The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
On January 10, 2007, Rahkeem Brown ("petitioner"), appearing pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April 24, 2000 jury conviction in New York Supreme Court, Queens County, for attempted murder in the second degree (N.Y. Penal Law §§ 110.00/125.25(1)), assault in the second degree (N.Y. Penal Law § 120.05(2)), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.02(4)), criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)), and attempted robbery in the second degree (N.Y. Penal Law §§ 110.00/160.10(2)(a)).
Following petitioner's unsuccessful direct appeals to the Appellate Division, Second Department, and the New York State Court of Appeals, petitioner filed a motion to vacate the judgment of conviction based on newly discovered evidence pursuant to N.Y. Crim. Proc. Law § 440.10(1)(g). The Honorable Richard L. Buchter, Justice of New York Supreme Court, Queens County, denied petitioner's motion on October 5, 2005. The Appellate Division denied leave to appeal on January 4, 2006. People v. Brown, No. 2005-11113, 2006 WL 4635663 (2d Dep't Jan. 4, 2006).
Petitioner now contests the denial of the motion to vacate as grounded on an unreasonable determination of fact, resulting in his wrongful conviction based on perjured testimony. By Order dated February 16, 2007, this court found that petitioner failed to timely request habeas relief within the limitations period provided by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1), and directed petitioner to show cause as to why the statute of limitations should not apply. Petitioner filed an Affirmation in response to the court's Order to Show Cause. By Order dated May 11, 2007, the court found that, based on a preliminary showing and limited record, petitioner set forth a colorable claim of actual innocence and ordered respondent to show cause as to why a writ of habeas corpus should not be issued. On July 5, 2007, respondent submitted its opposition, as well as the state court record. For the reasons set forth below, the petition is denied.
The following facts and procedural history related to this case are taken from the entire record, including transcripts from petitioner's trial and section 440.10 hearing, as well as affidavits from both parties, which respondent provided the court on July 5, 2007.
A. The Shooting and Petitioner's Trial
On January 9, 1999, at approximately 7:00 P.M., petitioner and co-defendant Eric Pope entered a cab driven by Fearon Lindsay. (Trial Tr. 294, 296, 366-67.) Prior to January 9, Lindsay knew Pope, but did not know petitioner. (Id. at 291, 305.) Pope sat in the front passenger seat, while petitioner sat in the rear seat on the passenger side. (Id.) Shortly thereafter, one of the passengers shot Lindsay in the face. (Id. at 297-98.) Lindsay testified that he watched petitioner enter the car and that petitioner shot him in the face as he turned to look at petitioner. (Id. at 297, 304.) Pope's trial testimony corroborated Lindsay's account of the shooting. (Id. at 368.) The bullet entered Lindsay's right cheek, exited his left cheek, and ultimately shattered the driver-side window. (Id. at 311, 410.) Pope and petitioner immediately fled the scene. (Id. at 368.) Lindsay, still conscious, drove to a nearby gas station and asked someone to call for an ambulance. (Id. at 299.) Police responded to the call, the first officer on the scene being Police Officer Edward Sholl. (Id. at 237-38, 259-60.) Lindsay described his assailants to Officer Sholl as two black males, one of whom was named Eric. (Id. at 240-41, 267-68.) Shortly thereafter, an ambulance arrived and drove Lindsay to the hospital. (Id. at 329.) Lindsay explained to ambulance workers that he was shot in the face by a "friend" he had gone to pick up in his cab. (Id. at 329-30.) Doctors at Mary Immaculate Hospital treated Lindsay's injuries later that night. (Id. at 410.) Months later, Lindsay fully recovered. (Id. at 302-03.)
The second officer to arrive on the scene was Police Officer Michael Losco. (Id. 237-38.) After briefly conferring with Officer Sholl, Officer Losco patrolled the area in search of Lindsay's assailants. (Id. at 238.) Officer Losco soon noticed two men (Pope and petitioner) fitting the description provided by Lindsay and relayed to him by Officer Sholl. Both men emerged from the backyard of a house on the block where Lindsay had been shot. (Id. at 240-41.) Officer Losco stopped the two men and, after Pope admitted that his name was Eric, he arrested them. (Id. at 241-42.) Pope held the barrel of a handgun in his pocket and told Officer Losco that the other parts of the gun were held by Rhonda Graham, an acquaintance, whose house he and petitioner fled to after the shooting. (Id. at 242-43, 368, 371.) Next, Officer Losco proceeded to Graham's house and recovered the remaining parts of the gun. (Id. at 246, 263.) Neither the gun nor Lindsay's car were tested for fingerprints. (Id. at 281-82.) Further, police never checked for any indicia that either Pope or petitioner fired the weapon. (Id. at 282.)
The above facts are undisputed whereas others are not. For example, there is somewhat conflicting testimony regarding the events leading up to the time Pope and petitioner entered Lindsay's car and what occurred immediately after they entered the car. According to Lindsay, he received two pages from "a lady," presumably Graham, at Pope's request, so that Lindsay could drive Pope home. (Id. at 290, 292.) Lindsay responded and arrived at the requested pickup location. (Id. at 292, 294.) Upon arrival, Lindsay learned that Pope's friend (petitioner) wanted a ride to McDonald's, and Lindsay agreed to take him. (Id. at 294, 296.) Lindsay also testified that shortly after entering the car, Pope demanded all of his money. (Id. at 297.) Lindsay responded, "Don't joke with me like that." (Id.) According to Lindsay, petitioner then stated, "We are not joking," which prompted Lindsay to turn towards petitioner. (Id.) At that point, Lindsay claimed, petitioner shot him in the face. (Id.)
In contrast, Pope testified that he paged Lindsay so that he could obtain marijuana. (Id. at 364, 383.) Once Lindsay arrived, Pope and petitioner entered the car, (id. at 367), and, according to Pope, Lindsay reached either beneath the driver-side seat or the driver-side dashboard to retrieve the marijuana. (Id. at 394.) Once Lindsay found the drugs, he turned towards Pope to hand them over, and petitioner shot Lindsay in the face. (Id. at 368.) Pope further testified that he and petitioner fled to Graham's house, where petitioner disassembled the gun and gave pieces of it to Pope and Graham. (Id. at 369-70, 398.) In a signed statement given to police shortly after the shooting, Pope provided the same account of the events. (Id. at 404-05.)
Pope further testified that he pled guilty to his involvement in the crimes at issue in this case, (id. at 371), and that as part of the plea bargain, the prosecution promised Pope a five-year prison term. (Id. at 378.) Pope also understood that he as part of the plea agreement, he would be expected to testify against petitioner. (Id. at 376.) In a subsequent guilty plea related to a separate robbery Pope committed in Nassau County, New York, Pope was promised a separate five-year sentence, which was to run concurrently to the five-year sentence for his role in the Lindsay shooting. (Id. at 378-80.) Pope indicated that he received a concurrent sentence for his Nassau County guilty plea as a result of his cooperation with the prosecution in petitioner's case. (Id. at 379.)
On April 24, 2000, a jury convicted petitioner of attempted murder in the second degree, assault in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and attempted robbery in the second degree. On May 8, 2000, the court sentenced petitioner to concurrent sentences of twenty years of imprisonment for attempted murder in the second degree, seven years for assault in the second degree, ten years for criminal possession of a weapon in the second degree, and seven years imprisonment for criminal possession of a weapon in the third degree and attempted robbery in the second degree. On September 23, 2002, the Appellate Division, Second Department, affirmed petitioner's ...