and Trial

  On July 7, 1997, a grand jury filed an indictment, charging Petitioner with two counts of Murder in the Second Degree and one count of Criminal Use of a Firearm in the First Degree. (Id. at 2.) Petitioner was tried by a jury in the New York Supreme Court, and, on March 5, 1998, he was found guilty on the two murder counts.*fn7 (Id.) He was sentenced on April 7, 1998. (Id.)

  B. Section 440.10 Motion

  Following his conviction, Petitioner, proceeding pro se, moved, pursuant to New York Criminal Procedure Law § 440.10, to vacate the judgment, alleging: (1) that the prosecutor knowingly allowed Vigo to provide false testimony in the grand jury proceedings and at trial; (2) that the prosecutor engaged in misconduct on summation; and (3) that newly discovered evidence showed that Mobley had committed perjury at trial. (See Motion to Vacate Judgment, C.P.L. § 440.10, attached to Resp. Ans. as Ex. A.) On November 29, 2000, Justice Edwin Torres, who had presided over Petitioner's trial, denied Petitioner's Section 440.10 motion. (See Order, attached to Resp. Ans. as Ex. L.) Petitioner moved for leave to appeal the denial of his Section 440.10 motion to the Appellate Division, First Department ("Appellate Division"). (See Motion for an Order Granting Leave to Appeal the Denial of a Motion Pursuant to C.P.L. § 440.10, attached to Resp. Ans. as Ex. E.) The Appellate Division denied Petitioner's motion for leave to appeal on March 15, 2001. People v. Moore, 2001 N.Y. App. Div. LEXIS 2954 (1st Dep't Mar. 15, 2001).

  C. Direct Appeal

  While Petitioner's Section 440.10 motion was pending in February 2000, Petitioner, through counsel, filed a brief in the Appellate Division claiming that: (1) the trial court erred in admitting testimony regarding (a) the dismissed drug possession charges against Petitioner, and (b) Garcia's refusal to speak with the police; (2) the prosecutor improperly "bolstered" the testimony of Mobley and Vigo; and (3) the prosecutor's comments in summation deprived Petitioner of a fair trial. (See Defendant-Appellant's Brief, dated February 2000 ("2/00 Brief"), attached to Resp. Ans. as Ex. B.)

  In August 2000, Petitioner, pro se, filed a supplemental brief in the Appellate Division which reiterated the claim that the prosecutor's comments during summation deprived him of a fair trial and further claimed that the evidence was legally insufficient, that the jury verdict was against the weight of the evidence, and that the prosecutor had procured the indictment and conviction through the knowing use of perjured testimony. (Defendant-Appellant's Supplemental Brief ("Supplemental Brief"), dated August 2000, attached to Resp. Ans. as Ex. C.)

  On January 16, 2001, the Appellate Division unanimously affirmed Petitioner's conviction, holding that: (1) the verdict was based on legally sufficient evidence; (2) the verdict was not against the weight of the evidence; (3) the testimony concerning the narcotics found in Petitioner's apartment did not deprive Petitioner of a fair trial; and (4) Petitioner had opened the door to testimony that Garcia, the person who had allegedly hired Petitioner to kill Delacruz, had refused, through his attorney, to speak with detectives investigating the case. See People v. Moore, 279 A.D.2d 336, 718 N.Y.S.2d 845 (1st Dep't 2001), attached to Resp. Ans. as Ex. G. The Appellate Division found Petitioner's remaining claims, including those in his pro se supplemental brief, to be unpreserved. (Id.)

  By letters dated January 24, 2001 and February 16, 2001, Petitioner, through counsel, sought leave to appeal to the New York Court of Appeals, claiming that: (1) the trial court's admission of evidence regarding Petitioner's involvement with drugs had no probative value, and (2) the evidence that Garcia had refused to speak with the police prejudiced Petitioner's right to due process and a fair trial. (See Letters to New York Court of Appeals ("Court of Appeals Letters"), dated Jan. 24, 2001 and Feb. 16, 2001, attached to Resp. Ans. as Ex. H.) The Court of Appeals denied Petitioner's motion for leave to appeal on April 16, 2001. See People v. Moore, 96 N.Y.2d 803, 726 N.Y.S.2d 381 (2001), attached to Resp. Ans. as Ex. K.

  D. The Habeas Petition

  Petitioner filed his federal petition for a writ of habeas corpus on July 7, 2002. (Dkt. 1.) Respondent filed an opposition to the petition on November 19, 2002. (Dkt. 8 & 9.) On November 20, 2002, the Court (Scheindlin, J.) granted Petitioner's request for an extension of time to March 3, 2003, to reply to Respondent's opposition, noting that no further extensions would be granted because of the unusually long length of the extension. (Dtk. 6.) By letter dated February 2, 2003, Petitioner informed the Court that he had retained counsel and requested another extension of time to file his reply brief. (Dkt. 10.) The Court denied that request. (Id.) To date, Petitioner has not filed a reply to Respondent's opposition and no attorney has entered an appearance on Petitioner's behalf. On May 19, 2003, Judge Scheindlin referred the matter to me for a report and recommendation. (Dkt. 11.)

