The opinion of the court was delivered by: Garaufis, United States District Judge.
Petitioner Eshwar Harripersaud ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, filed on September 17, 2004, he challenges the constitutionality of a judgment entered against him in the New York State Supreme Court, Queens County. Having reviewed the state court record and the parties' submissions, for the reasons set forth below, the Petitioner's writ of habeas corpus is DENIED.
Petitioner and two co-defendants, Ramkrishine Haripersaud ("co-defendant Haripersaud")*fn1 and Ganesh Punwa ("Punwa"), were charged under Queens County Indictment Number 246/01 with one count of robbery in the second degree (N.Y. Penal Law 160.10) and one count of criminal possession of stolen property in the fifth degree (N.Y. Penal Law 165.40). Petitioner and the two co-defendants proceeded to trial before the Honorable Joseph Rosenzweig and a jury found them guilty of the crimes charged on January 14, 2003.
The Petitioner was convicted of robbery and criminal possession of stolen property for events surrounding the robbery of a man named Rudolph Alli ("Alli"), which occurred in the early morning hours of January 20, 2001 near a bar called the Golden Arrow, located in Queens County. At trial, the People called Alli to the stand, as well as an NYPD Detective who was at the bar at the time of the incident and was involved in the investigation that followed. The Defense offered several witnesses, including the Petitioner's two co-defendants. The evidence adduced at trial is recounted below.
1. Testimony of Rudolph Alli
The victim of the alleged robbery, Rudolph Alli, was the first witness for the Prosecution. On January 20, 2001, Alli was living at 107-14 101st Avenue, above the Golden Arrow Bar. (Tr. 300). Alli regularly frequented the Golden Arrows Bar, and was there on the evening of Friday, January 19, 2001 into the early morning hours of January 20, 2001. (Tr. 301). On the night in question, he was wearing numerous pieces of jewelry including three chains, bracelets, and six or seven rings. Some of the rings had his initials "RA" imprinted on them. (Tr. 302). Alli's father owns jewelry stores and sells jewelry in Alli's native Guyana, and thus wearing a lot of jewelry was typical for Alli when he went out socializing. (Tr. 302). Alli was also carrying his wallet and approximately 350-360 dollars cash in his pocket that night. (Tr. 303). In the wallet, Alli had a fake identification card ("ID")*fn2 with his photo on it, and a birth certificate of a friend from Canada which matched the name on the fake ID. (Tr. 303-304). In the wallet was also a library card, a social security card that Alli's "friend left by [him]," a Rite Aid card, pictures of his family, and a business card of his father's. (Tr. 305).
At approximately 12:30 a.m. on the morning of January 20, 2001, Alli was in the Golden Arrow Bar with his wife and his sister-in-law and her husband; he had consumed about two beers. (Tr. 306). He received a call on his cellular phone from a friend and stepped outside to take the call. (Tr. 306-7). On his way out of the bar, Alli saw police officers coming into the bar. (Tr. 306). While standing outside on the phone, Alli was approached by Punwa, with whom Alli was familiar and had seen at the Golden Arrow on prior evenings and earlier that same evening. (Tr. 307-8). Punwa indicated to Alli that he wanted the two of them to take a walk to the corner of 107th Street, and when Alli got off the phone he did so. (Tr. 308). The two rounded the corner of 101st Avenue onto 107th Street, at which point Alli noticed the Petitioner and co-defendant Haripersaud, both of whom he also recognized from patronizing the Golden Arrow Bar and from having seen them with Punwa at the bar earlier that evening. (Tr. 309-10, 341).
According to Alli, at this point all three defendants started to beat him up, punching him in the face, kicking him, and pulling his chains off of his neck. (Tr. 311). Alli testified that co-defendant Haripersaud was also "pushing his hand into [Alli's] pocket." (Tr. 311). The defendants, Punwa in particular, then dragged Alli, who was on the ground, by his left foot "halfway to 107 Street" and then left Alli there and ran away, towards 103rd Avenue away from the bar. (Tr. 311-13). Alli testified that all three defendants stole his jewelry, specifically "about three chains," three bracelets, six or seven rings (some of which had his initials on them), three diamond earrings, and one pendant that was on one of the chains. (Tr. 312-13). Co-defendant Haripersaud took Alli's wallet and the money that Alli had in his pocket. (Tr. 313).
