The opinion of the court was delivered by: Korman, J.
In 2001, petitioner Lamont Johnson, also known as Your Majesty, filed a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 from his 1987 New York State conviction on two counts of second-degree murder. In 2003, I rejected all of the grounds for relief except one, which related to the introduction of allegedly perjured testimony at Johnson's trial. Johnson v. Walker ("Johnson I"), No. 01-cv-6862, 2003 WL 22002420, at *9 (E.D.N.Y. Aug. 27, 2003). On that claim, I remanded the case to the New York State Supreme Court for findings of fact. On remand, the Supreme Court Justice to whom the case was assigned, Yvonne Lewis, conducted several days of hearings and ultimately found that Johnson had not established that any perjured testimony was utilized in the course of his trial. Subsequently, Johnson filed an amended habeas petition that reinstated the remanded claim and added a new Brady claim involving a ballistics report that was not provided to Johnson at his trial. The amended petition was filed under the current docket number, 09-cv-3038, which was consolidated with the initial petition.
The events underlying Johnson's conviction occurred more than two decades ago on June 24, 1986. At approximately 3:30 am, Johnson and an unapprehended accomplice shot and killed Lance Gonzalez on Myrtle Avenue in Brooklyn, then chased down and shot Damon Rogers on Vernon Avenue, after Rogers pleaded for his life. Police found the bodies of Gonzalez and Rogers lying in the street within approximately five minutes after the shooting. (Trial Tr. 31-32.) Two individuals who witnessed the shooting, Marvin Lamar and Selvin Spencer, testified at trial. Lamar testified that he had engaged in a fight with Johnson earlier that summer. (Id. at 51-52.) Moreover, he testified that on the night of the shooting, he had looked through his apartment window and witnessed an individual that "looked like" Johnson or was an "exact look-a-like with" Johnson commit the shooting on Vernon Avenue. (Id. at 55, 57-62.) In the grand jury, however, Lamar had testified that the individual he witnessed commit the shooting was indeed Johnson. (Id. at 58.) Lamar had also been shown a photographic array by police officers, and had identified Johnson as the shooter. This fact, however, was not elicited at trial because such evidence is not admissible under New York law. People v. Cioffi, 1 N.Y.2d 70, 73 (1956).
The other witness, Selvin Spencer, was on the street at the time of the murders and identified Johnson at trial. (Trial Tr. 334.) Like Lamar, Spencer had also selected Johnson's photograph from the photographic array. At trial, Spencer was initially reluctant to testify because he and his family were "getting threats." (Id. at 125-26.) When he was called, Spencer refused to testify and also refused to give a reason for his reluctance. Outside of the presence of the jury, the judge threatened to hold Spencer in contempt "a hundred times," and told Spencer that he could impose a consecutive thirty-day sentence for each instance of contempt. (Id. at 266.) In response, Spencer stated that his family had received threats. (Id. at 268.) During a hearing that was held to determine the nature and source of the threats, Spencer's father testified that he had a received a call from Spencer's ex-wife. According to Spencer's father, the ex-wife stated that "I got a call from a man saying that if your son testifies he was going to bring harm to me and the two kids and your family." (Id. at 311.) Subsequently, a detective who was in the holding pens with Spencer testified that she overheard a conversation between Spencer and another individual who the detective believed was Johnson. According to the detective, the individual said, "That guy in there, Rahim [Spencer's street name], you better do the right thing." Spencer responded, "Don't worry about it, Lamont, I'm not with them. I'm not going to testify." (Id. at 318-19.)
After the detective testified, the prosecutor received a communication from Spencer that he was willing to take the stand. In the presence of the jury, Spencer stated that on the night of the shootings, Spencer was walking on Sumner Street when he observed a burgundy car with a livery license plate slowly driving around the block. (Id. at 370.) Spencer then observed two men exit the vehicle, who then argued with Johnson and another individual. Spencer then heard a number of gunshots and saw Johnson and another individual chase one of the victims around the corner, where he heard the victim pleading, "Please don't kill me." (Id. at 333.) Spencer then heard "ten or fifteen shots." (Id. at 336.)
Johnson was found guilty of two counts of second-degree murder and was sentenced to two consecutive terms of twenty years to life.
