Curry v. Burge

Full title: JEROME CURRY, Petitioner, v. JOHN BURGE, Superintendent, Auburn…

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

Date published: Nov 17, 2004

No. 03 Civ. 0901 (LAK) (AJP) (S.D.N.Y. Nov. 17, 2004)

Opinion

No. 03 Civ. 0901 (LAK) (AJP).

November 17, 2004

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Lewis A. Kaplan, United States District Judge:

Pro se petitioner Jerome Curry seeks a writ of habeas corpus from his March 17, 1998 and August 11, 1998 convictions of,inter alia, second degree murder, second degree attempted murder, first and second degree assault, and weapons possession, and sentence to terms of 35 years and a consecutive sentence of 25 years to life imprisonment. (Dkt. No. 2: Pet. ¶ 1.) See also People v. Curry 287 A.D.2d 252, 252, 731 N.Y.S.2d 1, 2 (1st Dep't), appeal denied, 97 N.Y.2d 680, 739 N.Y.S.2d 295 (2001).

Curry's habeas petition raises six grounds: (a) he was denied effective assistance of trial counsel (Pet. ¶¶ 6(a), 7-40); (b) he was denied his right to be present at an evidentiary hearing that was a material stage of trial (Pet. ¶¶ 6(b), 41-53); (c) his pre-arraignment confessions should have been suppressed because his Miranda rights were violated (Pet. ¶¶ 6(c), 54-66); (d) he was denied his "[c]onstitutional rights after an unnecessarily long delay before he was arraigned" which he claims was done to deny him his right to counsel (Pet. ¶¶ 6(d), 67-79); (e) he was subjected to a tainted line-up (Pet. ¶¶ 6(e), 80-88); and (f) he was denied his Constitutional rights when the trial judge permitted hearsay testimony (Pet. ¶¶ 6(f), 89-95).

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

FACTS

Background

The police caught petitioner Jerome Curry and took him to the 33rd Precinct in connection with the September 20, 1996 drive-by shooting of Joseph Long, who was sitting on a stoop with others when a person in a passing car riddled the stoop with bullets. Once Curry and another suspect, Pedro Guzman, were at the station house, Guzman implicated Curry in another shooting that had taken place on July 15, 1996 in which Reginald Frazier was hit; Frazier was among those sitting on the stoop with Long on September 20. Guzman also implicated Curry in an August 30, 1996 drug-related homicide.

The July 1997 Suppression Hearing Curry's Arrest and Statement

A single pretrial hearing with respect to all three indictments. (See 7/97 Hearing Transcript ["H."] 1-4.)

On the night of September 20, 1996, Officer Quinones heard gun shots, leading to a car chase and subsequent foot chase through a wooded area, as a result of which police officers apprehended petitioner Jerome Curry, arrested him and took him into custody. (Quinones: H. 11-26, 72-74; Gamory: H. 101-03; Ostie: H. 140-42.) The officers also apprehended Pedro Guzman, another suspect, and separately transported both Guzman and Curry to the 33rd Precinct where they were placed in separate holding cells. (Quinones: H. 21-27, 53-55.) In the early morning hours of September 21st, Guzman indicated that he wished to speak to the police, was read hisMiranda rights and waived them, and was interviewed by Officer Quinones and Detective Fox. (Quinones: H. 30-38, 60-64; Fox: H. 202-05, 218-19.) Guzman gave Detective Fox a detailed account of the events of the night of September 20th, as well as information about Curry's involvement in a murder that had taken place a month and a half earlier. (Quinones: H. 38-39, 67-70; Fox: H. 204-10, 222-24, 233.) Guzman said he would be willing to make a videotaped statement and to speak with a district attorney. (Fox: H. 224-25; see Erickson: H. 183-85.)

By about 6:00 a.m., Officer Quinones had completed paperwork necessary to transport Curry to Central Booking. (Quinones: H. 83-84.) However, police did not take Curry to Central Booking because they were still investigating the September 20th shooting and had not questioned him yet, and they also were waiting for the detective and district attorney investigating the August 30 homicide described by Guzman to arrange line-ups and interview Guzman and Curry about that crime. (Quinones: H. 82-85; Fox: H. 232-34; Primus: H. 299, 309-10; DeLeon: H. 435-36.)

At 7:08 a.m., after taking Guzman's statement, Detective Fox and Officer Quinones read Curry his Miranda rights and began to interview him. (Quinones: H. 76-79, 84, 88; Fox: H. 210-13, 215-16, 234.) Detective Fox read Curry his Miranda rights from a form, and Curry waived the rights, saying "Yes" after each question and initialing each question on the form. (Quinones: H. 77, 87-90; Fox: H. 211-12.)¹ Detective Fox asked Curry about the night of September 20th; Curry gave his account to Detective Fox and to Officer Quinones. (Quinones: H. 77-78; Fox: H. 213-14.) Detective Fox asked if Curry wanted to write a statement out himself or if he preferred that an officer do it; Curry chose to have an officer write it out. (Fox: H. 213-14, 216.) Detective Fox wrote out a two-page statement based upon what Curry had told him, but Curry refused to sign it, although he said he agreed with it. (Fox: H. 214-15.) Detective Fox, unaware of the details of the August 30th homicide that Guzman had described implicating Curry, told Curry that Guzman had information that Curry might be involved in that shooting and asked Curry if he wished to discuss it. (Fox: H. 229-32.) Curry declined, stating "'No, I don't want to talk about it.'" (Fox: H. 229-31.) Detective Fox turned Curry over to Officer Quinones. (Fox: H. 234.)

1 Officer Quinones testified that Curry was read and waived his rights, and that he did not remember Curry indicating a refusal to speak or cooperate with the officers. (Quinones: H. 77-78.)

Between 7:30 and 8:00 a.m., Detective Fox called the 30th Precinct to learn whether there had been a homicide at the location described by Guzman. (Fox: H. 209-10, 225, 235-36.) Detective Fox learned that there had indeed been a murder at the location given by Guzman, a bus stop in front of 502-504 West 145th Street, and that Detective DeLeon was assigned to investigate it. (Fox: H. 210, 225, 235-36.) Detective Fox was told that Detective DeLeon would come to the 33rd Precinct as soon as he came on duty, and Guzman consented to talk to him. (Fox: H. 210.) The Line-ups of Curry

Meanwhile, Detective Primus, who also was working on the September 20th shooting, called Reginald Frazier, the man allegedly shot by Curry in July, and told him that another person had been shot and that he would be called shortly to come to the precinct to assist on both cases. (Primus: H. 240-43, 280-81, 285-86.) Frazier was not informed that the police had Curry in custody. (Primus: H. 281.) Detective Primus began to prepare the line-up. (Primus: H. 244, 280.) Frazier did not wait for Detective Primus' second call, but instead went to the precinct at about 9:00 a.m. on September 21st. (Primus: H. 245.) Seeing Frazier, Detective Primus motioned him to approach, not realizing that a photograph of Curry that he was using to select fillers for the line-up was on his desk. (Primus: H. 243-46, 279.) Frazier arrived at Detective Primus' desk, looked down, and immediately stated "[T]hat's the guy." (Primus: H. 246.) Detective Primus immediately turned Curry's picture face down, said, "'Oh, shit,'" and walked Frazier into his lieutenant's office. (Primus: H. 246, 248.) After spending about five minutes questioning Frazier about the events of July 15, Detective Primus told him to go home and await his phone call.² (Primus: H. 246-47, 249, 282-83.)

2 During this discussion, Frazier told Detective Primus that after Curry shot him on July 15, 1996, he had seen Curry at his parole office as well as in the neighborhood. (Primus: H. 247-49.)

Detective Primus obtained fillers for a lineup from two shelters. (Primus: H. 249.) Curry and the fillers were placed in the lineup room. (Primus: H. 249-50, 253.) Curry picked his number and spot in the lineup. (Primus: H. 250.) At noon, Detective Primus called Frazier down to the precinct. (Primus: H. 250, 286.) As soon as he entered the lineup room, Frazier said "number four," indicating Curry. (Primus: H. 251-54.) Detective Primus asked Frazier where he recognized number four from; Frazier replied by saying he was "the one who shot me" on July 15, 1996. (Primus: H. 251, 254.) Frazier was then escorted out of the lineup viewing room. (Primus: H. 254.)

