The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Miguel Ortiz ("Ortiz") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on November 13, 1996, in New York State Supreme Court (Monroe County) on two counts of second degree murder (felony murder and intentional murder), one count of attempted second degree murder, and one count 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
Ortiz was arrested, along with a man named José Santiago ("Santiago"), in connection with the robbery and shooting of Francisco Soliman ("Soliman") and his wife Mayra Soliman ("Mayra") on the afternoon of December 13, 1995, in which Mayra was fatally shot in the head. Soliman also was shot in the head, but he survived.
On the day of the shooting, Soliman was interviewed by members of the Rochester Police Department, including an officer fluent in Spanish. His wife's friend, Marilyn Guzman ("Guzman"), acted as an interpreter. Soliman told them that he had been approached by two men outside his home who told him that this was a hold-up and that they wanted his money. T.407. Soliman initially told the police that the men ordered him into the house after he said that he did not have any money. Soliman stated that one man was someone he knew from the streets and that the other man was a total stranger to him. T.411. The following day, December 14th, Soliman told the police that he had not been truthful at first about his knowledge of the perpetrators' identities because he wanted to exact his own revenge on them. T.385-86, 406-08, 441. Soliman declared that, in fact, he did know one of his assailants, and that it was a man he knew named "Mikey." "Mikey" was the name by which Ortiz was known in the neighborhood. T.444-45. At the time, Soliman did not give any information about the other individual involved in the shooting.*fn1
The trials of Ortiz and Santiago were severed. Ortiz was tried before a jury in Supreme Court (Monroe County) (Wisner, J.) from November 4 through November 13, 1996. The prosecution presented evidence that on the afternoon of December 13, 1995, Mayra Soliman was in her home on Dewey Avenue with her eighteen-month-old son. At about 2:30 p.m., while Mayra was on the phone with Tanya Rivera ("Rivera"), Ortiz arrived at her house with a couple of his friends. T.622. Ortiz happened to be Rivera's boyfriend at the time. T.619. Mayra told Rivera, "Tanya, I think your boyfriend is outside with a couple of his friends." T.622. Rivera replied, "If Richie [Soliman'snickname] is not there, don't open [the door]." Id. The phone call ended shortly thereafter. Id.
Meanwhile, at about 1:45 p.m. on December 13, 1995, Soliman had left school at the Family Center where he was studying English and stopped to run an errand on the way home. As he pulled into the driveway to the rear of his house on Dewey Avenue, Soliman observed a male Hispanic standing by his back door, who told him that he was with "Mikey." T.356-59. Soliman knew Mikey (i.e., Ortiz) as the boyfriend of his wife's friend, Rivera. T.360. Soliman then knocked on the door and was let inside by Mayra; the person who was standing outside entered the house with Soliman. T.362. Prior to the date of the robbery, Soliman had seen "Mikey" (i.e., Ortiz) about eight or nine times in the neighborhood. Ortiz also had been to dinner at Soliman's house on two occasions with Rivera. T.361-63.
Once inside the kitchen, Soliman observed Ortiz exit the bathroom and come into the kitchen. Soliman remained in the kitchen with Ortiz for about ten minutes before Ortiz told Soliman that he wanted to speak with him about something upstairs. Soliman and Ortiz went to a bedroom on the second floor and sat on the bed to talk, at which point Ortiz said that he needed a loan. Soliman told Ortiz that he did not have any money. Ortiz announced, "This is a robbery," and pulled a gun from his pocket and put it to Soliman's head. T.364-65.
Ortiz continued to demand money from Soliman and, at one point, called out to the other man to come upstairs. T.367. Mayra, carrying the baby, came upstairs with the other man. Ortiz demanded money from Mayra, who told them that she only had three thousand dollars and begged the men not to shoot them. In response, Ortiz remarked, "I have to, you know us." T.367. Mayra gave the men the money she had and again begged them not to kill her and her husband. T.368.
Not satisfied with the three thousand dollars, Ortiz demanded more money and began to rummage through the dresser drawers. T.368-69. Soliman recalled that Ortiz threw coins at him as he lay face down on the bed. Id. Shortly thereafter, Ortiz approached Soliman, who had two pillows on his head, and shot him once in the head. T.369-71. As Soliman was lying on the bed, in agonizing pain from being shot in the head, he heard another gunshot come from another part of the house. T.371. Soliman waited some time before standing up and calling out for his wife; she did not respond. Soliman managed to make his way down the staircase and out the front door; he recalled that he was unable to see well at the time. T.371-72.
Neighbors saw Soliman staggering out of his house and toward the street, repeatedly saying, "my wife, my baby." T.214, 236, 372. Eventually, Soliman found himself on the ground in front of his house. T.539, 555, 793. His neighbors Onier Ramon Cabrera ("Cabrera") and Jody Taylor ("Taylor") called 911 and stayed with him until the ambulance arrived. Soliman told Taylor that his wife and baby were inside the house. T.794.