II. Federal Habeas and Proceedings on Remand
After repeated efforts to collaterally attack his conviction in state court, Johnson filed his federal habeas petition in 2001. After all but one claims were found to be without merit, the petition was remanded to New York Supreme Court for findings of fact regarding the lone surviving claim that Selvin Spencer committed perjury when he testified against petitioner at trial. While the case was pending, Selvin Spencer died before he could testify. Prior to his death, Spencer had signed several affidavits purportedly recanting his testimony at trial, although the affidavits were often preceded by letters from Spencer to the District Attorney's Office indicating that individuals had coerced him into signing the affidavits by threat of violence. At the hearing, both Johnson and the District Attorney called multiple witnesses. Specifically, Johnson's witness Victor Berry testified that Selvin Spencer had told Berry that "he never seen what went down," and that Spencer was "getting high" at the time of the shootings. (Dec. 15, 2004 Hrg. Tr. 22-23.) Arthur Brodie testified that he had witnessed the shootings in 1986, and he identified the shooters as two individuals by the name of Ron-K and Magnetic, not Johnson. (Jan. 19, 2005 Hrg. Tr. 8-9.) By the time of the hearing, Ron-K (whose real name was Rodney Pender) had been deceased.
Later, Denise Williams, who claimed to be a close friend of Pender, testified that he had confided in her sometime in 1986 that he and another individual named Magnetic had committed the murders of Gonzalez and Rogers. (Id. at 60-61.) Alvin McKoy, who testified at the hearing by video conference due to his incarceration in North Carolina, indicated that he and Selvin Spencer, who McKoy knew by his street name of Raheem, were using heroin on the night of the shootings and that Spencer did not witness the shootings. (Apr. 6, 2006 Hrg. Tr. 14, 17-18, 24.) Johnson also called Detective Stephen Chmil, who testified regarding the investigation of the murders of Gonzalez and Rogers. (June 21, 2006 Hrg. Tr.) According to Chmil, very shortly after the murders, the "word on the street" was that "Umagisty" (Johnson) and "Natural" (Michael Sennon) had committed the murders. (Id. at 13-14.)
The District Attorney called Brian Harnick, who was the Assistant District Attorney ("ADA") who prosecuted Johnson. He testified about the pretrial preparations, including an interview he conducted with Selvin Spencer, as well as the trial. (Sept. 19, 2006 Hrg. Tr.) Michael Cavuto, another police officer, testified about the investigation. (Oct. 19, 2006 Hrg. Tr.) John O'Mara, another Assistant District Attorney, testified that he fielded letters from Selvin Spencer after Harnick had left the District Attorney's office. (Nov. 9, 2006 Hrg. Tr. 38-40.) According to O'Mara, Spencer indicated in his letters that he had been threatened and assaulted because he testified against Johnson, and that inmates had coerced Spencer into signing affidavits recanting his testimony at trial. (Id.) Moreover, Vernon Fonda, an employee of the New York State Department of Correctional Services, testified that as a result of his letters, Spencer was placed into protective custody. (Id. at 76.)
Johnson called two rebuttal witnesses. First, he called John Parron, who was the CEO of See-Clear Janitorial Services, to testify about business practices at the company in 1986. A note in Detective Cavuto's investigation notebook indicated that Michael Sennon, who was initially a suspect along with Johnson, and who was identified by Selvin Spencer as the second shooter, worked at See-Clear Janitorial Services. According to the note, Sennon was working at a Brooklyn IBM facility pursuant to a contract with See-Clear on the night of the murders. Johnson called Parron to corroborate Sennon's alibi, discredit Spencer's identification of Sennon as the second shooter, and thereby establish that Spencer did not witness the shooting. Parron testified that he did not know Sennon and that employment records from 1986 were no longer available. He testified, however, that contractors often prohibited employees from leaving the facility for meals when they were on duty. (Nov. 9, 2006 Hrg. Tr. 10-11.) Parron said that he did not know whether the policy was in place in 1986. (Id. at 11.)
Finally, Johnson called Eric McKenzie, who lived in the Bedford Stuyvesant area in 1986. He testified about an incident that occurred on June 16, 1986, several days before the murders of Gonzalez and Rogers. According to McKenzie, he had been standing on the street with Johnson and Michael Sennon, when Rodney Pender and "Magnetic" arrived. (Dec. 18, 2006 Hrg. Tr. 21-23.) McKenzie testified that Johnson and Pender began arguing, and then somebody shot McKenzie from behind. (Id.) McKenzie believed that the shooter was Magnetic. (Id. at 26.) McKenzie also believed that the person who killed Gonzalez and Rogers was the same person who shot McKenzie. (Id. at 25.) McKenzie also testified that several years later, in either 1993 or 1994 (id. at 28) (or perhaps 1987) (id. at 48-49), when he was incarcerated at Rikers Island, he met Selvin Spencer in the law library. According to McKenzie, Spencer told him that he had "messed up because he lied on Majesty about something." (Id. at 28.) Immediately afterwards, Johnson came down and met Spencer and McKenzie in the library. According to McKenzie, Spencer apologized to Johnson and promised to "make it right." (Id. at 29.) McKenzie said that Johnson did not threaten Spencer at that time. (Id.)