At 10:00 a.m. Detective DeLeon of the 30th Precinct arrived at the 33rd Precinct. (DeLeon: H. 319, 431-32.) Detectives Fox and Primus briefed Detective DeLeon on the events of the past day, and at about 1:15 p.m., Detective DeLeon conducted another lineup for Michelle Miller, a witness to the August 30th homicide of Reginald Meyers. (DeLeon: H. 319-20, 357-59, 376-78, 380, 432.) Miller picked Curry out of the lineup as the person she had seen running on 145th Street. (DeLeon: H. 359-60.)

Additional Questioning of Curry

Once Detective DeLeon had a chance to speak with Guzman and take his statement about the August 30th homicide, he spoke to Assistant District Attorney Robin McCabe about Curry, and later that evening Detective DeLeon went with two other detectives to 187th Street to arrest another man Guzman had implicated in the homicide, Miguel Alexandro Henriquez. (DeLeon: H. 321-30, 334-36, 341-44, 381-94, 411-12.)

Back at the precinct at 9:00 p.m., after Curry was given dinner, Detectives DeLeon and Primus began to speak to Curry about the August 30th murder. (Primus: H. 260-62, 292; DeLeon: H. 350-51, 439.) Curry did not object to speaking to the officers, and in fact began to speak with them about the July and September shootings. (Primus: H. 262-64, 295; DeLeon: H. 351.) Curry was not "forthcoming," denied knowledge of the July 15th shooting, and stated that he was there at the September shooting but "didn't do anything." (Primus: H. 263-64, 298; DeLeon: H. 437-40.) Detective DeLeon asked Curry about the August 30th homicide, and Curry denied any knowledge of the incident and said that "he didn't have anything to say right now." (DeLeon: H. 352-54, 440-41, 443; Primus: H. 294, 297-98.) During the interview, Curry never asked for an attorney or expressed that he did not wish to speak to the detectives. (Primus: H. 266, 296.)

After this interview, Detective DeLeon and A.D.A. McCabe spoke with Miguel Alexandro Henriquez, the man arrested on 187th Street in connection with the August 30th murder. (DeLeon: H. 355-56, 361-65, 400, 443.) Like Guzman, Alexandro implicated Curry in the August murder. (Dkt. No. 17: State Br. at 24-25.)³ The detectives also spoke to Guzman "in depth" about the homocide and Curry's role in it. (Primus: H. 268-69.)

3 The videotaped statements of Guzman and Alexandro were in evidence but were not transcribed into the hearing record. (See State Br. at 25 n. 10.)

At around 5:00 a.m. on September 22nd, Curry was brought out of his holding cell and into the interview room. (Primus: H. 268, 307-08; DeLeon: H. 367.) At 5:45 a.m., Detective Primus re-read Curry his Miranda rights, which Curry once again waived. (Primus: H. 270-71, 300-01; DeLeon: H. 449.) During this interview and one conducted about an hour afterwards (where hisMiranda rights were read again), the detectives told Curry that other defendants had given them information about the homicide and his role in it, and Curry spoke about all three crimes in question: July 15th, August 30th, and September 20th, 1996. (Primus: H. 271-75, 302-04; DeLeon: H. 368-71.) Curry signed the statements written out by Detective Primus about the crimes. (Primus: H. 272-74; DeLeon: H. 370-71.) At about 7:40 a.m., A.D.A. McCabe took a videotaped statement from Curry in Detective Primus' presence. (Primus: H. 274-77, 311; DeLeon: H. 372, 450-52.) In the statements, Curry admitted his participation in the events of July 15th, August 30th, and September 20th. (State Br. at 26-30.)

A.D.A. McCabe prepared a complaint against Curry for the August 30th homicide, and he was formally arrested for the August 30th homicide and arraigned on September 22, 1996. (Primus: H. 313; DeLeon: H. 374, 453-54.)

The Suppression Hearing Decision

On October 7, 1997, Justice Carol Berkman issued a twenty-two page decision addressing the issues raised at the suppression hearing by Curry, Guzman and Henriquez. (Dkt. No. 18: Answer, Appendix Ex. A: 10/7/97 Suppression Order.) Justice Berkman denied Curry's motions to suppress, holding that: (1) the evidence was sufficient to establish that Curry's written, signed, and videotaped statements were the product of his own volition and thus admissible (10/7/97 Suppression Order at 13-14); (2) the line-up was not tainted by Frazier's momentary and accidental seeing of Curry's photograph and Frazier had moreover seen Curry two times prior to seeing the photograph (10/7/97 Suppression Order at 15); and (3) the delay in Curry's arraignment did not require suppression of his statements (10/7/97 Suppression Order at 15-18).

The Sandoval Ruling

On February 23, 1998, before voir dire, the prosecutor asked Justice Michael Obus to hold a Sandoval hearing to consider whether Curry's prior convictions could be used on crossexamination. (2/23/98 Tr. 5-9.) While Curry was present in the courtroom, Curry's attorney responded to the prosecutor's application, as follows:

Insofar as the Sandoval, my client is the only witness on his own behalf, should he testify, and I think we should weigh that important factor.

With respect to [indictment] 2383 of '94, the first case listed on that rap sheet, the facts of that case are similar to the facts of this case. It says there's a weapon involved, the testimony in this case is about shootings as well as the purchase of the gun, and used it. The People will attempt to show through a tape he had the gun for purposes of committing a robbery, going into the facts of the first case would be overkill and will certainly, will curtail his right to testify.

Frankly, I think three convictions on one day, although they do concern different incidents, I think the prosecutor should not be allowed to bring out those facts.

I would submit, instead, as a compromise, he has one felony conviction without going into all the facts.

I think the prejudicial value of that testimony, should he testify, so outweighs the probative value as to make it tantamount to deny his right to testify on his own behalf.

(2/23/98 Tr. 10-11, emphasis added.) Justice Obus ruled that he would permit the prosecution to inquire as to whether or not Curry was convicted of three felonies on January 13, 1995 arising out of three separate incidents, but not about the underlying facts of the felonies nor about a case that was currently open. (2/23/98Tr. 12-14.)

On July 20, 1998, before voir dire for Curry's murder trial under indictment 8472/96 began, Justice Obus in Curry's presence indicated that he would likely adhere to the Sandoval ruling from the February 23, 1998 hearing. (Dkt. No. 17: State Br. at 95-96.)⁴ Later that day, Justice Obus agreed to reconsider his ruling after requests to do so from both parties. (State Br. at 96.) The next day, while Curry was present in the courtroom and after the jury was selected, Justice Obus modified his Sandoval ruling. (Id.)

4 The July 20, 1998 transcript containing the Sandoval rulings was lost, and despite the efforts of the District Attorney's office, cannot be located. (See Dkt. No. 24: 4/22/04 A.D.A. Nicole Beder Letter to Court.) The Court uses the factual description from the State's brief.

On July 22, 1998, Justice Obus noted that Curry had been produced that day then returned to Rikers Island:

THE COURT: I understand that the defendant was produced and has since been returned to Rikers Island. I have discussed some evidentiary matters with counsel at the bench, and I believe it would be appropriate, in the defendant's absence for the moment, to place some of our discussions on the record, it will be repeated in any event, although this is not a factual part of the trial, in the defendant's presence tomorrow when he is here and when the jury returns. I'll try to summarize this, then counsel can comment.

(Dkt. No. 24: 7/22/98 Tr. 114, attached to 4/22/04 A.D.A. Beder Letter to Court.) Justice Obus summarized his rulings concerning redactions to Curry's September videotaped statement and transcripts where he referred to a gun and where he discussed robbing drug dealers. (7/22/98 Tr. 114-18.) Counsel for the prosecution and for Curry argued and clarified the rulings. (7/22/98 Tr. 118-28.) Justice Obus repeated his rulings the next day in Curry's presence. (Dkt. No. 23: 7/23/98 Tr. 130-33, attached to 4/19/04 A.D.A. Beder Letter to Court.) Detective DeLeon's Testimony at Curry's Murder Trial ⁵

5 The evidence at Curry's two trials, except to the extent relevant to issues raised in Curry's habeas petition, will not be described herein. The evidence is described in the parties' briefs on appeal to the First Department. (See Dkt. No. 18: State Answer, Appendix Ex. B: Curry 1st Dep't Br. at 14-28; Ex. D: State 1st Dep't Br. at 34-61.) References to "Ex." hereafter will be to the exhibits in the State's Answer Appendix, Dkt. No. 18.

