The opinion of the court was delivered by: Seybert, District Judge
Petitioner Christopher Slavin ("Petitioner" or "Slavin") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, Slavin's petition is DENIED.
At approximately 6:30 a.m. on September 17, 2000, Petitioner and Ryan Wagner ("Wagner") picked up a "day laborer", under the guise of providing work, by a 7-Eleven convenience store in Farmingville, New York. The worker led Petitioner and his accomplice to his home in Farmingville, where he asked his roommates, Israel Pérez Arvizu ("Pérez") and Magdaleno Estrada Escamilla ("Estrada") if they wanted to work. After both responded affirmatively, Petitioner and Wagner drove Pérez and Estrada to an abandoned building in an industrial park in Suffolk County, New York. During the drive, Petitioner asked the two men whether they were Mexican.
When they arrived, Petitioner and Wagner directed Pérez and Estrada to clean the basement of an abandoned building. A few moments later, Petitioner and his accomplice brutally attacked the two day laborers; Petitioner hit Estrada in the back of his head with a metal post-hole digger and Wagner stabbed Pérez with a folding knife.
As Petitioner continued to beat Estrada, Pérez attempted to escape, but slipped while running. While Pérez was on the ground, Petitioner attempted to hit him with a post-hole digger; however, Petitioner was not successful and the digger only scraped Pérez's head. Eventually, the two victims managed to escape onto the Long Island Expressway. A passing motorist called 911 after noticing the two victims covered in blood and standing in the way of traffic.
A subsequent police investigation quickly led to Petitioner and Wagner. Petitioner ultimately surrendered to authorities at the Suffolk County District Attorney's office on November 2, 2000. During his arrest, law enforcement officials directed Petitioner, over his objections, to submit to being photographed without his shirt on; the photographs were later used to obtain a grand jury indictment. The photographs revealed numerous tattoos on Petitioner's body, including one of an American flag over a Nazi swastika and another depicting a caricature of a Jewish man kneeling down with his hand raised at the approach of a skinhead with a sinister, clown-like visage, holding an ax. Other tattoos included the Nazi "SS" symbol,*fn1 two lightening bolts, a skinhead holding a club and restraining a pit bull, a skinhead holding a flaming torch as he walks on human skeletal remains, a tank crushing human skulls, a Viking ship, and two Viking figures. Petitioner bore a tattoo on the back of his neck stating, "A.C.A.B.", an acronym for "All Cops are Bastards." On his right upper arm, the letters "F.T.W." ("Fuck The World") were tattooed in red, and the letters "N.Y.H.C." ("New York Hard Core" or "New York Hate Corps.") were tattooed in black.
Petitioner later moved to dismiss his indictment on the grounds that his Fourth, Fifth, and Sixth Amendment rights were violated when the grand jury was shown photographs of Petitioner's numerous tattoos. The trial court denied Petitioner's motion, and additionally granted the prosecution's motion to take a second set of photographs pursuant to New York Criminal Procedure Law § 240.40, which grants a trial court discretion to order a Petitioner to "provide non-testimonial evidence," including, among other things, requiring a defendant to "[p]ose for photographs not involving reenactment of an event." The second set of photographs were introduced during Petitioner's trial through a friend who testified that the photographs depicted tattoos that he had observed on Petitioner's body prior to the attack. During the trial, the prosecution presented an expert who testified as to the customary meaning of the various pictures and symbols tattooed on Petitioner's body. However, the trial court directed the expert not to testify about Petitioner's thoughts or beliefs during the attack or whether the Petitioner ascribed to the viewpoints depicted by the tattoos.
