Cromwell v. Keane

Full title: WILLIAM CROMWELL, Petitioner, — against — JOHN P. KEANE, as Superintendent…

Court: United States District Court, S.D. New York

Date published: May 8, 2002

98 Civ. 0013 (JSR)(AJP) (S.D.N.Y. May. 8, 2002)

Opinion

98 Civ. 0013 (JSR)(AJP).

May 8, 2002

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

This case presents an example of a drug deal gone bad, resulting in the shooting of Kyle Robinson and the fatal shooting of drug dealer James Ancrum by petitioner William Cromwell, for which Cromwell was convicted in 1994 of murder, assault and criminal possession of a weapon, and sentenced to eighteen years to life imprisonment. (See Dkt. No. 1: Pet. ¶ 1-4 Attachment p. 2.) Cromwell's habeas corpus petition alleges that: (1) the prosecution failed to prove his guilt of murder and assault beyond a reasonable doubt (Pet. Attachment at 5-6); (2) trial counsel's lack of preparation and other errors constituted ineffective assistance of counsel depriving him of a fair trial (id. at 6); (3) he was convicted by the prosecution's use of false testimony (id. at 6-7); and (4) the trial court's justification charge to the jury was inadequate in light of subsequent developments in the law (id. at 6, incorporating Point II of Cromwell's C.P.L. § 440 Motion).

For the reasons set forth below, Cromwell's petition should be DENIED.

FACTS

The Prosecution Case Police Testimony

On June 16, 1983 at around 7:30 p.m., Street Crime Unit plainclothes police officers John Clonan and Michael Gilligan were patrolling in a yellow taxicab,¹ traveling west on West 115th Street in Harlem. (Clonan; Trial Transcript ["Tr."] 17-19, 32; Gilligan: Tr. 121-23, 137.) As the officers stopped at a red light, they saw the "flash of [a] gun . . . being fired," heard one or two shots coming from the vicinity of Tinsley's Variety Store, at 282 West 115th Street, and saw a number of people running from the scene, including nineteen year old Kyle Robinson, who shouted "I'm hit." (Clonan: Tr. 19-21, 39-40, 41, 44, 51; Gilligan: Tr. 122-24, 138-39.) Both officers testified that they did not see or hear shots coming from any other direction. (Clonan: Tr. 20; Gilligan: Tr. 124-25.)

1 "The Street Crime Unit is a special unit of about 140 officers who work small details in decoy, act[ing] as taxi drivers — basically they are to prevent street crime." (Clonan: Tr. 17.) Both officers sat in the cab's front seat. (Clonan; Tr. 18-19, 34-35.)

Both officers drew their guns and exited the cab when they heard the first of four or five shots; Officer Clonan exited from the driver's seat and was exposed to the gunman and Officer Gilligan was on the side of the cab away from the shooting. (Clonan: Tr. 20, 25, 39-40; Gilligan: Tr. 124-26, 141.) Officer Clonan testified that "the person who was shooting the weapon was in front of [him]" and he "observed [him] firing the gun." (Clonan: Tr. 20.) At trial, both officers identified Cromwell as the shooter and testified that they saw Cromwell backing away from Tinsley's with a gun in his hand, shooting into the store's doorway. (Clonan: Tr. 19, 40-42; Gilligan: Tr. 125-27, 140-41) Officer Clonan saw Cromwell fire four shots at the doorway to Tinsley's store. (Clonan: Tr. 22.)

Officer Clonan called out "Police" and ordered Cromwell to drop his gun, but Cromwell continued backing up towards the officers. (Clonan: Tr. 19; Cromwell: Tr. 199.) Finally, Cromwell aimed around "crouched in a combat position," pointed his gun at Officer Clonan, hesitated for a "second or two," and when Officer Clonan shouted for the third time for Cromwell "to stop," Cromwell dropped his gun. (Clonan: Tr. 19, 21, 24-26, 42-44, 51; see also Gilligan: Tr. 126-27, 142-49.) Officer Clonan handcuffed Cromwell; Officer Gilligan retrieved Cromwell's dropped gun, which contained six spent shells. (Clonan: Tr. 19, 24-26; Gilligan: Tr. 127, 131-32.)

After Cromwell's arrest, Officer Gilligan tried to enter Tinsley's and realized that a dead body, later identified as that of James Ancrum, was sprawled on the floor preventing the door from swinging open. (Gilligan: Tr. 127-28.) Officer Gilligan described the dead body as "a male Black. Thcre was blood coming from the right side of his head and also there was [fresh] blood on his shirt, the left rear portion of his back." (Gilligan: Tr. 129)² Officer Gilligan pushed the door open, entered Tinsley's, and saw a "male standing behind the counter in the store" and "heard voices in the back." (Gilligan: 127-2 8.) Officer Gilligan "placed [all the people who were in the store against] the wall and . . . started to pat the males down. . . . [Then he] went behind the counter [and] looked behind the counter area where [he] observed the first male standing. There was nothing there." (Gilligan: Tr. 128.)

2 An autopsy report indicated that Ancrum's death was due to two gunshot wounds, one to the right side of the forehead and one that entered his back and traversed his spleen, lung and heart. (Leffers: Tr. 150, 152-56, 159.)

Police bahistic reports indicated that the gun recovered from Cromwell fired the bullets found in Robinson and Ancrum. (Collangelo: Tr. 174-77.) The gun, the six spent shells and the bullets recovered from Ancrum and Robinson were admitted into evidence without objection. (Tr.29-30, 49, 113-14, 130-32, 158, 174-77.)

Robinson's Eyewitness Testimony

Kyle Robinson, a childhood friend of decedent James Ancrum, testified that Ancrum sold heroin from the "stoop" ofa house next to Tinsley's Variety Store. (Robinson: Tr. 65-71, 75-78, 80, 94-97.) Robinson testified that he never sold drugs (Robinson: Tr. 67, 71), and that at the time in question, he was receiving financial support from his parents and supported himself as a dealer in the rigged and illegal gambling game "three-card Monte," for which he was convicted at least three times. (Robinson: Tr. 78-79, 85-93.)

According to Robinson, on June 16th at around 7:30 p.m., he and Ancrum were talking "[a]bout half a foot" apart and about ten feet from Tinsley's. (Robinson: Tr. 53-5 5, 66.) Robinson first testified that Ancrum was alone, that no one was in Ancrum's immediate area (Robinson Tr. 7 1-72, 80-8 1), but also testified that others were around (Robinson: Tr. 73-74). The two men just had time to greet each other when, suddenly, "the next thing [Robinson heard were] shots being fired." (Robinson: Tr. 7 1-72, 80, 93.) Robinson was shot in the arm (Robinson: Tr. 55-57, 72)³ and started running west, towards 8th Avenue, and was taken to the hospital by a friend who came to his side "within a minute or two after [he was] shot." (Robinson: Tr. 55, 75, 84, 103.) Ancrum ran east, towards 7th Avenue. (Robinson: Tr. 55-56, 102-03). Robinson testified that he "caught a glimpse" of the shooter who "had on jeans, a little Afro, [and was] dark skinned," and who "chased after" Ancrum. (Robinson: Tr. 55-56, 59, 98-100, 102, 108.) At trial, Robinson identified Cromwell as the shooter. (Robinson: Tr. 108.)

3 Robinson testified that the bullet entered in his left bicep and lodged in his back between his shoulder blades until it was surgically removed. (Robinson: Tr. 57-58; see also Dr. Griffith: Tr 110-12.)

Robinson testified that neither he nor Ancrum possessed a gun that night. (Robinson: Tr. 61, 96-97.)

The Defense Case

Petitioner William Cromwell testified on his own behalf as the sole defense witness. Cromwell testified that he had a heroin addiction, which he supported in part by selling drugs to young white professionals who were uncomfortable coming to Harlem to purchase drugs. (Cromwell: Tr. 184-86, 200-05, 207-09, 215, 254.) On the night of the shooting, one of these customers, "Joey," came to Cromwell's apartment at 5:00 p.m. (Cromwell: Tr. 187.) Cromwell did not know Joey's last name. (Cromwell: Tr. 206-07.) Joey was "sick,"⁴ i.e., suffering from withdrawal, and was seeking a heroin fix. (Cromwell: Tr. 188, 208.) Joey paid Cromwell one hundred twenty dollars for two quarter bags of heroin; Cromwell gave twenty dollars to his girlfriend for "things in the house."⁵ (Cromwell: Tr. 188-89, 205.)

4 Cromwell explained that "in the street" "sick" means "[w]hen you don't have the heroin over a particular time, the body is addicted to the drug and it yearns for it, and it needs it, so you have these certain symptoms like running nose, aching bones, stuff like that." (Cromwell: Tr. 188.)

5 Cromwell testified that his ultimate profit was thirty dollars. (See Cromwell: Tr. 206, 209.)

Cromwell went to 115th street and 8th Avenue where he heard Ancrum sold the best available heroin. (Cromwell Tr. 189-91.) Cromwell walked over to "two men," whom he identified as Ancrum and Robinson, "carrying on [drug] transaction[s] with various customers." (Cromwell: Tr. 190.) Cromwell had never seen Robinson or Ancrum before June 16th. (Cromwell: Tr. 199, 210.) Cromwell described Ancrum as "chubby" and "stocky" but not "as tall" as Cromwell. (Cromwell: Tr. 199.) Cromwell testified that on the night of the shooting he was wearing "tight jeans" and a tight "blue body shirt." (Cromwell: Tr. 200.) Cromwell "gave the $100 bill to the man known . . . as Kyle Robinson" who "inspected the bill for a brief period of time," gave Cromwell ten dollars change, and who "then said [to Ancrum], okay, give it to him." (Cromwell: Tr. 190, 206, 214, 218.) Ancrum "turned around, went down into a garbage bag" and after "some ruffling" "he came out with the two bags" of heroin. (Cromwell: Tr. 190-91, 217.) Ancrum "looked around the block, up the block towards 8th, up the other side towards Adam Clayton Boulevard and in turn handed [Cromwell] the bag[s] down low." (Cromwell: Tr. 191, 218.)

Cromwell returned home and "went in the room where Joey was, [Joey] already had the instruments already set up, the needle, the hypodermic needle, the cooker, which is a bottle top scraped out clean with the cotton inside, and [Cromwell] gave [Joey] the two bags." (Cromwell: Tr. 191, 218-19.) Joey told Cromwell, "Hey, you take one, leave half of that bag for me." (Cromwell: Tr. 191.) As Joey used the heroin, Cromwell "watch[ed] [Joey] for his reaction because [Cromwell is] always afraid [he's] going to get beat" i.e., be sold heroin that is "no good at all." (Cromwell: Tr. 191-92.) Because Joey "was still sick" after taking the heroin, Cromwell took "a hit" "shoot[ing] the heroin into [his] vein" and "could tell it was no good at all." (Cromwell: Tr. 192, 214-15, 219.)

Cromwell told Joey that he was "going to try to get this money [back] or get reimbursed." (Cromwell: Tr. 192.) "[A] little after seven," Cromwell "backtracked [his] first route . . . but . . . this time [he] was half running, half trotting, and half walking." (Cromwell: Tr. 192.) Cromwell stated that he did not have a gun when he was walking back to return the beat heroin that night. (Cromwell: Tr. 200, 214.)