On July 23, 1998, Detective DeLeon testified on direct during Curry's homicide trial about the circumstances surrounding Curry's arrest and detention at the 33rd Precinct before arraignment. (Dkt. No. 23: DeLeon: 7/23/98 Tr. 145-80, attached to 4/19/04 A.D.A. Beder Letter to Court.) At one point, Detective DeLeon was asked about the September 21st 9:00 p.m. interview:

Q. When was the first time you had any contact where you spoke to Mr. Curry in connection with this case?

A. This is on the evening of the 21st at about 9:00 o'clock. . . . At the interview room of the 33rd Precinct.

. . . .

Q. Now tell us — Tell the members of the jury about your conversation with Mr. Curry at that time.

A. Well, I introduced myself to Mr. Curry, and I explained to him that I was conducting an investigation —

MR. DU BOULAY [CURRY'S COUNSEL]: Objection.

THE COURT: Overruled. Go ahead.

A. — of a homicide that occurred on 145th Street between Amsterdam and Broadway. And I had asked him at that point if he was familiar with that area. He told me yes, that he knew — he had been around there a couple of times because he knew somebody down the block from there. I then went on to speak with him about that case.

Q. You said you went on to speak to him, what did you actually tell him?

A. Well, I told him that I had information that he was involved in the shooting of the individual at 145th Street.

Q. And what else did you tell him?

A. I then asked him if he had anything to say about that, and he told me that he had nothing to say at this point — or, "I have nothing to say right now."

Q. Those were the words he used?

MR. DU BOULAY: Objection, your Honor.

THE COURT: Overruled.

A. Yes.

Q. What did you do at that point?

A. I then continued to speak to him about this case, talking to him more about information I had received in my investigation, that there were witnesses, that he had been picked out in a line-up.

MR. DU BOULAY: Objection, your Honor.

THE COURT: This is what you told him that night?

THE WITNESS: Yes.

THE COURT: I'll permit it for that purpose.

A. To see if he would speak to me in regards to this.

Q. And did he wish to make a statement at that time?

A. No, again he said, "I have nothing to say right now."

Q. And what happened then?

A. I then ended my interview with him.

(DeLeon: 7/23/98 Tr. 155-58, emphasis added.) Moments later, at the request of defense counsel (7/23/98 Tr. 168), Justice Obus gave clarifying instructions to the jury:

THE COURT: Ladies and gentlemen, just before we continue, I should clarify that this witness is permitted to testify about what he says was his conversation with the defendant. And to that extent, whatever he told the defendant is admissible for purposes of placing in context whatever statement the defendant allegedly made. To the extent that this witness refers to something that was told to him by somebody else or to some lineup identification, it is only admitted for purposes of evaluating what the defendant said in response, if anything. There is going to be no evidence of any lineup identification and any statement made by anyone else who is not a witness at this trial is not admitted for the truth of that. So please understand that this testimony about what was said to the defendant by the witness is admitted only so that you will be able to evaluate anything the defendant may have said in response, its accuracy and voluntariness and so forth, as I will describe in more detail.

(7/23/98 Tr. 169.)

The Jury Verdicts

On March 17, 1998 Curry was convicted of second degree attempted murder, two counts of assault, and two counts of weapons possession, and sentenced to concurrent sentences of twenty-five, fifteen, seven, and seven years. (Dkt. No. 2: Pet. ¶ 1.) Also on March 17, 1998, Curry was convicted under another indictment of first degree assault and fourth degree weapons possession and sentenced to concurrent sentences of ten years and seven years, to run consecutively with the first indictment's sentences, i.e., for a maximum sentence of thirty-five years. (Pet. ¶ 1.) On August 11, 1998, Curry was convicted under a third indictment of second degree murder, first and second degree robbery, and weapons possession and sentenced to twenty-five years to life, twentyfive years, fifteen years, and seven years respectively, those sentences to run concurrently with each other but consecutively to the sentences imposed on the March 17, 1998 indictments. (Pet. ¶ 1.) See also, People v. Curry, 287 A.D.2d 252, 252, 731 N.Y.S.2d 1, 2 (1st Dep't), appeal denied, 97 N.Y.2d 680, 739 N.Y.S.2d 295 (2001).

Curry's Direct Appeal

Curry's counsel submitted a brief and Curry submitted a pro se supplemental brief to the First Department appealing his convictions. (Ex. B: Curry 1st Dep't Br.; Ex. C: Curry Supp. Pro Se 1st Dep't Br.) He claimed that his convictions should be reversed because, inter alia: (1) he was denied his right to be present at a material stage of the trial (Curry 1st Dep't Supp. Br. at 1-6); (2) he was denied the effective assistance of trial counsel (Curry 1st Dep't Supp. Br. at 6-30); (3) the court should have suppressed Curry's statements to police because Curry'sMiranda rights were violated and because of the delay in arraignment (Curry 1st Dep't Br. at 28-39); (4) the line-up identification was tainted and therefore should have been excluded (id. at 39-41); and (5) the court improperly permitted hearsay testimony against Curry (id. at 42-44.)

On October 2, 2001, the First Department affirmed Curry's convictions, holding in full:

At his first trial, defendant was convicted with respect to two separate shooting incidents, and at his second trial defendant was convicted with respect to a third shooting incident which resulted in the death of the victim. Defendant's motion to suppress his oral, written and videotaped statements regarding these three incidents was properly denied.

The record establishes that defendant did not refuse to speak with the investigating officers or otherwise indicate that he did not want to cooperate with the police. Rather, he waived his rights and offered an oral account of his actions on the night of one of the shootings, which included responding to the clarifying questions asked of him by the officers, and his refusal to sign a written statement did not constitute an invocation of his right to remain silent so as to prohibit the police either from asking him about either that particular incident or the other two events. Similarly, while defendant initially provided no information about the homicide, he never maintained that he was unwilling to speak with the police regarding the homicide at any time.

In any event, to the extent that defendant may be viewed as having invoked his right to cut off questioning as to any of the incidents, the police scrupulously honored that right. The police were not precluded from obtaining a statement from defendant many hours later following the administration of a new set of Miranda warnings. Accordingly, none of defendant's statements were obtained in violation of his right to remain silent.

Furthermore, none of defendant's statements were the product of unnecessary delay in arraignment. Defendant was not questioned at a time when his arraignment was imminent, and the approximately 30-hour interval between his arrest and the point at which he made his final incriminating statements did not constitute an excessive delay given the extensive, rapidly expanding police investigation involving multiple shootings, defendants and witnesses.

Defendant's motion to suppress identification testimony was properly denied. The record establishes that a victim's accidental viewing of defendant's photograph was the unavoidable product of the victim's unexpected arrival at the police station.

Based on the totality of the existing record, we conclude that defendant received meaningful representation at all of the proceedings at issue.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.

People v. Curry, 287 A.D.2d 252, 252-54, 731 N.Y.S.2d 1, 2-3 (1st Dep't 2001) (citations omitted).

The New York Court of Appeals denied leave to appeal on December 31, 2001. People v. Curry, 97 N.Y.2d 680, 738 N.Y.S.2d 295 (2001).

On April 3, 2002, Curry submitted a pro se motion for reargument and reconsideration to the First Department. (Ex. H: Curry 4/3/02 1st Dep't Motion for Reargument.) On April 19, 2002, the New York Court of Appeals denied this motion. People v.Curry, 98 N.Y.2d 636, 744 N.Y.S.2d 765 (2002). The First Department also denied the motion on June 6, 2002. People v.Curry, No. M-1912, 2002 N.Y. App. Div. LEXIS 6054 at *1 (1st Dep't 2002).⁶

6 Curry's C.P.L. § 440 motion in state court, alleging grand jury defects and a sentencing issue, were denied by Justice Obus on March 19, 2003. (Dkt. No. 9: 5/19/03 Curry Letter to Court enclosing 3/19/03 Justice Obus decision.) The First Deparment denied leave to appeal on September 24, 2003. (9/24/03 1st Dep't Order.) Curry's § 440 motion is not relevant to his habeas petition.

