The opinion of the court was delivered by: Trager, J
In this petition for habeas corpus relief pursuant to 18 U.S.C. § 2254 petitioner Michael Robinson ("Robinson") challenges his New York State murder conviction. In October 1999, petitioner's application for the writ was denied; a certificate of appealability was also denied. Petitioner then petitioned the Second Circuit (1) for a certificate of appealability and (2) to expand the certificate of appealability to include a claim that was found to be unexhausted. The Second Circuit affirmed the district court's judgment in part and remanded in part.
Pursuant to the Second Circuit's order on remand, petitioner's habeas petition was stayed to allow him the opportunity to return to state courts to raise the unexhausted claim. Having now unsuccessfully raised this claim before the state court pursuant to New York Criminal Procedure Law § 440.10, petitioner once again seeks habeas relief before this court asserting actual innocence and an alleged violation of his Sixth Amendment right to effective assistance of counsel. Specifically, petitioner asserts that trial counsel's failure to introduce a photograph of petitioner taken at the time of his arrest rises to the level of constitutional infirmity because it would have proved his innocence. For the reasons that follow, this petition is denied.
A jury tried and convicted Michael Robinson for the January 1993 murder of his estranged wife, Gwendolyn Samuels. At the time of the murder, petitioner and Ms. Samuels had been separated for about a year, and Ms. Samuels was living with Jermaine Robinson, her then-current boyfriend with whom she was about to have a baby.
The murder took place at Ms. Samuels's place of employment, the home of eighty-eight-year old Alveina Marchon, in Bayside, Queens. The factual recitation that follows is based on Ms. Marchon's testimony at trial, as she was the sole eyewitness to the murder.
A short time before Ms. Samuels death, a man arrived at Ms. Marchon's house, and Ms. Samuels introduced him to Ms. Marchon as her husband Michael. (Tr. at 379.) Although petitioner had never come inside the house before, Ms. Marchon recognized him from the many previous times that she had seen him pick up Ms. Samuels from work, albeit from the distance between her house and the curb. (Tr. at 396.)
On the day of the murder, while Ms. Samuels cleaned, petitioner sat with Ms. Marchon in her living room. For approximately fifteen minutes before Ms. Samuels and petitioner left to run an errand, and again after they returned, petitioner watched television with Ms. Marchon. (Tr. at 379-80.) As they sat together in the living room, Ms. Marchon engaged petitioner in conversation. As Ms. Samuels had on a previous occasion told Ms. Marchon that petitioner was interested in becoming a police officer, Ms. Marchon asked him how long it would take to join the force. He responded: "about a year." (Tr. at 379.)
At around 2:30 p.m., Ms. Marchon watched petitioner follow Ms. Samuels upstairs. (Tr. at 380.) A few minutes later, responding to Ms. Samuels' screams, Ms. Marchon went upstairs to her bathroom, where she witnessed petitioner stabbing Ms. Samuels. (Tr. at 380-81.) Ms. Marchon approached petitioner and attempted to intercede to no avail; petitioner stabbed Ms. Samuels repeatedly until he fled the bathroom, stabbing Ms. Marchon on his way out. (Tr. at 381.)
By the time the police arrived to the house, Ms. Samuels had died from multiple stab wounds to the back and neck. Ms. Marchon survived and identified Ms. Samuels' husband as the person who had stabbed both herself and Ms. Samuels. Upon Ms. Marchon's identification, the police proceeded to locate petitioner, executing a warrant for his arrest at his parents' house later that day.
Robinson was thereafter charged with two counts of Murder in the Second Degree (Penal Law §§ 125.25 and ); Attempted Murder in the Second Degree (Penal Law §§ 110/125.25); four counts of Assault in the First Degree (Penal Law §§ 120.10, , , and ); Reckless Endangerment in the First Degree (Penal Law § 265.10); and two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01). All but the two counts of Murder in the Second Degree, Attempted Murder in the Second Degree and Assault in the First Degree (Penal Law § 120.10) were dropped during trial on the People's motions.
Prior to trial, Ms. Marchon identified petitioner on two additional occasions: (1) in a photograph shown to her at the hospital two days after the crime and (2) in a line-up six months later. At the hospital immediately following the murder, Ms. Marchon also told Detective Whirter that Ms. Samuels' boyfriend/common law husband committed the murder; she told a doctor that Ms. Samuels' boyfriend committed the murder and told someone else that a worker committed the murder.
The propriety of these identifications was the subject of a pretrial suppression hearing. During the hearing, petitioner's counsel argued that showing Ms. Marchon pictures of petitioner while she was in the hospital was unduly suggestive, particularly one photograph showing petitioner with Ms. Samuels.*fn1 In defense of its identification procedure, the People introduced into evidence the second photograph Ms. Marchon viewed in the hospital, a photograph of petitioner taken at the time ...