Cromwell "got halfway into the block" where he had purchased the beat heroin and "could see a crowd [of between seven and ten] people standing in the street" surrounding Robinson and Ancrum, clamoring, "I want my money back, you know this was a beat. I want my money back now," and Ancrum was "telling them you can't get your money back, they told me this thing is good." (Cromwell: Tr. 193-95, 216.) Cromwell also "confronted the deceased" and "started demanding [his] money," when people yelled "raise up, yellow cab, raise up," indicating that an undercover police patrol was approaching. (Cromwell: Tr. 195, 220.)⁶ When Cromwell "looked towards where the crowd was yelling, [he] could see the yellow cab coming up the block. [He] could also see the second man [who he] handed the $100 bill to also, now known as Robinson, he was standing next to the railing [near Tinsley's] . . . facing the tractor trailer [parked in the street in front of the store], looking towards" Cromwell and Ancrum. (Cromwell: Tr. 195-96.) Cromwell saw "a taxicab with two white males" and "knew from [his] experience in the street that these people were police officers." (Cromwell: Tr. 225.)

6 Cromwell explained: "What they do, dealers on the block warn each other when police arrive on the block or a yellow cab, when they know they are Anti-Crime or cops, whatever. They wam each other. . . . Raise up means clean up, whatever." (Cromwell: Tr. 195.)

Ancrum "said, raise up . . . let the police go by. When you come back I'll try to reimburse everyone." (Cromwell: Tr. 196.) Cromwell responded "no, I'm not going anywhere. I'm not going to go for that. Everybody said, no, we're not going anywhere. By this time the [c]rowd had lifted around [Ancrum] . . . trying to get to the garbage can [in] which the money and everything was. At that instant [Cromwell] heard two shots, bang, bang, to [his] left . . . . bang, bang. [Cromwell] looked in that direction [but] couldn't distinguish anything in that direction because people were running . . . all around." (Cromwell: Tr. 196, 220-22.) Cromwell testified:

Q. [Did you] [s]ee who was shooting?

A. No, I couldn't distinguish who was shooting because there was a crowd of people running.

. . . .

There were people running, I assume from the shots. [P]eople were coming t[h]is way. People were running that way. People were running across the street.

Q. This was after someone from that direction had yelled that a police taxicab was in the neighborhood?

A. Yes, sir.

Q. And, nevertheless, somebody from that crowd fired two shots in your direction?

A. Yes, sir . . .

(Cromwell: Tr. 222.)

Cromwell testified that the crowd "ran, disbursed [sic] and the deceased, James Ancrum, lie was coming out from under the garbage can with a pistol." (Cromwell: Tr. 196.) Cromwell wanted to defend himself from the shooter to his left by using Ancrum "as a shield" (Cromwell: Tr. 196-97, 229), while at the same time, to protect himself from Ancrum who was holding a gun (Cromwell: Tr. 230). Cromwell testified:

Q. You were trying to use him as a shield?

A. Yes, sir. I was trying to use him as a shield, yes, sir.

Q. But, he had a gun in his hand, as you testified?

A. Yes, sir, I'm dealing with two situations.

Q. So, you said the two of you struggled into the street?

A. Not into the street, still on the sidewalk. We came away from the street. We were now away from the street and I'm trying to shield him in a position where the shots were corning from. . . . That's when the two shots went off and then I turned him around after the two shots and I turned him around as a shield towards that direction.

Q. Then how many more shots went off after you turned him around as a shield?

A. I can only recall two or three because I was falling back.

Q. Your hand was on the gun, right?

A. His hand.

Q. Your right hand was on the gun?

A. Yes. After the two shots he let go and I was falling back, and he was saying, I'm going to kill you, I'm going to kill you.

Q. So, you testify here that the man was saying I'm going to kill you, I'm going to kill you and you had his gun, you had taken the gun away from him and he was still saying I'm going to kill you, I'm going to kill you'?

A. Yes, sir. In that process of me falling back.

Q. And at that time you had the gun in your hand, right?

A. I believe so.

Q. You know or you don't know?

A. It was in turmoil. I was in turmoil, sir. I said I believe so. I can't be, you know, sure with all that, I can't be sure.

(Cromwell: Tr. 229-230.)

During the continued struggle, Cromwell pushed Ancrum, and Cromwell "stumbled backwards' and "the gun went off more times." (Cromwell: Tr. 197-98, 227.) Cromwell had the gun "extended, [and he] could feel the gun still spitting, still going off" (Cromwell: Tr. 198.) Cromwell "caught [his] balance, . . . [and] spun towards 8th Avenue with the gun in [his] right hand." (Cromwell: Tr. 198.)

Cromwell does not know when in the course of the struggle Robinson or Ancrum were shot. (Cromwell: Tr. 227-28.) Cromwell testified:

Q. How many rounds did you pull off when you had the gun in your hand?

A. I can't recall. I can only remember about two going off I can't recall.

Q. By saying you remember two going off, you remember yourself pulling the trigger with your finger?

A. All I could feel was the gun jumping in my hand. I can only assume I was pulling the trigger, sir.

Q. Is it your testimony now you do not recall whether or not you pulled the trigger?

A. I said, I can assume, sir. I had the gun. I was the only one with the gun at this point. I was falling backwards.

Q. You recognize this gun?

A. I don't.

Q. It's People's [Exhibit] 6A in evidence.

A. It looks like the gun that we had. It looks like it. I can't actually say this is the gun.

Q. Do you know what it takes to pull the hammer back on a revolver?

A. No.

Q. Never done that before?

A. No.

Q. Didn't do that on the 16th, didn't pull the trigger back?

A. I would assume that I did, sir. It was in my hand.

Q. But you do not remember pulling the trigger at James Ancrum, is that correct?

A. I can't recall, sir.

(Cromwell: Tr. 23 1-33.)

Cromwell saw the yellow cab as he turned toward Eighth Avenue, and a white male got out of it, pulled his gun and said "Halt, Police." (Cromwell: Tr. 198-99.) When Cromwell had turned, his gun was extended in the policeman's direction, but when he saw the policeman, Cromwell "dropped the gun and [Cromwell] dropped to the ground." (Cromwell: Tr. 199.) Cromwell did not pull the trigger at the policeman. (Cromwell: Tr. 199.)

On cross-examination, the prosecution questioned Cromwell about his knowledge of the dangersof dealing and purchasing illegal drugs on the street:

Q. You have testified you are very familiar with street scenes, the street — buying and selling of drugs in West Harlem?

A. The buying yes, in Harlem.

Q. And is it not fair to say you are familiar with violence that attends to street buying and street transactions of drugs?

A. Yes, sir, there is a virtual war going on in Harlem with regard to territories, as to where one can sell drugs and to whom drugs can be sold —

. . . .

I can't say there is a war, but I know there is a lot of violence.

. . . .

Q. You know that violence is not restricted to simply fistfights, calling of bad names; correct?

A. Yes, I do know about that.

Q. And it is your testimony you went back to 115th Street, between 7th and 8th Avenue to get your money back?

A. That is my testimony.

Q. For a bad deal; is that correct?

A. That was my responsibility.

. . . .

I was responsible for that.

Q. And you were angry because you said you got a beat — two packages of beat stuff, right?

A. I wasn't angry but I was upset because I was responsible.

Q. You paid $90 for two bags of heroin, correct?

A. Yes.

Q. You were upset'?

A. Yes, sir.

Q. You know that that block is a block prone to violence, correct?

A. Yes, sir.

Q. And it is your testimony that you went back to get your money back totally unarmed; is that your testimony?

A. That is right.

(Cromwell: Tr. 241-43.)

The prosecution also brought out, without objection, that when arrested, Cromwell told the authorities that he didn't "know anything about the shooting, [he] walked over to the scene where [he] saw a crowd and two cops arrested" him. (Cromwell: Tr. 248.) Cromwell explained that he said that because he "was nervous." (Cromwell: Tr. 248-49.)

Summations

Defense counsel asserted in his closing arguments that the jury is "going to have to determine what this defendant did and what intent he had. [Officers] Clonan and Gilligan don't tell you that and they can't tell you that. They tell you what they saw. They saw something that was in process already. By the time they see the action, some shots had been fired, there is no question about that." (Defense Summation: Tr. 267-68.) Defense counsel argued:

James Ancrum is killed by a bullet that's fired from this gun. Kyle Robinson is wounded by a bullet that's fired from this gun.

. . . .

What else do we know? We know William Cromwell fired the gun. He tells you that. The officers tell you that. Kyle Robinson tells you that. That is the testimony that's in fact in this case.

James Ancrum was sell ng heroin on 115th Street. Why was William Cromwell on 115th Street? William Cromwell, as far as the testimony shows came alone. William Cromwell had no rounds, bullets, separate from his gun. The officer arrested him. They tell you what they recovered. They recovered a gun with six spent rounds. No extra rounds.

. . . .

James Ancrum is not about . . . to leave himself unprotected without anybody on 115th Street. If you want to accept what Kyle Robinson says there was nobody on the street but James Ancrum, I suggest to you you're flying in the face of reason and logic.

There are other people on the street. The police tell you that. They see them running from the immediate area. They are not people who are looking down the block, looking up to see what is happening, they are running from the area. There are people there. Probably Bunny, her girlfriend and some other people as well . . . .

. . . .

[Cromwell] goes down there and he gets what we all now know as beat drugs. Not surprising when you buy your drugs on the street . . . . that you don't always get what you pay for . . . .

. . . .

[Cromwell] is out the money and he is not too well because he is using drugs. He goes back down. . . [He] walks down 115th Street. He gets there, who does he see? He sees several people there, Kyle Robinson said he sees nobody. Cromwell tells you he sees several people, Cromwell is telling you what he saw. I submit to you what is more reasonable in view of what [Officers] Clonan and Gilligan say? He says there is a little dispute going on, some people are asking for their money back. Kyle Robinson is there and the defendant is there. . . . If James Ancrum has been selling drugs, he was selling bad stuff, it is not so unreasonable you are going to see some people back. James Ancrum knows that. He is not going to be sitting on the stoop kind of whisthng to himself and contemplating his future, he is going to make sure — he's a pretty stocky guy, that nobody is going to bother him. He is going to have some friends around and some runners.

. . . .

Cromwell hears some noise, two shots, he says. He sees the decedent Ancrum reaching into the garbage can and comes up at some point with a gun in his hand. Nobody has testified to seeing this man pulling a gun . . . the only testimony you have initially is Kyle Robinson says he sees him running towards the decedent, going towards 7th Avenue. He runs the other way. He gets a sideways glimpse and says this is the man who shot him. . . . All right, but maybe that didn't happen the way Robinson says that it happened. We know that he walked — tells you he comes with a T-shirt and jeans. Where does he have the gun, the pocket? It is not such a small gun, he has a tight shirt, put it in his jeans, it's going to stick out. Ancrum is not running a candy store, he is a drug seller, he is got to be observing. He doesn't say anything to him, he just takes the gun out and shoots him. What's the likelihood [sic]of that? What's the sense of that. Doesn't make a great deal of sense. Makes as much sense, at least, we're talking about reasonable doubt, it makes as much sense that Ancrum has the gun and comes up with it. Doesn't want to be bothered. He has had enough of this case, perhaps just wants to get rid of him, we don't know, we don't know what his motivation is. He is not here to talk about it. He played a dangerous game and he died. This man grabs the gun, they struggle . . . .

. . . .

[Y]ou will be charged on what is called the defense of justification. Sometimes properly called self-defense. You listen to that charge. If the defendant's story, which I submit to you is credible and true, you people have no difficulty in applying justification to this case. That has to be disproved by the people beyond a reasonable doubt. It is their burden.

(Defense Summation: Tr. 271-76, 280-81, 283-84, 287, emphasis added.)