The ambulance arrived at about 3:02 p.m., after receiving a call that there was a drunken man on the sidewalk. T.560. Upon his arrival, paramedic James Neary ("Neary") ascertained that Soliman was not intoxicated but instead had suffered a head injury. T.564-65. Soliman drifted in and out of consciousness while the paramedics attended to him, and repeatedly screamed in concern about his wife and baby. T.565.
Officers Thomas Sawnor and Jeffrey Nobles responded to the scene and entered the house to search for Soliman's wife and child. After searching the downstairs area, the officers heard a baby crying on the second floor. Upstairs in a bedroom, Officer Nobles observed the baby, covered in blood, sitting on the bed. The baby, however, was uninjured. T.575. A woman, later identified as Mayra Soliman, was sitting on the floor with her left arm on the bed and her head on the bed. Officer Nobles attempted to speak to her but received no response; he then lifted her head and observed what appeared to be a bullet wound behind her right ear. Officer Nobles could not find on a pulse. T.218-20. Mayra Soliman was pronouced dead on the scene; the cause of death was a gunshot wound to the head. T.708.
At trial, Soliman admitted that the original story he gave to the police on the day of the shooting was not entirely accurate, explaining that although he knew that Ortiz was one of the two men who killed his wife and attempted to kill him, he did not tell the police this information because he wanted to exact his own revenge on the perpetrators. T.385-86, 406-08. The day after the robbery, Soliman told the police that, in fact, he did know his assailant, and that it was a man he knew as "Mikey" (i.e., Ortiz). T.444-45.
While still in the hospital being treated for his gunshot wound, Soliman was shown a "six-pack" photographic array containing a picture of Ortiz, but Soliman was unable to see the individuals in the photographs sufficiently to make an identification; he complained that his vision was too blurry and that he would need larger photographs.*fn2 H.7, 19-20;*fn3 T.845. On December 23, 1995, the police showed Soliman additional photographs in an 8"×10"-format. Officer Evelyn Beaudrault ("Officer Beaudrault") stated that while viewing the first set of six photographs, Soliman turned his face to favor the better eye and was squinting and blinking.
H.22. Soliman could not complete looking at the first set of photographs because of the difficulties he was having with his vision. Id.
On January 4, 1996, the police met with Soliman at the police station and showed him three sets of six photographs (all in an 8"×10"-format). H.23, 28. The first set contained a photograph of Santiago (a/k/a "Cholo" or "Flaco"). After about forty-five seconds to a minute, Soliman picked out Santiago's picture, and said that he "looked like . . . the guy who came in the house when he and his wife were shot." H.25; Respondent's Exhibit D at 101. The second set of photographs contained a photograph of Ortiz's brother, known as "Conga." Soliman did not identify anyone in the second set. H.26-27. When shown the third set of photographs, which contained a picture of Ortiz, Soliman identified him. H.29. Soliman told Officer Beaudrault that the beard and mustache that Ortiz had in the photograph were "throwing him off" and so a piece of paper was placed over the bottom portion of the photographs. H.10. Soliman stated that that helped him identify "Mikey" (i.e., Ortiz). Id.
Prior to opening statements, it was revealed that there was a videotape in police custody that had been received from Soliman but that had not been disclosed during discovery. Apparently, the videotape was given to him by some friends and contained a brief segment filming a birthday party in 1994 attended by Ortiz. Ortiz was shown on the tape although he did not speak. T.173. According to the prosecutor, Soliman viewed the tape "subsequent to his having identified the Defendant from a photo array in January of ." T.174. Soliman brought the videotape to the police on February 26, 1996, the day before he testified at the grand jury. Id. The property report indicated that Soliman had viewed the videotape in the presence of the police. Id. at 177. The trial court held a hearing, out of the presence of the jury, on the issue of the videotape.
Both the prosecutor and defense counsel agreed that it appeared to be Ortiz on the videotape. T.249. The prosecutor indicated that Soliman had told Officer Beaudrault that he had not viewed the videotape prior to bringing it to the police. T.253. The prosecutor confirmed that the assistant district attorney who had presented the case to the grand jury did not show any photographs to Soliman at all during the grand jury proceeding. T.263-64. The trial court determined that it needed to hear testimony from Soliman and Officer Beaudrault in order to ascertain whether the viewing of the videotape was an actual identification procedure. T.265.
Soliman testified at the hearing that a friend of his said "he had a video where Mikey was in." Soliman said that by the time he learned of the videotape, he had already identified "Mikey" because he knew him "very well." T.274. Soliman informed the court that he had viewed the videotape before he brought it to the police. T.276. He thought that showing the police the videotape would be "more proof" that he knew Ortiz. T.277-78, 286. Soliman admitted that he told the police he had never seen the tape before so that they would show it to him and he could demonstrate that he knew it was Ortiz. T.295. He admitted that this was not true. Id. Soliman said that he "knew it was Mikey, because [he] ha[d] never forgotten his eyes[.]" Id. Officer Beaudrault testified that she did not personally make a report of the viewing, and stated that no one told her not to make a report. Apparently, according to the prosecutor, the previous assistant district attorney on the case knew of the videotape but stated that he was unaware that Soliman had ever viewed the tape.
Defense counsel requested that the prosecution be precluded from using the videotape for any purpose but stated that he might use it in connection ...