The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Ronnie Diggs ("Diggs" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Diggs is serving concurrent determinate sentences of twenty-five years on convictions of robbery in the first degree (four counts); fifteen years for convictions on robbery in the second degree (three counts); seven years for a conviction of assault in the second degree (one count); and fifteen years for a conviction of criminal possession of a weapon in the second degree (one count). The aggregate sentence is twenty-five years and there is a five-year term of post-release supervision. Diggs' habeas petition raises one ground for relief--that the prosecutor committed misconduct during summation. The Appellate Division rejected this contention on the merits on direct appeal. Respondent concedes that Petitioner has fully exhausted his state court remedies with regard to the prosecutorial misconduct claim and argues that the Appellate Division's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent and therefore habeas relief is not warranted.
The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
A. Summary of the Testimony at Trial
On July 23, 2002, Antonio Diaz, Jr. ("Diaz") and Jeremy Velasquez ("Velasquez") were riding their motorized scooters to a friend's house after school. On the way, two men approached the boys and inquired as to whether the scooters worked. Velasquez described the men as African-American and said that one was chubby; the other one was skinny. The skinny male, who was wearing a "do rag" on his head, asked whether the scooters worked. (187). The boys said they did and continued on to their destination.
About half an hour later, the boys left their friend's house on their scooters. As they neared the corner of Wilkins and Carter Streets, the two men "jumped out". (189). This time, Velasquez stated, the skinny man with the do rag had a gun. (192).
The gunman pointed the gun at Diaz's head and demanded the medallion Diaz was wearing. When Diaz did not give Petitioner the medallion, Petitioner ripped it off after yanking at it twice. (192). Petitioner then demand that Diaz empty his pockets, but Diaz refused, trying to swat the gun away from his head. (193). Petitioner cocked the trigger and again demanded that Diaz empty his pockets. Diaz then handed over twenty dollars. Petitioner pointed the gun at Diaz's left knee and fired, seriously injuring him. He then fled with Diaz's scooter. Petitioner was later found to be in possession of Diaz's medallion.
While Petitioner was robbing Diaz, his chubby accomplice was accosting Velasquez. (189). When Velasquez refused to give up his scooter, the accomplice wrested it away from him and ran off. Velasquez turned around and saw Diaz being shot by the skinny man with the do rag. (Velasquez was unable to identify Petitioner as the assailant.) Velasquez ran over to Diaz, who limped for a moment then fell to the ground. The police soon arrived and an ambulance brought Diaz to Rochester General Hospital for treatment.
Later that same day, Antonio Diaz, Sr. ("Diaz, Sr.") was driving Velasquez home after they had visited Diaz in the hospital. (200). On Hudson Avenue, they saw two men riding scooters, one of which Velasquez stated that he could clearly tell was his own. (201). However, neither Velasquez nor Diaz, Sr.could identify the rider of the other scooter with certainty because he passed by them too quickly. (201-05; 340-41). Diaz, Sr. then stopped the car, got out, and began yelling at the man on Velasquez's scooter, who dropped the scooter and fled. (340). Diaz, Sr. placed the scooter in the trunk of his car before unsuccessfully trying to chase the man down. (340).
The following day, between 4:15 and 4:30 p.m., Diaz's girlfriend, Virmaris Castillo ("Gorda"), went with her niece to a convenience store on the corner of Hudson and Weeger Streets. (309-10). At the store, Gorda saw Petitioner standing with a group of people. According to Gorda, he was wearing what appeared to be Diaz's medallion. (312-14). Gorda overheard Petitioner saying that he had to "yank it two times to take it" and that "when he shot he didn't know where he shot at, all he seen [sic] was the kid drop and he grabbed his scooter and ran." (314). Gorda stated that the person with the medallion asked her niece what her name was and commented that she was beautiful and would grow up "to look just like [Gorda]." In court, Gorda identified People's Exhibit 3 as the medallion she observed on the person outside the store. (318-19).
Gorda then returned home and called the hospital, speaking briefly to Diaz before relating what she had seen and heard to Diaz, Sr.. (320; 326-27).
Gorda testified that she had seen the person boasting about the medallion at the grocery store on many occasions around the neighborhood. (334). She testified that she had picked him out of a photo array; however, in subsequent testimony, Gorda equivocated and said she was not sure if the person she had selected in the photo array was the same person. (330, 334).
Upon learning this information from Gorda, Diaz, Sr.went to the corner of Mark Street and Hudson Avenue, where he saw a man who matched the description Gorda had given. This man was on a porch on Mark Street and was wearing Diaz's medallion. (342). Diaz, Sr.then called 911 and gave Petitioner's description to the dispatcher. (345). Diaz, Sr.identified People's Exhibit 3 as a medallion he had bought for his son twelve or thirteen years ago. (343-44).
At approximately 5:00 p.m., Officers James Reed and Andrew MacKenzie, who were on bicycle patrol, received a call directing them to the corner of Mark Street and Hudson Avenue for the purpose of apprehending a suspect in the previous day's shooting. (400). As the two officers approached the corner, the people congregated there dispersed. The officers were unable to locate the suspect. (401).
Investigator Kevin Wehbring later went to Gorda's home, where she gave him a description of the man she had seen at the corner store. (322). At about 5:30, Investigator Wehbring broadcasted another request for officers to respond to the corner of Mark and Hudson to find the same suspect. (379-80; 401). When Officers Reed and MacKenzie returned to the corner and spotted Petitioner, who matched the description broadcasted, they arrested him. (402). They were soon joined by Officer Favian Rivera who recovered the medallion which Petitioner had been wearing but which had fallen off during Petitioner's struggle with the officers. (383-85).
At about 6:30 p.m., Investigator Paul Friday showed the recovered medallion to Diaz, who identified it as the medallion stolen from his neck the day before. (416-17). Diaz subsequently identified Petitioner as his assailant during a line-up identification procedure on ...