The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
Ellis Wood ("petitioner" or "Wood") was convicted in October, 2002 of first degree murder in New York Supreme Court, Kings County. Petitioner is currently serving a life sentence without parole. Petitioner brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief on the ground that the admission at trial of his videotaped statement, allegedly taken in violation of his Fifth and Fourteenth Amendment rights to counsel and to remain silent, was not harmless error. For the reasons stated below, petitioner's application is denied.
The following facts are drawn from the parties' submissions in connection with this motion and the record of petitioner's state court proceedings.
Petitioner was charged in State court with paying accomplice Rasheen Harry ("Harry") to kill Carlisle Hall ("Hall"), a businessman who owned and operated a travel agency in Brooklyn, New York. Jurors heard accounts of Hall's murder principally from three sources. Accomplice Rasheen Harry's ("Harry") account was given through two written statements and one videotaped statement, each of which was admitted at trial,*fn1 and testimony at the trial, each of which offered a somewhat different version of events.*fn2 In each of his statements, Harry stated that Wood directed him to kill Hall, either by threatening Harry or offering him money to do it. Second, Wood's ex-girlfriend Nisha Bernard ("Bernard") testified at trial regarding her relationship to Wood and statements made by Wood to the effect that he was responsible for the murder. Third, a videotaped statement by Wood to police following his arrest was introduced, in which Wood admitted that he was present at the scene of the murder but claimed that he was not involved in it. There was significant overlap between Harry's testimony and Wood's statement, the crucial difference being the question of whether Wood paid Harry to kill Hall. The defense did not call any witnesses.
Testimony of Bernard and Harry
Bernard worked at the travel agency owned by Hall, whom she described as a "father figure" and friend. Bernard first met Wood when he came to the travel agency as a customer in 1998. Six months later, Wood and Bernard began a romantic relationship, during the course of which they had two children. In late 1999, Bernard left her job at Hall's travel agency in order to extricate herself from a fraudulent credit card scheme that was being run through the travel agency, in which Wood, Bernard, and others were involved.*fn3 In June, 2000, Bernard was questioned by federal agents about the scheme and gave information about Wood's involvement. No charges were brought against Bernard. In August, 2000, Bernard was arrested on a complaint of grand larceny by Hall relating to her handling of credit cards in the travel office. The charge was later dropped. In February, 2001, Bernard moved into Wood's home. The couple had frequent, heated arguments. Bernard's mother did not like Wood, and there were conflicts between Wood and Bernard's cousin.
Hall was murdered on June 2, 2001. On that day, according to Harry, Wood approached Harry on the street and asked him if he wanted to make some money. Wood said that a man had assaulted his girlfriend and that he wanted the man killed. Harry accompanied Wood to a location from which Wood retrieved a gun. Wood gave Harry $20, and agreed to pay Harry and additional $500 to kill Hall.*fn4 The two drove in a green Lexus to the vicinity of Hall's travel agency. Wood identified Hall as Hall walked down the street with another man and entered the travel agency. Harry followed and shot Hall twice in the chest as he sat at his desk on the phone. After the shooting, Harry gave the gun to a friend named Damion and returned by subway train to his house. Three days after the shooting, Harry called Wood and asked for a loan. Wood agreed, and Harry went to Wood's business to get the money.*fn5 At various points over the ensuing weeks, Harry continued to ask Wood for money, which Wood loaned to him.*fn6
About three weeks later, Bernard and Wood had an argument following a telephone call from Bernard's mother to Wood, during which Bernard's mother called Wood a murderer.*fn7 Wood told Bernard that if she revealed any information about him, he could get the same person that killed her friend to do the same thing to her or her family. Bernard then moved to her mother's home.
On July 4, 2001, Bernard took her children to see their father at Wood's apartment, at which time Wood and Bernard again spoke about Hall's shooting. Wood said that he had done things for Bernard for love and Bernard had never done anything for him. When Bernard asked what he meant, Wood told Bernard that he went to the travel agency with the man who did the shooting and pointed out Hall as he was entering the store with a colleague. Afterwards, Wood said that he parked outside the store in his green Lexus and watched as the shooter went into the store and shot Hall twice.
In mid-July, 2001, Bernard was with Wood when he received a telephone call from a man Wood identified as the shooter; the man wanted $75 from Wood. Bernard drove with Wood to meet this man at a store. Wood pointed out the man to Bernard, and she waited in the car.
