The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Donald Jordan ("Jordan" or "petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of second degree burglary (N.Y. Penal Law § 140.25(2)) and one count of third degree robbery (N.Y. Penal Law § 160.05). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
Jordan's jury trial was conducted on May 21 to May 23, 1997, in Erie County Court (Amico, J.). At trial, Meghan Weir ("Weir") testified that she woke up at about 10:00 a.m. on the morning of October 31, 1996, and was watching T.V. in her bedroom at her parents' home at 42 Argyle Park in the City of Buffalo. T.108-09, 132.*fn1 About an hour later, when got up, she happened to look out the window and saw a black man and woman walking down the street. She turned off the television and heard footsteps on the first floor. T.110, 134. Going downstairs, she saw that the cupboards had been ransacked, the television was missing, and the family's stereo equipment was in a pile on the deck outside the house. T.110. Weir returned to the second floor and unsuccessfully attempted to call her parents; she then called 911. T.111.
Upon hearing a car in the driveway, Weir went to an upstairs window and saw a green Ford Tempo sedan backing into her driveway. T.111-12. A black male exited the driver's side and a black female got out on the passenger's side. T.112-113. Weir recognized the two individuals, having seen them walking down her street earlier that morning. T.113-14. Weir positively identified the black male as Jordan after viewing a pre-trial photographic array, and she identified him at trial. T.115-18, 127.
Weir walked outside and inquired if she could help the man and the woman who had gotten out of the Ford Tempo. Jordan punched her in the jaw with his fist, cutting her lip and causing her to fall backwards onto the driveway. T.119-20. Jordan then placed a guitar case on top of her and, with his companion's assistance, began to load the trunk and passenger compartment of the Tempo with the electronic equipment, furs, and other property which had been stacked up on Weir's parents' back deck. T.117-23. Weir memorized the license plate number (J50-0PC) which was later determined to belong to a green Ford Tempo registered to Jordan. T.175.
Meanwhile, at about 11:20 a.m., Officers Manzella and Simonian of the Buffalo Police Department were about two blocks away from the crime scene when they received a call of a burglary-in-progress. As they arrived at 42 Argyle Park, Jordan and his female companion were hurriedly backing out of the driveway. T.85-87. Manzella noticed that the license plate had two zeros in the middle of it and that a man was driving the car with a woman in the rear passenger side. T.88. The officers gave chase but were unsuccessful. T.88-89, 93.
At 1:15 p.m. that afternoon, Deputy Klemp and Sergeant Bennett of the Erie County Sheriff's Department were traveling down Box Avenue in the City of Buffalo when they spotted a car hidden mostly behind the house at 63 Box Avenue; the car matched the make, model, and license plate number of the car which had been used in the burglary at 42 Argyle Park. After turning around to head back to 63 Box Avenue, the officers noticed that the green Ford Tempo was leaving the driveway. T.152-61. They saw a tall, thin black male and a stockily-built black female jump out of the car and flee through a gap in the fence at the rear of the house. T.161-62.
Investigation revealed that the home at 63 Box Avenue belonged to Jordan's mother and was occupied by Jordan's brother, who provided the police with Jordan's address. T.171-72, 229. After the Ford Tempo was towed, the police obtained a search warrant which led to the discovery of most of the property stolen from the Weir residence. T.65-75, 171-72, 190-91. Also found in the car was a purse belonging to Diedra Moore ("Moore"), Jordan's girlfriend.
On November 5, 1996, about a week following the burglary, Jordan's Ford Tempo was reported stolen. Three days later, Detective Aronica of the Buffalo Police Department, with the assistance of troopers from the New York State Police, went to defendant's residence to execute an arrest warrant. After the police received no answer following their initial knock on the door, the landlord let them into the apartment, where they found Jordan hiding under his bed. T.179-80.
The defense presented alibi testimony from Jordan, Jordan's girlfriend, Diedra Moore ("Moore"), and his friend, Jacob Diggs ("Diggs"). Jordan testified that he was in Buffalo City Court for a court appearance with Moore during the time the burglary was committed and that he spent the day with Moore. T.250-53. Moore testified that she accompanied Jordan to the court appearance and that his case was called at 10:55 a.m. T.226. She stated that at about 11:15 or 11:30 a.m., she and Moore went to the Main Place Mall for lunch. T.227. Moore testified that she spent the afternoon with Jordan and that Jordan did not drive his Ford Tempo that day but had left it behind at his mother's house at 63 Box Avenue because it needed repairs. T.229. Diggs testified that at about 11:00 a.m. on the morning of the burglary, he encountered Jordan and a woman in downtown Buffalo, and then the three of them went to Main Place Mall for lunch. Diggs estimated that he was with Jordan until 11:30 or 11:45 a.m. T.219-23. On cross-examination of several defense witnesses, the prosecution referred to a transcript of the city court proceedings for the day of the incident which indicated that Jordan's case was called between 10:13 and 10:23 a.m. Jordan, Diggs, and Moore were all substantially impeached on cross-examination. See T.219-39, 248-72.
The jury returned a verdict convicting Jordan as charged in the indictment. He was sentenced on September 2, 1997, as a persistent violent felony offender, to an indeterminate term of imprisonment of sixteen years to life on the burglary conviction and a concurrent indeterminate term of three and one-half to seven years on the robbery conviction.
On direct appeal, appellate counsel argued (1) that the introduction of third-party testimony by Detective Aronica to bolster the out-of-court identification of petitioner by the complainant, Meghan Weir, was reversible error; and (2) that prosecutor improperly commented regarding petitioner's during summation deprived petitioner of a fair trial. See Pet'r App. Br., Resp't Ex. B. Dissatisfied with appellate counsel's choice of issues, Jordan submitted a supplemental pro se appellate brief in which he argued (1) that his constitutional rights were violated "when he was tried by a jury not of his peers" in "violation [of] U.S. Const. 14 Amend. N.Y. Const. Art. I"; and (2) that unauthenticated photographs of the crime scene and of petitioner were erroneously admitted. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction in a memorandum decision and order. People v. Jordan, 261 A.D.2d 947 (App. Div. 4th Dept. 1999). The Appellate Division rejected the jury pool claim on the merits and found that the remaining claims regarding the photographs, the bolstering testimony by the police officer, and the prosecutorial misconduct were all unpreserved for review due to petitioner's failure to register a timely objection to any of the errors pursuant to New York's contemporaneous objection rule. People v. Jordan, 261 ...