Curry's pro se federal habeas corpus petition alleges that his convictions were unconstitutional because: (a) he was denied effective assistance of trial counsel (Dkt. No. 2: Pet. ¶¶ 6(a), 7-40); (b) he was denied his right to be present at an evidentiary hearing that was a material stage of trial (Pet. ¶¶ 6(b), 41-53); (c) his pre-arraignment confessions should have been suppressed because his Miranda rights were violated (Pet. ¶¶ 6(c), 54-66); (d) he was denied his "[c]onstitutional rights after an unnecessarily long delay before he was arraigned" which he claims was done to deny him his right to counsel (Pet. ¶¶ 6(d), 67-79; (e) he was subjected to a tainted line-up (Pet. ¶¶ 6(e), 80-88); and (f) he was denied his constitutional rights when the trial judge permitted hearsay testimony (Pet. ¶ P6(f), 89-95).

ANALYSIS

I. THE AEDPA REVIEW STANDARD ⁷

Before the Court can determine whether petitioner Curry 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 significantly "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).⁸

8 See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S. Ct. 1713 (2004);Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

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 1519.⁹ 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 1523.¹⁰ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

9 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S. Ct. 962 (2003); 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).

10 Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. 2140, 2147 (U.S. 2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v.Smith, 539 U.S. 510, 123 S. Ct. 2527, 2534 (2003); Lockyer v.Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 124 S. Ct. 2171 (2004); Parsad v.Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (2002);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 1519-20.¹¹

11 Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S. Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; 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 1523.¹² However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. ¹³ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.¹⁴ "Objectively unreasonable" is different from "clear error."Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, 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)).¹⁵ "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule."Yarborough v. Alvarado, 124 S. Ct. at 2149.¹⁶

12 Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.

13 See also, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Eze v.Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

14 Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

15 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v.Hollins, 2003 WL 22299216 at *3.

16 The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

Yarborough v. Alvarado, 124 S. Ct. at 2149.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.¹⁷

17 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135; see Yarborough v.Alvarado, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 296 F.3d at 134.

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 Early v.Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").¹⁸ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).¹⁹ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA,de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

18 Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S. Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
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., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v.Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

19 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

Curry's claims were decided on the merits (see pages 14-16 above), and thus AEDPA deference applies.

II. CURRY'S CLAIM THAT HIS CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN A HEARING WAS CONDUCTED IN HIS ABSENCE SHOULD BE DENIED

Curry claims that his constitutional right to be present at trial was violated when he was absent for a substantive portion of the Sandoval hearing. (Dkt. No. 2: Pet. ¶¶ 6(b), 41-53.) Curry asserts:

Petitioner had a right to be present during hearing to decide whether to permit prosecution to raise Petitioner's prior criminal acts if he elected to testify, and fact that trial court recited the gist of its Sandoval decision in his presence did not ameliorate the error, since this recitation did not furnish Petitioner with opportunity for meaningful participation to which he was entitled. As the record of this trial makes clear, Petitioner was not present at the Sandoval hearing when the use of his prior criminal acts were discussed. This exclusion was a clear violation of the Dokes holding.

(Dkt. No. 3: Curry Br. at 43.)

A defendant in a state criminal trial "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v.California, 422 U.S. 806, 819 n. 15, 95 S. Ct. 2525, 2533 n. 15 (1975).²⁰ "As the Supreme Court has recognized, however, the right to be present is not absolute: it is triggered only when the defendant's 'presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934). Thus, there is no constitutional right to be present 'when presence would be useless, or the benefit but a shadow.' Id. at 106-07, 54 S. Ct. 330; see also United States v. Gagnon, 470 U.S. 522, 526-27, 105 S. Ct. 1482, 84 L.Ed. 2d 486 (1985) (per curiam)." Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002), cert. denied, 537 U.S. 1117, 123 S. Ct. 879 (2003).

20 Accord, e.g., Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.),report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *3 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Benitez v.Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.).

Under New York law, a defendant is statutorily entitled to be present at a Sandoval hearing: "The [New York] Court of Appeals has held that a defendant has the statutory right to be present during the Sandoval hearing. The purpose of a Sandoval hearing is to provide the defendant with an advance ruling on whether the People will be permitted to cross-examine him or her about particular criminal (charged or uncharged), vicious, or immoral conduct for the purpose of impeaching credibility should he or she testify at trial." People v. Morales, 308 A.D.2d 229, 232, 764 N.Y.S.2d 104, 106 (2d Dep't 2003) (citations omitted).²¹ "The cornerstone of a defendant's right to be present at a Sandoval hearing is the opportunity for meaningful participation in the process. Thus, the mere recitations of the 'gist' of the court'sSandoval ruling in the defendant's presence is insufficient to cure his absence from the hearing. However, although it is preferable practice to conduct all discussions concerningSandoval issues in the defendant's presence, the defendant's absence from a Sandoval discussion does not in all cases require reversal of an otherwise valid conviction." People v.Hailey, 221 A.D.2d 466, 467, 633 N.Y.S.2d 563, 564-65 (2d Dep't 1995) (citations omitted); see also People v. Becker, 216 A.D.2d 858, 858, 629 N.Y.S.2d 885, 886 (4th Dep't 1995) ("Defendant was not denied the right to be present at a material stage of trial when defense counsel and the prosecutor reached aSandoval compromise outside of his presence.").

21 Similarly, a Ventimiglia hearing "is an ancillary hearing at which a defendant has the right to be present when he may have something 'valuable to contribute.'" People v.Rodriguez, 273 A.D.2d 415, 415-16, 710 N.Y.S.2d 907, 907-08 (2d Dep't 2000) (citing People v. Morales, 80 N.Y.2d 450, 456, 591 N.Y.S.2d 825, 829 (1992)).

"Though a defendant has an absolute right under New York law to be present at a Sandoval [and/or Ventimiglia] hearing, that right does not derive from federal constitutional principles. And, it is well established that federal courts reviewing habeas corpus petitions may only overturn convictions obtained in violation of the federal Constitution." Williams v. McCoy, 7 F. Supp. 2d 214, 220 (E.D.N.Y. 1998) (citations omitted); see, e.g., Jones v. Artuz, No. 97-CV-2063, 2002 WL 31006171 at *9 (E.D.N.Y. Aug. 30, 2002) ("I adhere to my determination that a defendant's absence from a Sandoval or Ventimiglia hearing is not a violation of the federal Constitution, and thus does not state a ground for habeas relief."); Miller v. Portuondo, 151 F. Supp. 2d 245, 249 (E.D.N.Y. 2001) (citing Williams v.McCoy); Augustine v. Walker, No. 98-CV-0771, 2001 WL 1860883 at *9 (N.D.N.Y. Jun. 12, 2001) (Petitioner "has not cited, and this Court has not found, any authority standing for the proposition that a defendant's failure to be present during the course of either a Ventimiglia or Sandoval hearing is adequate ground upon which a federal court may grant a writ of habeas corpus."); Ray v. Keane, No. CV 94-4028, 1995 WL 129172 at *2 (E.D.N.Y. Mar. 9, 1995) (Denying habeas relief based upon absence from a Sandoval conference because "[p]etitioner did not have a constitutional right to be present at the conference that involved discussion of legal matters."); see generally, Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *15 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.) ( cases cited therein) (State-law errors do not provide a basis for habeas relief.).

