The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:
REPORT AND RECOMMENDATION SUPERINTENDENT
To the Honorable Jed S. Rakoff, United States District Judge:
Petitioner Robert Hopkins, represented by the Center for Appellate Litigation, seeks a writ of habeas corpus from his August 5, 2002 conviction in Supreme Court, Bronx County, of second degree robbery and third degree criminal possession of stolen property, and concurrent sentences, the longest of which was nine years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-3.) Hopkins' habeas petition raises the single claim that the trial court's admission into evidence of the guilty plea allocution of a non-testifying co-defendant violated Hopkins' Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and was not harmless error. (Pet. ¶ 11; see Dkt. No. 2: Hopkins Habeas Br. at 1.)
For the reasons set forth below, Hopkins' habeas petition should be DENIED.
Petitioner Robert Hopkins and co-defendants Clarence Woods and Calvin Rivers were indicted for robbery and possession of stolen property for the robbery of Ravon Pierce in the early morning hours of Sunday, January 7, 2001. (See generally Dkt. No. 2: Hopkins Habeas Br. at 2; Dkt. No. 9: State Habeas Br. at 2.) Rivers pled guilty to first degree robbery prior to trial, and his plea allocution was read to the jury at the trial of Hopkins and co-defendant Woods. (See generally Hopkins Habeas Br. at 2; State Habeas Br. at 2.)
The Prosecution Case at the Trial of Hopkins and Woods
Victim Ravon Pierce's Testimony
The prosecution's first witness at trial, and its main witness, was the robbery victim, Ravon Pierce. (Dkt. Nos. 5-6: Trial Transcript ["Tr."] 2, 4.)
Pierce testified that in the early morning hours of January 7, 2001 he borrowed his mother's car,*fn1 a Toyota Camry with license BU147M, and drove to 562 Morris Avenue in the Bronx to meet his friend, a woman he knew only as "Puck," and take her out to eat. (Pierce: Tr. 4-6, 236-38, 395-96, 410-11.) Pierce parked a short distance from Puck's building, on the same side of the street. (Pierce: Tr. 7, 15, 24-25, 239-44, 412.) Pierce went to a nearby store and bought a "Zima," a wine cooler-type alcoholic beverage. (Pierce: Tr. 6-7, 26, 246, 250, 261, 265, 414.) Pierce was carrying a green backpack type book bag with a notepad and two books in which he had written his name. (Pierce: Tr. 27-28, 275.)
Four men were "hanging out" in front of Puck's building. (Pierce: Tr. 6-7, 26, 223, 253, 273-74, 415.) Pierce asked one of the men if they knew who Puck was, and the "shortest" man with the "red bandana" in his back pocket responded that she lived on the second floor, so Pierce entered the building. (Pierce: Tr. 7, 26-27, 29-30, 251-53, 272, 391-92, 414-15.) In court, Pierce unequivocally identified the man with the red bandana as Hopkins. (Pierce: Tr. 30, 56, 464-65.)
Pierce went up to the second floor and knocked on Puck's apartment door, but no one responded. (Pierce: Tr. 40-41, 224, 272, 416.) Since Pierce had spoken to Puck thirty minutes before to say he was on his way, he thought she might be "playing games," so he waited outside her apartment door, drinking his wine cooler. (Pierce: Tr. 41, 274, 276, 278-79, 430.)
The four men Pierce had seen in front of the building came upstairs. (Pierce: Tr. 42-43, 224, 278-79, 389, 392, 430.)
Hopkins spoke to Pierce, knocked on Puck's door, and made a cell phone call, possibly to Puck. (Pierce: Tr. 43, 224-25, 260, 389-40.) After about five minutes, one of the men told Pierce to leave, but as Pierce started to walk down the steps, one of the men hit him in the right eye. (Pierce: Tr. 44-45, 58, 227-28, 265-66, 280-81, 299-301, 431-32.) At trial, Pierce initially testified that it was Woods who hit him (Pierce: Tr. 44-45), but immediately changed his mind and said it was not Woods but the man with a silver outfit who hit him, while Pierce said Woods was wearing a black leather jacket that night. (Pierce: Tr. 46-47.) A few minutes later in his testimony, however, Pierce said that it was the unidentified man who punched him who was wearing the black leather jacket, and that Woods was wearing the silver jacket. (Pierce: Tr. 53-56, 58; see also id. at 338-40.) Pierce, however, consistently identified Hopkins as the man with the red bandana. (Pierce: Tr. 20, 56, 464-65, 474.)
