The opinion of the court was delivered by: John F. Keenan, United States District Judge
MEMORANDUM OPINION & ORDER
Petitioner Eric Burwell ("petitioner" or "Burwell") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to overturn his New York State conviction for second degree robbery. He requests relief on the grounds that the trial court wrongfully excluded the testimony of his identification expert; gave jury instructions that diminished the government's burden of proof; and permitted a juror to take notes during trial; and that the prosecution wrongfully denied him the opportunity to testify before the grand jury. For the reasons set forth below, the petition is denied.
On February 1, 2002, Burwell and co-defendant Dwayne Brown were indicted in New York Supreme Court, New York County, for robbery in the second degree, in violation of N.Y. Penal Law § 160.10(1). Following a jury trial which concluded on June 26, 2002, both defendants were convicted of the charge. On August 7, 2002, petitioner was sentenced to a determinate term of eleven years' imprisonment. His conviction was affirmed by the Appellate Division on January 6, 2005, and leave to appeal to the New York Court of Appeals was denied. People v. Burwell, 14 A.D.3d 356, 789 N.Y.S.2d 106 (1st Dep't 2005), lv. denied, 4 N.Y.3d 852 (2005). He filed this habeas petition on December 24, 2005.
The evidence at trial showed that around 10:15 p.m. on January 31, 2002, Claudio Degli-Adalberti, an Italian tourist, headed into the subway station on 103rd street and Central Park West and encountered two men, whom he would later identify as defendants Burwell and Brown. Brown asked Degli-Adalberti for some change and received a dollar from him. Degli-Adalberti and the defendants then descended the subway stairs at the same time. At the bottom of the stairs, Burwell blocked Degli-Adalberti's path and demanded his wallet. A struggle ensued and, ultimately, Burwell grabbed the wallet and fled the subway station with Brown. Degli-Adalberti left the station and called 911.
Around the same time, Allan Botello, a doorman at 444 Central Park West, which is located between 104th and 105th Streets, saw two men rush through the street and unsuccessfully try to enter a cab. Botello watched the two men as they proceeded to head north on Central Park West until they were out of his view.
A radio transmission about the robbery was broadcast around 10:25 p.m. Officers responded to the robbery and found Degli-Adalberti outside 444 Central Park West. There, DegliAdalberti gave police descriptions of the robbers. These descriptions were then transmitted over the radio: two black men, one "heavy set" wearing black sweats with an orange stripe on the pants, and a thinner man wearing a black, puffy jacket and jeans.
Meanwhile, officers on patrol spotted petitioner and co-defendant a few blocks from the robbery, walking north. After hearing the descriptions of the robbers, the officers apprehended the two men on 112th Street and 8th Avenue. Burwell was wearing a black jacket and black sweatpants with a white stripe on the side of the pants, and a thicker red stripe, that had appeared orange under street light, on the bottom of the legs. Brown was dressed in a black down jacket and dark blue jeans. Officers radioed that there were two possible suspects and asked that the victim be brought to identify them.
The victim was brought to the scene in the backseat of a police car and was told to inform the officers if he saw the two men who had robbed him. The police car went at a "slow crawl" as it approached the intersection where the defendants were apprehended. The car stopped for a short time in front of Burwell, who was standing on the southwest corner with two officers by his side. Degli-Adalberti remained in the car and was approximately seven to ten feet away from Burwell at this time. The car continued at its slow pace to the other side of the street where Brown was standing, also with two officers by his side. Within seconds of seeing Brown, Degli-Adalberti identified the two men as the assailants who had robbed him, and they were arrested.
Afterwards, petitioner alone was brought to 444 Central Park West for the doorman Botello to observe. Earlier that night, Botello had described for police the man with the larger build that he had seen as wearing sweatpants with an orange stripe about two inches wide on the left side of his leg, and the smaller man as wearing a puffy jacket and dark jeans. Botello told officers that Burwell's build and clothing looked the same as the "bigger guy" that he had seen. (Tr. at 429).*fn1 Upon their arrest, neither petitioner nor co-defendant were carrying money or the complainant's wallet. Officers searched for the wallet in the surrounding area, but it was never found.
At trial, the defense requested to present an identification expert to testify on three issues: the unreliability of cross-racial identifications, the effects of stress on identifications, and the absence of a correlation between confidence and accuracy in identifications. From the bench, the trial judge concluded that the case would not be aided by the proffered testimony and excluded it. He noted that it was within a trial court's discretion to determine whether the identification expert testimony would assist the jury, citing a New York Court of Appeals case, People v. Lee, 96 N.Y.2d 157 (2001). He pointed out that, although it was a cross-racial identification, the perpetrators were arrested and identified by Degli-Adalberti almost immediately after the crime, reducing the chance of subtle factors of suggestiveness influencing the identification. In addition, the absence of a weapon or life-threatening situation reduced the likelihood that the victim's stress level interfered with his ability to perceive and identify the perpetrators. Furthermore, the corroborative testimony of another witness, Botello, made expert testimony about possible flaws in DegliAdalberti's identification unnecessary. The judge stated that "None of the usual things that are really distressing red flags in the traditional identification case, in my view, are present here" and concluded that an identification expert would not aid the jury. (Tr. at 6-7). Petitioner objected to the court's ruling.
Degli-Adalberti identified petitioner and co-defendant at trial as the two men who robbed him. He also testified that petitioner's sweatpants looked like those worn by one of the perpetrators, except that the red stripe had appeared orange. Similarly, Botello testified that petitioner was the individual who he had seen wearing the sweatpants with the orange stripe.
On cross-examination, the defense focused on differences between Degli-Adalberti's testimony at trial and at the grand jury. In particular, defense counsel highlighted that he testified to the grand jury that he was "pretty sure" that the defendants were the men who robbed him. (Tr. at 550). In addition, the defense focused on Degli-Adalberti's uncertainty upon seeing Burwell from the police car by underscoring his direct testimony that after seeing Burwell he told officers that "it could be him," and that it was only after he also saw Brown that he identified both defendants as the robbers. (Tr. at 564-65).
Following the close of the government's case, the defense called a licensed private investigator who had previously interviewed Botello about the night of the robbery. According to the investigator's testimony, Botello had told him that the clothing worn by petitioner were "similar" to the ...