As a matter of federal constitutional requirements (as opposed to New York law), Curry's presence would only be required if "his absence might frustrate the fairness of the proceedings." (See pages 24-25 above.) See, e.g., Covington v. Lord, 275 F. Supp. 2d 352, 359 (E.D.N.Y. 2003) (Weinstein, D.J.). The initialSandoval hearing and ruling occurred on February 23, 1998 in Curry's presence. (See pages 8-9 above.) Before voir dire for Curry's second trial, the trial judge — in Curry's presence — indicated that he likely would adhere to the prior Sandoval ruling, but agreed to reconsider at the parties' request. (See pages 9-10 above.) The next day, in Curry's absence, the trial judge gave his ruling and counsel discussed it, all in fourteen pages of transcript. (See page 10 above.) The following day, the trial judge repeated his rulings for Curry, in four pages of transcript. (See page 10 above.) There was no objection to this procedure (as opposed to the judge's ruling) by defense counsel in Curry's absence, or by Curry or defense counsel when the judge repeated his ruling for Curry. (See page 10 above.) Curry has not explained before the state courts, or here, how his presence would have changed matters. His absence, therefore, was harmless.See, e.g., Strickland v. Walker, 90-CV-1169, 1994 WL 229168 at *10 (N.D.N.Y. May 20, 1994) ("[I]t is inconceivable that petitioner could have persuaded the trial judge to rule differently pursuant to the Sandoval Hearing. Petitioner's trial counsel offered numerous factors for the trial judge to consider, and zealously argued against allowing the questioning of any of petitioner's prior acts in case petitioner took the stand. At the conclusion of this hearing, petitioner was apprised of the ruling and was made aware of the consequences should he take the stand. Thus, petitioner's absence from the Sandoval Hearing in no way prejudiced him. Nor does petitioner's absence from the hearing in any way prejudice the outcome of the case in light of the overwhelming evidence."); see also, e.g., Covington v. Lord, 275 F. Supp. 2d at 360 (denyuing habeas relief where petitioner was not present at Sandoval hearing because, inter alia, petitioner did not show prejudice);Almanzar v. Portuondo, No. CV-97-1859, 1999 WL 557517 at *7 (E.D.N.Y. July 29, 1999) ("[P]etitioner's participation in theSandoval hearing would have been merely superfluous.");McMoore v. Miller, No. 98-CV-1915, 2002 WL 975305 at *9 (N.D.N.Y. Apr. 19, 2002) ("Since [petitioner] has not provided any evidence which demonstrates that there was any potential for meaningful input from him during that [Sandoval] hearing, it was not a material stage requiring his presence, and his absence from that hearing cannot form the basis for habeas relief.");Valentine v. New York, 96 Civ. 4385, 1997 WL 160370 at *1 (S.D.N.Y. Apr. 3, 1997) ("Petitioner has failed to show that his ability to defend himself was in anyway compromised by the bench discussion of legal issues surrounding the admissibility of his prior convictions."). Curry would not have added anything to the portion of the hearing that he missed, his presence would have been superfluous, and therefore he was not prejudiced by his absence. See also, e.g., Covington v. Lord, No. 03-2545, 2004 WL 2496805 at *1 (2d Cir. Nov. 8, 2004) (New York law created explicit exception for required presence at Sandoval hearing where defendant's presence would be superfluous.);People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 765 (1992) (Defendant required to be present at Sandoval hearing "except in circumstances where the nature of the defendant's criminal history and the issues to be resolved at the Sandoval hearing render the defendant's presence superfluous."); People v.Townsend, 295 A.D.2d 458, 459, 743 N.Y.S.2d 310, 311 (2d Dep't 2002) (Where court outside defendant's presence "merely adopted a prior Sandoval ruling, . . . since there was no potential for additional meaningful input by the defendant, his presence would have been wholly superfluous.").

Finally, by claiming a violation of his right to be present during a discussion of what could be raised by the prosecution if he testified, Curry's habeas claim is really a disagreement with the trial judge's Sandoval ruling. Curry, however, did not testify during his second trial. (See Ex. D: State 1st Dep't Br. at 61.) "It is well-settled that a petitioner's failure to testify at trial is fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling. . . . The reason that a habeas petitioner's failure to testify at trial is 'fatal to any claims arising out of a Sandoval type ruling' is that absent such testimony, a court has no 'adequate non-speculative basis upon which to assess the merits of that claim.'" McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997) (quoting Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd mem., 940 F.2d 649 (2d Cir. 1991));accord, e.g., Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *22 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); see, e.g., Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463 (1984) ("Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative."); Nieves-Delgado v.People, 00 Civ. 1397, 2003 WL 21310815 at *2 (S.D.N.Y. June 9, 2003) ("[D]efendant must testify to preserve the issue of admissibility of prior convictions, as any harm from the evidentiary ruling is purely speculative in the absence of defendant's testimony."); Brown v. People, 02 Civ. 5731, 2003 WL 660828 at *5 (S.D.N.Y. Feb. 28, 2003) ("Because [petitioner] did not testify, the harm that might have resulted from the court's [Sandoval] ruling is entirely speculative."); Shannon v. Senkowski, 00 Civ. 2865, 2000 WL 1683448 at *6 (S.D.N.Y. Nov. 9, 2000) ("Second Circuit law has created a bright-line rule, however, barring habeas relief for allegedly erroneous Sandoval rulings in instances where a defendant elects not [to] testify.") (citing cases); Warren v.Miller, 78 F. Supp. 2d 120, 135 (E.D.N.Y. 2000) ("Importantly, where as here, a habeas petitioner did not testify at trial, theSandoval ruling may not be assessed on habeas review because any such ruling would be wholly speculative."); Stevenson v.Strack, 96 Civ. 8429, 1999 WL 294805 at *5 (S.D.N.Y. May 11, 1999) ("It is well-settled that a petitioner's failure to testify at trial is fatal to any claim of constitutional deprivation arising out of a Sandoval-type ruling."); Benitez v.Senkowski, 97 Civ. 7819, 1998 WL 668079 at *7 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.) (petitioner's "unwillingness to testify bars the habeas court from reviewing the trial court'sSandoval ruling") (citing cases). Therefore, any Sandoval violation was harmless because Curry never took the stand and he has not indicated what he would have added to the discussion if he had been present.

Curry's Sandoval habeas claim should be DENIED.

III. CURRY'S CLAIM THAT HIS MIRANDA RIGHTS WERE VIOLATED SHOULD BE DENIED A. Miranda v. Arizona: Background ²²

22 For prior decisions by this Judge discussing Miranda's background in language substantially similar to that in this entire section of this Report and Recommendation, see Maldonado v. Grier, 01 Civ. 0799, 2003 WL 22435713 at *18-20 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Legree v. Greiner, 00 Civ. 6680, 2001 WL 527423 at *5 (S.D.N.Y. May 17, 2001) (Peck, M.J.), report rec. adopted, 2001 WL 1231535 (S.D.N.Y. Oct. 16, 2001) (Cote, D.J.).

Prior to Miranda, the Supreme Court utilized "due process jurisprudence . . . to exclude confessions that were obtained involuntarily." Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 2331 (2000). Because of the "coercion inherent in custodial interrogation," the Supreme Court in its well-known decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), "laid down 'concrete constitutional guidelines for law enforcement agencies and courts to follow.'"Dickerson v. United States, 530 U.S. at 435, 120 S. Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 442, 86 S. Ct. at 1611). As the Supreme Court summarized in Dickerson in reaffirming Miranda in 2000:

Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

Dickerson v. United States, 530 U.S. at 435, 120 S. Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 479, 86 S. Ct. at 1630). The "Miranda warnings" are familiar to everyone from watching television or movies: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."Dickerson v. United States, 530 U.S. at 443, 120 S. Ct. at 2336.

It goes without saying that statements obtained in violation ofMiranda generally must be suppressed. See, e.g., Dickerson v. United States, 530 U.S. at 443-44, 120 S. Ct. at 2336 ("our subsequent cases have . . . reaffirm[ed] the [Miranda] decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief");Oregon v. Elstad, 470 U.S. 298, 317, 105 S. Ct. 1285, 1297 (1985) ("When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief.").²³

23 See also, e.g., United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002) ("Miranda instructs generally that an uncounseled statement made by a defendant during custodial interrogation should be suppressed from use by the government in its case-in-chief unless the prosecution proves that the suspect voluntarily waived his right to counsel and privilege against self-incrimination."); United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998); United States v. Morales, 788 F.2d 883, 885 (2d Cir. 1986) ("It is axiomatic that a statement obtained in violation of Miranda is ordinarily inadmissible at trial.").

Pursuant to the AEDPA, "'a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Boyette v.Lefevere, 246 F.3d 76, 88 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(e)(1)).²⁴ As the Second Circuit has stated, a federal habeas court should

review the state court's findings only to determine whether they were unreasonable in light of the evidence presented, 28 U.S.C. § 2254(d)(2), or whether the presumption that they are correct was rebutted by "clear and convincing" evidence, 28 U.S.C. § 2254(e)(1). . . . In accordance with 28 U.S.C. § 2254, as modified by AEDPA, our review of the state court determinations of facts is limited to an inquiry into whether the conclusion of the state trial court was unreasonable based on the evidence presented and whether petitioner has presented evidence in the District Court that clearly and convincingly rebuts the presumption that the state court's factual findings are correct.

