Opinion
08 Civ. 2372 (AKH).
December 28, 2009
ORDER AND OPINION DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Anthony Bryant, appearing pro se, seeks review pursuant to 28 U.S.C. § 2254 of a conviction by the New York Supreme Court of Attempted Murder in the Second Degree, Assault in the First Degree, two counts of Attempted Robbery in the First Degree, Attempted Robbery in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. Petitioner was sentenced to concurrent determinate prison terms, amounting to an aggregate term of twenty-two years. The Appellate Division affirmed the judgment, and leave to appeal to the Court of Appeals was denied. People v. Bryant, 36 A.D.3d 517 (1st Dep't 2007) lv. denied, 8 N.Y.3d 944 (2007).
I. BACKGROUND
On June 18, 2001, Petitioner and a friend, Tyrone Blash, visited Blash's uncle, John Wisdom. Blash held a grievance against Wisdom concerning an inheritance from Blash's grandmother and enlisted Petitioner's help to secure that inheritance. When Blash and Petitioner arrived at Wisdom's Manhattan apartment, Blash claimed that his grandmother bequeathed money to him and demanded it from Wisdom. When Wisdom responded that he had spent the inheritance, a struggle ensued and Petitioner shot Wisdom at close range. The bullet passed through Wisdom's arm, entered his left jaw and exited near his right ear. With Wisdom lying unconscious on the floor, Petitioner and Blash left the apartment.
While recovering from his wounds at the hospital, Wisdom identified Petitioner in a photo array and stated that Petitioner was the shooter. Wisdom later identified Petitioner in a line-up. Detectives found Petitioner's fingerprints in Wisdom's apartment, a discharged shell from a .38 caliber pistol, and a .38 caliber semiautomatic handgun magazine with seven live rounds. Shortly thereafter, police in New Haven, Connecticut were investigating the home of William Bryant, Petitioner's uncle, in connection with an unrelated homicide investigation. During the course of that investigation, Detective Michael Quinn of the New Haven Police Department found a .38 caliber pistol in the backyard of the New Haven home. Also during the course of that investigation, Detective Quinn learned from William Bryant that Petitioner lived next to the home where the gun was found. Analyses showed that the magazine recovered from Wisdom's apartment matched the gun recovered behind the New Haven home and that the discharged shell was fired from that same handgun.
II. APPELLATE HISTORY
Petitioner argued on appeal that, except for the weapon possession charges, his conviction was not supported by legally sufficient evidence. He also argued that his Due Process rights were violated when, in a pretrial hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), the trial court ruled that if Petitioner testified, the prosecutor could introduce underlying facts of two prior felony convictions to impeach Petitioner's testimony. He also argued that the prosecutor's summation violated his Due Process rights.
On January 23, 2007, the Appellate Division unanimously affirmed Petitioner's conviction. Bryant, 36 A.D.3d at 518. The Appellate Division held that Petitioner's challenge to the sufficiency of the evidence was unpreserved and declined to review the claim. It held, however, that, if it were to review the merits, it would "find the verdict was supported by legally sufficient evidence," both with regard to the attempted robbery charges and the attempted murder charge. Similarly the court dismissed as unpreserved Petitioner's claim of improper summation but held that, if it were to consider the merits, the claim would also be rejected. Id. The New York Court of Appeals denied leave to appeal on April 5, 2007.Bryant, 8 N.Y.3d 944. On July 15, 2009, Petitioner moved in New York Supreme Court alleging several due process claims and seeking various forms of relief including extradition to New York and appointment of appellate counsel. On September 23, 2009, the New York Supreme Court denied the motion. People v. Bryant, Ind. No. 6642/01.
Petitioner does not allege that the Sandoval hearing violated Petitioner's Due Process rights; thus, the issue is not before me.Jennings v. Casscles, 568 F.2d 229, 233-34 (2d Cir. 1977); Sanders v. Sullivan, 701 F. Supp. 996, 998 (S.D.N.Y. 1987).
The parties have not brought to this court's attention any substantive events beyond the filing.