  DISCUSSION

  Petitioner alleges six grounds for habeas relief in his petition: (1) the trial court's admission of evidence of narcotics in his apartment deprived Petitioner of due process; (2) the trial court's admission of evidence that Garcia, an alleged unindicted accomplice, had refused to speak with the police derived Petitioner of due process; (3) the prosecutor, by knowingly allowing Vigo's false testimony in the grand jury proceedings and at trial, deprived Petitioner of due process; (4) the prosecutor's misconduct at trial, involving statements made by the prosecutor during summation, deprived Petitioner of due process; (5) newly discovered evidence shows that Mobley committed perjury; and (6) the conviction was against the weight of the evidence and legally insufficient to support the verdict. (Pet. App. at 2-11.) Respondent argues that the petition should be dismissed because the claims raised are procedurally barred, do not present federal constitutional issues, and/or are without merit. (See Resp. Mem.)

  I. PETITIONER'S FIRST AND SECOND CLAIMS

  (Trial Court's Admission of Narcotics Evidence and of Evidence of Garcia's Refusal To Speak With the Police)

  Both of Petitioner's first two habeas claims challenge evidentiary rulings by the trial court; in each instance, Petitioner claims that the court's improper admission of evidence deprived him of his due process right to a fair trial. In his first claim, Petitioner alleges that the court violated due process by admitting evidence that the police had found narcotics in Petitioner's apartment, evidence which Petitioner contends was not probative with respect to his alleged involvement in the homicides, but which had the unfairly prejudicial effect of implying that he was a drug trafficker. (Pet. App. at 2-4). Petitioner further alleges that this prejudicial effect was heightened by the prosecutor's reference to this evidence in summation. (See id. at 3-4.) In his second claim, Petitioner alleges that the trial court further denied him a fair trial by admitting evidence that Garcia, a supposed unindicted accomplice, had refused, through his attorney, to speak with detectives investigating the homicides. (Id. at 4-5.) Petitioner also appears to allege that he was more seriously prejudiced by this evidence when the prosecutor mentioned it in summation and then asked the jury not to speculate as to what charges "may have been or will be brought against Mr. Garcia in connection with this homicide," presumably suggesting to the jury that Garcia was, in fact, Petitioner's accomplice. (See id. at 5.) Both of these claims should be dismissed as non-cognizable in this habeas proceeding.

  Where a petitioner merely challenges a state court's evidentiary rulings, this Court cannot consider the petitioner's claims. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993) ("rulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue"), report and recommendation adopted, 875 F.Supp. 182 (S.D.N.Y. 1995), aff'd 71 F.3d 406 (2d Cir. 1995). Even where a petitioner describes an evidentiary error as unduly prejudicial, it must be recognized that "not all erroneous admissions of [unfairly prejudicial] evidence are errors of constitutional dimension." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998). Indeed, to demonstrate that the admission of evidence by a state trial court constitutes a ground for federal habeas relief, a petitioner "must demonstrate that the alleged evidentiary error violated an identifiable constitutional right, and, in doing so, a petitioner bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude." Copes v. Schriver, No. 97 Civ. 2284 (JGK), 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) (citation omitted).

  In order for an evidentiary error to rise to the level of a constitutional violation warranting federal habeas relief, the petitioner has to show that the alleged error was so prejudicial that it deprived him of a "fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (quoting Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) (emphasis in original), cert. denied, 464 U.S. 1000 (1983)); see also Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) ("We are not here simply being called upon to apply rules of evidence that might permit the state court in its discretion to grant a new trial but rather are dealing with a more fundamental constitutional concept of fairness."). For an "erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been `sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Dunnigan v. Keane, 137 F.3d at 125 (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)). In assessing materiality, the Court must view the evidence "objectively in light of the entire record before the jury." Collins, 755 F.2d at 19.

  Here, even if the trial court erred in admitting evidence that narcotics were found in Petitioner's apartment, Petitioner points to nothing that would support a finding that the admission of this evidence deprived him of a "fundamentally fair trial." The testimony of Vigo, a long-time resident of Petitioner's neighborhood who witnessed the Cheche and Delacruz homicides and identified Petitioner as the shooter, was alone enough to sustain the conviction. See United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979) ("testimony of a single eyewitness is generally sufficient to support a conviction"), cert. denied, 41 U.S. 951 (1979). In addition, the trial record contained the testimony of another witness, Jimenez, who at least partially corroborated Petitioner's identity as the shooter. Further, the record contained testimony by Mobley that Petitioner had confided his intention to murder Delacruz, and that he later confessed to committing both homicides. In light of this record, taken in its entirety, Petitioner has failed to establish that the narcotics evidence, even if admitted in error, was material to his conviction.

