The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Pro se plaintiff, Bryant Jackson ("Jackson"), seeks a writ of habeas corpus from his December 18, 2006 conviction for robbery in the first degree. He was sentenced as a persistent-violent-felony offender to an indeterminate prison term of 20 years to life. His conviction was affirmed by the Appellate Division on April 30, 2009. On July 18, 2010, Jackson filed his petition pursuant to 42 U.S.C. § 2254 asserting that: (1) he was denied due process when the police used an unduly suggestive lineup procedure which the trial court subsequently refused to suppress, and when the trial court refused to allow defense counsel to refresh a detective's recollection of the victim's description of the robber's clothing which was contained in the detective's complaint report; (2) grand jury proceedings were rendered defective where numerous unrelated offenses were improperly joined; and (3) the trial court violated his Sixth Amendment rights by sentencing him as a persistent-violent-felony offender based on his prior offenses. On January 23, 2012, the Court granted Jackson's motion to withdraw from the petition his unexhausted claim of actual innocence, as well as his claim challenging his sentence as a persistent-violent-felony offender.
On February 23, 2012, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation (R&R), recommending denial of Jackson's habeas petition. On March 8, 12, and 13, 2012, Jackson timely filed his objections to the R&R. For the reasons set forth below, the Court adopts the R&R in full and denies Jackson's habeas corpus petition.
On January 19, 2006, at approximately 9:45 p.m., Katherine McCaskey ("McCaskey") was walking home from Stuyvesant Park in Manhattan while talking on her cellphone to a friend. She noticed Jackson approach her. Suddenly, Jackson grabbed McCaskey and motioned with a gun toward her purse. He said: "Shut up bitch or I will shoot you." Jackson took two dollars from her wallet and grabbed McCaskey's cellphone from her hand. He then told McCaskey to turn around and walk away, "or I will shoot you in the head." McCaskey complied.
The face-to-face encounter between Jackson and McCaskey lasted approximately two minutes. Nothing obstructed her view of Jackson, and the area was well-lit with the light posts approximately 10 feet away. McCaskey testified that Jackson was a black man who appeared to be in his thirties, that he had a medium to slender build, and was about one foot taller than McCaskey. She testified that Jackson was wearing a black knit hat, a dark brown cable knit sweater, and a brown leather jacket. Since she spent most of the time during the encounter looking at Jackson's face, McCaskey testified that he had a "tall cheekbone structure, kind of a gaunt cheek area, tall bridge to his nose . . . the beginnings of a beard, and some . . . dirt or something on his face."
After returning to her apartment, McCaskey called the 311 non-emergency line and reported the incident. She also received an e-mail from her friend with whom she had been talking on her cellphone at the time of the attack. The friend had called 911 and asked the police to check on McCaskey.
Minutes later, two police officers arrived at McCaskey's apartment and took her to the 13th Precinct, on 20th Street. Sergeant Matteo Brattesani ("Brattesani") interviewed McCaskey. Brattesani testified that she described the robber as a very tall, black man in his thirties, about "six-three, six-four," slim build, who was wearing a black knit hat and a brown sweater with knitting on the front. Based on McCaskey's description, Brattesani matched these characteristics to a photograph of a person he had seen recently. Brattesani then used a police computer to identify five additional men who matched the robber's description in order to use their arrest photographs in a photographic array. Brattesani showed the six-photo array to McCaskey, who recognized the person depicted in photograph number one as the man who robbed her. The man in the photograph was Jackson, and he was subsequently arrested on February 1, 2006.
That same day, Brattesani transported McCaskey to the precinct to participate in a lineup identification proceeding. Brattesani selected five persons, in addition to Jackson, for the lineup. They were of different heights, but to minimize any discrepancy, all were seated when McCaskey viewed them. McCaskey identified Jackson as the person who robbed her.
A grand jury charged Jackson with one count of first-degree robbery and twenty-seven other offenses relating to his possession of crack cocaine, imitation drugs and forged instruments, as well as his sale of imitation drugs. Jackson moved to dismiss the indictment on the ground that the counts in the indictment were joined improperly. The trial court severed the first-degree robbery charge and denied his motion. Jackson also moved to suppress McCaskey's identification testimony. The trial court found that the lineup identification was not unduly suggestive, and that Jackson's height and the brown leather jacket that he wore at the lineup were not so distinctive as to affect the fairness of the lineup.
At trial, Jackson's sister testified that Jackson was with her on January 19, 2006, until 9:15 p.m. Nevertheless, the jury found Jackson guilty of first-degree robbery. He was adjudicated a persistent-violent-felony offender and sentenced to twenty years to life imprisonment.
On April 30, 2009, the New York State Supreme Court, Appellate Division, First Department, affirmed Jackson's conviction. See People v. Jackson, 877 N.Y.S.2d 327 (N.Y. App. Div. 1st Dep't 2009). The court held that: (1) the hearing court properly denied Jackson's suppression motion because the evidence educed at the hearing established that the lineup identification procedure was not unduly suggestive; (2) the hearing court properly precluded Jackson from using a complaint report prepared by an officer who did not testify to refresh the recollection of one who did testify, because the testifying officer's recollection was clear and did not need refreshing; and (3) the remaining arguments made by Jackson had no merit. See id. On August 19, 2009, the New York Court of Appeals denied Jackson's request for leave to appeal. See People v. Jackson, 13 N.Y.3d 745 (2009).
On July 18, 2010, Jackson filed a timely federal habeas petition, asserting three arguments. First, Jackson contends that he was denied due process when the police conducted an unduly suggestive lineup. Jackson claims that this lineup was unduly suggestive because he was the only person in the lineup who was 6'4" and wearing a brown jacket.
Second, Jackson claims he was denied due process when the trial court refused to allow defense counsel to refresh Brattesani's recollection of the victim's pre-trial identification. Jackson maintains that the complaint report indicates that, on the night of the crime, McCaskey informed the police that the perpetrator was wearing a brown leather jacket. Brattessani testified, however, that on the night of the crime McCaskey told him that the perpetrator was wearing a brown sweater with knitting on the front. In light of this ...