The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Alfonzo Quinney ("Quinney" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in Respondent's custody. Quinney is incarcerated pursuant to a judgment of conviction entered against him following a jury trial on charges of attempted first degree assault and first degree reckless endangerment.
II. Factual Background and Procedural History
A. The Trial, Sentencing, and Direct Appeal
Under Indictment No. 99-1934-001, Petitioner was charged with one count of attempted assault in the first degree (New York Penal Law ("P.L.") §§ 110.00, 120.10(1)), four counts of reckless endangerment in the first degree (P.L.§ 120.25), and one count of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)).
The charges stemmed from allegations that Quinney, while standing at a street corner, shot a gun at a passing vehicle containing the driver of the vehicle and two passengers. An embedded bullet was recovered from the internal door frame of the vehicle, and bullet holes were found in a nearby residence. Several weeks later, the driver of the vehicle observed Quinney standing on the same street corner and reported his observation to the police. The police drove to the scene and arrested defendant. At trial all three occupants of the vehicle identified Quinney as the shooter, and a nearby resident testified that, upon hearing the shots, she looked out her window and observed Quinney running from the scene. The defense challenged the identification testimony of the witnesses and introduced evidence that a third party was the shooter.
On the evening of August 15, 1999, Darren Abrams was driving around Buffalo in a dark blue Ford Expedition with his friends Jerome Winfield and Jeffrey Moore. T.33-34, 151, 204 (Numbers preceded by "T." refer to pages of the trial transcript). At about 8:00 p.m. the Expedition turned the corner from B Street onto Fillmore Avenue. T.35, 37. As it did so, Quinney, who was standing in front of a delicatessen at the corner of Fillmore and B, pulled a long gun from his sweat pants, see T.37, 95, 142, 179, and fired several shots at the Expedition, see T.38, 142, 166, 175. Apparently, two or three hours before the shooting, Abrams had had a minor shouting match with Quinney over a traffic incident. T.24-25, 27-32.
The occupants of the Expedition were not struck, but a bullet hit the inside of the pillar that separates the windshield from the front passenger window. T.181-183, 266, 295-296. Another bullet passed through the living room of a nearby house located at 962 Fillmore, leaving a clean round hole on the outside of the house indicating that it had not ricocheted before striking the house. T.267, 278, 344, 500, 512-513.
After it was hit, the Expedition crashed into another car that was parked in front of 964 Fillmore. T.38, 50, 142, 175, 249-250. Abrams, Winfield, and Moore jumped out of the Expedition and ran up the street to a gas station-convenience store, called the police, then hid in the freezer at the back of the store until police arrived. T.39, 40, 107, 147, 178-179.
Several weeks later, on September 4, 1999, Abrams saw defendant standing in front of the delicatessen at the corner of Fillmore Avenue and B Street and notified the police. T.45-46. The police then went to that location and arrested Quinney. T.305.
The jury returned a verdict convicting Quinney of the charges of first degree attempted assault (one count) and first degree reckless endangerment (four counts) in the First Degree. He was subsequently sentenced as a second violent felony offender to fourteen years in prison on the attempted assault conviction and three and one-half to seven years in prison for each reckless endangerment conviction, with all sentences to run concurrently with each other.
On direct appeal, the Appellate Division, Fourth Department unanimously affirmed the conviction. People v. Quinney, 305 A.D.2d 1044 (App. Div. 4th Dept. 2003). Quinney's motion for reargument was denied. People v. Quinney, 307 A.D.2d 783 (App. Div. 4th Dept. 2003). The New York Court of Appeals denied leave to appeal. People v. Quinney, 100 N.Y.2d 583 (N.Y. 2003).
B. Other Post-Conviction Proceedings in State Court
Petitioner filed a post conviction motion to vacate the judgment on October 26, 2004, in which he claimed that: (1) the prosecution had violated its duty to disclose favorable evidence; (2) that his appeal was prejudiced by an allegedly inaccurate trial transcript; and (3) the jury was improperly charged. Petitioner's motion was denied by a memorandum and order dated August 15, 2005. Petitioner filed a second post conviction motion to vacate the judgment on January, 16, 2006. Petitioner's motion was denied by a memorandum and order dated June 6, 2006.
In an application dated April 9, 2004, Petitioner sought a writ of error coram nobis from the Appellate Division. By summary order dated June 14, 2004, the Appellate Division denied petitioner's motion.
C. The Federal Habeas Petition
Petitioner presents seven grounds for relief: (1) the conviction was against the weight of the evidence; (2) that prosecutorial misconduct denied him of his right to a fair trial; (3) the trial court committed reversible error in allowing an assistant district attorney to testify at trial; (4) the prosecution violated its obligation to disclose favorable evidence; (5) the identification procedure was unduly suggestive and he was entitled to a hearing; (6) he was entitled to a hearing to evaluate whether he was arrested without probable cause; and (7) he received ineffective assistance of trial and appellate counsel.