Alli then made his way back to the bar and reported to the police officers who were there that he had just been robbed around the corner. (Tr. 314). Alli provided the police with a description of his robbers and the direction in which they had fled. (Tr. 314). Alli was escorted in a police car and identified the three defendants in the vicinity of 101-59 107th Street. (Tr. 315). The police showed Alli his wallet, his chain and two of his rings which had his initials on them. (Tr. 316). At trial, Alli identified that jewelry and wallet as his possessions which were stolen from him that night by the Defendants. (Tr. 317-19). He admitted that in his wallet he kept a fake ID, with a photo of himself and a friend's name and a copy of his friend's birth certificate that matched the ID. (Tr. 322).
During his direct examination, Alli admitted that on January 3, 2002 he pled guilty to a misdemeanor assault charge for striking his wife. (Tr. 336). Alli also answered "yes" when questioned if he had been present with friends "who stole property from somebody else" when he was 16 or 17 years old. (Tr. 336-7). On cross-examination, Alli was questioned further about his involvement as a juvenile in a robbery that allegedly occurred on August 1, 1992. Some of Alli's answers were inconsistent. He first testified that he did not attempt a robbery on the date in question. (Tr. 352). He also stated that he was with some friends on that date, but that he and his friends did not attempt to take property from someone. (Tr. 353-4). Next, he testified that he was present when his friends took property from someone, and that he couldn't remember if he had admitted on March 9, 2003 that he attempted to rob someone. (Tr. 354). Alli explained that on that day he knew his friends were approaching a person to steal from him or her, and saw his friends go over to the person, but that he was not with them. (Tr. 466). Alli testified that he later admitted to being part of the attempted robbery. (Tr. 467). He further testified that on that day in 1992, he told the police his name was Rudy Jerome; Alli's full name is Rudolph Jerome Alli. (Tr. 414-15).
Alli was also questioned on cross about the $350.00 he claimed was stolen from his pocket the night the defendants allegedly robbed him. The money was Alli's salary for his job; he had been paid $600.00 the Friday before the alleged robbery and was carrying the remaining cash in his pocket. (Tr. 356-57). Alli testified that on the night of the incident when he was seen at the hospital for injuries he sustained, he informed the hospital staff that he was not married, although he was. (Tr. 429). He also provided the hospital with a false social security number. (Tr. 429). Additionally, when initially questioned by the police, Alli gave the police his mother's address instead of the address of his home located just above the bar. (Tr. 430-31).
2. Testimony of NYPD Detective Ronald Agunzo
On the night of January 20, 2001, NYPD Detective Ronald Agunzo ("Agunzo") was on-duty with Lieutenant Mark McDermott doing a multi-agency inspection of various bars throughout the 102nd precinct. (Tr. 515). Agunzo and approximately six to eight other officers arrived at the Golden Arrow Bar on the night in question to inspect the premises. (Tr. 516). Around 12:30am, Agunzo and the other officers he was with were approached by Rudolph Alli. (Tr. 518-19). Agunzo described Alli as looking like had been beat up. According to Agunzo, he had bruising on his face, a laceration over his eye, a lot of swelling, bleeding from the eye, a cut on his lip, and he complained of back pain. (Tr. 519-20). Alli gave Agunzo a description of his alleged attackers, whom he described as "three male Indians wearing dark colored clothing." (Tr. 521). Agunzo and McDermott then proceeded on foot in the direction that Alli pointed them.