III. STANDARD OF REVIEW
Federal law requires that habeas corpus applicants exhaust the remedies available in the state courts, or show an absence of available state remedies or circumstances that make the state processes ineffective. 28 U.S.C. § 2254(b)(1) (2006). A petitioner must have presented the same factual argument to the state courts and made all possible efforts to ensure state appellate review of his claims. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). A petitioner must also expressly represent that he is relying on the United States Constitution as a basis for relief. Id. A petitioner need not cite specific provisions of the Constitution, but may refer to federal or state cases employing constitutional analysis, or make specific legal or factual allegations which fall well within the mainstream of constitutional litigation. Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005). A petition that fails to meet this standard will be procedurally barred. Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (holding that without showing good cause or actual prejudice preventing exhaustion of state court remedies, or that fundamental injustice would occur, habeas claims may be procedurally barred).
Of Petitioner's four claims, only one (insufficiency of the evidence) was raised on direct appeal and, as to this claim, the Appellate Division held that it was unpreserved at trial and declined to review it, but ruled that if not procedurally barred, the claim would be rejected on the merits. Id. As to the other three claims, even though procedurally barred, I have discretion to consider them, and to dismiss them on the merits. Id. at 89-90, 91 n. 5; 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") allows persons in state custody resulting from a conviction in state court to petition for federal habeas corpus relief, on the ground that their custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see, e.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (noting "federal habeas corpus relief does not lie for errors of state law"); Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006). The application cannot be granted unless the state court adjudication "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," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(1)-(2). A decision is contrary to Supreme Court precedent if the state court "applies a rule that contradicts" that precedent, or reaches a different result on facts that are "materially indistinguishable."Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. It "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410-11. Furthermore, it is to be presumed that the state court correctly determined factual issues unless the applicant rebuts the presumption with clear and convincing evidence. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.").
IV. DISCUSSION
A. Ineffective Assistance of Counsel
In order to prevail on a claim of ineffective assistance of counsel, Petitioner must satisfy the two-pronged test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner must show, first, that counsel committed errors so serious as to be objectively unreasonable and, second, that the result of the proceeding would likely have been different in the absence of counsel's errors. Id. at 687-88, 694; Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (reaffirming Strickland). Petitioner must overcome a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in conducting the defense. Strickland, 466 U.S. at 688.
1. Ineffective Assistance of Trial Counsel
It appears that Petitioner has not exhausted his state court remedies for ineffective assistance of counsel. Regardless, I have the authority to deny an unexhausted claim on the merits. 28 U.S.C. § 2254(b)(2).
Petitioner argues that he was denied effective assistance of trial counsel. Petitioner alleges that trial counsel was constitutionally ineffective because he (1) refused to investigate four witnesses to establish an alibi defense, (2) did not present evidence that Petitioner did not live next to the house where the gun was found, (3) referred to Petitioner as Tyrone Blash (Petitioner's co-defendant) on several occasions, and (4) failed to "preserve any arguments for an appeal."
Petitioner's claim that trial counsel was ineffective for failing to investigate several witnesses to present an alibi defense lacks merit. "Conclusory allegations about the testimony of uncalled witnesses are insufficient to demonstrate prejudice." United States v. Green, No. 96-1185, 1996 U.S. App. LEXIS 30027, at *10 (2d Cir. Nov. 14, 1996) (citing United States v. Vargas, 920 F.2d 167, 169-70 (2d Cir. 1990),cert. denied 502 U.S. 826 (1991)). Here, there is nothing to suggest that the four uncalled witnesses (Crystal Neverson, Jason Carr, Jerry Bryant, and Chermain Turner) would have established Petitioner's alibi. Since Petitioner offers nothing more than conclusory allegations about their potential testimony, Petitioner cannot establish prejudice. Green, 1996 U.S. App. LEXIS 30027, at *10.
Moreover, trial counsel's decision not to call these witnesses is a question of trial strategy that "courts will practically never second-guess." Ozuru v. United States, No. 95 CV 2241 (SJ), 1997 U.S. Dist. LEXIS 24084, at *12 (E.D.N.Y. Mar. 13, 1997) (citing Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983)). Petitioner was placed at the scene of the crime by the victim and by fingerprint and ballistics evidence. Rather than arguing against that evidence (i.e., that Petitioner was not at the scene of the crime), trial counsel argued that Petitioner lacked the requisite mens rea to sustain convictions of attempted murder and attempted robbery. Trial Transcript at 386-90,People v. Bryant (hereinafter "Transcript"). In choosing to call certain witnesses and make certain arguments, trial counsel made strategic choices, constituting reasonable professional conduct. Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) ("Actions or omissions by counsel that `might be considered sound trial strategy' do not constitute ineffective assistance.") (quoting Strickland, 466 U.S. at 689); Strickland, 466 U.S. at 690 ("Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). Nothing in the record indicates that this strategic decision was unreasonable. Accordingly, I reject Petitioner's claim that trial counsel was ineffective for failing to call certain witnesses.
