The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
By a petition for a writ of habeas corpus under 28 U.S.C. § 2254, petitioner pro se Ramone Robinson ("Robinson" or "petitioner") challenges the constitutionality of his state custody pursuant to judgment of conviction, following a jury trial in Erie County Court, on charges of second degree (intentional) murder (New York Penal Law ("P.L.") § 125.25(1)) and criminal possession of a weapon in the second degree (P.L. § 265.03(2)). Robinson is currently serving an aggregate sentence of 25 years to life.
In his petition, Robinson contends that the state court improperly admitted identification proof from two prosecution witnesses; he was deprived of his right to a fair trial by certain remarks made in the prosecutor's summation; and he was not afforded his Sixth Amendment right to the effective assistance of counsel. Respondent, addressing the merits of all of the claims, argues that none of them warrant habeas relief.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, Robinson's request for a writ of habeas corpus is denied and the petition is dismissed. In light of this Court's disposition of the petition, Robinson's pending motion for an evidentiary hearing is denied as moot.
The Court's review of habeas petitions filed pursuant to § 2254 is governed by standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Brisco v. Ercole, 565 F.3d 80, 87 (2d Cir. 2009)(citing Messiah v. Duncan, 435 F.3d 186, 196-98 (2d Cir.2006)). The Second Circuit has summarized the main points of the AEDPA inquiry as follows:
Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) 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 (2) 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). We must presume the state court's factual findings to be correct and may overturn those findings only if the petitioner offers "clear and convincing evidence" of their incorrectness. 28 U.S.C. § 2254(e)(1).
Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir.2006) (quoted in Brisco, 565 F.3d at 87).
III. Analysis of the Petition
A. Claim One: Erroneous Admission of Identification Testimony Derived From Unduly Suggestive Photograph Array
Robinson claims that he was denied due process of law as a result of the trial court's admission into evidence of two witnesses' in-court identifications of him as the perpetrator. Specifically, Robinson maintains that the pre-trial photographic array was unduly suggestive and thereby tainted the witnesses' subsequent in-court identifications.
Detective Minor testified that Shardae Thompson ("Thompson") described the shooter as a short, light skinned black male with dark clothing and long braids. Transcript of Suppression Hearing at 9-10, 17-18 (hereinafter "H__"). Detective Scinta testified that witnesses described the suspect as a young black male with "cornrow"-type braids that went straight back. Detective Scinta did not recall if the witnesses mentioned the length of the braids. H.45. Both detectives stated that a photo array was used depicting six black males between the ages of seventeen and the early twenties, having cornrows or braided hair. All the filler individuals had long braids, while petitioner's braids were pushed out to the side. H.11-12, 23-24, 35-36. Thompson was shown the array in a non-suggestive manner and she selected petitioner's photograph, indicating it looked like the person who shot the victim, although she could not be sure unless she saw him in person. H.13-15, 25-27.
The array was subsequently shown to witness Larry Greene ("Greene"). H.16-17, 36-37. According to the police detectives, Greene selected petitioner's photograph after looking at the array for only a couple of seconds. H.37.
The state suppression court ruled that there was nothing inherently suggestive about the individual photographs in the arrays or the composition of the arrays as a whole. Robinson argues that the arrays were unduly suggestive because he was the only individual depicted having longer braids, and Thompson described the shooter as having long braids. On direct appeal, the Appellate Division, Fourth Department, held that the suppression court "properly determined that the photo array was not unduly suggestive[.]" People v. Robinson, 5 A.D.3d 1077, 1078, 773 N.Y.S.2d 662, 663 (App. Div. 4th Dept.) (citing People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied, 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Parker, 257 A.D.2d 693, 693-694, 684 N.Y.S.2d 300, lv. denied, 93 N.Y.2d 1015, 1024, 697 N.Y.S.2d 574, 583, ...