While walking down 107th Street, a quiet residential block, the officers heard voices coming from the rear yard at 101-59 107th Street and saw individuals in a three-foot gap between two garages back there. (Tr. 522-25). The officers approached the area between the garages and saw three individuals "on the floor doing a lot of moving around." (Tr. 525). They announced themselves as police officers and ordered the men to come out. After several demands, two of the individuals eventually emerged (identified as the Petitioner and co-defendant Haripersaud); the third person remained on the ground complaining of leg pain (identified as Punwa). (Tr. 527-9). Alli arrived on the scene by police car approximately ten minutes later and identified the three men as his assailants. (Tr. 530). Agunzo conducted a search of the three-foot area between the garages where the defendants were apprehended and found two rings (both of which had "RA" on them), and a gold chain, which Alli identified as his property. (Tr. 532). Agunzo also conducted pat down searches of the three defendants. He recovered from the Petitioner a wallet (identified by Alli as his own), and from co-defendant Haripersaud a sum of cash totaling $385.69. (Tr. 536-38).
3. Testimony of Dhanpatie (aka Praya) Lall
Dhanpatie Lall ("Lall"), the girlfriend of co-defendant Ganesh Punwa and father of his child, was the defense's first witness. (Tr. 679). Lall spoke to Punwa around 4:30 or 5:00 p.m. on Friday January 19, 2001. Punwa informed Lall that he was "going to go out a little bit with the guys," which Lall testified that she understood to mean that Punwa would be going to the Golden Arrow Bar with the Petitioner and co-defendant Haripersaud. (Tr. 681-82). Punwa called Lall again from his cellular phone at 12:20 a.m. and started to tell her that he was leaving the bar to go home. Lall testified that Punwa did not finish his statement because somebody came up and said 'give me your phone' and then 'give me your fucking phone.' (Tr. 683-84). After that, the phone went dead. Lall did not recognize the voice she heard. (Tr. 684). Lall said she was calling Punwa's phone all night thereafter and kept getting his voicemail. (Tr. 684-85). Lall was informed by Punwa's mother around noon on Saturday that Punwa was in the hospital. (Tr. 685).
On cross-examination, Lall was questioned about the fact that she did not call the police at any time after she heard a strange voice demand Punwa's cellphone during their 12:20 a.m. conversation. (See Tr. 690). Lall admitted that even after she learned on Saturday afternoon of Punwa's arrest, she did not come forward to the police with the information she had concerning the voice she had heard being aggressive towards Punwa on the phone the prior night. (Tr. 690).
4. Testimony of Redsford Persad
Redsford Persad ("Persad") testified next for the defense. He declared that he did not know any of the defendants by name, but recognized all three as people that he had seen regularly at the Golden Arrow Bar. (Tr. 710). Persad also stated he knew someone by the name of "Rudy" whom he saw regularly at the Golden Arrow, identified as Alli. (Tr. 711-12). Persad saw the three defendants and Rudy at the bar on the night of January 19, 2001. (Tr. 713). While seated at the front of the bar, he saw Punwa leave with his cell phone in his hand; he then saw Rudy leave the bar. (Tr. 715). A little after Rudy walked out, Persad testified, he saw the Petitioner and co-defendant Haripersaud leave together. (Tr. 716). At some point later, the police arrived at the bar. Persad remained there until sometime around 2:00 a.m. and did not see Rudy return. (Tr. 717).
5. Testimony of Ganesh Punwa
Punwa testified that on Friday, January 19, 2001, he got off work around 6:00 p.m. and went to meet his friends, the Petitioner and co-defendant Haripersaud, at the Golden Arrow Bar. (Tr. 758-59). Around midnight, he planned to leave with the Petitioner and co-defendant Haripersaud so he went out to make a call to his girlfriend to let her know he was heading home while the others finished their beers. (Tr. 763-64). While standing outside on the phone, he saw Alli approach him. (Tr. 766). Punwa testified that Alli demanded his phone, stating "give me your phone" and "give me your mother fucking phone." Alli then grabbed Punwa by his chain and hit him. (Tr. 766). Punwa testified that he and Alli then "went down" and continued to fight with one another until the Petitioner and co-defendant Haripersaud came out and broke up the fight. (Tr. 766-67). Punwa testified that, once separated from Alli, he saw what he believed to be his chain and wallet on the ground. (Tr. 769-70). Soon thereafter, Punwa maintains, some people came out of the bar that Punwa "thought was [Alli's] friends" so he picked up his chain and his ring and "started running." (Tr. 771-2). Punwa claims that co-defendant Haripersaud picked up his wallet and that co-defendant Haripersaud and the Petitioner started running with him towards 107th Street. (Tr. 772). When they reached the 107th Street intersection, they turned onto 107th and Punwa looked back and tripped and broke his arm and ankle. The weather conditions that night were rain and sleet. (Tr. 773). Punwa's ankle bone was protruding out of his skin when he fell; he started screaming in pain such that his friends came back for him and dragged him to the closest driveway. (Tr. 776-77). Punwa remained in the driveway space with his two co-defendants until the police found them there. Punwa was arrested and then transported to the hospital. (Tr. 781-82).