Petitioner's claim that trial counsel was ineffective for failing to present evidence that he did not live next to the home where the gun was found lacks merit. Trial counsel investigated the issue of Petitioner's residence and identified a witness to testify that Petitioner's name did not appear on ownership records for the residence. Trial counsel arranged for the witness to testify at trial, but the witness failed to appear. Transcript at 237-40. Since the witness failed to appear, trial counsel cannot be said to have committed any error, let alone one that deprived Petitioner of effective assistance of counsel. Moreover, even if the witness testified that Petitioner's name did not appear on the ownership records, there is no reasonable probability that the outcome of the trial would have been different. His uncle placed him next door, and the fact finder had reasonable basis to infer that Petitioner lived or stayed at the residence even though his name did not appear on ownership records.Strickland, 466 U.S. at 687-88, 694.
Petitioner's claim that trial counsel was ineffective because he referred to Petitioner as Tyrone Blash "on several occasions" lacks merit. By referring to Petitioner as Petitioner's co-defendant "on several occasions," trial counsel did not commit "errors so serious as to be objectively unreasonable"; nor is there any reasonable probability that the result of the proceeding would have been different but for the misstatements. Strickland, 466 U.S. at 687-88, 694. I find that there is no reasonable probability that the jury was confused by the misstatements or that the outcome of the trial would have been different had trial counsel not misspoken. See Henry, 409 F.3d at 63 ("The `prejudice' prong of the Strickland test requires the court to determine whether, but for counsel's deficient performance, `there is a reasonable probability that . . . the result of the proceeding would have been different.'") (citations omitted).
Petitioner's claim that trial counsel was ineffective for failing "to preserve any arguments for appeal" lacks merit. Petitioner does not specify which claims went unpreserved, and presents no evidence of error or prejudice. Strickland, 466 U.S. at 687-88, 694; Sweat v. United States, 05-CV-221, 2005 U.S. Dist. LEXIS 31343, at *30-32 (S.D.N.Y. Nov. 29, 2005) (collecting cases rejecting "generalized and vague" claims of ineffective assistance of counsel). Accordingly, I reject Petitioner's argument on these grounds.
2. Ineffective Assistance of Appellate Counsel
"Although the Strickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) cert. denied, 508 U.S. 912 (1993)). Petitioner may establish ineffective assistance of appellate counsel by demonstrating that counsel omitted "significant and obvious" arguments in favor of those that "were clearly and significantly weaker." Id. at 533.
Petitioner claims that he received ineffective assistance from his appellate counsel because appellate counsel "refuse[d] to present issues [and] grounds that [Petitioner] wished to present [to] the courts." In his petition, Petitioner attached two letters that he wrote to his appellate counsel, and within those letters, alluded to the insufficiency of the evidence against him, trial counsel's failure to preserve objections during trial, the victim's credibility, statements regarding another criminal case, and trial counsel's decision to not call a certain witness.
Despite Petitioner's claims to the contrary, appellate counsel challenged the sufficiency of the evidence and attacked the credibility of the victim's testimony. Brief for Defendant-Appellant at 29-34, People v. Bryant. Appellate counsel argued that the evidence failed to establish that Petitioner possessed the requisite intent to sustain convictions for attempted murder, attempted robbery, and assault. Id. at 26-34. Petitioner's claim that appellate counsel was ineffective for failing to attack the sufficiency of the evidence against him is belied by the appellate brief itself. Accordingly, I reject Petitioner's claim as meritless.
Petitioner also points to appellate counsel's failure to argue that trial counsel was ineffective for failing to "preserve . . . objections during the course of [the] trial." I reject this claim as meritless because Petitioner fails to identify which objections trial counsel failed to raise and what claims were unpreserved for appellate review.Sweat, 2005 U.S. Dist. LEXIS 31343, at *30-32.
Petitioner claims that appellate counsel was ineffective for failing to object to the admission of prior crime evidence. However, nothing in the record suggests that the jury was presented with evidence of Petitioner's prior crimes. Since there is nothing in the record to support Petitioner's assertion that prior crime evidence was improperly admitted, appellate counsel was not ineffective for failing to raise that issue on appeal.United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance.").