  As for Petitioner's assertion that the trial court committed constitutional error by admitting evidence of Garcia's refusal to speak with the police, it is difficult to see how the trial court committed any error in this regard, much less error of constitutional dimension. While a prosecutor should not call a witness solely for the purpose of having that witness invoke his Fifth Amendment privilege, so as to have the jury draw impermissible inferences about the defendant from that invocation, see Namet v. United States, 373 U.S. 179, 185-86 (1963), this did not occur in Petitioner's case.

  Based on Petitioner's recitation of the testimony given in this case, a detective called by the prosecution testified, on direct examination, that, as part of his investigation of the homicides, he had attempted to speak to Garcia, but that Garcia did not want to speak to him. (Pet. App. at 4-5; Resp. Mem. at 35.) On cross-examination, Petitioner inquired specifically as to "how" the detective had attempted to speak to Garcia and whether the detective had in fact spoken to Garcia. (Resp. Mem. at 36.) When the detective responded that he had not spoken to Garcia, the trial court asked, over an unexplained defense objection, if Garcia had "refused" to talk to the detective. (Pet. App. at 5; Resp. Mem. at 36.) The detective answered, "Yes, he refused to speak to me through his attorney." (Pet. App. at 5; Resp. Mem. at 36.) Contrary to what Petitioner appears to argue (see Pet. App. at 4-5; 2/00 Brief at 18-22), this is not the equivalent of the prosecution's calling Garcia to the stand for the purpose of eliciting a Fifth Amendment claim of privilege against self-incrimination. There was no mention of Garcia invoking his constitutional privilege against self-incrimination, and the mere fact that Garcia had an attorney convey his refusal to speak to the police did not necessarily imply to the jury that Garcia had in fact asserted the privilege. Further, Garcia's refusal to speak to the police did not necessarily inculpate Petitioner. Cf. People v. Roberts, 70 N.Y.2d 682 (1987) (reversal warranted where trial witness repeatedly refused to answer questions about identity of accomplice because, "[u]nder the circumstances," refusals "could only have led the jury to conclude that the defendant was the accomplice"). As it is not even clear that this case involved a witness's invocation of the Fifth Amendment, much less an impermissible jury inference drawn from such an invocation, Petitioner's argument of trial error is misplaced.

  Moreover, even if the trial court improperly admitted evidence of Garcia's refusal to speak to the police, Petitioner, once again, has not established that the admitted evidence was "sufficiently material" to deprive him of a "fundamentally fair" trial and implicate federal due process rights. As discussed above, the verdict was supported by eyewitness testimony and a reported confession. Thus, there is no reason to believe that the evidence of Garcia's refusal to speak to the police, even if erroneously admitted, was substantial enough to have either been the basis for conviction or to have removed a reasonable doubt that would otherwise have existed on the record. See Dunnigan v. Keane, 137 F.3d at 125 Given the totality of the evidence adduced at trial, Petitioner has not demonstrated that either of his first two claims of evidentiary error are of "constitutional magnitude," and thus these claims are not cognizable in this proceeding. Accordingly, I recommend that Petitioner's first and second claims be dismissed.*fn8

  II. PETITIONER'S THIRD AND FOURTH CLAIMS

  (Prosecutorial Misconduct in Connection with Vigo's Testimony and in Summation)

  In his third habeas claim, Petitioner alleges that the prosecution knowingly allowed Vigo to testify falsely at trial, thereby depriving Petitioner of his due process right to a fair trial. (See Pet. App. at 5-7.) In his fourth claim, Petitioner alleges that, in summation, the prosecutor improperly referred to Vigo's allegedly perjured testimony, and also engaged in other types of misconduct. (See id. at 7-8.) These claims should be dismissed as unexhausted, procedurally barred, and, in any event, without merit.

  A. Procedural Bar

  1. The Claims Are Unexhausted.

  A federal court may not consider a habeas corpus petition unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, so that those courts have had the "initial opportunity to pass upon and correct alleged violations of . . . [the] prisoners' federal rights." Picard, 404 U.S. at 275 (citation omitted). Once the state courts are apprised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citing Pesina v. Johnson, 913 F.3d 53, 54 (2d Cir. 1990)).

  In this case, Petitioner has failed to exhaust both his third and fourth claims. He did raise both of these claims to the Appellate Division on direct appeal (Supplemental Brief at 13-16, 19-26), but then did not include them in his letters requesting leave to appeal to the Court of Appeals (See Court of Appeals Letters). Thus, the claims are unexhausted. Bossett, 41 F.3d at 828-29. 2. The Claims Are Deemed Exhausted and Are Procedurally Barred.

