The opinion of the court was delivered by: Trager, J.
On June 30, 2006, Magistrate Judge Robert M. Levy issued a Report and Recommendation recommending that the habeas petition of George Wilson ("petitioner" or "defendant") be granted. Petitioner was seeking relief from a 1995 robbery conviction in New York State Court. William Mazzuca ("respondent" or "the State") filed a timely objection to the Report and Recommendation. For the reasons set out below, this court declines to adopt the Report and Recommendation and, instead, denies defendant's petition.
On December 22, 1992, Roger Erra, the owner and manager of Erra Metals, a scrap metal business located at 37-35 21st Street in Queens, New York, was robbed by two men. At approximately two o'clock in the afternoon, Erra was in his office on the second floor of his business when two men (Robber #1 and Robber #2) entered the office and "announced a robbery." Trial Transcript ("Tr.") at 422. The robbers were accompanied by John Lucas, an employee of Erra Metals, who had been working on the first floor of the shop. Robber #2 had a gun to Lucas's back.
The robbers pushed Lucas into a chair located in front of Erra's desk. Erra was forced into the chair behind the desk. Robber #1, who was standing "two inches away" from Erra, asked where the money was located.*fn1 Tr. at 423-24. After Erra produced some cash, the robbers pressed him for more money. As this occurred, Erra was "looking right at [Robber #1]."*fn2 Tr. at 425. When Erra informed the robbers that he had no more money, Robber #1 stated: "I know you got more money than this" and "[w]e might have to execute you right here." Tr. at 426. The robbers then pushed Erra and Lucas into a bathroom located in the rear of the office, shut the bathroom door and pushed a desk against the door to prevent the two men from escaping. In total, Erra was able to observe the robbers for "[a]round ten minutes." Tr. at 426. By the time Erra and Lucas were able to break out of the bathroom, the robbers had already fled.
Erra immediately called the police. After arriving at Erra Metals, the police conducted an investigation of the premises. The police then took Erra to the 114th precinct in Queens. Erra described Robber #1 to police as a six-foot tall "lighter" "male black," weighing approximately two hundred thirty pounds. Tr. at 432-33, 483. It should be noted that Detective Alfred Tricarico, who testified at trial, did not recall ever interviewing Lucas. Tr. at 742.
At the precinct, Tricarico gave Erra four photo-books of mugshots to examine. Each book contained between seventy and one hundred photos of individuals from the surrounding area who had previously been arrested "sometimes for robbery . . . or other violent crimes and other felonies."*fn3 Tr. at 747. Photos of individuals arrested for non-violent crimes were also sometimes placed in the photo-books.*fn4 Erra selected a mugshot of defendant from the fourth book that he looked at. The mugshot of defendant originated from a 1988 arrest, and eventual conviction, for harassment.
On December 23, 1992, Tricarico visited defendant's last known address in the "Astoria Houses" housing projects. There, Tricarico spoke to defendant's father, James Wilson. Wilson told police that his son was "out of town;" according to Tricarico, Wilson was uncooperative during the interview. Tr. at 803, 813.
After speaking with James Wilson, Tricarico filled out a wanted card for defendant.*fn5 On January 9, 1993, Tricarico returned to the "Astoria Houses" projects to look for defendant, but was unsuccessful. At some point between the end of December 1992 and January 20, 1993, Detective Tricarico again interviewed defendant's father.*fn6 According to Tricarico, Wilson was again uncooperative. Wilson told police that he had not seen defendant and did not know of defendant's whereabouts. On January 20, 1993, Tricarico closed the investigation. Tricarico was unable to discover the identity of Robber #2.
Bernard Garrett and seven other men at a construction site. The men, part of a "coalition" organized to get work for minorities in the construction industry, were charged with attempted "grand larceny (extortion), menacing with pipes," unlawful entry and unlawful assembly. Petitioner's (Petr.'s) Aug. 31, 2005 brief, Ex. A. The charges against the men were all dismissed, but defendant remained in police custody due to the wanted card that been filed by Tricarico. On October 28, 1994, police asked Erra to come to the precinct to view a six-person lineup; Erra picked defendant out of that lineup. Defendant was subsequently charged with first and second-degree robbery.