Next, Petitioner claims that trial counsel was ineffective for failing to call Tyrone Blash as a witness, and that appellate counsel was ineffective for not arguing this point on appeal. As noted above, trial counsel's decision to call a witness is a question of trial strategy that "courts will practically never second-guess." Ozuru, 1997 U.S. Dist. LEXIS 24084, at * 12 (citing Trapnell, 725 F.2d at 155). Here, Petitioner does not indicate how Tyrone Blash's testimony would have affected the outcome of the trial, and nothing in the record indicates that the outcome hinged on Blash's unavailability. Accordingly, Petitioner's appellate counsel was not ineffective for failing to raise a meritless claim. Arena, 180 F.3d at 296.
Lastly, Petitioner argues that appellate counsel was ineffective for failing to object to "`William Bryant['s]' statement to police concerning another criminal case." Petitioner does not identify with specificity which statement he challenges. The record shows that William Bryant did not make any statements implicating Petitioner in another criminal investigation. Accordingly, appellate counsel was not ineffective for failing to raise this issue on appeal. Id. at 296. The only statement regarding another criminal investigation was made by Detective Michael Quinn. Detective Quinn testified that he arrived at the residence where the weapon was found "in connection with an investigation." Transcript at 208. Detective Quinn did not elaborate on the nature of that investigation. Id. The only discussion of the nature of the investigation occurred outside the jury's presence. Transcript at 239-40. The jury was never exposed to information that Petitioner was implicated in another criminal investigation, thus, appellate counsel was not ineffective for failing to raise the issue on appeal. Arena, 180 F.3d at 296.
In light of the foregoing, I find that appellate counsel's behavior constitutes acceptable and "reasonable professional assistance," particularly in light of the "wide latitude" lawyers are afforded to make tactical decisions. Strickland, 466 U.S. at 689; Jones v. Barnes, 463 U.S. 745, 753 (1983) (holding an appellate advocate need not delve into every feasible argument, only those most important or promising for "[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.") (citations omitted). Petitioner does not point to any conduct by appellate counsel that could be considered objectively unreasonable. Accordingly, I reject Petitioner's claim of ineffective assistance of appellate counsel.
B. Sufficiency of the Evidence
Petitioner alleges that the evidence presented against him at trial was insufficient to support convictions of Attempted Murder in the Second Degree, Assault in the First Degree, two counts of Attempted Robbery in the First Degree, and Attempted Robbery in the Second Degree. Petitioner claims that he "was never accused of taking anything at all," and that the State never established intent, in part because the gun was fired "in the dark."
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The Second Circuit has held that a procedural bar is adequate to support a state court judgment if it is based on a rule that is "firmly established and regularly followed" by the state in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003). The parties to an action must have notice of the state procedural rule and the rule must be applied consistently in similar circumstances. Bell v. Poole, No. 00 CV 5214, 2003 U.S. Dist. LEXIS 8231, at *28 (E.D.N.Y. Apr. 10, 2003). Furthermore, a state procedural rule must serve a legitimate state interest. Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986); Rosa v. Herbert, 277 F. Supp. 2d 342, 351 (S.D.N.Y. 2003). However, "the adequacy of a state procedural bar is determined with reference to the particular application of the rule; it is not enough that the rule generally serves a legitimate state interest." Cotto, 331 F.3d at 240 (internal quotations omitted). Therefore, an inquiry into whether the application of a procedural rule is "firmly established and regularly followed" in the specific circumstances presented in a case includes "an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id.
The Appellate Division held that Petitioner's challenge to the sufficiency of the evidence was unpreserved at trial. Bryant, 36 A.D.3d at 517. The propriety of a procedural default that bars a habeas claim is evaluated under the three-part test articulated in Cotto v. Herbert. Under the Cotto test, I must determine "(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial." Id. at 240 (internal quotations omitted).
