The opinion of the court was delivered by: John Gleeson, United States District Judge
David Simpkins petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to overturn the judgment of the New York Supreme Court, Nassau County, convicting him of seven counts of robbery. Simpkins argues that there was insufficient evidence to support the jury's verdicts; that the failure of one victim to testify against him violated his Confrontation Clause rights; that the verdict was against the weight of the evidence due to fabrications in the case against him; and that African-Americans were underrepresented in his jury and jury pool. For the reasons that follow, the petition is denied.
Simpkins was convicted of a series of armed robberies committed over an eleven- week period in 2001. The government's evidence at trial established the following narrative. On March 3, 2001, Simpkins held a sharp object to the throat of the owner of the Penn Convenience Store in Hempstead, New York and stole money from the store's cash register and the owner's wallet. On March 17, 2001, he threatened the owner of another Hempstead store with what he claimed to be a gun inside a paper bag, and stole the owner's wallet. On March 21, 2001, he entered a Sunoco mini-mart in Hempstead, threatened the three employees with what he claimed to be a gun inside a plastic bag, and stole money from two cash registers. On April 19, 2001, Simpkins went back to the Penn Convenience Store and displayed what he claimed to be a gun inside a paper bag. Simpkins grabbed money from one of the cash registers and assaulted an employee who interfered, elbowing the employee and then striking his head with the hard object inside the paper bag.
On May 20, 2001, Simpkins returned to the Sunoco mini-mart and held what appeared to be a handgun to the head of one of the employees. In response to his demands, Simpkins was given two employees' wallets and money from the cash register, which he placed in a yellow plastic bag. This robbery was captured on videotape. Simpkins was apprehended nearby after fleeing on foot. Near the spot where Simpkins was hiding, the police found an air gun, two wallets, two piles of cash, and a yellow plastic bag. Within minutes, a witness to that day's robbery identified him in a showup. Later that day, Simpkins was picked out of a lineup by witnesses to the previous robberies. Several weeks later, a witness to both of the Sunoco robberies identified Simpkins in a second lineup.
B. The Procedural History
Simpkins was tried and convicted of three counts of robbery in the first degree and four counts of robbery in the second degree. The government's evidence at trial included eyewitness testimony for every robbery, a surveillance videotape of the second Sunoco robbery, and a videotape that showed Simpkins at the time and place of one of the other robberies. He was sentenced, as a persistent violent felony offender, to an indeterminate term of twenty years to life for each count. At the trial court's direction, the prison terms for the first two counts ran consecutively to one another, and the terms imposed for the remaining counts ran concurrently with each other and with the second term of imprisonment.
Simpkins appealed his conviction, arguing that the evidence was legally insufficient to establish his identity; that the evidence was legally insufficient to establish his guilt with respect to one robbery count because the victim, Ali Qasim Shah, did not testify and because no property was taken directly from Shah; that his Confrontation Clause right was violated by Shah's failure to testify at trial; that his jury and jury pool under-represented African-Americans; and that the verdict was against the weight of the evidence. On November 13, 2007, the Appellate Division, Second Department, affirmed his conviction, holding that the verdict was supported by sufficient evidence and not against the weight of the evidence, and that his other contentions were unpreserved for review and, in any event, without merit. People v. Simpkins (Simpkins I), 846 N.Y.S.2d 242, 243 (2d Dep't 2007).
Simpkins sought leave to appeal to the New York Court of Appeals. His application sought review only of his Confrontation Clause claim and his claims regarding the weight and sufficiency of the evidence, and not of his claim regarding the jury or jury pool. The New York Court of Appeals denied leave to appeal, People v. Simpkins (Simpkins II), 10 N.Y.3d 771 (2008) (Pigott, J.), and denied his motion for reconsideration of its denial of leave to appeal, People v. Simpkins (Simpkins III), 10 N.Y.3d 870 (2008) (Pigott, J.).
Simpkins filed this petition, raising all of the grounds he raised on direct appeal.
A. The Legal Standard for § ...