The prosecution argued in summation:

[Cromwell's] version of what happened simply does not make sense. According to the defendant, when this — when these shots came from his left, up the street, James Ancrum, this drug dealer went into a garbage can and pulled out this pistol . . . . apparently to respond to the shots coming from down the street. The defendant then says that he — the defendant grabbed the man who had the gun. He struggled, right, they struggled, left. In the course of the struggle Ancrurn fires two shots that go to his right, to Ancrum's right and down the street. . . . He hits Kyle Robinson who is down the street. So, according to the defendant, he has nothing to do with the shooting of Kyle Robinson. He doesn't shoot him. James Ancrum shoots Kyle Robinson in the course of the struggle. Again, try it for yourselves. [T]ake the gun with absolute fairness to the defendant's version of it, have [Cromwell's test tmony] read back, if you need try it, just try to pull this trigger as somebody is struggling . . . just try it. The defendant's story does not hold up. . . . The defendant told you he heard the deceased yell to him . . . at least three times, "I'm going to kill you

. . . Perhaps he was saying that when he was shot in the back this way, the bullet was passing through his body, lodging in his breast bone. May be he was yelling, "I'm going to kill you." That way, when he is running away, diving for the door of Tinsley's store for cover. He is probably yelling, "I'm going to kill you." I mean it is preposterous.

. . . .

[The arresting officers] see [Cromwell] holding the gun, firing position, two hands firing deliberately, aiming the gun into the doorway of Tinsley's. They don't see him flailing backwards, falling from the sidewalk into the cab of a tractor trailer truck. They saw him aiming and firing repeatedly.

. . . . The People are not required to prove why this defendant shot and killed James Ancrum or why he shot and tried to kill Kyle Robinson. Perhaps it was because he was dissatisfied with a drug deal. . . . We are bound to prove that with intent to kill James Ancrum, the defendant killed James Ancrum by shooting him with a pistol. And we are bound to prove the defendant, with intent to kill Kyle Robinson, tried to kill Kyle Robinson by shooting him with a pistol.

The defendant has also raised the issue of justification. As counsel has argued, hey, he was justified in doing what he did because it was definitely defense.

This defendant was never in fear of his life from James Ancrum. His own version of the events belies that. If you read his testimony, he's bigger than the deceased. The medical examiner said the deceased is like five-eight, nineteen years old. This defendant, by his own version, grabs the gun when the deceased pulled it out of the garbage can, and swung him around with it. And then took the deceased and moved him out into the sidewalk and used him as a shield against what he claims was the source of these two shots up the strcet. He's not afraid of James Ancrum. He's moving him around like a toy. using him like a shield up the street. And he took the gun away from him. . . . Then he says the guy kept yelling, "I'm going to [kill] you" . . .

Then the defendant says, well, "Then he started shooting." or rather, "the gun started going off, spitting." He could feel it going off. And that must have been how James Ancrum was shot. But he insists that James Ancrum was yelling at him, "I'm going to kill you." And that he offers to you, justifies his emptying this revolver at James Ancrum. That does not meet the requirement of the law of justification. . . . The other fellow is there defenseless. At that point. [Cromwell] has no justification in shooting a man because, you know, he's not shot that closely. There are no powder bums around the shot to the head. . . . He's shot in the back at such an angle that the bullet travels forward and lodges in his breastbone area.

Is that self-defense? Hardly.

(Prosecution Summation: Tr. 306-08, 312-15, emphasis added.)

Jury Charge

Justice Torres gave the jury the following justification charge:

Now, the defendant, Mr. Cromwell, has asserted in this case the defense of justification.

The law provides there are certain occasions where an act otherwise criminal is justifiable. This defendant claims that his actions, whatever they might have been, were justified under these circumstances which were present at the time of the occurrence.

At the outset, I charge you that when the defense ofjustification is raised, the burden of proof is on the Prosecution to disprove that defense beyond a reasonable doubt.

Therefore, the Prosecution must prove each and every element of the crime charged beyond a reasonable doubt and also prove that the actions of the defendant were not justified beyond a reasonable doubt. Under the law as I will now charge you, the Penal law then provides as follows: "A person may use physical force upon another person when and to the extent that he reasonably believes such to be necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force by such person, unless, (a), the latter's conduct was provoked by the defendant himself with intent to cause physical injury to another person; or, (b), the defendant was the initial aggressor, except that in such case, his use of physical force [is] justifiable if he has [with]drawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force.["] This means that, in this case, that if the defendant reasonably believed that James Ancrum was using, or was about to use unlawful physical force upon him, the defendant wotild be justified in using physical force to the extent he reasonably believed necessary to defend himself from such use or imminent use of unlawful physical force.

However, the defendant [Cromwell] must not have provoked James Ancrum's conduct by intending himself to cause physical injury to James Ancrum. The defendant must not have been the initial aggressor. Justification is further limited by the Penal law which specifies that a person may not use deadly physical force upon another unless he reasonably believes that such person is using. or is about to use. deadly physical force. However, the defendant may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid its use by retreating. Deadly physical force is defined as force which under the circumstances in which it is used is readily capable of causing [death] or other serious physical injury. You will remember that serious physical injury means physical injury which creates a substantial risk of death, or which causes serious and protracted dis figurement or protracted impairment of health or protracted loss or impairment of any bodily organ. In order to determine whether the defendant reasonably believed that James A[n]crum was using, was about to use either unlawful physical force or deadly physical force, you must consider the facts and circumstances as you find they were known to the defendant at the time the defendant acted. You must decide, based upon all of these facts and circumstances, whether the defendant, whether he acted as you find he did, fairly and reasonably believed at the time that James A[n]crum was in fact using. or about to use unlawful physical force, or deadly physical force against the defendant. In addition, you also are required to apply the very same standards to the issue of the degree of force used or employed by the defendant in this case. And once again, it is for you to determine, based upon all the facts and the circumstances as you find they were known to the defendant at the time he so acted. If you find he did indeed so act, whether the defendant himself fairly and reasonably believed the degree of force he used was in fact warranted and necessary to defend himself, under all of the circumstances in the case. Therefore, applying the facts of this case to the law, if you find that the People have disproved the defense of justification beyond a reasonable doubt, then you may find the defendant guilty of one or more of the crimes charged if all the elements of the crime are proved beyond a reasonable doubt. On the other hand, if the People do not meet their burden of disproving the defense of justification, then you must find the defendant not guilty.

(Charge: Ir. 35 1-55, emphasis added.)

Verdict and Sentence

The jury found Cromwell guilty of second degree murder, second-degree assault and second-degree weapons possession. (See Sentencing Tr. ["S."] 4.) On January 10, 1984, Cromwell was sentenced as a predicate felon (S. 3-4) to concurrent terms of eighteen years to life imprisonment for the murder conviction, seven and one-half to fifteen years for weapon possession and three and one-half to seven years for assault. (S. 13-15.)

Cromwell's Direct State Appeal

In Cromwell's brief to the First Department, appellate counsel claimed a violation of his federal and state constitutional rights on the following grounds: (1) Cromwell's guilt of murder and assault were not proven beyond a reasonable doubt (Dkt. No. 18: Ex. A: Cromwell 1st Dep't Br. at 18-24)⁷ (2) the prosecutor's summation violated Cromwell's rights to due process and a fair trial by "vouching" for the People's witnesses and disparaging Cromwell's version of events (id. at 25-30); and (3) Cromwell's sentence of eighteen years to life was excessive (id. at 31-33). Cromwell's pro se supplemental brief to the First Department raised the following additional grounds: (1) "trial counsel's lack of preparation for trial and his ignorance of basic principles of criminal law deprived appellant of his constitutional right to a fair trial" (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 4-22); (2) "falsification [of trial testimony] by major witness [Robinson] . . . significantly contributed to the jurys verdict of guilty" (id. at 23-30); (3) "prosecutor's failure to turn over Rosario material [specifically Cromwell's post-arrest statement to a police detective that he knew nothing about the shooting] deprived defendant of his rights to effective assistance of trial counsel and the right to a fair trial" (id. at 31-35); and (4) the trial court failed to properly charge justification (id. at 36).

7 References to Exhibits are to the Exhibits to the State's "Answer and Appendix."

The People responded to Cromwell's briefs, arguing that: (1) Cromwell's guilt was proven beyond a reasonable doubt (Ex. C: State 1st Dep't Br. at 11-14); (2) "the prosecutor's unobjected-to summation properly responded to the arguments raised by the defense" (Id. at 14-21); (3) "the record does not support [Cromwell's] pro se claims that the prosecutor violated any discovery obligations or made knowing use of perjured testimony" (id. at 21-24); (4) Cromwell "must raise his claim of ineffective assistance of counsel in a proceeding pursuant to CPL Section 440.10," but, nevertheless "[t]his record does not support [Cromwell's] claim that he was denied effective assistance of counsel" (State 1st Dep't Br. at 25-33); (5) "the [trial] court's charge on justification was proper" (id. at 33-35); and (6) Cromwell's sentence "is fair and appropriate" (id. at 35-38).

The First Department affirmed Cromwell's conviction without opinion.People v. Cromwell, 138 A.D.2d 983, 526 N.Y.S.2d 875 (1st Dep't 1988). On June 15, 1988 the New York Court of Appeals denied leave to appeal,People v. Cromwell, 72 N.Y.2d 857, 532 N.Y.S.2d 507 (1988), and denied Cromwell's motion to reconsider on August 17, 1988, People v. Cromwell, 72 N.Y.2d 917, 532 N.Y.S.2d 851 (1988).⁸ Cromwell's § 440.10 Motion

8 Although this Court does not have a copy of Cromwell's coram nobis motion papers, in 1990 Cromwell filed a writ of error coram nobis, in which Cromwell alleged, inter alia, that appellate counsel was ineffective for failing to: "advance 'numerous non-frivolous issues,'" argue that "the arresting officers [committed fraud] when they testified to seeing the defendant commit the offense," obtain "a sufficient amount of the trial record," "obtain the trial exhibits or discovery material," allow Cromwell "'his input' in the appellate brief," raise a claim of ineffective assistance of trial counsel, argue that the indictment was invalid, raise prosecutorial misconduct, request oral argument, utilize a "911 printout," and for submitting "a brief which 'contained no questions of law' and failed to 'focus' on claims which 'utilized' 'Federal and State Constitutional analysis.'" (See Ex. D: Cromwell C.P.L. § 440 Br. at 2-3.) The First Department denied Cromwell'scoram nobis application. People v. Cromwell, 1991 N Y App. Div. LEXIS 661 (1st Dep't Jan. 17, 1991).

In June 1996, Cromwell moved to vacate his conviction pursuant to C.P.L. § 440, arguing that: (1) the prosecution knowingly used false testimony from Kyle Robinson (Ex. D: Cromwell C.P.L. § 440 Br. at 6-16); (2) he is entitled to a new trial or to be resentenced in light ofPeople v. Goetz which "propounded a new standard for trial courts to charge juries in cases where defendants have justification defenses" (Cromwell C.P.L. § 440 Br. at 16-20); and (3) he is innocent and "a fundamental miscarriage of justice occurred when the defendant was convicted through false testimony by the [prosecution's] witness" (id. at 20-27). On August 8, 1996, the trial court denied Cromwell's C.P.L. § 440.10 motion without opinion (Ex. F), and on December 31, 1996, the First Department denied leave to appeal. People v. Cromwell, No. M-5 546, 1996 N.Y. App. Div. LEXIS 14345 at *1 (1st Dep't Dec. 31, 1996).