Here, Cotto supports the procedural default of Petitioner's claims. First, nothing in the record suggests that the trial court was aware of Petitioner's claim. Assuming trial counsel perfectly complied with the rule, the outcome would not have changed. As the Appellate Division explained, Petitioner and an accomplice demanded, at gun point, a large sum of money from the victim and Petitioner subsequently "shot [the victim] in the head at close range and left him lying unconscious on the floor." Bryant, 36 A.D.3d at 517. Second, New York law requires compliance with the preservation rule where the defendant argues against the sufficiency of the evidence. People v. Williams, 247 A.D.2d 416, 417 (2d Dep't 1998). Third, trial counsel did not substantially comply with the rule because no objection to the sufficiency of the evidence was made after the guilty verdicts. Accordingly, the Appellate Division's holding that Petitioner's claims were procedurally defaulted was appropriate and bars Petitioner from raising those claims in federal habeas review.
Despite the procedural bar to Petitioner's claims regarding the sufficiency of the evidence, I find that his claims also lack merit. In reviewing the merits of a claim attacking the sufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). This heavy burden enables "the factfinder's role as weigher of the evidence [to be] preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Id. at 319.
The Appellate Division correctly applied this standard. The fact that Petitioner did not take any of the victim's property at the scene of the crime does not remove the inference, reasonably drawn at trial, that Petitioner attempted to commit robbery. Bryant, 36 A.D.3d at 517. The attempted murder verdict was supported by the fact that, after the victim stated he did not have the money that Petitioner and his accomplice sought, Petitioner fired a single shot into the victim at close range, and left him unconscious with a gunshot wound to the head. Id. Viewed in the light most favorable to the State, a rational trier of fact could have found Petitioner guilty of each of the charges beyond a reasonable doubt. Jackson, 443 U.S. at 319. Accordingly, the conviction was supported by legally sufficient evidence, and I reject Petitioner's claim that his convictions were based on insufficient evidence.
C. Sixth Amendment Right to Confront Witnesses
Petitioner alleges that he was denied his Sixth Amendment right to confront the witnesses against him. At trial, Detective Quinn testified that William Bryant stated that Petitioner lived in the house next to where the gun was found. Transcript at 213. Defense counsel extensively cross-examined Detective Quinn. Id. at 213-236. Petitioner argues that, despite the extensive cross-examination, Petitioner's Sixth Amendment confrontation rights were violated because he was unable to cross-examine William Bryant, who never testified, on this statement about Petitioner's residence.
The Sixth Amendment provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 54 (2004).
Detective Quinn offered an out of court statement (Williams Bryant's statement that Petitioner lived at the residence in question) for the truth of the matter asserted (that Petitioner in fact lived at the residence in question). However, trial counsel did not object to this statement when it was made or anytime thereafter. Transcript at 213-36. The central issue then is whether trial counsel waived Petitioner's Sixth Amendment right to confront William Bryant about the statement that he (William Bryant) made to Detective Quinn.
As an initial matter, Petitioner's claim is procedurally forfeited. Petitioner never objected to the detective's testimony and did not raise the issue on direct appeal. Aparicio, 269 F.3d at 89-90.
Turning to the merits of the claim, Petitioner's argument is unavailing. An attorney's decision to waive a defendant's Sixth Amendment right to confrontation does not, in all situations, offend the Constitution. United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999) ("[D]efense counsel may waive a defendant's Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound."). Here, the record reflects that trial counsel's decision to not challenge Detective Quinn's testimony regarding Petitioner's residence was likely strategic. In an exchange outside the jury's presence, the prosecutor explained that further inquiry into Petitioner's residence could bring out facts that the residence was the site of an unrelated homicide investigation, in which the weapon at issue was used to bludgeon the victim to death. Transcript at 239-40. Furthermore, the prosecution could easily have cured the issue by calling the uncle to the witness stand, leading to additional damaging testimony against Petitioner. Thus, defense counsel's decision not to challenge Detective Quinn's statement kept out evidence that could have implicated Petitioner in damaging testimony. Accordingly, defense counsel's waiver of the Petitioner's Sixth Amendment right to confront William Bryant was valid. Id.
Furthermore, Petitioner did not suffer any prejudice by the admission of this statement. There is no indication that the outcome of the trial would have been different had Petitioner confronted William Bryant. The victim identified Petitioner as the shooter and Petitioner's fingerprints were recovered at the crime scene. Transcript at 79-82, 324-26. Accordingly, I reject Petitioner's Sixth Amendment claim.
V. CONCLUSION
For the reasons stated above, the petition for a writ of habeas corpus is denied. Since Petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002).
The Clerk shall mark the case closed.
SO ORDERED.