In fall of 1995, defendant was tried before a jury in New York State Supreme Court. Justice Charles LaTorella presided over the trial. Defendant was represented by Frank GaNun, who had been retained by defendant after GaNun had represented him in an earlier matter. Prior to trial, the court held a Sandoval hearing and determined that if defendant took the stand, the prosecution would be allowed to introduce a 1986 drug possession conviction and a 1989 harassment conviction. Although the court barred the prosecutor from inquiring about prior arrests that did not result in conviction, the court made clear that this ruling would not govern any character witnesses called by the defense.
In his opening, GaNun argued that Erra had misidentified defendant and that the police had conducted no investigation.*fn7
GaNun also argued that defendant, who was active and visible in the community at the time of his arrest, was not hiding from police. At the end of GaNun's opening, the prosecutor objected, arguing that GaNun's attack on the adequacy of the police investigation had opened the door to Erra's initial identification from the photo-books ("initial identification"), which ordinarily would be inadmissible under New York State law. At the time, the court reserved decision on this issue, but noted that "if you ask those questions [about the police investigation] on cross-examination, I think you will have opened the door."
The State's first witness was Erra. It must be noted that when Erra failed to show up to testify on the first two days of trial, the trial court issued an order and a material witness warrant directing Erra to appear.*fn8
On direct examination, Erra testified about the day of the robbery and the descriptions of the two robbers that he gave to police. The prosecutor's questioning then turned to the October 28, 1994 lineup. Erra testified that he picked defendant out of a lineup in October 1994. Erra also made an in-court identification of defendant. At no point, however, did the prosecutor ask any questions about Erra's initial photographic identification on the day of the robbery.
On cross-examination, GaNun questioned Erra about the police investigation*fn9 and then probed Erra's identification of defendant*fn10 . GaNun questioned Erra's recollection of the robbery, inquiring whether Erra was concentrating on the gun that was pointed at him or on Robber #1, who was not holding the gun. Tr. at 467. Erra testified his attention was on both because they were only two feet apart from each other, Tr. at 467, but did admit that he was "scared" and "frightened" during the robbery.
Tr. at 477. GaNun also asked Erra about defendant's appearance, focusing on the baseball cap worn by Robber #1 in an attempt to show that Robber #1's face was partially obscured and to question Erra's memory of the robbery.*fn11 GaNun also asked general questions about the phenomenon of misidentification,*fn12 some which attempted to show that Erra believed that all black persons appear similar.*fn13 It must be stressed that GaNun did not, at any point during his questioning of Erra, ask questions suggesting that defendant's appearance at trial was inconsistent with the description given by Erra to the police.*fn14
GaNun also questioned Erra as to why he initially failed to show up to testify, including asking Erra whether he had been threatened and whether he feared defendant. Although Erra admitted that he had not been threatened, he testified that he feared reprisals from defendant. At the conclusion of GaNun's cross-examination, Justice LaTorella ruled that Erra's initial identification was now admissible in light of GaNun's questions about the police investigation.
On re-direct examination, the prosecution proceeded to question Erra about the initial identification. On re-cross, GaNun further probed Erra's identification, questioning whether the hat worn by Robber #1 obscured Erra's view of Robber #1's face.*fn15 GaNun also showed Erra six photographs, which were later identified by defense witnesses as being of defendant. Erra identified defendant in four of the six photographs. Some of the photographs of defendant apparently were published in a local Queens newspaper; Erra denied ever reading that newspaper. Erra testified that he had never seen defendant previously in the community.*fn16 GaNun also questioned Erra further about his failure to show up at trial and introduced the material witness warrant into evidence through Erra.
After Erra finished testifying, the State called Officer Michael Singer and Detective Tricarico. On direct examination, Officer Singer testified about the lineup. On cross-examination, GaNun introduced the arrest report of defendant's 1994 arrest through Officer Singer. The report detailed the various crimes that defendant and the other men were charged with. Detective Tricarico testified during direct examination about the investigation into the robbery, as well as GaNun's initial identification of defendant from the photo-books.
