The opinion of the court was delivered by: Hurley, District Judge
MEMORANDUM OF DECISION AND ORDER
Darryl Layton ("Petitioner") petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his December 18, 1998, conviction of Robbery in the Second Degree. William Phillips, Warden of Greenhaven Correctional Facility, and Glenn S. Goord, Commissioner of New York State Department of Corrections ("Respondents") have moved to dismiss or deny the petition. Petitioner opposes the motion. For the following reasons, Respondents' motion is granted and the writ is denied.
The following facts are derived from the instant petition and the underlying record.
On December 15, 1997, at about 5:20 p.m., Doreen Vici ("victim" or "witness") was returning to her car in the parking lot outside of her place of work. It was dark and the parking lot was not well-lit. As she approached her car, she was confronted by a man who threatened her with what appeared to be a gun (it was later determined that the weapon was a BB-gun), demanded and took her money and jewelry, then stole her car, along with the personal possessions that were inside.
When the police arrived at the scene, at about 6:15 p.m., the victim described the robber to police as a black male, approximately six foot, with a thin build, wearing a dark jacket. She also stated that she had seen the perpetrator come from a van that was still at the location. Police searched the van and found a box of twenty-six photographs in frames. Those twenty-six photographs depicted women and children. Two other, unframed photographs were found in the glove compartment. Both of those photographs depict what appears to be the same black male.
The victim was then taken by police to the precinct, where the detective took her written statement and presented her with the photographs recovered from the van. Viewing State Exhibit 26A, (see Pet.'s Appellant Br., App. at 7), which is apparently a picture of Petitioner from a much earlier time when he had a very different appearance, the victim did not identify the photographed person as the perpetrator. She did identify the person depicted in 26B as her assailant. (See id. at 8.)
The van that had been identified by the victim was registered in California to a woman named Marjette Branche. This information, along with a telephone number recovered from within the van, provided the local address for Ms. Branche. The victim's vehicle was recovered approximately a quarter mile from Ms. Branche's local address. At approximately 12:30 a.m. on December 16, 1997, police found Petitioner at the home of Ms. Branche. He agreed to go with the police to the precinct, where he arrived around 1:30 a.m. At approximately 4:30 a.m., eleven hours after the incident, the victim was presented with two line-ups of black males. Both lineups consisted of the same individuals in different orders. The individuals were similar in appearance to the photograph identified by the victim but not similar to the description given at the scene by the victim. Both times the victim identified Petitioner as the perpetrator.
Petitioner was charged with Robbery in the First Degree and Robbery in the Second Degree in a two count indictment. Prior to trial the state court held a Wade hearing to determine the propriety of the three identification procedures (the photographic identification and the two subsequent line-up identifications). The state court analyzed the photographic identification as a show-up and concluded that it was the only alternative available under the circumstances. Additionally, the court concluded that there was nothing improper or suggestive to support suppressing the line-up identifications. (Pet. Appellant Br., App. at 4.)
Petitioner was convicted by a jury on both counts of the indictment. He was sentenced on April 15, 1999 as a second felony offender to a determinate term of 23 years on the Robbery in the First Degree Count and to a concurrent determinate term of 13 years on the Robbery in the Second Degree.
Petitioner appealed his convictions to the Appellate Division, Second Department. On direct appeal he argued that (1) the in-court identification testimony should have been suppressed because of a highly suggestive display of photographs; (2) the victim and a Detective were allowed to bolster the victim's identification; (3) the verdict was against the weight of the evidence; (4) the prosecution's closing was improper; (5) the trial court improperly disqualified prospective jurors; and (6) there were other errors which demonstrated unfairness.
Petitioner also moved before the trial court, pursuant to § 440 of the New York Criminal Procedure Law, for an Order vacating the judgment of conviction and ordering a new trial. In support, petitioner claimed two Brady violations, to wit, the prosecutor's failure (1) to turn over the telephone number of the victim's cellular telephone that was stolen during the robbery, and (2) to notify defense counsel of a lawsuit brought by the victim against the defendant.
The trial court denied the CPL § 440 motion. With respect to the telephone number, the court found that contention without merit as the "telephone was inoperable on the day of the robbery, and even if it had been operable, it would require pure speculation to conclude the true robber had necessarily retained the telephone for his own use." The state court then addressed the assertion that the prosecution was aware that the complaining witness had commenced a lawsuit against the Petitioner prior to testifying in the criminal trial, but failed to disclose that information.