When he got hit, Pierce felt a little dizzy, with blurred vision, but was still able to see. (Pierce: Tr. 58-59, 330, 435-36.)*fn2 Pierce noticed he was bleeding, he ran and the men gave chase. (Pierce: Tr. 58-59, 431-33.) Pierce was thrown or pushed down the last steps into the lobby. (Pierce Tr. 59-62, 228-29, 434, 438.) Pierce's ankle hurt, so he crawled toward the front door, but the men pulled him back into the lobby. (Pierce: Tr. 62-63, 229, 305-07, 439-40, 455.) Hopkins kneeled over Pierce and asked Pierce where was the money. (Pierce: Tr. 64-67, 231-32, 312, 331.) Pierce gave Hopkins $2, which he said was all he had,*fn3 and Hopkins took Pierce's book bag. (Pierce: Tr. 67, 75, 76-77, 78, 308.) The man in the silver outfit was squatting an arms length away with a knife in his hand. (Pierce: Tr. 67-69, 72-75, 232, 266, 331.) The man also told Pierce that he had a gun. (Pierce: Tr. 333-34.)
At some point, Pierce asked if they wanted his car keys also, and he gave or "threw" his car keys; the man with the black leather jacket took them and ran out of the building. (Pierce: Tr. 77, 111-12, 233-34, 308, 312-14, 318, 332, 371-72, 382-83.)
Hopkins told Pierce to stand up. (Pierce: Tr. 75, 78, 114.) Hopkins and the man with the knife wearing the silver outfit walked Pierce to the basement and told him not to leave until they came back. (Pierce: Tr. 78-79, 320.)
Pierce remained in the basement for thirty minutes, or forty-five minutes to an hour (his testimony was inconsistent), when two other men entered the basement and asked whether Pierce was alright, and Pierce responded that he had been robbed. (Pierce: Tr. 86-87, 259, 321-25, 383-84, 444-46.) Pierce went upstairs and after a little while went outside to go to the hospital. (Pierce: Tr. 88-89, 329.) Pierce saw that his car was not where he had parked it. (Pierce: Tr. 90-91, 447.) Pierce walked to the emergency room of Lincoln Hospital, but did not feel like waiting, so he left and walked to a police precinct, to more promptly report the car as stolen. (Pierce: Tr. 91-92, 98, 267-68, 451, 526-27.) The police drove him to a different police precinct (Pierce: Tr. 98-99, 457, 527), where he told the police what had happened. (Pierce: Tr. 100, 262-63, 458-59.) Pierce told the police that his car had been stolen and gave the police the license plate number. (Pierce: Tr. 105-07.) Pierce described the men to the police as being black, in their teens, and gave further individual descriptions as follows: the man in the black leather jacket was 175 pounds, probably 5'11", clean-shaven (Pierce: Tr. 100-04); the man with the knife in the silver outfit was maybe 5'10", with a mustache (Pierce: Tr. 103, 475); the man with the red bandana (i.e., Hopkins) was 5'6", as was the fourth man, but he could not estimate their weight (Pierce: Tr. 104-05).
At trial, Pierce identified the backpack (People's Exhibit 10) and some of its contents as his. (Pierce: Tr. 114-16, 122-36; see also Haynes: Tr. 612-18.)
The police drove Pierce to Lincoln Hospital. (Pierce: Tr. 103-08, 268.) Pierce told the doctor he was hurt during a robbery and car-jacking. (Pierce: Tr. 230-32.) Pierce received around ten stitches by his eye and crutches because he hurt his ankle when he fell down the steps. (Pierce: Tr. 136-37, 208-12; see also Haynes: Tr. 607; Dr. Fine: Tr. 717-22, 739-41.)