  Where a petitioner presents an unexhausted claim, that claim will nonetheless be deemed exhausted if the petitioner no longer has an available remedy in state court. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Bossett, 41 F.3d at 828-29 (citations omitted); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991) (citations omitted). Here, Petitioner is now foreclosed from appealing these two claims because Petitioner was entitled to only one application for a certificate granting leave to appeal. See N.Y. Court Rules § 500.10(a) (permitting only one application for leave to appeal to the Court of Appeals). Nor does Petitioner now have any other state court avenue available to him to raise these claims. As both of these claims were fully capable of being addressed on the trial record, neither can be properly raised on state collateral review. See N.Y. Crim. Proc. § 440.10(2)(c) (barring collateral review of claims that are properly raised on direct appeal).*fn9 Petitioner also cannot seek state review of these claims pursuant to either a writ of error coram nobis, see People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992) (coram nobis relief only available for claims of ineffective assistance of appellate counsel) (citations omitted), or a state writ of habeas corpus, see People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d 331 (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal) (citations omitted). Because Petitioner now has no recourse to New York's courts to review his unexhausted claims, the claims should be deemed exhausted. See Bossett, 41 F.3d at 828-29; Grey, 933 F.2d at 120-21. When, however, a claim is deemed exhausted because of a procedural bar, the procedural bar that gives rise to exhaustion provides an independent and adequate state ground for the conviction and sentence, precluding habeas review of the claim unless the petitioner can show either (1) both cause for failing properly to raise the claim in state court and prejudice resulting from the alleged constitutional error, or (2) that the failure to address the claim on habeas would result in a "fundamental miscarriage of justice." See Gray v. Netherland, 518 U.S. 152, 162 (1996) (citations omitted); Coleman v. Thompson, 501 U.S. 722, 750 (1991) (citations omitted); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001) (citations omitted). In this instance, Petitioner cannot satisfy either standard.

  3. Petitioner Cannot Overcome the Procedural Bar.

  "Cause" for a procedural default is established when "some objective factor external to the defense" impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N.Y. Mar. 7, 2001). Cause for a default exists where a petitioner can show that (1) "the factual or legal basis for a claim was not reasonably available to counsel," (2) "`some interference by state officials' made compliance [with the procedural rule] impracticable," or (3) "the procedural default is the result of ineffective assistance of counsel." Bossett, 41 F.3d at 829 (citation omitted). "Prejudice" requires a petitioner to demonstrate that the alleged constitutional error worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

  The Court may also excuse a procedural default where the petitioner "can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750). To invoke this narrow exception, "concerned with actual as compared to legal innocence," Sawyer v. Whitley, 505 U.S. 333, 339 (1992), a petitioner must show "actual innocence," meaning "factual innocence, not mere legal insufficiency," Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998). To show "actual innocence," a petitioner must "present new[,] reliable evidence that was not presented and trial and show that it is more likely than not that no reasonable juror would have found [Petitioner] guilty beyond a reasonable doubt." Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)), cert. denied, 531 U.S. 873 (2000). "The petitioner thus is required to make a stronger showing than that needed to establish prejudice." Schlup v. Delo, 513 U.S. at 327 (citations omitted). It is rare that a petitioner will be able to satisfy the actual innocence standard. Indeed, "in virtually every case, the allegation of actual innocence has been summarily rejected." Id. at 324 (citations omitted).

  Here, Petitioner has not presented this Court with any "cause" for his procedural default. He has not demonstrated that the factual or legal basis for his defaulted claims was not reasonably available at the time of his application for leave to appeal to the New York Court of Appeals. Nor has Petitioner alleged, and there is no evidence suggesting, that his failure properly to exhaust these claims fully resulted from either interference by state officials or ineffective assistance of appellate counsel. As Petitioner cannot show cause for his procedural default, this Court need not reach the question of whether Petitioner can show prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice.").

  Petitioner also has not "demonstrate[d] a sufficient probability that [the Court's] failure to review his federal claim[s] will result in a fundamental miscarriage of justice" so that the Court may excuse his procedural default. See Edwards, 529 U.S. at 451. Petitioner does not set forth any new evidence demonstrating his "actual innocence." Instead, Petitioner merely restates the same arguments, based on the same evidence, he previously made to the state courts. (Compare Pet App. at 5-8 with Supplemental Brief at 13-16, 19-26.)*fn10 For this reason, Petitioner has not made an adequate showing to satisfy the "fundamental miscarriage of justice" exception.

  Under the circumstances, Petitioner cannot overcome the procedural bar, and his third and fourth claims should therefore be dismissed.

  B. The Claims, In Any Event, Would Fail on the Merits.

  1. Standard of Review

  The habeas standard of review dictated by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-13, 110 Stat. 1214, which accords substantial deference to state court determinations, only applies to claims that have been "adjudicated on the merits" by the state courts, 28 U.S.C. § 2254(d); see also Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (noting that "adjudicated on the merits" means "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground"). Where this Court reaches the merits of a claim that has not been decided by the state court on substantive grounds, the pre-AEDPA de novo standard of review applies. See Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003).

