The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge
In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, pro se petitioner Sean Stallings ("petitioner" or "Stallings") seeks relief from the concurrent sentences imposed on him as a consequence of his conviction in New York State Supreme Court, Queens County, on two counts of Robbery in the First Degree and two counts of Robbery in the Second Degree. Both sides have consented to have this matter handled by this magistrate judge for all purposes. For the reasons that follow, the petition is denied and the case dismissed.
A. The Prosecution's Case
Stallings' conviction stems from the robberies of two individuals at the "J and D" grocery store on October 16, 1999. At trial, Junior Rodriguez ("Rodriguez"), a cashier at the store, testified that he went out that afternoon to buy beer for the bodega, returning between 4:30 p.m. and 5:00 p.m. (Trial Transcript ["T."] 120.) As he and his co-worker, Patricio Garcia, unloaded the beer from the van, Garcia directed Rodriguez's attention to a man, later identified as defendant Sean Stallings, sitting on a bicycle in front of the store, looking inside. (T. 122.)
Rodriguez recognized Stallings as the man against whom he had previously filed complaints and taken out orders of protection in response to two incidents, one in which Stallings threw a bottle through the store window, and the other in which he made threatening gestures toward Rodriguez. (T. 189-90).*fn1 Rodriguez testified that he had previously seen petitioner "more than 100 times." (T. 123.) While observing petitioner outside the store on October 16, 1999, Rodriguez noticed he was wearing a blue Yankees jacket and blue jeans, and had a scar on his face. (T. 122, 143.)
At approximately 9:15 p.m. that evening, petitioner and two accomplices entered the store holding pistols. (T. 124, 168.) The two accomplices had their faces covered with black "do rags." (T. 132.)*fn2 Rodriguez, who identified petitioner in court, testified that petitioner's face was not covered when he entered the store and that he recognized petitioner from earlier that day, observing the same scar on his face and the same clothing. (T. 123-24, 132-33, 154-56.) Petitioner approached Rodriguez at the cash register, hit him in the head with a pistol, and demanded that he open the cash register. (T. 127-28.) Petitioner covered his face as he demanded the money, and told Rodriguez "don't look at my face." (T. 127, 154.)*fn3 Rodriguez opened the register and gave petitioner the money from inside, which amounted to approximately $400. (T. 128, 155.) The first accomplice stayed by the door, while the second accomplice went to the middle of the store, took a customer's wallet and "shoved him" into a display of potato chips. (T. 129-30.)
After the three men fled the store, Rodriguez called the police. (T. 132, 134.) Officers arrived at the scene 15 minutes later, and Rodriguez described what had transpired. (T. 136, 221.)*fn4 He told the officers that he recognized one of the robbers, but did not recall his name. (T. 167-68.) One of the officers played the store's surveillance tape on a V.C.R. and television in the back room, but found that "[t]here was nothing to be seen. It was like all snowy." (T. 223.)
Two days later, on October 18, 1999, Rodriguez went to the police precinct with two orders of protection he had previously obtained against Stallings, and identified him as one of the perpetrators. (T. 193.) On October 20, 1999, Detective Frank Cayea arrested petitioner outside his home. (T. 205-06.)
On cross-examination of Rodriguez at trial, the defense attempted to draw out several inconsistencies in his story. Rodriguez reiterated that he had recognized petitioner from the clothing he wore and the scar on his face, which he first noticed at 5:00 p.m. on the day of the robbery. (T. 157.) Counsel then elicited that Rodriguez had testified before the grand jury that he saw the scar for the first time during the robbery. (T. 159.) Rodriguez acknowledged that when he initially spoke to the police and was asked to describe petitioner, he described the clothing he wore but did not mention the scar. (T. 165-67.) He also conceded that he had been unable to recall petitioner's name, although he did tell the police that he recognized him. (T. 165-67, 183.) On redirect, the prosecution was permitted to show that, while Rodriguez had told the grand jury at one point that he did not see the scar until the robbery, he testified at the same proceeding that he actually did first notice the scar earlier that day. (T. 171-73.)
Defense counsel sought to further impeach Rodriguez's credibility regarding his observation of petitioner by eliciting testimony on cross-examination of Detective Cayea that Rodriguez had told him that "three males entered the store wearing bandanas." (T. 206.) However, the detective clarified on redirect that Rodriguez had told him that "one of the males when he entered the store he did not have his bandana on, and put it on as he was coming into the store." (T. 208.)