Cromwell's Federal Habeas Corpus Petition

Cromwell's federal habeas corpus petition claims that: (1) the prosecution failed to prove his guilt of murder and assault beyond a reasonable doubt (Dkt. No. 1: Pet. Attachment at 5-6); (2) trial counsel's lack of preparation and other errors at trial constituted ineffective assistance of counsel depriving him of a fair trial (id. at 6); (3) he was convicted by the prosecution's use of false testimony id. at 6-7); and (4) the trial court's justification charge to the jury was inadequate in light of subsequent developments in the law (id. at 6, incorporating Point II of Cromwell's C.P.L. § 440 Motion).⁹

9 Cromwell's habeas corpus petition, dated July 30, 1997, was received by this Court's Pro Se office on December 5, 1997. (Dkt. No. 1.) By order dated January 5, 1998, then Chief Judge Griesa directed Cromwell to show cause why his petition should not be dismissed as time barred. (Dkt. No. 2.) Cromwell responded to the Court's order that: his petition was not untimely because he appealed within one year after the denial of his C.PL. § 440 motion (Dkt. No. 3: Cromwell 4/3/92 Br. at 6-7), his petition would demonstrate his "actual innocence" (Cromwell 3/31/92 Br. at 4-5), and dismissal of his petition as time barred would violate the Constitution's suspension clause (id. at 3-4).
On May 28, 1998 this matter was referred to this Court for a Report and Recommendation (Dkt. No. 6), and this Court recommended that the petition be dismissed as untimely, see Cromwell v. Keane, 33 F. Supp.2d 282, 284-85 (S.D.N.Y. 1999) (Rakoff, D. K Peck, M.J.). Over Cromwell's objections, Judge Rakoff adopted this Court's Report and Recommendationid. at *1, but issued a certificate of appealability on the issue of whether the AEDPA statute of limitations violates the suspension clause. (Dkt. No. 10.) Cromwell appealed, and appellate counsel was appointed under the Criminal Justice Act.
The State conceded before the Second Circuit that Cromwell's petition was timely. (Dkt. No. 22: Beder Aff. ¶ 17.) The Second Circuit reversed and remanded, finding that "[i]n the absence of other evidence regarding the date on which Cromwell's petition was handed to prison officials for mailing [i.e., the date incarcerated pro se litigants are deemed to have filed their federal papers], we consider his petition to have been [timely] filed on September 2, 1997, the date on which petitioner signed his in forma pauperis application. . . Cromwell v. Keane, No. 99-2 156, 2001 WL 1168546 at *1-2 (2d Cir. Sept. 28, 2001). On November 15, 2001, this petition was referred to me for a Report and Recommendation pursuant to the Second Circuit's mandate. (Dkt. No. 15.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD ¹⁰

Before the Court can determine whether Cromwell is entitled to federal habeas relief the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress siguificantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) 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

(2) . . . 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).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.¹¹ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.¹²

11 Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000);Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

12 Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.¹³

13 Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521.¹⁴

14 Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, e.g., Loliscio v. Goord, 263 F.3d at 184.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate [s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 2002);Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001)¹⁵ On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).

15 The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.

Here, the First Department affirmed Cromwell's conviction without an opinion, People v. Cromwell, 138 A.D.2d 983, 526 N.Y.S.2d 875 (1st Dep't 1988), and the Court of Appeals denied leave to appeal, People v. Cromwell, 72 N.Y.2d 857, 532 N.Y.S.2d 507 (1988). Similarly, the trial court denied Cromwell's C.P.L. § 440 motion without an opinion and the First Department denied leave to appeal. (See page 21 above.) Accordingly, since the prosecutor's state court briefs responded to Cromwell's claims on the merits and not on procedural grounds, and the state court reduced its disposition to judgment and did not indicate any procedural grounds for the denial, the First Department's affirmance of Cromwell's conviction on direct appeal, and the trial court's denial of Cromwell's C.P.L. § 440.10 motion, must be reviewed under the AEDPA's deferential standards.¹⁶

16 Even if the Court were to review Cromwell's habeas claims de novo, the results would not be any different.

II. CROMWELL'S CLAIMS REGARDING SUFFICIENCY OF THE EVIDENCE

Cromwell asserts two claims sounding in sufficiency of the evidence theory: (1) that "the people failed to establish [Cromwell's] guilt ofmurder in the second degree beyond a reasonable doubt where nobody saw the firing of the fatal shots and where [Cromwell], a 32-year old with prior convictions for only minor, non-violent offenses, testified that the shooting of James Ancrum occurred after two shots had been fired in [Cromwell's] vicinity and while [Cromwell] was wresthng a gun from Ancrum" (Dkt. No. 1: Pet. Attachment at 5), and (2) "[t]he people failed to prove [Cromwell's] guilt of assault in the second degree, where they adduced no evidence of [Cromwell's] intent to injure Kyle Robinson." (id. at 5-6.)

A. Sufficiency of the Evidence Standard ¹⁷

17 For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation see Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *940 (S.D.N Y Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at * 14 (S.D.N.Y. Nov. 19, 1997) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.);Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, Ml.); Carromero v. Strack, 98 Civ. 3519, 1998 WL849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.);Fernandez v. Dufrain, 11 F. Supp. 2d407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt . . . ." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.¹⁸

18 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einauglar v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997).

Petitioner Cromwell bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983)¹⁹

19 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitionerbears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121S.Ct. 778 (2001);United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. . . . In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor."), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted)²⁰

B. The Evidence Was Legally Sufficient to Support Cromwell's Conviction for Second-Degree Murder and Second-Degree Assault

20 Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395; United States v. Martimez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

Viewed in the light most favorable to the State, the evidence against Cromwell for both Ancrum's murder and Robinson's assault was overwhelming. Regarding Ancrum's murder, both Officers Clonan and Gilligan heard shots and saw Cromwell holding the murder weapon and shooting in Ancrum's direction. (See pages 2-3 above.) The officers arrested Cromwell at the scene, literally holding the proverbial smoking gun.²¹ page 3 above.) Police bahistic tests demonstrated that the bullets that killed Ancrum were shot from the gun Cromwell held. (See page 4 above.) Both officers unequivocally identified Cromwell as the perpetrator, as did eye-witness Robinson. (See pages 2, 5 above.)

21 See William Safire, On Language 263 (Times Books 1980) ("The smoking pistol, or gun, meant the crucial piece of evidence; . . . A Baker Street Irregular, Peter Blau of Washington, D.C., has nailed down the phrase's first use in its guilt-proving sense. . . . In the Sherlock Holmes mystery The Gloria Scott, first published in The Strand Magazine in April 1893, author Arthur Conan Doyle has a character describe a mutiny on a convict ship: "Then we rushed on into the captain's cabin, but as we pushed open the door there was an explosion from within, and there he lay with his brains smeared over the chart of the Atlantic which was pinned upon the table, while the chaplain stood with a smoking pistol in his hand at his elbow."'); William Safire, Safire's Political Dictionary (Random House 1978) (citing A. Conan Doyle and defining "smoking gun" as "incontrovertible evidence; the proof of guilt that precipitates resignations. . . . Such a stance is generally considered suggestive of obvious (sometimes too obvious) guilt."); see also The Oxford English Dictionary 805 (2d ed. 1991) (tracing the origin of "smoking gun" to, among other sources, Doyle's Sherlock Holmes story); David Wilton, Word and Phrase Origins at http://www.uselessknowledge.com/word/smoking.shtmh W. Dale Nelson, Phrase from Sherlock Holmes Haunts Regan, Associated Press, June 18, 1987 ("When President Reagan says there is no smoking gun in the Iran-Contra affair, he is echoing a phrase from a Sherlock Holmes yarn that haunted Richard M. Nixon during his last days in the White House. . . According to the Oxford English Dictionary, the [smoking gun] phrase Reagan was echoing was first used by Sir Arthur Conan Doyle in [a] "Sherlock Holmes' [story] in 1894.").

Regarding the assault on Robinson, the arresting officers testified that they saw Robinson running and shouting "I'm hit," and saw Cromwell holding a gun and shooting into Tinsley's entrance. (See pages 2-3 above.) Bahistic evidence tests demonstrated that the bullet removed from Robinson's back matched the weapon Cromwell held when apprehended. (See page 4 above.) Finally, Robinson identified Cromwell as the person who shot him and testified that, contrary to Cromwell's testimony, neither Robinson nor Ancrum had a weapon that night; rather, according to Robinson, Cromwell showed up and suddenly started shooting. (See pages 4-5 above.)

Cromwell did not deny that he killed Ancrum, but rather argued that he was justified in doing so. (SeE pages 8-9, 14 above.) Cromwell testified that he arrived unarmed to ask Ancrum for a refund for the "beat" heroin, when two shots were fired from another direction. According to Cromwell, Ancrum responded to the shots by pulling out a gun, and Cromwell tried to grab Ancrum's gun while using Ancrum as a shield and holding Ancrum between Cromwell and the direction of the shots. (See page 8-9 above.) Cromwell testified that during this struggle, Ancrum told him "I'm going to kill you," and finally, when Cromwell fell backwards from the struggle, the gun went off several times, shooting and killing Ancrum. (See page 9 above.) While the jury could have believed Cromwell, the jury chose not to credit Cromwell's testimony.

The decision to believe or disbelieve Cromwell was for the jury, not a reviewing court. "[T]he jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citingUnited States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)).²² This Court may not reassess the jury's finding of credibility: "'[f]ederal habeas courts are not free to reassess the fact[-]specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'" Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N Y Sept. 3, 1992), affd mem., 992 F.2d 320 (2d Cir. 1993)).²³

22 Accord, e.g., United States v. Rosa, 11 F.3d at 337; see also cases cited in fn.17 above.

23 See, e.g., cases cited in fn. 17 above; see also, e.g., Huber v. Schriver, 140 F. Supp.2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. . . . However, under both the state law . . . and federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury . . . ."); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").

Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981): see also, e.g., cases cited in fn.17 above.

Finally, the Court notes that the AEDPA has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254 (d). Under AEDPA guidelines, this Court cannot say that the First Department's decision that the evidence was sufficient to convict Cromwell was contrary to established federal law or was based on an unreasonable determination of the facts.²⁴ III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ²⁵

24 See, e.g., Jamison v. Grier, 2002 WL 100642 at *13 (applying AEDPA review standard to insufficiency of evidence claim); Ferguson v. Walker, 2001 WL 869615 at *6 nn. 10-11 (same); Simpson v. Portuondo, 2001 WL 830946 at *9 (same); Simmons v. Mazzuca, 2001 WL 537086 at *9 (same);Huber v. Schriver, 140 F. Supp. 2d at 276-78 (same); Manning v. Walker, No. 99 Civ. 5747, 2001 WL 25637 at *5-6 (E.D.N.Y. Jan. 3, 2001) (same);Davis v. Keane, 97 Civ. 8328, 2000 WL 1041454 at *2-3 (S.D.N.Y. July 28, 2000) (same); Garvey v. Kelly, 104 F. Supp.2d 169, 170-73 (W.D.N.Y. 2000) (same); Roldan v. Artuz, 78 F. Supp. 2d at 269-70 (same); Estrada v. Senkowski, 1999 WL 1051107 at *17-18 (same).

25 For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001); Ennis v. Walker, 00 Civ. 2875, 2001 WL409530 at*15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.);Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. at 689, 104 S.Ct. at 2065 (citation omitted); accord, e.g., Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 20687.²⁶

26 See also, e.g., Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. at 2069 ²⁷

27 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.²⁸

28 See also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to "second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001); accord, e.g., Ennis v. Walker, 2001 WL 409530 at *16.

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court ofthe United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254 (d)(1)); see also, e.g., Sellan v. Kuhlman, 261 F.3d at 315. "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. The question before this Court, therefore, is whether the state court's denial of Cromwell's ineffective trial counsel claims involved an "unreasonable application" of the legal principles established by the Supreme Court in Strickland and its progeny.