  Here, the Appellate Division cannot be said to have reviewed Petitioner's third and fourth claims on the merits. Both of these claims were rejected by the Appellate Division as "unpreserved." See People v. Moore, 279 A.D.2d at 337 ("[d]efendant's remaining contentions, including those contained in his pro se supplemental brief, are unpreserved, and we decline to review them in the interest of justice"). Thus, the court dismissed the claims on procedural grounds, not the "merits." See Sellan, 261 F.3d at 311-12. As the Appellate Division cannot be said to have reviewed these claims on the merits, the Court should apply a de novo standard of review, should it reach the merits of these claims.

  2. Both Claims Would Fail on De Novo Review.

  Both Petitioner's third and fourth claims are claims of prosecutorial misconduct. To demonstrate a constitutional violation necessary to prevail on such a claim, Petitioner would have to show that the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643; see also Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (prosecutor's actions must be "so egregious as to violate the defendant's due process rights") (citations omitted). It is significant that "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). Here, even if — in the absence of the trial transcript — Petitioner's assertions as to the prosecutor's conduct were accepted at face value, they would not be sufficient to demonstrate the level of egregious prosecutorial misconduct necessary to establish that Petitioner was denied a fair trial.

  a. The Prosecutor's Alleged Knowledge of Perjured Testimony by Vigo

  The crux of Petitioner's third claim is that Vigo testified inconsistently before the grand jury and at trial, with respect to the number of the apartment from which she purportedly observed the homicides. During the grand jury proceedings, Vigo apparently testified that she viewed the crime from Apartment No. 22, which, in fact, overlooked West 148th Street. At trial, however, although her testimony as to what she had witnessed was apparently consistent with her prior statements, she testified that she had viewed the crime from Apartment No. 21, which did not overlook the street. (See Pet. App. at 6-7.) According to Petitioner, this inconsistency showed that Vigo's testimony was false. (See id. at 6.) Moreover, Petitioner claims that the prosescutor heard the inconsistency at trial — and thus, at the time of trial, was aware of the supposed falsity of Vigo's testimony — and yet wrongfully allowed Vigo to continue to present perjured testimony to the jury. (See id. at 6-7.)

  In order to prevail on this claim of prosecutorial misconduct, Petitioner first bears the burden of demonstrating that Vigo's incriminating testimony was actually, and intentionally, false. See U.S. v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993) (prosecutorial misconduct claim based on allegedly false testimony requires defendant to demonstrate, inter alia, that "there was false testimony"); United States v. Dunnigan, 507 U.S. 87, 94 (1993) (perjury occurs when a witness gives false testimony "with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory"). Even a direct conflict in testimony does not, in itself, constitute perjury. United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995), cert. denied, 517 U.S. 1187 (1996); United States v. Brown, 634 F.2d 819, 827 (5th Cir. 1981) (proof that "testimony is challenged by another witness or is inconsistent with prior statements" is insufficient to establish due process violation).

  Petitioner has not shown that Vigo's testimony was actually or intentionally false. Standing alone, the minor inconsistency in her testimony regarding the number of the apartment in which she had lived, three years before the date of the trial, cannot be said to demonstrate perjury. See U.S. v. Bortnovsky, 879 F.2d 30, 33 (2d Cir. 1989) ("Presentation of a witness who recants or contradicts his prior testimony is not to be confused with . . . perjury. It was for the jury to decide whether or not to credit the witness.") (quoting United States v. Holladay, 566 F.2d 1018, 1019 (5th Cir.) (per curiam) (internal quotation marks omitted), cert. denied, 439 U.S. 831 (1978)); Charleston v. Senkowski, No. 92 Civ. 6639, 1994 WL 617373, at *7 (S.D.N.Y. Nov. 7, 1994) (inconsistent testimony as to which officer had conducted photo array procedure did not, without more, constitute perjury) (citing Bortnovsky, 879 F.2d at 33). Significantly, it appears that Vigo's substantive testimony about her view of the crime scene, the sequence of events, and the identity of the parties was consistent, making it more likely that her inconsistent testimony regarding her apartment number was a simple lapse in memory about a relatively minor detail. Further, the inconsistency was brought to light at trial by the testimony of a detective who acknowledged that Apartment No. 21 did not face the crime scene. Thus, the jury had a full opportunity to consider Vigo's credibility.

  Second, to prevail on his claim of prosecutorial misconduct, Petitioner must show (1) that the prosecution knowingly or deliberately used false evidence, and (2) that the false evidence, "in any reasonable likelihood," could have affected the judgment of the jury or may have had an effect on the outcome of the trial. Clancy v. Comm'r of Corr. Servs., State of N.Y., 956 F. Supp. 490, 499 (S.D.N.Y. 1997), vacated on other grounds, 141 F.3d 1151 (2d Cir. 1998) (citations omitted). In this case, even assuming that Vigo falsely testified at trial as to seeing Petitioner commit the homicides, Petitioner has not shown that the prosecution proffered that testimony, knowing it to be false. At most, Petitioner has shown that Vigo's grand jury and trial testimony regarding her apartment number were inconsistent, but inconsistencies between a witness's statements before a grand jury and at trial do not warrant the inference that the prosecutor knowingly used false testimony. See United States v. Hemmer, 129 F.2d 10, 17 (1st Cir. 1984), cert. denied, 467 U.S. 1218 (1984). Moreover, as that inconsistency was placed before the jury for its consideration, Petitioner has not shown any "reasonable likelihood" that the jury's judgment was affected by the alleged falsity of Vigo's testimony.

