The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Jesus Torres ("Torres"), has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Erie County) on two counts of first degree robbery. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By Erie County Indictment No. 98-0048-001, Torres was charged with first degree robbery in connection with the robbery of two grocery stores on November 6, 1997, in the City of Buffalo. The first robbery occurred at 294 Vermont Street. Bolivar Diaz ("Diaz") recalled that he was alone in his store when Torres came in at about 4:15 p.m. T.68-70.*fn1 Torres walked by the coolers and then approached the counter, stating that he needed money to buy drugs. According to Diaz, Torres put his hand inside his shirt or jacket and said that he had a gun and that he would shoot Diaz if Diaz did not give him $20. T.71-74, 76, 80. Diaz handed Torres $20, and Torres left the store. T.82.
A few days later, Torres returned to the store and asked Diaz why he had called the police. T.84, 85. After this second confrontation, Torres left the store without incident. When shown a photographic array by the police, Diaz selected Torres's picture. T.110.
The second robbery occurred at a store on Hampshire Street later that evening. At about 7:20 p.m., Olga Rodriguez ("Olga"), was working behind the counter at the store when Torres came in. He went to the back cooler at first. T.119. Although he was wearing a sweatshirt, hood, and a jacket, nothing was covering his face; Olga recognized him as someone she previously had seen on the west side of Buffalo. T.120-21.
According to Olga, Torres selected various items and brought them to the counter, inquiring about the prices. He also asked for cigarettes. When Olga turned around to get them, Torres grabbed another man who was present in the store, pushed him behind the counter, and said, "[D]on't nobody move, this is a robbery." T.124. Olga testified that she saw Torres clearly. Olga believed that he had a gun because he did not take his hand out of his jacket and had said that he did not want to hurt anybody. T.127, 134.
Torres then asked Olga how to open the cash register. Lisalotte, Olga's niece, opened it for him, and he removed some money. On his way out of the store, Torres disconnected the phone. Olga recalled that his hand remained in his pocket.
In January 1998, about two months later, Detective Wagstaff of the Buffalo Police Department showed Olga a photographic array from which she selected petitioner's picture.
T.152, 211, 223-26. Prior to that time, Detective Wagstaff had shown an array containing a different photograph of Torres to Lisalotte, who could not identify petitioner. T.223. Apparently, the photograph of Torres used in the array shown to Lisalotte was a much older photograph.
Olga also testified that she was present in the store when her sister, Anna, was shown a picture by a detective. Olga stated that Anna did not identify Torres, adding that Anna was "not paying too much attention." T.143-44. Olga was not asked when this occurred.
Anna, Olga's sister, testified that she owned the store at Hampshire Street. She witnessed Torres grab another man who was present in the store, push him behind the counter, and tell Lisalotte and Olga to open the cash register. Anna also noticed that petitioner kept his hand in his pocket, and she heard him say that he did not want to hurt anyone. T.156-61, 169.
The jury returned a verdict convicting Torres as charged of two counts of first degree robbery (N.Y. Penal Law § 160.15(4)). He was sentenced as a second felony offender to two consecutive, determinate terms of imprisonment of twelve and one-half years, making his aggregate sentence twenty-five years.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on December 21, 2001. People v. Torres, 289 A.D.2d 991, 735 N.Y.S.2d 316 (App. Div. 4th Dept. 2001). The New York Court of Appeals denied leave to appeal on March 29, 2002. People v. Torres, 97 N.Y.2d 762, 769 N.E.2d 369, 742 N.Y.S.2d 623 (N.Y. 2002).
This timely habeas petition followed in which Torres raises three claims for relief, which respondent concedes are fully exhausted and properly before the Court. For the reasons set forth below, the relief requested herein is denied and the petition is dismissed.
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Torres contends that the prosecutor violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to timely disclose to defense counsel a photographic array shown to Lisalotte Rodriguez, who was unable to identify petitioner and who did not testify at trial.
On direct appeal, the Appellate Division held that the photographic array "constitute[d] Brady material, and should have been provided to defendant in response to his pretrial discovery demand rather than on the day before trial[.]" People v. Torres, 289 A.D.2d at 991. The court concluded, however, that there was no "reasonable possibility that the outcome of the trial would have differed had the evidence been produced" sooner since petitioner was "given a meaningful opportunity to use the allegedly exculpatory material to cross-examine" the police investigator who showed the array to the eyewitness. Id. (citations and quotations omitted).