On cross-examination Punwa was questioned about the men he saw coming out of the bar just as he and Alli were being separated from their fight. Punwa testified that he saw four or five men emerging from the bar coming towards Punwa and his friends yelling "yo, yo, yo." (Tr. 813-14). Punwa stated that he was afraid these men would attack him. (Tr. 815).
6. Testimony of Ramkrishine Haripersaud
Co-defendant Haripersaud testified that around 3:30 p.m. on Friday, January 19, 2001, he was given a paycheck in the net amount of $424.10 for his employment as an electrician, and that he promptly cashed that check and went to the Golden Arrow Bar. (Tr. 917-20). He met the Petitioner at the bar around 6:30 p.m.; Punwa arrived approximately 30 minutes later. (Tr. 923). Co-defendant Haripersaud testified that he bought a couple of beers and some food, and that when he left the bar around 12:15 or 12:30 a.m. he had $385.00 in cash in his possession. (Tr. 920).
Co-defendant Haripersaud attested that he and the Petitioner exited the bar around 12:30 a.m. a couple of minutes after Punwa exited. (Tr. 926). When they left the bar they saw Punwa and Alli rolling around on the ground fighting and went over to them and separated the two. (Tr. 927). Co-defendant Haripersaud maintained he grabbed Punwa off of Alli, but that he never touched Alli. (Tr. 928). As to what happened next, he testified: "Then we saw a couple of guys came out from the bar, I'm not sure how much people it was, and all I heard was Punwa said my stuff is on the floor, grab it and I just grabbed what I could grab and we ran." (Tr. 929). The three men proceeded to run down 101st Avenue to 107th Street and made a left turn on 107th. (Tr. 934). Soon thereafter, Punwa slipped and fell; Co-defendant Haripersaud and the Petitioner then dragged Punwa to the nearest driveway. (Tr. 935). The three men remained at the end of the driveway near the garage for approximately ten minutes until the police arrived and demanded that they come out. (Tr. 938-39).
In summation, the Prosecution asserted that Alli had attested to the true events of the night of January 20, 2001. The government argued that the co-defendants had robbed Alli and fled, as Alli had testified, and that Punwa actually broke his ankle while attempting to scale a fence located at the space between the garages where the three defendants were ultimately found by the police. The substance of the Prosecution's closing argument was that the version of events offered by co-defendant Haripersaud and Punwa when they took the stand was untrue and unsupported by the evidence.
The prosecutor made several statements to the effect that the two co-defendants who testified at trial made up their story. For example, she stated: "They feel forced to come up with a story to explain their way out of this situation" (Tr. 1095); "They're telling you the story, I submit to you, ladies and gentlemen, because they are stuck" (Tr. 1098); "They are telling you the story because their backs are to the wall just as there are to the fence on the night of January 19, 2001" (Tr. 1099); "They are telling you the story because they were quite literally cornered by two police officers in a cramped little space in possession of Mr. Alli's property" (Tr. 1099).
At the close of the government's summation, the Petitioner's counsel requested a mistrial or curative instruction on the grounds that the prosecutor's summation "went beyond the bounds of legitimate advocacy" in that she implied to the jury that the defendants were being forced or compelled to take the stand in their defense. (Tr. 1125). The trial judge responded that he believed the prosecutor "did state that the defendants who testified were forced to come up with their version because of the evidence against them, not because of legal compulsion. (Tr. 1126). He also stated: "I will of course again remind the jury that the defendants had no obligation to testify." (Tr. 1126).*fn3 The Petitioner's motion was denied.