During GaNun's cross-examination of Tricarico, Justice LaTorella expressed, at sidebar, concerns about some of the decisions made by GaNun. The court asked GaNun if he had "a strategy in this trial which encompasses the things that have been done so far". Tr. at 755. After GaNun replied that he did, the court noted that (1) there was no indication from defendant that he was not satisfied with GaNun's representation and (2) GaNun's "possible strategy could be this is the wrong man; what they did is they went after the usual suspects and he's one of the usual suspects, but he didn't do this . . . . [and] [t]hat is a possible strategy and it might well be valid," Tr. at 757.
After Tricarico's cross-examination concluded, the prosecution, which had put on three days of testimony, rested.*fn17
The first witness called by the defense was James Wilson, defendant's father. James Wilson testified that he lived with defendant in an apartment in the "Astoria Houses" housing projects. According to James Wilson, he told officers on December 23, 1992 that defendant was "working out of town" with "his friend Joe Gold" in "Pennsylvania somewhere" and that he hadn't seen defendant "in two or three days." Tr. at 838, 840, 842. James Wilson also testified that when police returned to interview him again approximately a week later, he told them that he had not seen or heard from defendant and repeated that defendant was working out of town.
The defense also called Bernard Garrett, president of a "coalition" that attempts to "get work for minorities in the construction industry." Tr. at 849. Garrett testified that he, along with defendant and seven other men, was arrested on October 27, 1994 at a construction site after the group attempted to get a contractor to hire members of the coalition. GaNun elicited from Garrett that he was charged with attempted grand larceny, menancing and grand larceny by extortion, and that all of the charges were dismissed.
The defense then called Joseph Isaac as an alibi witness. Isaac testified that at the time of the robbery he was working in Pennsylvania with defendant. Issac testified that, starting in November 1992 and ending in February 1993, he would pick defendant up every weekday morning*fn18 and that the two men would drive out to Pennsylvania, returning around eight in the evening. According to Isaac, he would pick Wilson up at defendant's residence on Vernon Boulevard near the Queensbridge housing projects, not in the "Astoria Houses" projects.*fn19 Isaac also testified that, at the end of the day, he would either drop defendant off on Vernon Boulevard or at the "Astoria Houses" projects. Isaac admitted that he never went to the police with his alibi, stating: "I didn't know I had to." Tr. at 924.
The final defense witness was Carolyn Younger, who knew defendant for over fifteen years and worked with Black Families International, a community organization. When asked what role defendant played in that organization, Younger responded that "George Wilson is a role model for young adults." Tr. at 930. Justice LaTorella gave GaNun, sua sponte, an opportunity to strike that testimony, which GaNun declined. Younger then continued, testifying about defendant's various community efforts and explaining why he was a role model. After that testimony, Justice LaTorella gave GaNun another opportunity to strike Younger's answer. GaNun responded that "it's not up to me to strike my own question." Tr. at 933. Younger also testified about defendant's visibility in the community.
On cross-examination, the prosecution asked Younger if she was aware that defendant had been convicted of Criminal Possession of a Controlled Substance (a class D felony)*fn20 in 1986 and of a harassment violation*fn21 in 1989. Younger was also asked about a 1983 arrest for assault and criminal possession of a weapon.*fn22 Younger testified that she aware that defendant had been in "trouble with the law," Tr. at 941-42, and had "contact with the Criminal Justice System," Tr. at 943, but did not know specifics about any charges.
On October 4, 1995, the jury, after two days of deliberations,*fn23 found defendant guilty of second-degree robbery, in violation of New York Penal Law Section 160.10. Defendant was acquitted of the first-degree robbery charge. On November 15, 1995, the petitioner was sentenced to an term of imprisonment of seven-and-one-half to fifteen years.