Ky'al Gordon and Tahj White, both long-time friends of petitioner (T. 242, 279), testified on his behalf. Their testimony conflicted on several details. Gordon testified that she went to the bodega at around 8:00 p.m. the evening of the robbery to buy some refreshments. She met up with White at around 9:00 p.m. in front of the barber shop next door, where White was about to get his hair cut. (T. 247.) Their attention was drawn to the bodega when someone said it was being robbed. (T. 249.) Gordon saw three men leave the store: one was 5'8 to 5'10 and 200 pounds, with light brown skin; another was approximately the same height and had the same complexion, but was thin; the third was approximately five feet tall with a darker complexion. (T. 233, 250-51.) All three wore gray hooded sweatshirts with the hoods tied tightly around their heads and had bandanas covering their mouths, such that only their noses and eyes were visible.
(T. 233, 256.) The heavy-set man exited first, followed by the skinny man, and then the short man, who was holding a gun. (T. 250, 256.) When asked about the lighting conditions on the street, Gordon answered that it was dark. (T. 256.) She further testified that, as the three men left, "[t]hey didn't run away, they walked away." (T. 258.) After the robbery, Gordon did not go to the police, but she and White (and no one else) met with an investigator hired by defense counsel.
White testified on direct that when he ran into Gordon outside the barbershop, he had "[j]ust finished getting [his] hair cut" and was waiting outside for another friend. (T. 275.) On cross-examination, however, when the court inquired "did you ever get your hair cut?," he answered "No, I left after [the robbery]." (T. 294.) White testified that the corner where he and Gordon were standing was "pretty well lit," by a street lamp and the lights from the storefronts.
(T. 278.) As they were talking, he saw a short, dark-skinned man in a hooded sweatshirt, jeans and a jacket enter the bodega while pulling a handkerchief over his face. (T. 289.) At some point, White's friend, Donald Sterling, who had gone into the store to get something, returned and said that the store was being robbed. (T. 276.) Approximately one minute later, White saw three men leave the bodega; two were 5'7 to 5'10 with dark skin, while the third was taller, with a lighter complexion. (T. 276.) White did not see anyone holding a gun. (T. 290.) The three men "were moving quickly" and "bolted around the corner." (T. 291.) The following week, White, Gordon, and Gordon's friend Bobby all met with a defense investigator, and all spoke about their observations on the evening of the robbery. (T. 297-98.)
C. The Verdict and Sentence
The jury found petitioner guilty of two counts of Robbery in the First Degree and two counts of Robbery in the Second Degree. (T. 392-93.) He was sentenced to determinate prison terms of ten years for each first degree robbery conviction, and seven years for each second degree robbery conviction, all of which were to run concurrently. (Sentencing Transcript ["S."] 8.) Petitioner is currently incarcerated pursuant to that judgment of conviction.
Prior to trial, the Honorable Stanley B. Katz of the Supreme Court, Queens County, held a Wade hearing*fn5 to determine whether to suppress Rodriguez's identification of petitioner on the basis that it was the product of an unduly suggestive single-photo identification procedure. Detective Cayea, the sole witness at the hearing, testified that the police were able to retrieve a photo of petitioner from their computer database after Rodriguez brought to their attention the two orders of protection that he had previously taken out against petitioner. (Wade Hearing Transcript ["H."] 14-15.) Cayea then interviewed Rodriguez, who related to him "that three males entered the store wearing bandanas," and that one of them walked to the register, pointed a gun, and demanded money. (H. 8.) Cayea showed Rodriguez the photograph, and Rodriguez confirmed that it depicted one of the men who had robbed his store. (H. 8.) Rodriguez indicated that he had previously filed a complaint against petitioner for damaging his store, that he had seen him on numerous prior occasions near the store, often wearing a Yankees jacket, and that he saw him during the afternoon of the robbery. (H. 9-10.) Rodriguez also stated that he recognized petitioner during the robbery from a scar on his face. (H. 15.) Cayea asked Rodriguez how many times he had seen petitioner in the past, inquiring if it was "more than ten" times. Rodriguez answered "yes." (H. 10.)
On September 25, 2000, the court issued a written opinion denying suppression of the in-court identification.*fn6 (9/25/00 Decision and Order on Motion to Suppress Evidence of Identification, Respondent's Exhibit J [RX J], appended to Declaration in Opposition to Petition for a Writ of Habeas Corpus.) The court held that, because a prior familiarity existed between Rodriguez and petitioner, "the identification procedure [was] . . . merely confirmatory, and need not be suppressed as suggestive." (RX J at 2.)