The prosecution has submitted an affidavit indicating that the defendant was aware of this civil suit prior to sentencing in this case, more than two years before the present motion was made. The prosecution correctly argues that this aspect of defendant's motion was not made with the due diligence required by law. Moreover, civil suits against alleged perpetrators and third parties who might also bear civil responsibility are not at all unheard of under these circumstances. Given New York's requirement that a civil case is commenced by filing a copy of the complaint with the Clerk of Court and the purchase [of] an index number, this civil action was a matter of public record which counsel for the defendant could have found out about for himself if he had been so inclined.
Trial counsel's decision not to cross-examine the victim about whether she had commenced a civil suit can not be attributed to lack of knowledge on his part that such a suit had been commenced. All defense counsel had to so to find out about the lawsuit, even if he had not searched the public records, was to ask the complaining witness about the topic on cross-examination.
Since neither was not done [sic], it follows that the decision not to pursue the issue of a lawsuit, either actual or potential, was a matter of defense trial strategy and quite independent of any action or inaction on the part of the District Attorney.
There was substantial evidence in this case that the victim was working at Home Depot; that she had taken a work break and gone to her car; that her car was forcibly stolen from her; and that the car was later recovered at location distant from the Home Depot and near to where the defendant was then residing.
Trial counsel no doubt knew that it could hardly be disputed that this robbery had, in fact, occurred and there is nothing about a civil suit against the defendant, who by all ostensible evidence is not a man of substantial means, that would have impugned her identification of him specifically as the perpetrator.
The failure of the District Attorney to advise counsel for the defendant that the complainant had commenced a civil action could not possibly have changed the verdict in this case.
On appeal from the conviction, the Supreme Court of New York, Appellate Division, Second Department by Order dated February 3, 2003, modified the judgment. It vacated the Robbery in the First Degree conviction and the sentence therefor, holding that Petitioner had established his affirmative defense that the gun used in the robbery was a BB gun. The Appellate Division found Petitioner's "remaining contentions [to be] without merit." By separate Order also dated February 3, 2003, the Appellate Division affirmed the trial court's denial of the CPL § 440 motion. Petitioner sought to reargue the February 3, 2003 Orders of the Appellate Division but that application was denied by Decision and Order dated June 23, 2003. The Court of Appeals denied leave to appeal from the Appellate Division orders.
Petitioner filed this petition for a writ of habeas corpus on September 27, 2004. Petitioner seek s the writ on the following grounds: (1) the prosecution withheld crucial evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) the methods used to identify Petitioner were illegally suggestive; (3) the prosecution's summation was improper; (4) the court illegally dismissed potential jurors.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a narrow scope of habeas review by federal courts of state convictions. 28 U.S.C. § 2254(d). Under the AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim either "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1), (2).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellam v. Kuhlman, 261 F.3d 303. 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" a Supreme Court case, or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [their] precedent." Penry v. Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362 (2000)). In making this determination, the court looks "only to the holdings of the Supreme Court, as opposed to its dicta, and to the Supreme Court's holdings as of the time of the relevant state court decision . . . ." Jiminez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006). A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. The Supreme Court has made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 409. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001). Objectively unreasonable is different from clear error. See Lockeyer v. Andrade, 538 U.S. 63, 75 (2003). As the Second Circuit has explained: "while some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determinations of factual issues made by a state court "shall be presumed to be correct" and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); see McKinney v. Artuz, 326 F.3d 87, 101 (2d Cir. 2003).
Respondents argue that no Brady violation occurred and that the identification procedures did not deny petitioner his federal constitutional rights. Respondents further argue that the remaining claims are unpreserved and, in any event, do not support habeas relief. (See Resps.' Mem. at 3.) Petitioner disputes these arguments. The Court discusses each in turn.
Under Brady and its progeny, "the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is 'material' either to guilt or to punishment." United States v. Paulino, 445 F.3d 211, 224 (2d Cir. 2006) (Raggi, J.) (citations and quotation marks omitted). "To establish a Brady violation, a defendant must show (1) that the evidence at issue is 'favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the 'evidence must have been suppressed by the State, either willfully or inadvertently'; and (3) 'prejudice must have ensued.'" Id. (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)); see also United States v. Jackson, 345 F.3d 59, 71 (2d Cir. 2003). "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, 267 F.3d 132, 139 (2d Cir. 2001) (citing Giglio, 405 U.S. at 154)). Favorable evidence is only material where there is a "reasonable probability" that the outcome of the case would have been different had the evidence been disclosed. United States v. Bagley, 472 U.S. 667, 682 (1985). A reasonable probability arises "where the government suppresses evidence that 'could reasonably [have been] taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Coppa, 267 F.3d at 140 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995) (alterations in original)). On a habeas petition, the question for the court is whether, without the evidence, the petitioner still received a fair trial. See Kyles, 514 U.S. at 434. For example, "[w]hen the reliability ...