The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
Michael Sookoo brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in New York State Supreme Court, New York County, of murder in the second degree in violation of New York Penal Law section 125.25, and was sentenced on February 20, 2001, to a prison term of twenty years to life. The judgment of conviction was affirmed on April 29, 2008, by the Appellate Division, First Department, 856 N.Y.S.2d 105, 106 (App. Div. 2008), and leave to appeal to the New York Court of Appeals was denied on July 30, 2008, 893 N.E.2d 454, 454 (N.Y. 2008). The petitioner asserts the following four claims in his habeas corpus petition: (1) The judge failed to give an alibi instruction; (2) the judge failed to give a "one witness identification charge;" (3) the admission of testimony by the former Assistant District Attorney and the police about prior consistent statements from witness William Ross was error; and (4) the petitioner's trial counsel was ineffective.
The events that led to the petitioner's conviction took place in 1990. At that time, however, the detectives investigating the death of Kenny Hayes did not believe there was sufficient evidence to charge the petitioner with his murder. (Tr. 22.) That changed in 1995 when William Ross, who lives in the building in front of which Hayes was killed, came forward as an eyewitness to the murder. (Tr. 22, 50.) Ross, a former low-level drug-dealer with an extensive criminal record, came to the police after he was nearly shot following a dispute that was unrelated to the petitioner's case. (Tr. 23.) Ross worked with the police on that case, testifying against those involved in the attempt on his life. (Tr. 24.) During that time, he formed a friendship with the Assistant District Attorney ("ADA") assigned to prosecute that case. (Tr. 24.) Unprompted, Ross came into the ADA's office one day and told him that he had witnessed the petitioner shoot Hayes in 1990. (Tr. 25.) Ross's description of the shooting led police to re-open the file on the death of Hayes, and to prosecute the petitioner for his murder. (Tr. 30.)
At trial, the jury could reasonably have found the following facts. The petitioner operated a social club in which gambling took place and liquor and drugs were sold in the basement of an apartment building located at 312 West 122nd Street in Manhattan. (Tr. 50, 53-54.) The prosecution's eyewitness, William Ross, lived on the second floor of the apartment building in which the petitioner operated his club. (Tr. 51.) Ross indicated that in either November or December of 1989, a man named Kenny Hayes introduced himself as the new superintendent of the building to the building's residents, including Ross. (Tr. 51-52). Hayes told the building's residents that he was the "new sheriff in town" and that he was going to rectify "anything that was happening in the building illegally." (Tr. 52.)
Ross testified that in early February 1990, he observed the petitioner and Hayes speaking on the sidewalk in front of the apartment building from the window of his second floor apartment. (Tr. 62-63.) Ross testified that although he could not hear the conversation, he knew its substance involved Hayes' opposition to the club the petitioner was running. (Tr. 64.)
Ross next testified that he was looking out the open window of his second floor apartment at around 8:45 p.m. on the night of February 19, 1990, when he saw Hayes standing on the sidewalk outside. (Tr. 68-69.) Then, he "saw Mike [Sookoo] step up the stairs [from the basement club] and take some shots at Kenny." (Tr. 69.) Ross testified that he heard three or four shots and that the petitioner fired from a distance of ten to twelve feet. (Tr. 78.) Hayes fell over and the petitioner went back down the stairs to the club. (Tr. 79.) Ross then observed the petitioner exit the club from a different staircase with five to seven people. (Tr. 92-93.) The last he saw the petitioner that night was as the petitioner turned the corner to the left of Manhattan Avenue. (Tr. 94.) Ross stated that he did not call the police because he "really didn't want to get involved." (Tr. 103.)
James Harrell, a building administrator who oversaw maintenance at 312 West 122nd Street, also testified at trial. (Tr. 244.) Harrell had hired Kenny Hayes as the superintendent for the building. (Tr. 246.) Harrell was also aware that the petitioner had taken over the operations for the social club run out of the basement of the building; and Harrell testified that he believed drugs were being sold out of the club. (Tr. 249-50.) Hayes, the superintendent, had voiced concerns to Harrell about the petitioner's operation of the club and its activities. (Tr. 252.) About a week before Hayes was killed, Harrell visited the building and spoke with the petitioner. (Tr. 253.) The petitioner informed Harrell that he was now a partner in the club with Willie Floyd, who had previously been its sole operator, and that he wanted to pay off any rent that Floyd owed. (Tr. 254.) Harrell told the petitioner that he would only accept rent from Floyd. (Tr. 254.) At that point, several men came out of the club and "surrounded [Harrell] . . . with a threatening manner." (Tr. 254.) Harrell stated that he was "going to start legal proceedings to evict [the] club," and walked away. (Tr. 254).
On the night of February 19, 1990, at around 8:30 p.m., Harrell testified that he received a phone call from one of the tenants in the apartment building next to 312 West 122nd Street indicating that there was a problem with the heat in the building. (Tr. 257-58.) Harrell called Hayes and told him to meet Harrell in front of 312 West 122nd Street. (Tr. 258.) Harrell intended to look at the boiler in the basement of 312 with Hayes. (Trial Tr. 258.) As Harrell approached 122nd Street and Manhattan Avenue, he saw the petitioner and a group of about five other men walking towards him. (Tr. 259.) As he passed by the group, he heard someone in the crowd say either, "do you think he is dead" or "did you kill him" or "something of that nature." (Tr. 260.) He was not sure who in the group said those words. (Tr. 260.) Harrell also heard the petitioner say "Go back and check, go back and make sure the door is locked to the club." (Tr. 260.) Harrell testified that the group was "walking pretty swiftly" and that he just passed by them on the street. (Tr. 261.) After Harrell walked past the petitioner and his group, he turned the corner onto 122nd Street and saw a crowd of people in front of apartment building 312. (Tr. 265.) He heard someone in the crowd say that "Kenny has been shot." (Tr. 266.) Police cars and an ambulance arrived at the scene shortly after. (Tr. 266.)
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1)-(2); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
A state court decision is contrary to clearly established 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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" the Supreme Court's result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state court decision involves "an unreasonable application of . . . clearly established Federal law" when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case . . . ." Jones v. Walsh, No. 06 Civ. 225, 2007 WL 4563443, at *5 (S.D.N.Y. Dec. 27, 2007) (quoting Williams, 529 U.S. at 407-08). To meet that standard, "the state court decision [must] be more than incorrect or erroneous . . . [it] must be objectively unreasonable." Jones, 2007 WL 4563443 at *5 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). "[I]t is well established in [this] circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted).
Because the petitioner is proceeding pro se, his petition is "read liberally and should be interpreted 'to raise the strongest arguments that [it] suggest[s].'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Muir v. New ...