III. Post-Conviction History
On June 26, 2002, petitioner appealed to the New York Supreme Court, Appellate Division, Second Department, on the same grounds that he raises in his habeas petition, namely that: (1) the prosecution failed to prove Stallings' guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence; (2) Stallings' sentence was excessive; (3) the court's findings of fact with regard to the identification testimony were not supported by the record of the Wade hearing; (4) the court abused its discretion when it refused, upon defense counsel's request, to instruct the jury to scrutinize the identification testimony; and (5) Stallings was denied effective assistance of trial counsel.
In a decision dated July 21, 2003, the Appellate Division unanimously affirmed the conviction, specifically finding that (1) the record of the Wade hearing supported the factual determination that Rodriguez's identification of Stallings from a single photograph was merely confirmatory; (2) Stallings' challenge to the sufficiency of the evidence was unpreserved for appellate review, and, in any event, meritless; (3) the resolution of issues of credibility and the weight to be accorded the evidence presented were questions for the trier of fact; (4) the sentence imposed was not excessive; and (5) Stallings' "remaining contentions, including those raised in his supplemental pro se brief, are without merit." People v. Stallings, 762 N.Y.S.2d 517, 518 (2d Dep't 2003).
By letter dated August 11, 2003, petitioner sought leave to appeal to the New York Court of Appeals. On December 3, 2003, the court denied petitioner's application. People v. Stallings, 1 N.Y.3d 581 (2003).
Petitioner timely filed his federal habeas petition, in the Southern District of New York, on October 1, 2004. On that same day, by order of Chief Judge Michael Mukasey, the case was transferred to this district. District Judge Nina Gershon referred the petition to this magistrate judge for a Report and Recommendation on January 18, 2006. Since then, both sides have consented to have the case handled for all purposes by a magistrate judge, pursuant to 28 U.S.C. § 636(c)(1). (2/6/06 Letter to the Court from Petitioner Sean Stallings, and attachment thereto; 3/23/06 Letter to the Court from Respondent State of New York.)
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a deferential standard that federal habeas courts must apply when reviewing state court convictions. Under AEDPA, a federal court may grant habeas relief with respect to a federal claim adjudicated on the merits in state court only if that adjudication (1) 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) 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).
The threshold inquiry is whether the petitioner "seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 390 (2000)). A law is clearly established if it has been enunciated in the holding -- as opposed to dicta -- of a Supreme Court decision, whether as a generalized standard "or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh, 289 F.3d at 42; see also Williams, 529 U.S. at 412.
A state court decision is "contrary to" Supreme Court precedent if the court "applies a rule that contradicts the governing law," or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless" arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
A decision involves an "unreasonable application" of Supreme Court precedent if the state court "identifies the correct governing legal rule from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. The relevant inquiry is "whether the state court's application of clearly established federal law was objectively reasonable," and not merely whether, in the independent judgment of the federal habeas court, the decision was erroneous or incorrect. Id. at 409-10.
Regarding the second prong of AEDPA, a state court's factual determinations are presumed to be correct. 28 U.S.C. § 2254(e)(1). Such determinations are unreasonable only where the petitioner rebuts the presumption of correctness "by clear and convincing evidence." Id. By its terms, AEDPA's deferential standard of review applies only to federal claims adjudicated on the merits. An adjudication is on the merits if it was "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." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). AEDPA's deferential standard of review applies even if the state court did not "explicitly refer to either the federal claim or to relevant federal case law." Id. at 312. As long as the state court "dispose[d] of the petitioner's federal claim on substantive grounds, and reduce[d] that disposition to judgment[,] [n]o further articulation of its rationale or elucidation of its reasoning process is required." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Early v. Packer, 537 U.S. 3, 8 (2002) (state court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); James v. Artus, No. 03 Civ. 7612(AJP), 2005 WL 859245, at *7 (S.D.N.Y. Apr. 15, 2005) ("Even where the state court decision does not specifically refer to either the federal claim or to relevant case law, the deferential AEDPA review standard applies.").
Petitioner seeks habeas relief on six separate grounds: (1) the verdict was against the weight of the evidence; (2) the evidence was legally insufficient to establish guilt beyond a reasonable doubt; (2) the sentence imposed was excessive; (4) the trial court erred in denying his motion to suppress identification testimony; (5) the trial court abused its discretion in denying his request to instruct the jury ...