  For these reasons, Petitioner has not even demonstrated prosecutorial misconduct with respect to Vigo's testimony, much less misconduct that "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Accordingly, Petitioner's third claim, even if it were not procedurally barred, should be dismissed on the merits.

  b. Alleged Summation Misconduct

  Likewise, Petitioner's fourth claim that he was denied a fair and impartial trial when the prosecutor, during summation, became an "unsworn witness" by making arguments that were allegedly unsupported by evidence, and improperly told the jurors that they were now "witnesses" to the homicides, fails to set forth prosecutorial misconduct that would justify habeas relief. (See Pet. App. at 7-8.) Indeed, Petitioner has not even demonstrated that the prosescutor engaged in misconduct by making the cited remarks.

  A prosecutor is properly given wide latitude in summation, People v. Galloway, 564 N.Y.2d 396, 399 (1981), and is entitled to comment upon evidence presented at trial and to urge the jury to draw reasonable inferences from that evidence, People v. Bailey, 58 N.Y.2d 272, 277 (1983); United States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir. 1990) ("[I]n summation[,] counsel are free to make arguments which may be reasonably inferred from the evidence presented.") (citations omitted), cert. denied, 499 U.S. 940 (1991). Further, even when a prosecutor has made improper comments in summation, habeas relief is not warranted merely because those comments "were undesirable or even universally condemned." Darden, 477 U.S. at 181 (citation and internal quotation marks omitted). Rather, the question for this Court is whether undesirable remarks rendered the trial, as a whole, "fundamentally unfair." See id. at 182. To be entitled to habeas relief, a petitioner must show "that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 823 (2d Cir. 1994) (citations and internal quotation marks omitted). In determining whether the prosecutor's remarks caused the petitioner actual prejudice, the Court should consider "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Tankleff, 135 F.3d at 252 (citations omitted).

  In his fourth claim, Petitioner first asserts that it was improper for the prosecutor to have stated in summation, without direct evidentiary support, that Petitioner had not seen Vigo, watching from her window. (Pet. App. at 8.) It was, however, reasonable for the prosecutor to infer this from the evidence, as it is less likely that a crime will be committed where the would-be perpetrator realizes he is being observed. Petitioner also asserts that the prosecutor had an insufficient evidentiary basis for his argument to the jury that Petitioner "had run home, got his gun, put his hoodie [hooded sweatshirt] on, ran out, and shot both of the victims." (See id.) This argument, however, was also based on reasonable inferences from the evidence presented at trial. Specifically, the evidence showed that Petitioner had planned to commit at least one of the homicides, had been present on 148th Street just before Cheche and Delacruz arrived, and then, minutes later, had reappeared on the street, wearing dark pants and a black hooded sweatshirt. The record also included testimony identifying Petitioner as the shooter. Overall, far from rendering the entire trial "fundamentally unfair," the challenged comments by the prosecutor appear to have been well-grounded in the evidence presented at trial, or to have constituted arguments fairly derived from that evidence.

  Petitioner also seems to allege that, in summation, the prosecutor improperly bolstered Vigo's testimony by "vouching" for her credibility. (See Pet. App. at 7.) Although Petitioner does not explain this allegation (raising it only in the point heading of his fourth claim (see id.)), he raised the same argument, in greater detail, on his state appeal. (See Supplemental Brief at 24). There, he asserted that the prosecutor improperly vouched for Vigo's credibility by stating, in summation, (1) that the police had taken photographs from the window of Vigo's Apartment No. 21, when, in fact, the photographs were taken from Apartment No. 22, and (2) that Vigo had no motive to lie. (See id.)

  As to the first of these challenged statements, it is difficult to see how, even if the prosecutor misstated the apartment number from which the photographs were taken, this could have been serious enough to constitute a due process violation, given that, as noted above, the jury was made aware of the fact that Apartment No. 21 did not have a view of the street. And, as to the prosecutor's supposed comment that Vigo had no reason to lie, it is not improper for a prosecutor to argue that a witness is credible, where, as here, such an argument is made objectively from the evidence, and is not phrased in terms of the prosecutor's personal subjective beliefs. See People v. Bailey, 58 N.Y.2d 272, 277 (1983) (permissible for prosecutor to present argument as to witness's credibility based on "proved facts and circumstances and the inferences to be drawn therefrom"); United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992) (arguments in summation did not improperly vouch for witnesses where arguments were permissible inferences from evidence at trial).