Channer v. Brooks, 320 F.3d 188, 195-96 (2d Cir. 2003);accord, e.g., Miller-El v. Cockrell, 123 S. Ct. 1029, 1041 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)."); Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) ("Under AEDPA, a state court's factual findings enjoy a presumption of correctness and may not be disturbed except upon a showing of 'clear and convincing evidence.'"); Davis v.Kelly, 316 F.3d 125, 127 (2d Cir. 2003) ("Under the AEDPA, we must accept [the state court's] finding of fact unless it is controverted by 'clear and convincing evidence.'"); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002) ("In reviewing habeas petitions, we must presume the state court's findings of fact are correct, unless the petitioner meets 'the burden of rebutting th[is] presumption of correctness by clear and convincing evidence.") (brackets in original); Ponnapula v.Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) ("We presume that the state court's factual findings are correct unless they are rebutted by clear and convincing evidence."); Yung v. Walker, 296 F.3d 129, 134 (2d Cir. 2002) ("We must presume the state court's factual findings to be correct and may overturn those findings only if petitioner offers clear and convincing evidence of their incorrectness."); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) ("[T]he AEDPA instructs that state court findings of fact 'shall be presumed correct,' rebuttable only upon a showing of 'clear and convincing evidence.'")²⁵

24 See also, e.g., Tibbs v. Greiner, 01 Civ. 4319, 2003 WL 1878075 at *8 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.);Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *10 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.).

25 See also, e.g., Bynum v. Duncan, 02 Civ. 2124, 2003 WL 296563 at *6 (S.D.N.Y. Feb. 12, 2003) ("Under AEDPA, this Court must presume the state court's factual findings to be correct and may overturn those findings only if the petitioner offers clear and convincing evidence of their incorrectness.");Fabian v. Herbert, 00 Civ. 5515, 2003 WL 173910 at *5 (S.D.N.Y. Jan. 23, 2003) ("In reviewing state court factual determinations, the Court 'must apply a presumption of correctness . . . unless rebutted by clear and convincing evidence.'") (quoting Rodriguez v. Bennett, 98 Civ. 580, 1998 WL 765180 at *3 (S.D.N.Y. Nov. 2, 1998)); Marsh v. Ricks, 02 Civ. 3449, 2003 WL 145564 at *2 (S.D.N.Y. Jan. 17, 2003) ("State court fact findings underlying habeas claims enjoy a strong presumption of correctness that can only be rebutted by 'clear and convincing evidence.'"); Brown v. Costello, 00 Civ. 4734, 2003 WL 118499 at *8 (S.D.N.Y. Jan. 13, 2003) ("State court factual determinations must be presumed correct unless the petitioner is able to rebut them with clear and convincing evidence."); Grate v. Stinson, 224 F. Supp. 2d 496, 501 (E.D.N.Y. 2002) (Post-AEDPA, "a federal court conducting a collateral review must still presume state court findings of fact to be correct, 28 U.S.C. § 2254(e), although it is probably harder now [than pre-AEDPA] for a habeas petitioner to overcome this presumption, as the petitioner must now present clear and convincing evidence that the finding of fact was erroneous,id.").

Whether Curry was "coerced" into giving his confessions by police who did not honor his right to remain silent is a matter of historical fact subject to the presumption of correctness under 28 U.S.C. § 2254(e)(1). See, e.g., Thompson v.Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995) (The inquiry into the "circumstances surrounding the interrogation . . . is distinctly factual."); Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998) (The inquiry into the circumstances surrounding the interrogation is "purely factual, and the state court's answer to it is afforded a presumption of correctness . . ."); Tibbs v. Greiner, 2003 WL 1878075 at *9;Holland v. Donnelly, 216 F. Supp. 2d 227, 231 (S.D.N.Y. 2002) ("[A]ccount of the events leading up to [petitioner's] confession" were "findings of historical fact [that] must be 'presumed to be correct' for purposes of [habeas] petition. . . .") (citing 28 U.S.C. § 2254(e)(1) Boyette v. Lefevre, 246 F.3d at 88), aff'd, No. 02-2358, 2003 WL 163417 (2d Cir. Mar. 31, 2003); Dallio v. Spitzer, 170 F. Supp. 2d 327, 338 (E.D.N.Y. 2001) ("[A] state court's determinations of 'subsidiary questions such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings' are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. 2254(d).") (citing Miller v. Fenton, 474 U.S. 104, 117, 106 S. Ct. 445, 448 (1985)); Ortiz v. Artuz, 113 F. Supp. 2d 327, 338 (E.D.N.Y. 2000) ("While the voluntariness of a habeas petitioner's confession is a question of law. . . ., subsidiary factual questions relevant to this determination are entitled to the presumption of correctness under 28 U.S.C. § 2254(e)(1). Because subsidiary questions (such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and the defendant's familiarity with the Miranda warnings) often require the resolution of conflicting testimony of police and defendant, the law is clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record. It is a petitioner's burden to overcome the presumption of correctness by showing that the state court's holding was wrong by clear and convincing evidence.") (citations omitted), aff'd, No. 00-2713, 36 Fed. Appx. 1, 2002 WL 126131 (2d Cir. Jan. 28, 2002), cert. denied, 536 U.S. 909, 122 S. Ct. 2367 (2002).

B. Curry's Miranda Rights Were Not Violated

Curry alleges that police violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), because they did not honor his invocations of his right to remain silent. (Dkt. No. 2: Pet. ¶¶ 6(c), 54-66). The First Department rejected this claim on appeal, holding:

The record establishes that defendant did not refuse to speak with the investigating officers or otherwise indicate that he did not want to cooperate with the police. Rather, he waived his rights and offered an oral account of his actions on the night of one of the shootings, which included responding to the clarifying questions asked of him by the officers, and his refusal to sign a written statement did not constitute an invocation of his right to remain silent so as to prohibit the police either from asking him about either that particular incident or the other two events. Similarly, while defendant initially provided no information about the homicide, he never maintained that he was unwilling to speak with the police regarding the homicide at any time.

People v. Curry, 287 A.D.2d 252, 253, 731 N.Y.S.2d 1, 2-3 (1st Dep't 2001) (citations omitted).

Curry admits in his brief that he signed the waiver form, but states that the only reason he confessed to the three crimes in question was due to police coercion and exhaustion:

The Detectives knew Curry would have been overwhelmed by the intensity of the police attempting to force him to confess to the three crimes, finally, on September 22, 1996, Curry gave in to their pressures and confessed to all three crimes but only after a valiant, but unsuccessful attempt to assert his right to remain silent.

(Dkt. No. 3: Curry Br. at 48.)

Curry continues, asserting that it is "cristal [sic] clear" from the record that his "rights were violated after he invoked his right to remain silent several times." (Curry Br. at 49.) Curry was read his Miranda rights at least four separate times by at least three different detectives (and also, apparently, by an A.D.A.) during his pre-arraignment custody at the 33rd Precinct, and each time waived these rights and agreed to speak with police. (See pages 3-4, 6-8 above.) Curry places much of his Miranda argument on his refusal to sign one of the statements written down by the police during his questioning. (See Curry Br. at 47, 49, 55.) A refusal to sign a statement, however, does not provide a showing that a defendant's Miranda rights were violated. See, e.g., North Carolina v.Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979) (NoMiranda violation although defendant did not sign a Miranda form; specifically rejects proposition that Miranda waiver must be in writing); Whitaker v.Meachum, 123 F.3d 714, 716 (2d Cir. 1997) (Although undisputed facts showed petitioner "refused to sign the [Miranda] waiver card" and that an officer "was the only witness to the alleged waiver," habeas denied.); Nelson v. Walker, 121 F.3d 828, 829-30, 835 (2d Cir. 1997) (Denial of habeas petition affirmed and confession admissible where defendant "did not sign or initial any document indicating that he waived his Miranda rights."); United States v. Boston, 508 F.2d 1171, 1175 (2d Cir. 1974) (Affirming district court's finding of Miranda waiver, as "[i]t is clear, in any event, that a written waiver is not required."); United States v. Johnson, 289 F. Supp. 2d 151, 159-60 (D. Conn. 2003) ("The fact that the detectives did not read the Miranda rights aloud to [defendant], or ask him to initial next to each right, is not fatal in this context. . . . Having received the Miranda warnings, . . . [defendant's] decision to make an admission to [law enforcement], upon reflection, after initially asserting his right not to incriminate himself, constitutes a knowing and intelligent waiver of his rights."); United States v. Cooper, 95 Cr. 0031, 1995 WL 469702 at *4 (S.D.N.Y. Aug. 8, 1995) (No Miranda violation although defendant "objected to the officer taking notes of his confession." "[T]here may be several strategic reasons why a defendant willing to speak to police would still refuse to write out his answers to questions, or to sign a transcript of his answers prepared by the police. . . .") (citing Connecticut v.Barett, 479 U.S. 523, 530 n. 4, 107 S. Ct. 828, 833 n. 4 (1987)).