B. The First Department's Denial of Cromwell's Ineffective Assistance of Counsel Claim was not an Unreasonable Application of the Strickland v. Washington Standard

This is yet "another case where petitioner's lengthy laundry-list of claims 'suggests the poverty of his position.'" Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *1 (S.D.N Y Aug. 18, 2000) (Peck, M.J.).²⁹

29 Accord Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *1 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 438 (S.D.N.Y.) (Wood, D.J. Peck, M.J.) (quoting Cooper v. New York State Dep't of Human Rights, 986 F. Supp. 825, 829 (S.D.N.Y. 1997)), affd, 201 F.3d 430 (2d Cir. 1999).

Cromwell argues that he "was deprived of a fair trial under the Sixth and Fourteenth Amendment: Where trial counsel's lack of preparation for trial and his ignorance of basic principles of criminal law deprived [Croiriwell] of his constitutional right to a fair trial." (Dkt. No. 1: Pet. Attachment at 6, citing Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 4-22.) Specifically, Cromwell asserts that "the cumulative effects of the errors by defense counsel" deprived him of "effective assistance of counsel" and a fair trial in that counsel:

(1) [failed] to seek a Huntley Hearing to suppress a bullet found by the two arresting officers approximately eight (8) hours after the incident in the street that did not match the weapon in this case; (2) identified his client for the prosecution witness; (3) failed to make appropriate objections and demonstrated ignorance of basic principles of criminal law and procedure; (4) elicited prejudicial testimony during his presentation of his defense, to wit: ask officer Gilligan did the defendant cock the gun when he faced him, when the officer said no, he ask[ed] him did he squeeze the trigger; (5) compounded his errors by inviting the jury to draw the inevitable inference that they should believe Robinson's testimony beyond a reasonable doubt; (6) defense counsel fail[ed] to seek preclusion of defendant's statements pursuant to CPL 710.30; (7) defense counsel delivered a largely irrelevant and incoherent summation; (8) defense [counsel] fail[ed] to make an opening statement contribut[ing] to appellant's conviction; (9) defense counsel['s] failure to introduce Defendant's Exhibit "A' [a police report of Robinson's statement that he did not see the shooter's face was] highly prejudicial to appellant; (10) defense counsel fail[ed] to object to People's Exhibit '10' [which consisted of a statement by Robinson on June 29, 2983 stating that he had seen the man that shot him and which was] highly prejudicial to appellant's defense since defense counsel knew that the prosecution witness Robinson had lied where defense counsel had in his possession a copy of a statement . . . signed by Robinson stating that he did not see the man that shot him on the 16th June 1983 . . .; and (11) defense counsel fail[ed] to subpoena Detective Failla, the investigating officer and the alleged five (5) witnesses that we:e in Tinsley's Store who[se] testimony w[as] essential to [Cromwell's] defense where the arresting officers gave testimony that they s[aw] the defendant firing shots into Tinsley's Store and the victim w[as] found inside said store . . .

(Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 14-15.)

None of Cromwell's allegations satisfy the Strickland v. Washington test for establishing ineffective counsel. In each instance (and even taking all the instances as a whole), Cromwell fails to prove that counsel's actions fell below a "wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1984), or that the result of the trial would have been different absent counsel's actions. See, e.g., Boyd v. Hawk, 965 F. Supp. 443, 450 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.). The Court will discuss each of Cromwell's claims in turn.

1. Defense Counsel's Failure to seek a Huntley Hearing Challenging the Bullet Found at the Crime Scene

Cromwell's first claim is that defense counsel was ineffective for failing to object to the admission of a bullet recovered by Officers Clonan and Gilligan from the curb in front of Tinsley's eight hours after the shooting. (Clonan: Tr. 29-30, 49-50; Gilligan: Tr. 146-49.) The State's bahistic expert did not testify as to whether the spent bullet matched the gun Cromwell used at the shooting. (See Collangelo: Tr. 171-77.) The bullet was admitted into evidence and defense counsel did not object. (Clonan: Tr. 30.) Cromwell argues that trial counsel was ineffective for failing "to seek a [pre-trial evidentiary] Huntley³⁰ Hearing to suppress a bullet found by the two arresting officers approximately eight (8) hours after the incident in the street that did not match the weapon in this case." (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 14; see also id. at 1-2.)

30 People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965).

Other than his conclusory allegation that the spent bullet which "could not be matched to the weapon in this case . . . only serve[d] to prejudice the jury" (Cromwell Pro Se Supp. 1st Dep't Br. at 1), Cromwell has alleged no possible prejudice from the admission of a bullet that was not directly connected to his murder weapon, much less prejudice from a failure of defense counsel to request a Huntley hearing regarding the bullet's admission. Cromwell was caught redhanded by the police with the literal "smoking gun" in his hand. See page 2-3 above.) The bahistic evidence showed that the gun in Cromwell's hand shot both Ancrum and Robinson. (See page 4 above.) Cromwell himself testified that after two shots rang out, he grabbed Ancrum and wrestled the gun away from Ancrum. (See pages 9-10 above.) Thus, the spent bullet that did not come from the gun in Cromwell's hand could have supported his testimony that there was another shooter with another gun. Admission of the bullet helped Cromwell, or at worst was irrelevant. Cromwell cannot show prejudice from its admission, and hence cannot establish ineffective counsel underStrickland's second prong. See, e.g., Santos v. Portuondo, No. 97 CV 6161, 1999 WL 684165 at *4 (E.D.N.Y. July 21, 1999) (no ineffective assistance of counsel where appellate counsel "chooses not to pursue a defaulted claim, particularly where . . . the instruction was favorable to the defense and, thus, caused petitioner no prejudice."); Solomon v. Commissioner of Corr. Servs., 786 F. Supp. 218, 227 (E.D.N.Y. 1992) (Even where "counsel's failure to make a [suppression] motion was apparently an error rather than an exercise in professional discretion" "[i]n order to show ineffective assistance for the failure to make a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed.'").

2. Defense Counsel's Alleged Identification of Cromwell

Cromwell alleges that trial counsel violated his constitutional rights to effective assistance by "identif[ying him] for the prosecution witness." (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 14; see also id. at 20.) This claim is frivolous.

The "identification" to which Cromwell is referring is the following exchange during Officer Clonan's testimony:

[Prosecutor]: Officer, tell the jury and the Court what if anything unusual you observed at that time and place.

[Officer Clonan]: . . . I saw a number of people running around and I saw Mr. Cromwell exiting from a store, Tinsley's Variety Store, firing a gun into the doorway of that store. He kept backing towards me and I yelled for him to stop. He kept backing away. I yelled for him to stop again at which time he turned, pointed a revolver at me. I yelled again. He stalled for a second or two and he dropped the gun. At which time he apprehended Mr. Cromwell. I told him to lay in the street. I went over and handcuffed him and I proceeded to Tinsley's Variety Store.

Q. Do you see the person you saw firing the gun in the courtroom today?

A. Yes.

Q. Would you indicate him, please.

A. Mr. Cromwell, the person in the gray —

[Defense Counsel]: Judge, indicating for the record, my client.

THE COURT: Indicating Mr. Cromwell.

(Clonan: Tr. 19-20, emphasis added.)

Despite Cromwell's assertions that defense counsel pointed him out to the prosecution witness, the transcript indicates that the witness named Cromwell and pointed to him, and defense counsel merely conceded for the record that the person Officer Clonan pointed to was the defendant. The Court is hard-pressed to find any prejudice resulting from defense attorney's candid statement that Officer Clonan was pointing to Cromwell, especially since identification was not an issue in this case — Cromwell was caught red-handed and his defense was justification, not mis-identification. (See pages 9-10, 14-15.) This part of Cromwell's ineffective assistance claim should be denied as frivolous.

3. 7. Defense Counsel's Alleged General "Lack of Preparation"

Cromwell alleges that defense counsel "failed to make appropriate objections and demonstrated ignorance of basic principles of criminal law and procedure" (his third claim) and "delivered a largely irrelevant and incoherent summation" (his seventh claim). (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 14-15.) It is well established that conclusory allegations such as these are insufficient to meet the rigorous standard under Strickland v. Washington. See, e.g., United States v. Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (petitioner's affidavit making allegations in a "conclusory fashion" failed to demonstrate that counsel's decision not to call a witness was unreasonable), cert. denied, 502 U.S. 826, 112 S.Ct. 93 (1991); Angel v. Garvin, 98 Civ. 5384, 2001 WL 327150 at *8 (S.D.N.Y. Apr. 3, 2001) (citing cases) ("A habeas petition maybe denied "where the allegations are . . . vague, [or] conclusory . . ."); Slevin v. United States, 98 Civ. 0904, 1999 WL 5490 10 at *5 (S.D.N.Y. July 28, 1999) (§ 2255 case; "Petitioner's conclusory allegations that counsel evinced "a general lack of preparation' do not demonstrate that absent the alleged errors, the outcome of the trial would have been different. Petitioner has not elaborated on how counsels alleged general lack of preparation prejudiced the outcome of his trial. Accordingly, such purported lack of preparation cannot be deemed ineffective assistance of counsel."), affd, 234 F.3d 1263 (2d Cir. 2000); Muhammad v. Bennett, 96 Civ. 8430, 1998 WL 214884 at *1 (S.D.N.Y. Apr. 29, 1998) (Rakoff, D.J.) ("petitioner's speculative claim about the testimony of an uncalled witness" is insufficient to show ineffective assistance of trial counsel); Vasguez v. United States, 96 Civ. 2104, 91 CR 153, 1997 148812 at *12 (S.D.N.Y. Mar. 28, 1997) (§ 2225 case; "[P]etitioner's allegations with regard to alleged counsel errors in pre-trial preparation and investigation and trial advocacy are vague, conclusory, and unsupported by citation to the record, any affidavit, or any other source," and, accordingly, "[t]he vague and unsubstantiated nature of the claims' defeated petitioner's claim of ineffective assistance of counsel . . . ."); Parnes v. United States, 94 Civ. 6203, 91 CR 152, 91 CR 165, 1995 WL 758805 at *3 (S.D.N.Y. Dec. 21, 1995) (§ 2225 case; "[V]ague allegations do not permit the Court to conclude that the alleged errors of Petitioner's counsel fell below "prevailing professional norms'. . . . Accordingly, the Court rejects Petitioner's claim that he received ineffective assistance of counsel."); Hartley v. Senkowski, No. CV-90-395, 1992 WL 58766 at *2 (EDNY. N4ar. 18, 1992) ("In light of this demanding [Strickland] standard, petitioner's vague and conclusory allegations that counsel did not prepare for trial or object to errors carry very little weight.");Matura v. United States, 875 F. Supp. 235, 237-3 8 (S.D.N.Y. 1995) (§ 2255 case; mere conclusory allegations that counsel was ineffective fails "to establish that his counsel's performance was deficient [and] . . . . fails to overcome the presumption [underStrickland] that counsel acted reasonably . . ."); see also cases cited at pages 34-36 above.