After the hearing, Justice Lewis issued an opinion finding that the District Attorney had not knowingly utilized perjured testimony at Johnson's trial. Specifically, Justice Lewis found that Denise Williams, Alvin McKoy, Eric McKenzie, Arthur Brodie and Victor Berry were not credible. People v. Johnson ("Johnson II"), 859 N.Y.S.2d 897, No. 4319/86, 2008 WL 425142, at *10 (N.Y. Sup. Ct. Feb. 15, 2008). With respect to Spencer's affidavits recanting his testimony, Justice Lewis held that "[t]he recantations by Mr. Spencer, now deceased, are not uniform, give an account of the shootings inconsistent with established facts asserted by all other witnesses, and are preceded by letters that speak to their inducement by threats." Id. Consequently, the court found that Johnson had not "established that any perjured testimony was utilized in the course of Mr. Johnson's trial, much less that the prosecution knew or should have known of any such occurrence." Id. at *12.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to both of Johnson's habeas claims, to prevail on a petition for a writ of habeas corpus, a petitioner confined pursuant to a state court judgment must show that the court's "adjudication of the claim . . . 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 decision is "contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). An "unreasonable application" occurs when a "state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. Unreasonableness is determined by an objective standard. Id. at 409. Moreover, the Supreme Court has held that "unreasonableness" should not be conflated with "clear error" because "[t]he gloss of clear error fails to give proper deference to state courts." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The deference given to state court decisions is particularly strong in the case of factual findings. Such findings enjoy a strong presumption of correctness that may only be rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
I. Use of Allegedly Perjured Testimony
Johnson's first claim, which was held over due to the state-court remand, alleges that prosecutors knowingly allowed Selvin Spencer to present perjured testimony during Johnson's trial in violation of the Due Process Clause. According to Johnson, Spencer falsely testified that he saw Johnson running down the street after the shooting because he never was in a position to view the shooters. Johnson's theory of the case is that Rodney Pender and individual known only as Magnetic committed the murders. Generally, "a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, . . . [and the] same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. Illinois, 360 U.S. 264, 269 (1959) (internal citations omitted). Under this standard, a conviction must be set aside if newly discovered evidence shows that "(1) the prosecution knew, or should have known, of the perjury, and (2) there is any reasonable likelihood that false testimony could have affected the judgment of the jury." Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (internal citation, quotations, and footnote omitted).
Nevertheless, as observed in my initial memorandum and order, the state of Second Circuit law on this issue was "uncertain." Johnson I, 2003 WL 22002420, at *5. Specifically, in a pre-AEDPA case, Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988), the Second Circuit held that habeas corpus relief may be granted even in the absence of prosecutorial knowledge that perjured testimony was introduced at a petitioner's trial. Subsequently, in Drake v. Portuondo, the Second Circuit recognized that Sanders "explicitly relied on Justice Douglas' dissent in Durley v. Mayo, 351 U.S. 277 (1956)." Drake, 321 F.3d at 345, n.2. Consequently, because "AEDPA permits us to rely only on clearly established Supreme Court precedent," the Second Circuit held that habeas relief is warranted only where prosecutors had knowledge of the perjury. Id.
Shortly after Drake was decided, however, the Second Circuit, relying on Sanders, held that "due process is violated only if the testimony was material and the court [is left] with a firm belief that, but for the perjured testimony, the defendant would most likely not have been convicted." Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003) (internal quotations omitted). As I previously observed, "Ortega cannot be reconciled either with AEDPA or Drake v. Portuondo." Johnson I, 2003 WL 22002420, at *4. Unfortunately, little has occurred since 2003 to clarify this apparent inconsistency. Some courts have attempted to explain the discrepancy, see Ortiz v. Woods, 463 F. Supp. 2d 380, 396 (W.D.N.Y. 2006) (attempting to reconcile Ortega and Drake by noting that Ortega was not decided under the deferential AEDPA review standard), while others have simply ignored Ortega's holding, see Laurey v. Graham, 596 F. Supp. 2d 743, 766-67 (W.D.N.Y. 2008) (holding that prosecutorial knowledge is a requirement to establish due process violation and noting that Sullivan does not apply in an AEDPA case). Nevertheless, nothing in the state court ...