Curry never once asked to speak to an attorney (see page 7 above), another point against Curry's claim that his Miranda rights were violated. See, e.g., Diaz v. Senkowski, 27 F.3d 61, 64 (2d Cir. 1996) (no Miranda violation where petitioner did not request counsel with reasonably clear expression of intent); Terry v. LeFevre, 862 F.2d 409, 412 (2d Cir. 1988) ("The district court's determination that there was no Miranda violation in either [petitioner's] questioning, his leading the police to the gun, or his confession, was not erroneous. It is clear that [petitioner] was advised of his Miranda rights several times during the investigation, including once immediately before he made his confession. [Petitioner] never requested an attorney and was willing to speak without one being present."); Thompson v.Fischer, No. 02-CV-0526, 2003 WL 23198787 at *16 (E.D.N.Y. Oct. 31, 2003) (Weinstein, D.J.) (no Miranda violation where petitioner was advised of his Miranda rights and "never unequivocally requested a lawyer."); United States v.Hospedales, 247 F. Supp. 2d 530, 540 (D. Vt. 2002) ("Since [defendant] never asked to speak with a lawyer or terminate interrogation, . . . his Miranda claim has no validity.");United States v. Garcia, 98 Cr. 913, 1999 WL 216653 at *6 (S.D.N.Y. Apr. 13, 1999).

Furthermore, unlike an unequivocal request for counsel, Curry's silence when asked about certain topics does not require the police to stop questioning under Miranda. If anything, his selective silence is evidence that Curry understood the legal ramifications of any information he told the officers. See, e.g., United States v. Ramirez, 79 F.3d 298, 304-05 (2d Cir.) ("In some circumstances . . . a suspect's statement as to his willingness or unwillingness to answer questions, or his silence in response to some questions, does not constitute even an ambiguous or equivocal invocation of the right to remain silent. . . . We conclude that in these circumstances [defendant's] silence in the wake of two questions, while answering others, did not constitute even an equivocal invocation of his right to remain silent."), cert. denied, 519 U.S. 850, 117 S. Ct. 140 (1996); Bradley v. Meachum, 918 F.2d 338, 362 (2d Cir. 1990) ("We also are not persuaded by the assertion that [petitioner] selectively invoked his right to remain silent. . . . [Petitioner] cannot be said to have invoked his fifth amendment right regarding his willingness to discuss his involvement in the crime because, in the same breath, he denied any involvement."),cert. denied, 501 U.S. 1221, 111 S. Ct. 2835 (1991); United States v. Johnson, 289 F. Supp. 2d 151, 159 (D. Conn. 2003) (No Miranda violation where "[petitioner's] actions demonstrate his general understanding of the consequences of talking to the detectives. [Petitioner] did not make any admissions in the course of the interview, remained silent in response to [a] statement that he believed that [petitioner] completed the purchase of the gun . . . and carefully phrased his inquiries about the consequences of the charges as hypothetical questions."); Holland v. Donnelly, 216 F. Supp. 2d 227, 239 (S.D.N.Y. 2002) ("Does silence in the face of a particular question or questions constitute such an indication of 'wish[ing] to remain silent,' or to 'exercise his Fifth Amendment privilege'? . . . The Second Circuit has clearly ruled that it does not.") (citing United States v. Ramirez); United States v. Som, No. 96 CR 243, 1998 WL 326778 at *2-3 (N.D.N.Y. June 15, 1998) (Pooler, D.J.).

The First Department's decision rejecting Curry's Miranda claim is neither contrary to nor an unreasonable application of Supreme Court precedent. Curry's Miranda habeas claim should beDENIED. IV. CURRY'S CLAIM REGARDING THE DELAY BEFORE ARRAIGNMENT SHOULD BE DENIED

Curry claims that the delay in his arraignment was a denial of his right to counsel and intentionally served the purpose of coercing him to confess to the crimes for which he was eventually indicted. (Dkt. No. 2: Pet. ¶¶ 6(d), 67-79). Curry asserts that he was improperly held for thirty-eight to forty-three hours before he was arraigned, and that his confessions given during that time period should have been suppressed. (Pet. ¶ 68; Dkt. No. 3: Curry Br. at 58.) The First Department found that there was no undue delay in his arraignment:

[N]one of defendant's statements were the product of unnecessary delay in arraignment. Defendant was not questioned at a time when his arraignment was imminent, and the approximately 30-hour interval between his arrest and the point at which he made his final incriminating statements did not constitute an excessive delay given the extensive, rapidly expanding police investigation involving multiple shootings, defendants and witnesses.

People v. Curry, 287 A.D.2d 252, 253, 731 N.Y.S.2d 1, 3 (1st Dep't 2001) (citations omitted). This determination by the First Department was not contrary to or an unreasonable application of clearly established federal law.

A great deal of police activity occurred between the time that Curry was apprehended and the time that he was arraigned. (See Dkt. No. 17: State Br. at 66-70; see also pages 3-8 above.) Detectives and police were called in, co-defendants were interviewed, witnesses were rounded up, line-ups were prepared, and paperwork was completed at each of these stages. Moreover, once Guzman implicated Curry in the August 30 homicide, another precinct needed to be contacted. (See page 4 above.) All of these steps caused delay in Curry's arraignment.

Curry's habeas brief relies heavily on two cases, People v.Mosley, 135 A.D.2d 662, 522 N.Y.S.2d 238 (2d Dep't 1987), andPeople v. Cooper, 101 A.D.2d 1, 475 N.Y.S.2d 660 (4th Dep't 1989), which held that delays in arraignment allowed for the suppression of pre-arraignment confessions. (Curry Br. at 59, 65.) However, those cases were abrogated by People v. Ramos, 99 N.Y.2d 27, 37, 750 N.Y.S.2d 821, 828 (2002), which held that "a delay in arraignment for the purpose of further police questioning does not establish a deprivation of the State constitutional right to counsel." The New York Court of Appeals continued in a footnote: "To the extent that People v. Mosley, 135 A.D.2d 662, 522 N.Y.S.2d 238 and People v.Cooper, 101 A.D.2d 1, 475 N.Y.S.2d 660 hold or suggest otherwise, those cases should not be followed." People v.Ramos, 99 N.Y.2d at 37 n. 11, 750 N.Y.S.2d at 828 n. 11. Furthermore, in Sease v. Goord, 01 Civ. 1378, 2003 WL 23100261 at *6 (S.D.N.Y. Dec. 30, 2003), the petitioner sought habeas relief due to a delay in arraignment that he claimed was a denial of his right to counsel and that therefore his pre-arraignment confessions should have been suppressed, relying on People v. Mosley and People v. Cooper. Judge Baer denied the claim, noting that those case were overruled byPeople v. Ramos, and further explaining:

[T]he trial judge determined after a hearing that there was no intent to the delay, and on habeas review a state court's factual determinations are presumed to be correct and are rebuttable only upon a showing of clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The evidence at the hearing showed that after Sease was arrested, the NYPD detective notified police in Ardsley in Westchester County who were investigating other cases in which Sease was a suspect. A lineup was held that night, but several prospective witnesses were unavailable to view the lineup at that time. The detective spoke with a prosecutor and was advised to terminate the investigation and shortly thereafter Sease was lodged overnight at Manhattan Central Booking. The next morning, the detectives returned Sease to the robbery squad where he was included in further lineups. Also that morning, the detectives were arranging to obtain a search warrant for the apartment where they believed he lived. At 3:45 pm he was part of a lineup for four witnesses from the robberies in Manhattan and two witnesses from the robberies in Westchester. In sum, as the appellate court concluded, the record indicated that the "arraignment was delayed solely so that the numerous witnesses from multiple robberies in at least two counties could view defendant in a lineup, and not to gain an unfair advantage." Sease, 696 N.Y.S.2d at 431. Sease has not rebutted the presumption of correctness of this factual determination, nor has he shown that the trial and appellate courts' decision was either contrary to or involved an unreasonable application of federal law.