In any event, the Court has read the entire trial transcript. Defense counsel conducted thorough cross and direct examinations, argued a solid justification defense and presented a competent closing argument, resulting in Cromwell's acquittal for attempted murder as to Robinson.See, e.g., Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir. 1993) ("A reading of the record clearly shows that [petitioner's] trial counsel's performance was not objectively unreasonable, nor did it result in prejudice."); Jeremiah v. Artuz, 181 F. Supp.2d 194, 203 (E.D.N.Y. 2002) (examining "counsel's overall performance" and finding no ineffective assistance where "[t]rial counsel ably presented petitioner's justification defense throughout the trial and attempted in cross-examination to develop grounds for questioning the testimony of prosecution witnesses that was harmful to petitioner's defense. Counsel also helped elicit petitioner's trial testimony in an intelligible fashion. His summation was an organized and coherent presentation of the defense position which focused on the justi fication defense. Notwithstanding the apparent strength of the prosecution's case, counsel forcefully nrged the jury to find a reasonable doubt based on an evaluation of the evidence and gaps in the evidence. . . . [E]ven assuming that counsel committed an oversight or error in judment . . . petitioner was not deprived of his right to the effective assistance of counsel . . . ."); Walker v. McGinnis, 99 Civ. 3490, 2000 WL 298916 at *7 (S.D.N.Y. Mar. 21, 2000) ("[A] thorough review of the trial transcript reveals that [petitioner]'s counsel was, in fact, competent, tenacious, and thorough throughout the proceeding."); Harris v. Hollins, 95 Civ. 4376, 1997 WL 633440 at *6 (S.D.N.Y. Oct. 14, 1997) ("Petitioner offers a laundry list of alleged errors made by defense counsel during trial, which he claims denied him his constitutional right to effective assistance of counsel. . . . Taken in its totality, petitioner's claim must fail because he has not demonstrated that counsel's conduct fell below that of a reasonable attorney, or that the jury would have found him not guilty but for counsel's ineffective performance. The record indicates that defense counsel aggressively pursued pretrial motions . . . cross-examined witnesses, made objections and motions, and gave a comprehensive summation that tied together defense strategies in an effort to discredit the State's case."); White v. Keane, 90 Civ. 1214, 1991 WL 102505 at *6 (S.D.N.Y. June 6, 1991), affd, 969 F.2d 1381 (2d Cir. 1992); Sanchez v. Kuhlman, 83 Civ. 4758, 1984 WL 795 at *4 (S.D.N.Y. Aug. 23, 1984) ("Careful review of the entire transcript demonstrates that petitioner's trial counsel was both zealous and competent."). Either looked at from the perspective of what counsel did at trial, or from the vagueness of Cromwell's allegations as to counsel's alleged pre-trial and trial deficiencies, this claim of ineffective assistance is meritless and should be denied.

4. Defense Counsel's Allegedly Eliciting Prejudicial Testimony

Cromwell alleges that his counsel "elicited prejudicial testimony during his . . defense" by asking "officer Gilligan did the defendant cock the gun when he faced him" or did Cromwell squeeze the trigger. (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 14.)

It is apparent from reading the trial transcript that defense counsel's questions to Officer Gil ligan were designed to show that Cromwell did not threaten the police with the gun. The questioning was as follows:

Q. He had already responded to one or another of Clonan's orders for him to drop the gun by turning around; at least he turned around.

A. He turned around facing Police Officer Clonan.

Q. And Clonan again said "Drop the gun." You said, "Drop the gun." And basically he dropped the gun?

A. That's correct.

. . . .

Q. Did the defendant cock the hammer when he faced you?

A. Did he cock the hammer? I don't recall that.

Q. To the best of your recollection?

A. I don't recall that.

Q. Did he squeeze or pull the trigger?

A. Not that I remember.

. . . .

Q. So, would it be fair to say, after a second or two after a stare-off or the defendant looking in the direction of Officer Clonan, that he then placed the gun down?

A. That's correct.

(Clonan: Tv. 142-44.)³¹

31 Indeed, at sentencing, defense counsel's argument persuaded the trial judge to not sentence Cromwell to the maximum, and defense counsel specifically pointed out that Cromwell surrendered to the police and did not shoot at them:
[Defense Counsel]: . . . .

Briefly, I would like to address, if I may, one of the [prosecution's] contentions, and that is, the pointing of the gun at Officer Clonan.

I believe that the evidence here is as consistent, frankly, considering the circumstances, of a plainclothes officer, the calling, the turning around, and the dropping of the gun, with the recognition of the police officer, and the surrender. True, the gun was empty.

There is no evidence, indeed on the part of Officer Clonan, that the defendant attempted to pull the trigger or anything about what he did.

(S. 6-7).

The Court cannot say that counsel's questions to Officer Gilligan do not "fall within the wide range of reasonable professional assistance," or that Cromwell presented any facts or argument to "overcome the presumption" that defense counsel's questions were "sound trial strategy."Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1984). Moreover, even if Cromwell had established the first Strickland prong, which he has not, Cromwell has not demonstrated how the testimony — that he did not cock the hammer or pull the trigger, as far as Officer Gil ligan recalled — could have prejudiced Cromwell in any way³² This ineffective assistance claim should be denied.

32 Indeed, Cromwell's objection to the questions appears to be based on "what would have occurred had the officer answer[ed] in the affirmative." (Ex. B: Cromwell Pro Se Supp. 1st Dept Br. at 20.) Since Officer Gilligan did not answer in the affirmative, however, Cromwell cannot establish Strickland's second prong, prejudice.

5. Defense Counsel's Alleged Reference to Believing Robinson "Beyond a Reasonable Doubt"

Cromwell alleges that counsel "compounded his errors by inviting the jury to draw the inevitable inference that they should believe Robinson's testimony beyond a reasonable doubt." (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 14.) This claim is patently frivolous and consists of an obvious misunderstanding of defense counsel's summation, which provided in relevant part:

Who had the gun first? Who are you going to believe beyond a reasonable doubt. You have to believe Kyle Robinson beyond a reasonable doubt I submit if you are going to reach your verdict beyond a reasonable doubt. Who is Kyle Robinson? Kyle Robinson starts out on Direct examination as being somebody who has been in the GED program to get his equivalency diploma. Subsequently, he is somebody who is supported by his parents. He's pushed a little more. Jimmy Ancrum gives him some money. Sometimes Jimmy has some money, he gives him some money. Why does he give him some money? Because he is a runner. That's the real and logical reason. . . . Is this the man you want to believe? Is this the guy whose testimony that's going to be so credible that you are going to weigh this man's fate on it? He tells you he's a three-card Monte player. What is three-card Monte? Is there anx'one who hasn't walked on the street and seen the cardboard box with people around? What kind of game is three-card Monte? . . . Who loses? The people who come up to play. You want to play Kyle Robinson's game, Kyle Robinson who makes his living on fooling people? Is it this card or is it this card or is it this card. Don't worry, it's none of them and if you make the mistake of guessing which card it is, the stick will take your money when you walk away. That's the kind of game Kyle Robinson plays. The player never wins he tells you. This is the man the people want you to believe beyond a reasonable doubt.

(Defense Summation: Tr. 289-90, emphasis added.) Cromwell misreads defense counsel's summation — counsel was telling the jury not to believe Robinson, and Cromwell's claim, therefore, has no merit. See,e.g., Angel v. Garum, 98 Civ. 5384, 2001 WL 327150 at *8 (S.D.N.Y. Apr. 3, 2001) ("A habeas petition may be denied "where the allegations are insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous."); Sharlow v. Kelly, No. 92-CV-3768, 1996 WL 1088214 at *5 (E.D.N.Y. Apr. 23, 1996) ("As petitioner's ineffective assistance of counsel claim rests on his erroneous understanding [and mischaracterization] of what happened during and after his trial, it is clear that this claim has no merit.").

6. Defense Counsel's Alleged Failure to Seek Preclusion of Cromwell's Statements to the Police

Cromwell argues that "[d]efense counsel fail [ed] to seek preclusion of defendant's statements pursuant to CPL 710.30." (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 15; see also id. at 7-14)³³ Specifically, Cromwell refers to a statement he made to a police detective that was admitted at trial during the following cross-examination of Cromwell:

33 C.P.L. § 7 10.30(1) provides that:

Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, . . . they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered. . . .

Cromwell does not seem to be raising the State's alleged C.P.L. § 710.30 violation as a direct claim in his habeas petition, but rather is arguing that his counsel was ineffective for failing to object to the admission of his statement admitted in violation of C.P.L. 710.30. The Court notes that it is well established that a claim regarding the violation of the C.P.L. § 710.30 notice requirement is purely a matter of state law and is not cognizable on federal habeas review. See, e.g., Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N Y July 27, 2001) ("Violation of the notice requirement of [N.Y. C.P.L.] § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review."); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (same); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *6 (S.D.N.Y. Apr. 29, 1998) (Peck, M.J.).

Q. [Prosecutor] [I]sn't it a fact that [the Assistant District Attorney] said [on the night of your arrest], "I want to know what happened tonight on 115th [Street]? Isn't that a fact?

A. Yes.

Q. And at that time didn't you say to [the Assistant District Attorney], because I don't know anything about the shooting, I walked over to the scene where I saw a crowd and two cops arrested me. Isn't that what you said?

A. Yes, I was nervous, that is what I said.

Q. [Redirect by Defense Counsel]: Mr. Cromwell, why did you tell [the Assistant District Attorney] that you didn't know what had happened, you had nothing to do with the shooting?

A. I don't know why, I was nervous.

. . . .

Q. What you told [the Assistant District Attorney] wasn't true; was it?

A. No, definitely not.

(Cromwell: Tr. 248-49.)

Cromwell's ineffective assistance of counsel claim for failure to seek preclusion of his statement is based on Cromwell's mistaken belief that "the prosecution never served any notice to include any reference to any statement made by defendant to a public servant." (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 32.) The State represents that it did in fact give notice of these statements before trial. (Ex. C: State 1st Dep't Br. at 22, 28). Nevertheless, as the State pointed out to the First Department, no notice was required under New York law where, as here, the prosecution did not elicit the statement on their case in chief but only for impeachment purposes in crossexamining Cromwell. See People v. Connor, 157 A.D.2d 739, 740, 550 N.Y.S.2d 34, 35 (2d Dep't) ("Where, as here, the statement is used only for impeachment purposes . . . . and where the defendant's testimony opens the door to its admission, the notice requirement of CPL 710.30 is waived."), appeal denied, 76 N.Y.2d 732, 558 N.Y.S.2d 894 (1990); People v. Rudolph, 134 A.D.2d 539, 540, 521 N.Y.S.2d 304, 305 (2d Dep't 1987), appeal denied, 71 N.Y.2d 902, 527 N.Y.S.2d 1012 (1988); People v. Van Skiver, 111 A.D.2d 1032, 1034-35, 491 N.Y.S.2d 191, 194 (3d Dep't 1985); People v. Bowden, 104 A.D.2d 695, 696, 480 N.Y.S.2d 579, 580-81 (3d Dep't 1984).

8. Defense Counsel's Failure to Make an Opening Statement

Cromwell alleges that counsel was ineffective for failing "to make an opening statement.' (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 15.)

Counsel's decision not to make an opening statement may be attributed to counsel's trial tactics. See, e.g., United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) ("[T]he decision whether to make an opening statement and when to make it is ordinarily a matter of trial tactics and strategy which will not constitute the incompetence basis for a claim of ineffective assistance of counsel. . . . By waiving opening argument the defense did not commit itself to a particular position and was thus free to develop any defense that might materialize as the prosecution presented its case."), cert. denied, 484 U.S. 958, 108 S.Ct. 357 (1987);United States v. Salovitz, 701 F.2d 17, 20-21 (2d Cir. 1983) (citing cases); Zapata v. Greiner, 01 Civ. 5618, 2001 WL 1670367 at *2 n. 2 (S.D.N.Y. Dec. 28, 2001) ("It is well settled . . . that whether to make an opening statement or make a given objection are questions of trial strategy and tactics, and therefore should not be second guessed by a court considering a claim of ineffective assistance."); Boyd v. Hawk, 965 F. Supp. 443, 452-53 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.) ("Counsel's decision not to make an opening statement . . . may be attributed to counsel's trial tactics . . . [and] was reasonable and in no way prejudicial.").