(4) Post-Trial Proceedings in New York State Court
In October 1998, defendant filed a CPL section § 440 motion with the trial court alleging that he received ineffective assistance of counsel. The trial court denied that motion on two separate occasions; first, in a brief order dated November 30, 1998, and later, in five-page order dated November 22, 1999. In November 1999, defendant appealed to the Appellate Division, Second Department, arguing that he received ineffective assistance of counsel and that the evidence at trial was insufficient to establish guilt beyond a reasonable doubt.*fn24
In a Decision and Order dated May 30, 2000, the Appellate Division affirmed defendant's conviction. People v. Wilson, 272 A.D.2d 633, 709 N.Y.S.2d 415 (2d Dep't. 2000). The court addressed defendant's ineffective assistance claim in one sentence, noting simply that "defendant's contention that he was denied the effective assistance of counsel is without merit. Id. (citing People v. Beneveto, 91 N.Y.2d 708, 697 N.E.2d 584, 674 N.Y.S.2d 629 (1988)). Defendant then sought leave to appeal to the New York State Court of Appeals; that request was denied on November 27, 2000. People v. Wilson, 95 N.Y.2d 940, 744 N.E.2d 152, 721 N.Y.S.2d 616 (2000) (table case) (Ciparick, J.).
Defendant filed the instant habeas corpus petition pro se pursuant to 28 U.S.C. § 2254, raising six grounds for relief, including ineffective assistance of counsel. A Report and Recommendation issued by Magistrate Judge Robert M. Levy on January 17, 2003 ("first R&R") recommended denying defendant's petition. The first R&R was adopted on May 27, 2003. In respect of the ineffective assistance of counsel claim, the first R&R concluded that "although defense counsel made a number of tactical decisions that, in hindsight, might be considered ill-conceived, this court is not prepared to hold that those errors 'were so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment.'" First R&R at 18 (citing Strickland v. Washington, 466 U.S. 668 (1984)). The first R&R also concluded that even if counsel's performance was constitutionally deficient, petitioner failed to show prejudice, the second prong of the Strickland test, noting that [a]t trial, petitioner faced persuasive evidence of his guilt. Erra, the victim and the primary witness, positively identified Wilson as the robber, having testified that he observed the perpetrator in his brightly-lit office during the commission of the crime for more than ten minutes, at times from two or three inches away.
Id. The first R&R also noted the contradictions in the testimony of James Wilson and Joseph Isaac.
On January 22, 2004, the Second Circuit granted Wilson a certificate of appealability. On January 5, 2005, the Second Circuit vacated the denial of Wilson's petition. Wilson v. Mazzuca, 119 Fed. Appx. 336 (2d Cir. Jan. 5, 2005). In analyzing defendant's ineffective assistance of counsel claim, the Second Circuit held that it was "'unable to assess with confidence whether strategic considerations accounted for' certain acts or omissions by defense counsel that had the effect of substantially strengthening the state's otherwise weak case." Id. at 337. The Second Circuit remanded the case to "afford Wilson's trial counsel the opportunity to explain his actions." Id.
The petition was referred to Magistrate Judge Levy for a second Report and Recommendation ("second R&R"). Magistrate Judge Levy appointed pro bono counsel to represent petitioner. On July 13, 2005, a hearing was held before Magistrate Judge Levy in which GaNun was questioned about his conduct at trial. On June 30, 2006, Magistrate Judge Levy issued the second R&R, which recommended granting defendant's petition. On August 4, 2006, the State filed a timely objection to the second R&R.
The burden of proof ordinarily rests on habeas petitioners to prove their claims by a preponderance of the evidence. Bellezza v. Fischer, No. 01-CV-144, 2003 WL 21854749, at *10 (E.D.N.Y. Aug. 6, 2003) (citing Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978), a pre-AEDPA case, and noting that "[n]othing in the AEDPA revisions changes this burden"). Petitioner contends that, in remanding this case "to afford Wilson's trial counsel the opportunity to explain his actions," Wilson, 119 Fed. Appx. at 337, the Second Circuit shifted the burden to "GaNun and the State" to show that "GaNun's challenged actions were the product of a reasonable trial strategy," Petr.'s August 31, 2005 brief at 5. That argument is not persuasive. Absent a clear direction from the Second Circuit on this point, there is no reason ...