  Finally, Petitioner apparently asserts that the prosecutor's statements in summation left the jurors with the incorrect notion that they should consider themselves to be "witnesses" to the homicides and to view the evidence from that point of view, rather than as fact-finders. Respondent, however, counters that the challenged summation comments were a fair response to Petitioner's attack on the evidence presented at trial. According to Respondent, Petitioner had attacked as "fluff" the testimony and photographic evidence regarding the crime scene. (See Resp. Mem. at 53, 54-55.) In response, the prosecutor explained to the jury that, rather than being "fluff," this evidence allowed the jury to visualize the scene, so that the jurors could be "witnesses" to the crime. (See id.) As no rational juror could have interpreted such a statement to mean that the jurors should have considered themselves actual witnesses to the homicides, the statement cannot be said to have rendered Petitioner's trial "fundamentally unfair." For all of the above reasons, Petitioner's fourth claim, even if not procedurally barred, should be dismissed as without merit.

  IV. PETITIONER'S FIFTH CLAIM

  (Mobley's Allegedly Perjured Testimony)

  Petitioner asserts, as his fifth claim for habeas relief, that he was denied due process because one of the prosecution's witnesses, Mobley, committed perjury when he testified against Petitioner at trial. (See Pet. App. at 8-10.) Petitioner supports this claim with "newly discovered evidence" — a notarized letter by Mobley, dated January 26, 1999, in which Mobley states that he lied at Petitioner's trial as part of a deal with the authorities to obtain his own freedom. (Id.) In this letter, however, Mobley only partially recants his trial testimony, leaving untouched the most incriminating portion of that testimony. Thus, even if true, Mobley's recantation does little to call into question the outcome of the trial.

  A. Exhaustion

  As this claim was based on information discovered subsequent to, and outside of, the trial record, Petitioner properly raised it to the state courts collaterally, through a Section 440.10 motion. (See Motion to Vacate Judgment, C.P.L. § 440.10, attached to Resp. Ans. as Ex. A.) That motion was denied by the state trial court, and the Appellate Division denied leave to appeal. (See Order, attached to Resp. Ans. as Ex. L; People v. Moore, 2001 N.Y. App. Div. LEXIS 2954 (1st Dep't Mar. 15, 2001).) This was sufficient to exhaust the claim.

  B. The Claim Fails on the Merits.

  In its decision, the state trial court did not specify the grounds upon which Petitioner's Section 440.10 motion was denied (see Order, attached to Resp. Ans. as Ex. L), and the Appellate Division denied leave to appeal without opinion, see People v. Moore, 2001 N.Y. App. Div. LEXIS 2954. Therefore, this Court cannot determine whether the claim was denied "on the merits," such that it would be appropriate to accord AEDPA deference to the state court's decision. It is not necessary, however, to make such a determination, because Petitioner's claim would not warrant habeas relief even under a de novo standard of review. See Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (where claims failed under pre-AEDPA standard, claims necessarily failed under AEDPA).

  In this claim, Petitioner does not allege that the prosecutor knowingly presented false testimony; rather, this claim merely challenges the testimony itself. For a petitioner to demonstrate that he was denied due process because of a witness's false trial testimony, he must show that (1) the false testimony was material, and (2) but for the false testimony, he "would most likely not have been convicted." See Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003) (citations omitted). A showing that trial testimony was perjured, standing alone, is insufficient to establish a due process violation warranting habeas relief. Sanders v. Sullivan, 863 F.2d 218, 222 (2d Cir. 1988).

  In this instance, it is important to consider the substance of Mobley's trial testimony, as compared with his recantation. At trial, Mobley testified that Petitioner had confided in him that he was going to be paid by Garcia to murder Delacruz; that, the night after the homicides, Petitioner confessed to Mobley that he had shot two people the night before; and that, some time later, Mobley heard Garcia compliment Petitioner on a "good job." (See supra at 3-5.) In his subsequent letter, Mobley denied that Petitioner had confided any advance plans to commit murder, or that he later heard Garcia compliment Petitioner. (Letter of John Mobley, attached to Section 440.10 motion as Ex. E.) Mobley did not, however, deny that, one night after the homicides, Petitioner confessed that he had just shot two people. (See id.) Moreover, the trial record also contained the testimony of an eyewitness to the crime (Vigo), who identified Petitioner as the shooter. Under these circumstances, Petitioner has not demonstrated that the recanted testimony was "material," or that he would "most likely not have been convicted" without that testimony. See Danzey, 594 F.2d at 916 (holding that the testimony of a single eyewitness is sufficient to support a conviction).

  I therefore recommend that Petitioner's fifth claim be dismissed.