On January 9, 2001, Pierce was called to a police precinct to view two lineups. (Pierce: Tr. 138-39, 220-22.) At the first lineup, he identified Hopkins as the man with the red bandana who he had given the money to. (Pierce: Tr. 140-42, 466, 474, 520-21.) In the second lineup, he picked out the man who held the knife. (Pierce: Tr. 143-46, 148; see also Pierce: Tr. 474-79, 489-96.) Pierce testified that the man in that lineup, the man who held the knife, was not co-defendant Woods. (Pierce: Tr. 148, 213-14.)*fn4 Pierce testified on cross-examination that the second lineup photo, and the photos of the defendants that he saw on the A.D.A.'s desk during a lunch break, refreshed his recollection that Woods was not the person with the knife, Woods was the man who punched him in the eye. (Pierce: Tr. 213-15, 344-45, 365-70.) The photos are what caused him to change his testimony about Woods. (Piece: Tr. 345, 521, 552-53.)
Pierce's mother testified that the police showed her car to her on "that following Tuesday," and allowed her to take it on Friday. (Haynes: Tr. 593-96.)
Officer Gordon Brown testified that while on routine patrol on January 9, 2001, he arrested Hopkins and Calvin Rivers. (Brown: Tr. 630-32.) Officer Brown identified Hopkins in court. (Brown: Tr. 632.) Officer Brown saw a Toyota Camry make a turn without signaling, and when he ran the license plate number -- BU147M -- on his car's computer, it came back as "reported stolen" on January 7, 2001. (Brown: Tr. 633-35, 695.) Officer Brown and his partner stopped the Toyota, which was being driven by Hopkins. (Brown: Tr. 642-45, 695-96.) The passengers were Calvin Rivers and Germaine Stevenson. (Brown: Tr. 647-48.) Co-defendant Woods was not in the car. (Brown: Tr. 689-90.) The police arrested the car's three occupants. (Brown: Tr. 648-49.) The police took the Toyota to the precinct, where Officer Brown found a green backpack bookbag containing three books. (Brown: Tr. 649-51, 654, 656-66, 690.) Officer Brown took "pedigree" information from Hopkins and Rivers -- Hopkins said he was 5'6" and weighed 160 pounds (Brown: Tr. 672-73), and Rivers said he was 5'9" and 150 pounds (Brown: Tr. 688-89).
Detective Edward Patterson testified to the lineup he conducted at which Pierce identified Hopkins. (Patterson: Tr. 854-61, 909-11, 917-18, 922-27.) Detective Patterson also testified that he arrested Woods on January 12, 2001 (Patterson: Tr. 862-63, 884, 899-900), gave him Miranda warnings (Patterson: Tr. 863-78, 885-91), and took a written statement from Woods (Patterson: Tr. 878-79, 891-99). According to Detective Patterson, Woods' statement was that he told a guy to stop knocking on an apartment door in 562 Morris Avenue, the guy "said something slick" and so Woods hit him and ran out of the building. (Patterson: Tr. 879-80.)
Calvin Rivers' Plea Allocution
After a lengthy colloquy outside the jury's presence at which the defense objected to admission into evidence in this trial of Calvin Rivers' guilty plea allocution, the trial judge's decision to admit it if Rivers' refused to testify (which he did, Rivers: Tr. 832-35), and discussion as to appropriate redactions of the plea allocution (Tr. 777-832), Rivers' redacted plea allocution was read to the jury. (Tr. 836-37; see also Tr. 960-69.)
Rivers admitted that on January 7, 2001 "in the vicinity of 542 Morris Avenue, at 1:30 in the morning," he participated with "A" and "B" in a robbery -- the judge having inserted "A" and "B" instead of the names. (Rivers: Tr. 782-83, 960.) Rivers stated that they were in the building, and Rivers asked "this guy" who he was looking for, and the guy said a name, but his hand was "in his pocket," so they felt threatened and "A" hit him and Rivers punched him downstairs. (Rivers: Tr. 788-91, 796-97, 960-63.) Rivers took the guy to the basement. (Rivers: Tr. 791, 961.) None of them had weapons. (Rivers: Tr. 791-92, 961.) A few minutes later in the allocution, Rivers admitted that he had a knife. (Rivers: Tr. 794, 798, 962.) Rivers initially allocuted that he picked up the car keys from the floor (Rivers: Tr. 796, 962), but then stated that "B" took the ...