B. The Conviction and Post-Conviction Appeals
On January 14, 2003, the Petitioner, Punwa and co-defendant Haripersaud were found guilty of the crimes charged. On February 11, 2003, Petitioner was sentenced to concurrent terms of five years and one year imprisonment. He is currently incarcerated pursuant to this judgment of conviction.
On February 26, 2003, the Petitioner filed a timely Notice of Appeal. In his brief to the Appellate Division, Second Department, Petitioner raised three issues: (1) that the prosecutor failed in her duty to correct the false testimony of the complainant, Rudolph Alli, regarding his involvement in a previous crime; (2) that the prosecutor improperly cross-examined two defense witnesses; and (3) that the prosecutor's summation denied the Petitioner his due process rights to a fair trial. (See Brief of Defendant-Appellant). The Appellate Division affirmed the Petitioner's conviction, holding as follows:
The Supreme Court properly limited the cross-examination of the complainant to the facts underlying his youthful offender adjudication. The fact that the complainant was previously adjudicated a youthful offender may not be used or proved to impeach his credibility since an adjudication is not a conviction. In addition, the defendant's challenges to various questions posed by the prosecutor during cross-examination and comments made during summation, and his claim that the cumulative effect of prosecutorial misconduct constituted reversible error, are largely unpreserved for appellate review since the defendant either made only general objections, or did not request curative instruction when the objections were sustained. In any event, the contentions are without merit.
People v. Harripersaud, 2004 N.Y. slip op. 00534, 4 A.D. 3d 375 (Feb. 2, 2004). On March 2, 2004, the Petitioner sought leave to appeal to the New York Court of Appeals, raising the same issues he had raised in his brief to the Appellate Division. The New York Court of Appeals denied Petitioner leave to appeal on April 19, 2004. People v. Harripersaud, 2 N.Y.3d 762 (2004). The instant petition for a Writ of Habeas Corpus followed.
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") sets forth the standard of review for habeas corpus petitions. For claims that have been fully adjudicated on the merits in state court, a petitioner must show that the state court proceedings:
(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); see Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir. 2001) (per curiam) (holding that habeas relief is warranted "only upon a showing that the state courts unreasonable applied clearly established Supreme Court precedent") (emphasis in original).
In assessing the "contrary to" provision, the Supreme Court has held that a state court's decision is contrary to clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases"or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 412 (2000). The "unreasonable application" prong is implicated "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. In this analysis, a determination of the reasonableness of the application of the law is done from an objective, rather than subjective, standpoint. Id. at 409-410. Accordingly, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established Federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Petitioner raises three challenges to his state court conviction on habeas review. First, he alleges that the prosecutor's failure to correct the false testimony of the complainant, Alli, regarding his participation in an attempted robbery deprived him of his right to a fair trial. Second, the Petitioner alleges that the prosecutor improperly cross-examined defense witnesses regarding their failure to come forward to the authorities with exculpatory evidence. And finally, the Petitioner alleges that the prosecutor's summation was improper because in it the prosecutor shifted the burden of proof, denigrated the defense, and vouched for the truthfulness of its own witness. (See generally Petitioner's Memorandum in Support of Application Pursuant to 28 U.S.C. § 2254 ("Pet. Mem.")). I will address the latter two claims first.
1. Petitioner's Claims of Prosecutorial Misconduct in Cross-Examination and Summation are Procedurally Barred and Otherwise Without Merit
The Appellate Division held that the Petitioner's challenges to the prosecutor's questioning of defense witnesses during cross-examination and to comments made by the prosecutor during summation, and his claim that the cumulative effect of this prosecutorial misconduct constituted reversible error "were largely unpreserved for appellate review" and in any event "without merit." Harripersaud, 2004 N.Y. slip op. 00534. The Appellate Division rested its decision on New York C.P.L. § 470.05, which preserves for appellate review only those questions of law as to which "a protest . . . was registered, by the ...