  V. PETITIONER'S SIXTH CLAIM

  (Weight and Sufficiency of the Evidence)

  As his sixth ground for habeas relief, Petitioner asserts that (a) his conviction was against the weight of the evidence, and (b) the evidence was legally insufficient to support the verdict. (See Pet. App. at 10-11.) A "weight of the evidence" claim, however, is a state law claim, see People v. Bleakley, 69 N.Y.2d 490, 494-95 (N.Y. 1987),*fn11 and is thus not cognizable in a federal habeas proceeding, see 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States") (citations omitted). For this reason, to the extent Petitioner's sixth claim challenges whether the verdict was against the weight of the evidence, the claim should be summarily dismissed. See, e.g., Kearse v. Artuz, No. 99 Civ. 2428 (TPG), 2000 WL 1253205, at *1 (S.D.N.Y. Sept. 5, 2000). In this proceeding, the Court should only consider the portion of Petitioner's claim that challenges whether the evidence was legally insufficient to support the verdict.

  A. Petitioner's Sufficiency of the Evidence Claim Is Procedurally Barred, and Petitioner Cannot Overcome the Procedural Bar.

   On direct appeal, the Appellate Division rejected Petitioner's legal sufficiency claim on the merits, holding, inter alia, that the evidence was "overwhelming" and that "there is no basis upon which to disturb the jury's determinations concerning credibility." People v. Moore, 279 A.D.2d at 336. Petitioner, however, did not seek leave to appeal to the Court of Appeals on this ground. (See Court of Appeals Letters.) Petitioner's claim is therefore unexhausted.

   As Petitioner now has no further available remedies in state court, the claim must be deemed exhausted and procedurally barred. (See discussion supra at 15-16.) Further, as Petitioner has demonstrated neither (a) "cause" for his procedural default and "prejudice" resulting therefrom, nor (b) that a "fundamental miscarriage of justice" would result from this Court's refusal to consider the claim, he cannot overcome the procedural bar. Accordingly, his sixth claim should be dismissed on that basis.

   B. Even If Petitioner Could Overcome the Procedural Bar, His Legal Sufficiency Claim Would Be Subject To Dismissal on the Merits.

   Even if the Court were to reach the merits of Petitioner's legal sufficiency claim, Petitioner would not be able to prevail on that claim. The Appellate Division's finding that the evidence against Petitioner was "overwhelming" was not unreasonable, given the existence of an eyewitness identification and a reported confession, and the court's decision to leave the jury's credibility determinations undisturbed was both reasonable and consistent with federal law. Thus Petitioner's claim would not survive under AEDPA.*fn12 Indeed, even if this Court were to review Petitioner's claim de novo, it would still fail.

   On a claim challenging the legal sufficiency of the evidence supporting a guilty verdict, the petitioner "bears a `heavy burden' because the government receives the benefit of having all permissible inferences drawn in its favor." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002). (internal citations omitted). "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).

   Such an inquiry "does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt."' Id. at 318-19 (emphasis in original) (citations omitted). Rather "the relevant question is 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." Id.; see also United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (a court must determine "whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt . . . view[ing] the evidence in the light most favorable to the government, and constru[ing] all permissible inferences in its favor") (internal citations omitted). In making this determination, "pieces of evidence must be viewed in conjunction, not in isolation." United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994) (citation omitted).

   Furthermore, the jury retains "exclusive[] responsib[ility] for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (citation omitted). "Federal habeas courts are not free to reassess the facts 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." Vera v. Hanslmaier, 928 F.Supp. 278, 284 (S.D.N.Y. 1996) (quoting Anderson v. Senkowski, No. 92 Civ. 1007 (CPS), 1992 WL 225576, at *3 (E.D.N.Y. Sept. 3, 1992), aff'd, 992 F.2d 320 (Table) (2d Cir. 1993)).

   In this case, Petitioner claims that there was insufficient evidence to support the verdict because the testimony of the key witnesses was allegedly perjured (as discussed above), as well as "incredible and unbelievable, [p]hysically impossible, and contrary to experience or self[-]contradictory." (Pet. App. at 11.) For the reasons discussed above, these arguments are upersuasive. As already shown, Petitioner's arguments regarding the alleged falsity of Vigo's and Mobley's testimony are insufficient to call the jury's verdict into question. Further, as also noted above, this Court may not reassess the jury's credibility determinations, see Vera, 928 F. Supp. at 284, or weigh conflicting testimony, see id. Thus, Petitioner cannot prevail on a claim that the evidence was legally insufficient to support the verdict merely by showing that the evidence had inconsistencies. See, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 534 U.S. 1148 (2002); Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981) (insufficiency claim rejected because jury was entitled to believe prosecution witnesses despite inconsistent testimony). In fact, "[t]he testimony of a single uncorroborated witnesses is sufficient to achieve a showing of guilt beyond a reasonable doubt even if that witness's testimony is less than entirely consistent." Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) (internal citations omitted).

   I therefore recommend that Petitioner's sixth habeas claim be dismissed.

   CONCLUSION

   For all of the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, United States Courthouse, 500 Pearl Street, Room 1620, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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