The opinion of the court was delivered by: Seybert, District Judge
On May 22, 2008, this Court denied Petitioner Juan Ayala's petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 (the "May 2008 Order"). The Court of Appeals for the Second Circuit has now remanded this matter for this Court to address Petitioner's arguments that (1) the trial court improperly admitted evidence of Petitioner's gang membership and (2) the trial court improperly allowed out-of-court statements identifying Petitioner as the perpetrator. The Court has reviewed these two claims and, for the reasons stated below, finds that neither warrant habeas corpus relief.
The facts of this case were set forth in detail in the Court's May 2008 Order. In brief, Petitioner was convicted by a jury in the Nassau County Court, Nassau County, on May 19, 2000, of one count of murder in the second degree in violation of New York Penal Law § 125.25(2). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life.
The events underlying Petitioner's conviction occurred on May 28, 1999, in Hempstead, New York. On that night, the victim, Jose Christian Reyes ("Reyes"), stood in front of his apartment building, known as 299 Jackson Street, with Luis Aguilar ("Aguilar"), James Buckley ("Buckley"), Wilber Alvarez ("Alvarez"), Jose Cruz ("Cruz"), and Carlos Perez ("Perez"). Two men walked towards the group as they stood conversing under a streetlight. Aguilar recognized one of the men, later identified as Petitioner, as a member of a street gang, Mara Salvatrucha ("MS"). Aguilar was a member of a rival gang, Salvadorans With Pride ("SWP"). Petitioner took out a gun and fired a shot into the group, killing eighteen-year-old Reyes. The remainder of the group fled.
At approximately 11:30 p.m., Detective Frank Puma and Salvatore Mancuso arrived at the scene. At around 12:15 a.m, Perez accompanied the detectives in an unmarked patrol car to search for the perpetrator. Perez saw Petitioner in front of a nightclub located approximately three and one-half blocks from the scene of the shooting and informed the detectives that Petitioner had shot Reyes. Detective Puma arrested Petitioner and his companion, Lenny Moriera ("Moriera"), shortly thereafter. Moriera and Petitioner were later driven to the crime scene.
The detectives asked Moriera to stand in front of a command bus, which had been set up at the crime scene. Cruz, who had been in the command bus, did not recognize Moriera. The officers returned Moriera to the car and brought out Petitioner; Cruz identified Petitioner as the individual who shot Reyes.
On May 29, 1999, Buckley and Alvarez identified Petitioner in a line-up. On August 5, 1999, a witness, Rodney Logan, viewed a line-up and identified Petitioner as one of the men he saw running from the area of the crime.
Petitioner was charged with both intentional murder and depraved indifference murder. On April 18, 2000, a jury convicted Petitioner of depraved indifference murder and acquitted him of intentional murder. On October 7, 2002, the Appellate Division, Second Department affirmed Ayala's conviction. People v. Ayala, 298 A.D.2d 397 (N.Y. App. Div. 2002). Leave to appeal to the New York Court of Appeals was denied on December 12, 2002. People v. Ayala, 99 N.Y.2d 555, 784 N.E.2d 79, 754 N.Y.S.2d 206 (2002).
A federal court may entertain a petition for habeas corpus on behalf of an individual in state custody "pursuant to the judgment of a State court only on the ground that [petitioner] is in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254 (1996). The petition for habeas corpus will not be granted with respect to any claim adjudicated on the merits in state court, unless one of two instances occur. See id. The petition may be granted if the determination made by the state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A federal court may also grant a petition if the decision made by the state court "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)(2).
Petitioner's remaining claims seek review of the trial court's evidentiary rulings. Petitioner asserts that the trial court improperly introduced evidence of Petitioner's gang membership, and allowed hearsay testimony from witnesses describing Petitioner as the perpetrator. "Generally, state court rulings on evidentiary matters are a matter of state law and do not raise constitutional issues. Such rulings are not reviewable by a habeas court unless the errors alleged are so prejudicial as to constitute fundamental unfairness." Warren v. Miller, 78 F. Supp. 2d 120, 135 (E.D.N.Y. 2000) (citing Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988).
The Court must first determine whether the state court violated a state evidentiary rule, "because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional." Id. (citing Brooks v. Artuz, No. 97-CV-3300, 2000 U.S. Dist. LEXIS 15070, at *26 (S.D.N.Y. Oct. 9, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp. 2d at 391-92 (once the federal court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis). Petitioner bears a heavy burden because "[e]ven an incorrect state court evidentiary ruling does not rise to the level of constitutional error necessary to warrant ...