Cromwell has failed to prove that counsel's decision not to make an opening statement was deficient and unreasonable or that it prejudiced the outcome of the trial. This ineffective assistance claim should be denied.

9. 10. Defense Counsel's Failure to Introduce a Police Report with Robinson's Prior Inconsistent Statement and to Object to the Admission of Evidence

Cromwell alleges that counsel was ineffective for failing to introduce into evidence a police report that Robinson told police he could not see the shooter's face, and for failing to object to the admission of Robinson's June 29, 1983 statement that he had seen the shooter. (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 15; see also id. at 21-26.)

The only purpose the police report would have served was to impeach Robinson's testimony that he saw Cromwell commit the shooting. However, as noted above, the defense strategy was justification, not mis-identification — after all, Cromwell was caught red-handed by the police at the scene with the murder weapon in his hand. Cromwell himself testified that he was at the scene and wrestled the gun away from Ancrum and fired it, and since defense counsel more than adequately attacked Robinson's credibility in other ways (see summation quoted at pages 14-15, 47 above), Cromwell has not established the second Stickland prong, prejudice. See, e.g., Dennard v. Kelly, No. 90-CV-203, 1996 WL 774568 at *6-7 (W.D.N.Y. June 5, 1996) (finding, in the context of analyzing a habeas petitioner's Brady claim, that there was no prejudice in prosecution's alleged withholding of state's witness' plea negotiation documents, where "in light of the actual evidence presented to the jury, the court does not believe that the information would have assisted [the] defense to any appreciable degree. [Witness'] credibility was brought into question by petitioner's counsel during cross-examination and summation. . . . It is clear to the court that defense counsel effectively . . . undermine[d] [witness'] credibility in the eyes of the jury" and that, therefore, "there is not any reasonable likelihood that the disclosure of the [information] would have affected the outcome of the trial."), report rec. adopted, 1997 WL 9785 (W.D.N.Y. Jan 2, 1997).

11. Defense Counsel's Alleged Failure to Subpoena Witnesses

Cromwell argues that counsel was ineffective for failing "to subpoena Detective Failla, the investigating officer and the alleged five (5) witnesses that were in Tinsley's Store who[se] testimony w[as] essential to [Cromwell's] defense where the arresting officers gave testimony that they s[aw] defendant firing shots into Tinsley's Store and the victim [was] found inside said store." (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 15; see also id. at 10-2 1.) This claim has no merit.

Cromwell does not demonstrate that these witnesses could have supported his defense. See, e.g., Ellerby v. United States, No. 99-2 158, 201 F.3d 431 (table), 1999 WL 1212482 at *3 (2d Cir. 1999) (rej ecting petitioner's claim of ineffectiveness where counsel did not compel the attendance of witnesses since petitioner "did not show that the witnesses could have provided an alibi"); Greenidge v. United States, No. 01 CV 4143, 2002 WL 720677 at *2 (E.D.N.Y. Mar. 27, 2002) (§ 2255 case; petitioner's ineffective assistance of counsel claim has no merit where petitioner "fails to identify the witnesses counsel purportedly failed to call, and . . . nowhere specifies how the testimony of those witnesses would have been helpful to his defense."); Livingston v. Herbert, No. 00-CV-1698, 2002 WL 59383 at *4 (N.D.N.Y. Jan. 3, 2002) ("'The decision not to call a particular witness is typically a question of trial strategy that appellate [and habeas] courts are ill-suited to second-guess.'"); Ruiz v. United States, 98 Civ. 6399, 2000 WL 1010828 at *5 (S.D.N.Y. July 21, 2000) (§ 2255 case; "Petitioner offers no evidence that would require [the court] to consider the tactical decision made by [defense counsel] not to call these witnesses as an 'error so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'"); Burke v. United States, 91 Civ. 468, 1992 WL 183752 at *2 (S.D.N.Y. July 22, 1992) (petitioner's "contention that he was denied effective assistance of counsel" where "his attorney failed to subpoena several witnesses who would have aided his defense is wholly insufficient given [petitioner]'s failure to set forth who the specific witnesses are or their relevant testimony.") "The decision of whether to call or bypass a particular witness is a question of trial strategy which courts will practically never second-guess. . . . In the instant case, the testimony of any of these witnesses may have as likely exposed inconsistencies and weaknesses in defendant's case as have lent support to Petitioner's defense. Additionally, a defendant's conclusory allegations about the testimony of uncalled witnesses are insufficient to demonstrate prejudice." Ozurn v. United States, No. 95 CV 2241, 1997 WL 124212 at *4 (E.D.N.Y. Mar. 11, 1997) (citing Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983)), affd, 152 F.3d 920 (2d Cir. 1998),cert. denied, 525 U.S. 1083, 119 S.Ct. 828 (1999); see also, e.g., Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir.), cert. denied, 417 U.S. 972, 94 S.Ct. 3179 (1974).

IV. PROSECUTORIAL MISCONDUCT — FALSE TESTIMONY CLAIM

Cromwell's prosecutorial misconduct claim is based on the prosecution's alleged "knowing use of false testimony." (Dkt. No. 1: Pet. Attachment at 6.) Cromwell's habeas petition refers to his pro se supplemental First Department and C.P.L. § 440.10 briefs in which he argued that the "falsification by major [prosecution] witness in his trial testimony significantly contributed to the jury's xerdict of guilty" (Ex. B: Cromwell's 1st Dep't Pro Se Supp. Br. at 23-30) and that the prosecutor's failure to "correct what he knows to be false" "prevent[ed] . . . a trial that could [not] in any real sense be termed fair" (Ex. D: Cromwell C.P.L. § 440 Br. at 5-7). Specifically, Cromwell alleged that Robinson untruthfully testified at trial that Cromwell was the shooter, when the police reports indicate that, on the night Robinson was shot, Robinson told police "I did not see the shooter because my back was to him." (Ex. D: Cromwell C.P.L. § 440 Br. at 7 attached 6/16/83 Police Report.) Robinson explained at trial that he saw the man who shot him and that "[o]n the night [he] got shot, [he] couldn't talk to nobody." (Robinson: Tr. 99.) Cromwell asserted in his C.P.L. § 440 motion that "[i]t is irrefutable that Kyle Robinson had lied on the witness stand and that the prosecuting attorney irrefutably knew that his witness was lying. But instead of doing his duty to seek justice by correcting the lie, the prosecuting attorney let the lie go uncorrected." (Ex. D: Cromwell C.P.L. § 440 Br. at 10.)

Prosecutorial misconduct violates a defendant's due process rights only when it is of "sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109 (1987); accord, e.g., United States v. McCarthy, 54 F.3d 51, 55 (2dCir.), cert. denied, 516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991).³⁴ Stated another way, "the law is settled that 'federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the [trial] as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Teiada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), affd mem., 23 F.3d 397 (2d Cir.),cert. denied, 513 U.S. 887, 115 S.Ct. 230 (1994)³⁵

34 See also, e.g., Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *9 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *30 (S.D.N.Y. Nov. 17. 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 367 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Readdon v. Senkowski, 96 Civ. 4722, 1998 WL 720682 at *4 (S.D.N.Y. Oct. 13, 1998); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *4 (S.D.N.Y. Sept. 19, 1997); Beverly v. Walker, 899 F. Supp. 900, 911 (N.D.N.Y. 1995), affd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 211 (1997); Washington v. Walker, 89 Civ. 7841, 1994 WL 391947 at *3 (S.D.N.Y. July 28, 1994) ("Even where a prosecutor's remarks are improper, 'constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'") (quoting Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (quoting Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986))).

35 Accord, e.g., Brock v. Artuz, 2000WL 1611010 at *9; Cruz v. Greiner, 1999 WL 1043961 Lugo v. Kuhlmann, 68F. Supp.2d at 367; Franza v. Stinson, 58 F. Supp.2d 124, 149 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); see also, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873 (1974); Floyd v. Meachum, 907 F.2d at 355 (quotingGarofolo v. Coombe, 804 F.2d at 205); Edmonds v. McGinnis, 11 F. Supp.2d 427, 437 (S.D.N.Y. 1998); Gaiter v. Lord, 917F. Supp. 145, 153 (E.D.N.Y. 1996); Jones v. Kuhlmann, 93 Civ. 5963, 1995 WL 733649 at *4 (S.D.N.Y. Dec. 12, 1995).

To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blissett v. LeFevre, 924 F.2d at 440;accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is important 'as an initial matter to place th[e] remar[k] in context'");United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986).³⁶

36 See e.g., Brock v. Artuz, 2000WL 1611010 at *9; Cruz v. Greiner, 1999WL 1043961 at *30; Lugo v. Kuhlmann, 68 F. Supp. 2d at 367; Hurd v. Keane, 1997 WL 582825 at *4; Beverly v. Walker, 899 F. Supp. at 911.

Essentially, Cromwell's argument is that Robinson lied about seeing Cromwell shoot him and Ancrum, and that the prosecution knew Robinson was lying because of a statement that Robinson allegedly made in the hospital to police that he did not see the shooter. (Ex. B: Cromwell Pro Se Supp. 1st Dep't Br. at 23-26.) First, the Court finds that there was no misconduct because it is evident from the record that Robinson's first statement to police was provided to the defense and that defense counsel attempted to impeach Robinson with the statement on cross examination (See Robinson: Tr. 98-100, 107-08). See, e.g., United States v. Sanchez, 969 F.2d 1409, 1413-14 (2d Cir. 1992) (reversing district court's grant of a new trial based on alleged perjured testimony because "[t]he damaging [testimony] was impeached"), cert. denied, 514 U.S. 1038, 115 S.Ct. 1404 (1995); Stapleton v. Greiner, No. 98-CV-1971, 2000 WL 1207259 at *12 (E.D.N.Y. July 10, 2000) ("petitioner's claim of prosecutorial misconduct through the use of perjured testimony must be rejected" because the jury is "'exclusively responsible for determining a witness' credibility'" and federal courts have "no license" to redetermine the credibility of witnesses); Avincola v. Stinson, 60 F. Supp.2d 133, 162 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Dennard v. Kelly, No. 90-CV-203, 1996 WL 774568 at *6.7 (W.D.N.Y. June 5, 1996) (denying habeas petitioner's claim that "the government knowingly permitted [prosecution witness] to commit perjury, thereby depriving [petitioner] of due process and a fair trial" where "[t]here is no hard evidence that [witness] committed perjury" and "[e]ven assuming that [the witness'] statements constituted perjury," in light of all the other evidence, there was no showing that such perjury was material), report rec. adopted, 1997 WL 9785 (W.D.N.Y. Jan 2, 1997).

Second, even if there were misconduct, as to its severity, the potential for prejudice as to Robinson's alleged lie that he saw Cromwell commit the shooting was slim — the issue at trial was not whether Cromwell was the shooter (he admitted he was) but whether he was justified in doing so. Therefore, the potential for prejudice as a result of Robinson's allegedly untruthful testimony was slim. Based on the defense's theory of the case, it is unlikely that Robinson "lied" and that the prosecution knew it was a lie, nor can Cromwell show any prejudice here.

Accordingly, Cromwell's claim alleging prosecutorial misconduct should be denied as without merit.

V. JUSTIFICATION CHARGE

Cromwell's habeas petition (Dkt. No. 1: Pet. Attachment at 6) incorporates his pro se C.P.L. § 440.10 motion argument that "[w]hile his case was on direct appeal,³⁷ [the New York] Court of Appeals enunciated a new rule in People v. Bernard Goetz, [ 68 N.Y.2d 96,] 506 N.Y.2d 18 (Ct.App. 1986)" and that "[u]nder the facts of [Cromwell's] case the [new] objective test if given to the jury would have resulted in a not guilty verdict." (Ex. D: Cromwell C.P.L. § 440 Br. at 16-17.)