The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is dismissed.
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "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), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d)(2); see also Williams v. Taylor, 529 U.S. 362 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412.
IV. Analysis of the Claims Raised in the Petition
A. Claim One: The verdict was against the weight of the credible evidence.
Quinney's claim regarding the weight of the evidence, see Petitioner's Memorandum of Law at pp. 4-8 (Docket No. 2), specifically asks the Court to "weigh the facts and the competing inferences therefrom . . . ." This is not a federal constitutional claim cognizable in a federal habeas proceeding. A "weight of the evidence" claim derives from New York Criminal Procedure Law ("C.P.L.") § 470.15(5), which permits an appellate court in New York to reverse or modify a conviction where it determines "that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." N.Y. CRIM. PROC. LAW § 470.15(5). A "weight of the evidence" argument is a pure state law claim grounded in the criminal procedure statute. People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 (N.Y.1987) (weight of the evidence claim is based on court's factual review power; sufficiency of evidence claim based on the law); accord, e.g., People v. Romero, 7 N.Y.3d 633, 642-43 (N.Y. 2006). On the other hand, a legal insufficiency claim is based on federal due process principles. Id.; see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
Because Quinney's weight of the evidence claim implicates only state law, it is not cognizable in this federal habeas proceeding. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (habeas corpus review is not available where there is simply an alleged error of state law); Ex parte Craig, 282 F. 138, 148 (2d Cir.1922) (holding that "a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255 (1923).
Therefore, it is dismissed as not cognizable. Accord, e.g., Garrett v. Perlman, 438 F. Supp.2d 467, 470 (S.D.N.Y. 2006) (dismissing claim that conviction was against the weight of the evidence; such a claim is not a basis for habeas relief but presents only an error of state law, for which habeas review is not available); Feliz v. Conway, 378 F. Supp.2d 425, 430 n. 3 (S.D.N.Y.2005); Douglas v. Portuondo, 232 F. Supp.2d 106, 116 (S.D.N.Y. 2002); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001).
To the extent that Quinney, in his argument regarding the weight-of-the-evidence, references the constitutional due process standard regarding the quantum of evidence legally sufficient to support a conviction, there was more than ample evidence to satisfy Jackson v. Virginia. Quinney's claim is premised on the contention that because two of the witnesses' failed to identify him before the grand jury; he argues that this renders their trial testimony incredible as a matter of law.Quinney's legal-insufficiency argument consists of asking this Court to revisit the jury's determinations as to witness credibility, and conclude that certain testimony was unworthy of belief. Quinney's arguments regarding the credibility of his witnesses versus the prosecution's witnesses were properly made to the jury, which rejected them. It is not the province of a federal habeas court to revisit a fact-finder's credibility determinations. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim because "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; deferring to the jury's assessments of the particular weight to be accorded to the evidence and the credibility of witnesses). Because Quinney's only argument concerning the sufficiency of the evidence asks the Court to consider issues not reviewable in a habeas proceeding, and is, in any event, without merit, it is dismissed.
B. Claim Two: Prosecutorial misconduct deprived Petitioner of a fair trial.
Quinney asserts five distinct instances of alleged prosecutorial misconduct. The Appellate Division resolved the claims on the merits, see Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir.2001), and therefore in order to obtain habeas relief, Petitioner must demonstrate that this ruling amounted to an unreasonable application of clearly established Supreme Court precedent regarding prosecutorial misconduct, see id.
Collateral challenges to prosecutorial misconduct must be reviewed under the narrow standard of review for due process claims, not the "broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). The Supreme Court explained in Darden that when considering claims of prosecutorial misconduct on habeas review, the issue is not whether the prosecutor's statements to the jury were "'undesirable or even universally condemned' . . . . The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 642). "Under the standard of Donnelly, the question before a federal appellate court is whether 'the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir.1990) (internal quotations and citations omitted).
1. Improper cross-examination of a witness regarding failure to come forward with exculpatory evidence
The Appellate Division rejected this claim, holding as follows:
Contrary to defendant's contention, the prosecutor did not engage in misconduct by cross-examining defendant's brother with respect to his failure to come forward with exculpatory information before trial. Although "a citizen ordinarily has no legal obligation to volunteer exculpatory information to law enforcement authorities[,] . . . the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness'[s] exculpatory statements at trial" (People v. Dawson, 50 N.Y.2d 311, 317-318, 428 N.Y.S.2d 914, 406 N.E.2d 771). In order to lay a foundation for such questioning, the prosecutor had to establish that the witness "was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities" (id. at 321 n. 4, 428 N.Y.S.2d 914, 406 N.E.2d 771). Here, the prosecutor laid the requisite foundation and thus properly questioned the witness concerning his failure to disclose the information both during a police interview and when defendant called him as a witness before the grand jury.
People v. Quinney, 305 A.D.2d at 1044-45 (alterations and ellipses in original).The Appellate Division's ruling was not ...