Bernard waited for weeks to contact authorities after Wood discussed the murder, because she was frightened and reluctant to believe that Wood was responsible for the murder. On July 25th, however, Bernard contacted a federal agent whose information she had kept from the credit card investigation and asked to meet him. Bernard explained to two agents who met her what she had heard and seen regarding Wood's involvement in the murder. Bernard told the police Wood's address, and they took him into custody. On August 25th, Bernard was present at a line-up at the 71st Precinct, at which she identified Harry as the person she had seen meeting with Wood. While Wood was incarcerated before the trial, Bernard continued to visit him in jail, because she was afraid that he might hurt her or her family if he knew that she was helping the government.
Following his arrest, Wood gave a videotaped statement, which was received in evidence at trial and played for the jury. The following is Wood's account of the murder, as described in his statement.
Wood was driving in his green Lexus to buy marijuana when he saw Hall walking into the travel agency. A gray Honda pulled up along side his; the driver was a man named Damion, and the passenger was Harry. Wood pointed out Hall to Damion and Harry and said that Hall was the man with whom his girlfriend had a problem. Wood parked his car and walked around the corner to the store. Wood thereafter heard two gunshots. Wood immediately returned to his car and drove to his business, where Harry and Damion later arrived. Wood sent Harry away and told Damion to stay away from Harry because he was crazy. Wood talked to Harry periodically after the shooting, and loaned him money at various times. The officer taking the statement asked if Wood had any problem with Hall following Hall's complaint alleging credit card fraud by Bernard, and Wood stated that he did not.
Defense Discrediting of Testimony
Although the defense did not put on a case, defense counsel attempted on cross-examination to discredit the testimony of the prosecution's witnesses.
During cross-examination of Harry, defense counsel elicited the fact that, on February 21, 2002, while awaiting trial, Harry executed an affidavit with assistance from Wood on Riker's Island, where both men were being held in the same building. In this affidavit, Harry stated that Wood had nothing to do with the crime, and further stated that Harry's videotaped statement had been made as a result of promises by the arresting officer and District Attorney. Defense counsel established that, at the time Harry executed the affidavit, Harry knew that there was a possibility the District Attorney would pursue the death penalty against him. On re-direct, Harry denied that his videotaped statement was the product of promises by the prosecutor or police. Harry testified that Wood pressed him for weeks to help write the affidavit so Wood could clear his name and that Wood thought up most of the statements in the affidavit and told Harry to write them.
Defense counsel confronted Harry with his numerous failures to comply with court orders and his with commission of new crimes while he was on probation. Harry admitted that he was a member of the Bloods gang, which he joined during one of his stints in prison. Harry further admitted that he was convicted of distribution of crack and assaulting fellow inmates while in prison, and that he lied on the witness stand at his trial for drug distribution. Defense counsel asked Harry about his cooperation agreement, which was signed on July 29, 2002. Under the agreement, Harry was allowed to plead guilty to first degree murder, in exchange for a sentence of twenty years to life, with an assurance from the District Attorney that favorable statements would be made to the parole board on his behalf.
On cross-examination of Bernard, defense counsel established that Bernard had been told during her questioning about Hall's murder that her credit card fraud case might be reopened. Defense counsel elicited that Bernard knew that, as a green card holder, she could be deported if convicted of the fraud. Bernard testified that the credit cards were of no interest to her when she gave information about Wood's involvement with Hall's death.
Defense counsel additionally established that Bernard and Wood had frequent, heated arguments.
II. Characterization of Testimony by Defense and Prosecution
In his closing statement, defense counsel spent considerable time arguing that Harry's testimony was not credible, given his conflicting statements, his prior convictions, and his motive to lie in order to take advantage of the cooperation agreement. Defense counsel reminded the jury that Bernard was not a first hand witness to anything, and pointed out Bernard's odd behavior in cooperating with the police while also maintaining her relationship with Wood, suggesting that Bernard did whatever was necessary to protect herself and get what she wanted, without concern for the truth. In addition, defense counsel played the video tape of Wood's statement for the jury.
The prosecutor began his closing statement by directing the jury to consider Wood's videotaped statement as a "series of very interesting admissions.... that should have sounded very, very familiar to you from the testimony of Rasheen Harry, and the testimony of Nisha Bernard." Tr. at 393. Save for the important detail of whose idea it was to kill Hall, Wood's videotaped statement corroborated Harry's testimony in the following respects: Wood admitted to being the scene of the crime and parking his green Lexus. Wood pointed out Hall to Harry as Hall walked into the travel agency with another man, and described Hall as a man who was causing problems for Bernard. Two shots were fired, and Wood gave Harry $20. Mr. Hale reminded the jury that Mr. Levine encouraged them to view Harry as a liar and asked the jury, "Is he lying about any of those things? No. Mr. Wood admits ...