37 Cromwell "was convicted on December 10, 1983 and sentenced on January 10, 1984." (Ex. D: Cromwell C.P.L. § 440 Br. at 16; see also pages 1, 19 above.)

A. Federal Habeas Review of State Court Jury Instructions

The Second Circuit has reiterated that ""it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treatises of the United States.'" Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991)); accord, e.g., Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *9 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.).

The Second Circuit in Davis v. Strack, 270 F.3d at 123-24, clarified the role of a federal habeas court in reviewing a state court's jury instructions. This Court quotes from that opinion at length:

Where an error in a jury instruction is alleged, "it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condenmed,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, [400](1973). The question is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 5. Ct. 396; see also Estelle [v. McGuire], 502 U.S. [62], 72, 112 S.Ct. 475 [482] (quoting and reaffirming Cupp).

[The Second Circuit] has repeatedly held that "[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the iury on matters of state law, the petitioner must show not only that the instruction misstated state law Sbut also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); see also Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas [v. Scully], 769 F.2d [60], 63 [(2d Cir. 1985)]) (same); Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994) (quoting Casillas, 769 F.2d at 63) (same). The fact that "federal habeas corpus relief does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, [3102] (1990), does not mean, however, that errors under stare law cannot result in cognizable violations of a constitutional right to due process. What due process requires will often depend on what state law is. States are free to define the elements of, and defenses to, crimes. See Apprendi v. New Jersey, 530 U.S. 466, 484-87, 120 S.Ct. 2348, [2360-61] (2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, 106 S. Ct. 2411, [2415-16] (1986). Once states have promulgated laws to define criminal conduct, however, federal due process protects a defendant from conviction unless he is shown in a fair proceeding to have violated those laws.

Thus, while [the Court] may not grant habeas relief for a "mere error of state law," Blazic [v. Henderson], 900 F.2d at 541, a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights.

Davis v. Strack, 270 F.3d at 123-24 (emphasis added) (dealing with federal habeas review of a trial court's failure give a justification defense charge to the jury); accord, e.g., Thomas v. Duncan, 2001 WL 1636974 at *9-10.

B. Cromwell's Claim Based on the Trial Court's Justification Charge Should be Denied Because Cromwell Either Received a Correct Justification Charge under New York Law or Received a Charge That was More Favorable to His Defense

Cromwell is not challenging the trial court's failure to give a justification charge but rather challenging the justification charge that was given in light of the New York Court of Appeals' decision in People v. Goetz, decided after Cromwell's trial but while his case was on direct appeal. Without deciding whether, as a matter of state law, Goetz would retroactively apply to Cromwell's trial, the Court cannot find that Justice Torres' justification instruction was faulty under either preor post-Goetz standards, much less that it so infected the entire trial that the resulting conviction violates due process.

The first step of the Court's inquiry on habeas review of a state court jury instruction requires that the Court determine whether the charge was correct under state law. See pages 58-60 above.) Penal Law § 35.15 provides that a person is justified in using physical force in self-defense under the following circumstances:

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter's conduct was provoked by the actor himself with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force . . . .

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating . . . .

Penal Law § 35.15 (emphasis added).

The New York Court of Appeals:

explained [in People v. Goetz] that the justification statute imposes a two-part test which involves both subjective and objective components. When a defendant claims the use of force was justified, the fact finder must first determine if defendant believed physical force (or deadly physical force) was necessary to defend against the imminent use of physical force (or deadly physical force). That is the subjective component. If the People fail to disprove defendant believed physical force was necessary, the fact finder must next consider whether defendant's belief was reasonable, that is. whether a reasonable person would have held that belief under the circumstances which existed. It is not enough that the defendant believed that the use of force was necessary under the circumstances; his reactions must be those of a reasonable person similarly confronted. That is the objective component.

If the case involves the use of deadly physical force and the fact finder determines that the use of such force was subjectively and objectively reasonable under the circumstances, then the fact finder must determine whether defendant could retreat with safety. If a defendant confronted with deadly physical force knows retreat can be made with complete safety and fails to do so. the defense is lost.

In re Y.K., 87 N.Y.2d 430, 433-34, 639 N.Y.S.2d 1001, 1003 (1996) (emphasis added citation omitted).³⁸

38 See e.g., People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 709-10 (1990); People v. Snell, 256 A.D.2d 480, 682 N.Y.S.2d 80, 80 (2d Dep't 1998); appeal denied, 93 N.Y.2d 979, 695 N.Y.S.2d 65 (1999); People v. Hayes, 248 A.D.2d 635, 635, 669 N.Y.S.2d 953, 954 (2d Dep't 1998);People v. Young, 240 A.D.2d 974, 976, 659 N.Y.S.2d 542, 543 (3d Dep't),appeal denied, 90 N.Y.2d 1015, 666 N.Y.S.2d 110 (1997); People v. Roldan, 222 A.D.2d 132, 138, 647 N.Y.S.2d 179, 183 (1st Dep't 1996);People v. Hall, 220 A.D.2d 615, 615, 633 N.Y.S.2d 39, 39-40 (1995), error coram nobis denied, 275 A.D.2d 469, 712 N.Y.S.2d 889 (2d Dept 2000);People v. Counts, 214 A.D.2d 897, 898, 625 N.Y.S.2d 697, 698 (3d Dep't),appeal denied, 86 N.Y.2d 792, 800, 632 N.Y.S.2d 506, 514 (1995); In re Ismael S., 213 A.D.2d at 171, 623 N.Y.S.2d at 573; People v. Hagi, 169 A.D.2d 203, 210, 572 N.Y.S.2d 663, 667-68 (1st Dep't), appeal denied, 78 N.Y.2d 1011, 575 N.Y.S.2d 819 (1991); see also, e.g., Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077 (1998); Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *1142 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.).

In this case, Justice Torres' justification charge to the jury included the following:

You must decide, based upon all of these facts and circumstances, whether the defendant, whether he acted as you find he did, fairly and reasonably believed at the time that James A[n]crum was in fact using, or about to use unlawful physical force. or deadly physical force against the defendant. In addition, you also are required to apply the very same standards to the issue of the degree of force used or employed by the defendant in this case. And once again, it is for you to detennine, based upon all the facts and circumstances as you find they were known to the defendant at the time he so acted. If you find he did indeed so act, whether the defendant himself fairly and reasonably believed the degree of force he used was in fact warranted and necessary to defend himself, under all of the circumstances in the case. . . .

(Charge: Tr. 354, emphasis added; see also pages 17-18 above.)

The trial court correctly charged the jury as to whether Cromwell "reasonably believed . . . under all of the circumstances" that deadly force was necessary. This charge follows the words of the Penal Law, and thus was not inconsistent (although Goetz later made clear the need to instruct the jury as to both the subjective and objective components of reasonable belief). See, e.g., 1 CJI (N.Y.) 35.15 at 862 ("in deciding what this defendant reasonably believed, the law imposes upon the jurytwo tests. The first test is a subjective test — what this defendant . . . in fact, believed. To apply this test, [the jury] should figuratively put [itself] in the shoes of this defendant and consider how the situation appeared to him . . . .); see also, e.g., People v. Johnson, 222 A.D.2d 316, 316, 636 N.Y.S.2d 2, 3 (1st Dep't 1995) ("We reject defendant's argument that the trial court improperly instructed the jury on the subjective element of justification. When viewed in its entirety, the charge clearly conveyed the appropriate standard to the jury."), appeal denied, 87 N.Y.2d 974, 642 N.Y.S.2d 204 (1996); People v. Bernard, 222 A.D.2d 599, 599-600, 635 N.Y.S.2d 277, 277-78 (2d Dep't 1995) ("The court instructed the jury that the defense was available to the defendant if it found that he reasonably believed that the victim was using or was about to use deadly physical force against him. . . . The court also instructed the jury to focus on what the defendant believed. . . . The subjective portion of the charge properly instructed the jury on the material legal principles, . . . to stand in the shoes of the defendant and to consider the circumstances as they appeared to him, and then to consider whether the average person would have had the same belief under the same circumstances."), appeal denied, 88 N.Y.2d 844, 644 N.Y.S.2d 691 (1996); People v. Gurganious, 214 A.D.2d 681, 68 1-82, 625 N.Y.S.2d 999, 999 (2d Dept) (affirming charge similar to Cromwell's where the trial "court charged the jurors that the Uustification] defense was available if they found that the defendant reasonably believed that the victim was using or was about to use deadly physical force against the defendant. . . . The court also indicated that the jurors should focus on what this particular defendant believed about the imminence of his danger."), appeal denied, 86 N.Y.2d 795, 632 N.Y.S.2d 508 (1995);compare, e.g., 1 C.J.I. (N.Y.) 35.15 at 862 ("The second test is an objective test — was the defendant's belief "reasonable" under all of the circumstances. This second test requires [the jury] to consider whether the average reasonable person, finding himself in the same situation as did this defendant, would also reasonably believe that defensive physical force was necessary to defend himself against the use of offensive physical force by his assailant."); People v. Santos, 280 A.D.2d 561, 562, 720 N.Y.S.2d 384, 385 (2d Dep't) ("The defendant contends that the trial court's justification charge was improper because the objective portion of the charge failed to properly instruct the jurors. . . . The trial court properly instructed the jury that it could find that the defendant was justified if it found that he reasonably believed that the victim was using or was about to use deadly physical force against him, . . . and if so, to then consider whether the average person would have had the same belief under the same circumstances."),appeal denied, 96 N.Y.2d 806, 726 N.Y.S.2d 384 (2001); People v. Davis, 201 A.D.2d 827, 828, 608 N.Y.S.2d 348, 349-50 (3d Dep't) ("When the facts of a case warrant instructing the jury on the defense of justification. . . . [t]he jury must be charged to consider both objective and subjective factors in determining whether the defendant's belief was reasonable."), appeal denied, 83 N.Y.2d 910, 614 N.Y.S.2d 392 (1994);People v. Huse, 161 A.D.2d 194, 194, 554 N.Y.S.2d 579, 580 (1st Dep't) ("Penal Law 35.15 contains a subjective element" and "retains an objective element."), appeal denied, 76 N.Y.2d 789, 559 N.Y.S.2d 995 (1990).

In any event, if there was any error, the error was not only harmless, but favorable to Cromwell. People v. Goetz, 68 N.Y.2d 96, 107, 506 N.Y.S.2d 18, 25 (1986) (warning that a justification charge focusing only on the "subjective" element ofjustification would improperly favor the defendant, since it "defies the ordinary meaning and significance of the term 'reasonably' . . . and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly force."). Thus, even if Cromwell were correct that Justice Torres' charge focused only on the subjective element of the justification defense, and not boih the subj ective and objective prongs as required by Goetz, that charge would be favorable to Cromwell. Cf. Santos v. Portuondo, No. 97 CV 6161, 1999 WL 684165 at *4 (E.D.N.Y. July 21, 1999) (in an ineffective assistance of appellate counsel context, finding no grounds for habeas relief where "the instruction was favorable to the defense, and, thus, caused petitioner no prejudice.").

Therefore, there was no error, much less error of constitutional dimensions, and the First Department's denial of Cromwell's motion to vacate his conviction and order a new trial pursuant to Goetz was reasonable under the AEDPA.

Cromwell's habeas claim that the justification charge was erroneous in light of People v. Goetz lacks merit and should be denied.

CONCLUSION

For the reasons set forth above, Cromwell's petition for a writ of habeas corpus should be denied in all respects. Since Crowmell has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984F.2d85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).