Brady and its progeny require the prosecution provide the defense with any evidence favorable to the accused where the evidence is material to guilt or punishment. "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." United States v. Coppa (In re United States), 267 F.3d 132, 139 (2d Cir. 2001) (citing Giglio v. United States, 405 U.S. 150, 154 (1972) (holding the defense is entitled to pertinent evidence regarding a material witness's credibility or reliability, including evidence of any agreement or promises of leniency between the government and a government witness)). The Supreme Court has explained that there are "three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir. 2001). "The suppression of exculpatory documents does not cause a constitutional violation unless the documents are material, i.e., 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Boyette, 246 F.3d at 91 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
Neither the Supreme Court nor the Second Circuit has recognized an absolute right to pretrial discovery of Brady material or discovery upon demand. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably. There is no general constitutional right to discovery in a criminal case, and Brady did not create one[.]"); accord Gray v. Netherland, 518 U.S. 152, 168 (1996); see also Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible or desirable to specify the extent or timing of disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence when disclosure is made. Thus disclosure prior to trial is not mandated.") (citing United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2d Cir. 1974); Grant v. Alldredge, 498 F.2d 376, 382 (2d Cir. 1974)). Rather, the prosecution must disclose such evidence in time for its effective use at trial. See Leka, 257 F.3d at 100; Coppa, 267 F.3d at 144 ( "[T]here is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial.").
Defense counsel was apprised at the pre-trial hearing that Lisalotte had failed to identify Torres and that she was in Florida and would not be testifying at trial. Defense counsel argued to the trial court that because he did not receive the photographic array shown to Lisalotte earlier, he should be permitted to elicit evidence regarding Lisalotte's inability to identify Torres. The trial court held that counsel would be permitted to do that, based on its belief that there had been a discovery violation. Later during trial, the prosecutor explained that it had provided notice to defense counsel that he could make an appointment to see all photographs shown to witnesses; defense counsel did not dispute that.
Here, the state appellate court found that the array constituted Brady material and should have been provided to Torres in response to his discovery demand. In so holding, the state court appeared to read into Brady a timing requirement that the Supreme Court has held does not exist. However, the state appellate court's finding that defense counsel had a "meaningful opportunity" to use the material mirrors the standard articulated by the federal courts regarding whether or not there has been a "suppression" of favorable evidence. See, e.g., Leka v. Portuondo, supra. The state appellate court's ultimate holding, therefore, was a correct application of clearly established federal law. Defense counsel received the photographic array prior to opening statements and did not seek a continuance. And, as demonstrated by his cross-examination of Detective Wagstaff establishing Lisalotte's inability to identify Torres, it appears to this Court that counsel obtained the photographic array in time to use it effectively at trial. See Leka, 257 F.3d at 100. Accordingly, because Torres cannot establish all of the required elements of a Brady claim, he cannot obtain habeas relief on this basis.
2. Ineffective Assistance of Trial Counsel
Torres contends that trial counsel was ineffective in his handling of Anna Rodriguez's cross-examination in that counsel elicited certain testimony from her that Torres claims was unfavorable. Trial counsel ultimately had to stipulate that in June or July of 1998, he (counsel) had shown Anna a photographic array from which she had selected Torres's photograph as the robber.
During his cross-examination of Olga, Anna's sister, defense counsel asked Olga, "[I]n your presence, while you were in the store, did a detective with the Buffalo Police Department show a photo to your sister [Anna] or your niece at any time?" T.143. The question was not linked to a date. Olga stated that Anna had been shown photographs by a detective but she could not identify Torres. T.143 ("She did not identify. She was not paying too much attention that night [of the robbery]."). Apparently, Olga's response to this question led defense counsel to believe that there had been two police-arranged photographic arrays during which Anna had been unable to identify Torres.*fn2 As part of his strategy of undermining the identifications that had occurred in this case, defense counsel (Mr. Keefe) proceeded to question Anna on cross-examination about her inability to identify Torres:
Q: Did police come to your store after this robbery?
Q: And did they talk with you?
Q: Did they ever show you photos of suspects they had for this robbery?
Q: Did they ever show you suspects that they had - - or, pictures of persons that they suspected?
Q: Do you remember when they showed you those photos, approximately?
Q: But you do remember seeing a photo?
Q: And were you able to identify the person that robbed you in that photo? A: The first time I identified the person.
Q: How many times did you look at photos of people that may have robbed your store?
Q: Both on the same day or on ...