On October 4, 2001, Petitioner was sentenced to 25-years imprisonment after a jury convicted him of two counts of Attempted Murder in the Second Degree, one count of Assault in the First Degree, one count of Assault in the Second Degree, and two counts of Aggravated Harassment in the Second Degree. On November 18, 2002, the New York Appellate Division, Second Department affirmed the trial court's judgment of conviction. See People v. Slavin, 749 N.Y.S.2d 738 (2d Dept. 2002). On June 11, 2003, Chief Judge Judith Kaye granted leave to appeal to the New York State Court of Appeals, and on February 17, 2004 the New York Court of Appeals upheld the Appellate Division's ruling. See People v. Slavin, 1 N.Y. 3d 392, 807 N.E.2d 259, 775 N.Y.S.2d 210 (2004). The majority opinion rejected Petitioner's argument that his constitutional rights were violated by compelled self-incrimination. However, two judges dissented, in part, finding that there was an error, but that it was harmless beyond a reasonable doubt. On February 15, 2005, Petitioner filed the instant petition.
I. Federal Habeas Review of State Convictions
Petitioner filed this action after April 24, 1996, the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Accordingly, AEDPA's provisions apply to his case. Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1479, 1518, 146 L.Ed. 2d 389 (2000). Under the provisions of 28 U.S.C. § 2254(d), a habeas corpus application must be denied unless the state court's adjudication on the merits "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," or "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). This deferential review is applied as long as the "federal claim has been 'adjudicated on the merits' by the state court." Cotto v. Herbert, 331 F.3d 217, 231 (2d Cir. 2003). "A state court adjudicates a petitioner's federal constitutional claims on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (internal citations and quotations omitted).
"Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (internal citations and quotations omitted). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" a Supreme Court case, or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [their] precedent." Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed. 2d 9 (2001) (internal quotations and citations omitted). A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Penry, 532 U.S. at 792. Accordingly, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.
"[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1).
As a result, Petitioner bears the burden of "rebutting the presumption of correctness by clear and convincing evidence." Id. This is "particularly important when reviewing the trial court's assessment of witness credibility." Cotto, 331 F.3d at 233 (internal citations and quotations omitted).
II. Petitioner's Fifth Amendment Rights were not Violated
Petitioner argues that the photographs of his tattoos, presented to the jury for the purposes of demonstrating that he was a white supremacist, violated his Fifth Amendment rights. He alleges that the trial court "ordered" him to "provide communicative evidence" that was "offered for its communicative and testimonial value...," in violation of the Constitution. (Pet.'s Mem. L. 15.) The Court disagrees.
The self incrimination clause of the Fifth Amendment reads: "No person... shall be compelled in any criminal case to be a witness against himself...." U.S. CONST. AMEND. V. This privilege against self incrimination bars the government from "compelling 'communications' or 'testimony'...." Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966); see also Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 48 L.Ed. 2d 39 ("the Fifth Amendment is limited to prohibiting the use of 'physical or moral compulsion' exerted on the person asserting the privilege." (citations omitted)); United States v. Nobles, 4222 U.S. 225, 233 n.7, 95 S.Ct. 2160, 45 L.Ed. 2d 141 (1975) (the Fifth Amendment protects against "compelled self-incrimination, not... [the disclosure of] private information."). On the other hand, "compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate [the privilege]." Schmerber, 384 U.S. at 764. Thus, "[t]o qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled." Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed. 2d 292 (2004). And the determination of "whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case." Doe v. United States, 487 U.S. 201, 215, 108 S.Ct. 2341, 101 L.Ed. 2d 184 (1988).
It is a "settled proposition that a person may be required to produce specific documents even thought they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the privilege." United States v. Hubbell, 530 U.S. 27, 35-36, 120 S.Ct. 2037, 147 L.Ed. 2d 24 (2000). But "the act of producing documents in response to a subpoena may have a compelled testimonial aspect." Id. at 36 (emphasis supplied). This is because by producing the documents themselves, the witness "communicate[s] information about the existence, custody, and authenticity of the documents." Id. at 37 (citations omitted).
Where the existence and location of the evidence is a foregone conclusion, however, nothing is added by conceding that the evidence exists, and producing the evidence does not violate the Fifth Amendment. Fisher, 425 U.S. at 411; In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993) ("Production may not be refused '[i]f the government can demonstrate with reasonable particularity that it knows of the existence and location ...