Sease v. Goord, 2003 WL 23100261 at *7. Similarly, officers working on Curry's cases after his arrest were buzzing with activity throughout the period before his arraignment. (See pages 3-8 above.) The First Department found the delay to be necessary due to the expanding police investigation, and Curry has failed to rebut this through clear and convincing evidence.

Furthermore, even if the delay in Curry's arraignment was as long as he claims it to have been, a 43 hour delay is not presumptively unreasonable:

As an initial matter, under the United States Constitution the state has forty-eight hours in which to arraign a defendant arrested without a warrant for a determination of probable cause absent extraordinary circumstances. Although a delay of less than forty-eight hours can violate federal law if a petitioner can demonstrate that the delay was unreasonable, the presumption remains that the state has acted lawfully up until that point.

Irons v. Ricks, 02 Civ. 4806, 2003 WL 21203409 at *9 (S.D.N.Y. May 22, 2003) (citing, inter alia, County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670 (1991)).²⁶

26 See also, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 321, 352, 121 S. Ct. 1536, 1540, 1556 (2001); Colon v. Howard, 215 F.3d 227, 233 (2d Cir. 2000); James v.Goord, 02 Civ. 1174, 2004 WL 1207906 at *11 (S.D.N.Y. June 1, 2004); Sorensen v. City of New York, 98 Civ. 3356, 2003 WL 169775 at *3 (S.D.N.Y. Jan. 23, 2003); Sease v. Goord, 2003 WL 23100261 at *6-7; Mastin v. Senkowski, 297 F. Supp. 2d 558, 590 (W.D.N.Y. 2003); Mahase v. City of New York, No. 96 CV 6105, 2000 WL 263742 at *4 (E.D.N.Y. Jan. 5, 2000); Murphy v. Neuberger, 94 Civ. 7421, 1996 WL 442797 at *6 (S.D.N.Y. Aug. 6, 1996); Roundtree v. City of New York, 778 F. Supp. 614, 620 (E.D.N.Y. 1991); United States v. Onyema, 766 F. Supp. 76, 81 (E.D.N.Y. 1991).

Here, Curry has failed to demonstrate that the delay was due to anything other than the extensive police investigation involving multiple shootings, defendants and witnesses.

Curry's arraignment habeas claim should be DENIED. V. CURRY WAS NOT SUBJECTED TO A CONSTITUTIONALLY TAINTED LINE-UP

Curry asserts that the court erroneously admitted into evidence the line-up identification which he alleges was "tainted by a suggestive viewing of Curry's single photograph." (Dkt. No. 3: Curry Br. at 66; see also Dkt. No. 2: Pet. ¶¶ 6(e), 80-88.) A. Legal Standard ²⁷

27 For additional decisions by this Judge discussing the legal standard applicable to identification procedures, see, e.g., Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *18-20 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Roberson v.McGinnis, 99 Civ. 9751, 2000 WL 378029 at *7 (S.D.N.Y. April 11, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp. 2d 260, 270 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Jones v.Strack, 99 Civ. 1270, 1999 WL 983871 at *10 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.); Bond v. Walker, 68 F. Supp. 2d 287, 301-02 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.), aff'd mem., 242 F.3d 364 (2d Cir. 2000).

A defendant's right to due process includes the right not to be the object of pretrial identification procedures that are "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v.United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968);accord, e.g., Manson v. Brathwaite, 432 U.S. 98, 106 n. 9, 114, 97 S. Ct. 2243, 2249 n. 9, 2253 (1977); Neil v.Biggers, 409 U.S. 188, 198-200, 93 S. Ct. 375, 381-82 (1972);United States v. Facey, No. 98-1196, 201 F.3d 433 (table), 1999 WL 1070012 at *2 (2d Cir. Nov. 10, 1999); United States v.Smith, No. 97-1273, 152 F.3d 921 (table), 1998 WL 398813 at *1 (2d Cir. June 5, 1998); United States v. Eltayib, 88 F.3d 157, 166-67 (2d Cir.), cert. denied, 519 U.S. 1045, 117 S. Ct. 619 (1996).²⁸

28 See also, e.g., Yearwood v. Keane, No. 95-2404, 101 F.3d 685 (table), 1996 WL 282134 at *1 (2d Cir. May 29, 1996); United States v. Thai, 29 F.3d 785, 807 (2d Cir.),cert. denied, 513 U.S. 977, 115 S. Ct. 456 (1994); United States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993), cert. denied, 511 U.S. 1042, 114 S. Ct. 1565 (1994); United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992), cert. denied, 510 U.S. 856, 114 S. Ct. 163 (1993); Sales v.Harris, 675 F.2d 532, 537-38 (2d Cir.), cert. denied, 459 U.S. 876, 103 S. Ct. 170 (1982); Elliott v. Kuhlman, 97 Civ. 2987, 2004 WL 1375160 at *7 (S.D.N.Y. June 17, 2004); United States v. Joseph, 332 F. Supp. 2d 571, 581 (S.D.N.Y. 2004);Mendoza v. McGinnis, 03 Civ. 2598, 2004 WL 736894 at *5-6 (S.D.N.Y. Apr. 5, 2004); Arkin v. Bennett, 282 F. Supp. 2d 24, 32 (S.D.N.Y. 2003); Mitchell v. Walsh, 00 Civ. 5696, 2003 WL 22019736 at *12 (S.D.N.Y. Aug. 22, 2003); Garry v.Greiner, 01 Civ. 0848, 2003 WL 21436217 at *3 (S.D.N.Y. June 19, 2003); Valtin v. Hollins, 248 F. Supp. 2d 311, 317-18 (S.D.N.Y. 2003); United States v. Rodriguez, No. 00 CR. 949, 2002 WL 313894 at *3-4 (S.D.N.Y. Feb. 27, 2002); Summers v.Senkowski, 99 Civ. 9092, 2001 WL 204205 at *3 (S.D.N.Y. Feb. 28, 2001); United States v. Volpe, 42 F. Supp. 2d 204, 222 (E.D.N.Y. 1999); United States v. Williams, 999 F. Supp. 412, 414 (W.D.N.Y. 1998), aff'd, 192 F.3d 280 (2d Cir. 1999);United States v. Brown, 94 Cr. 631, 1995 WL 464956 at *3 (S.D.N.Y. Aug. 7, 1995); Hodge v. Henderson, 761 F. Supp. 993, 1007 (S.D.N.Y. 1990), aff'd, 929 F.2d 61 (2d Cir. 1991).

In determining whether a pre-trial identification procedure is unduly suggestive, the reviewing court must consider the totality of the circumstances. See, e.g., Manson v. Brathwaite, 432 U.S. at 113-14, 97 S. Ct. at 2252-53; Neil v. Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382; Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967).²⁹

29 See also, e.g., Raheem v. Kelly, 257 F.3d at 135;Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir.), cert. denied, 525 U.S. 840, 119 S. Ct. 101 (1998); United States v.Shodeinde, No. 96-1512, 108 F.3d 1370 (table), 1997 WL 138701 at *2 (2d Cir. Mar. 21, 1997); United States v. Eltayib, 88 F.3d at 167; United States v. Concepcion, 983 F.2d at 377;United States ex rel. Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975); United States ex rel Cannon v. Montayne, 486 F.2d 263, 267 (2d Cir. 1973), cert. denied, 416 U.S. 962, 94 S. Ct. 1982 (1974); United States v. Williams, 999 F. Supp. at 414;Hodge v. Henderson, 761 F. Supp. at 1007.

In order to evaluate the constitutional permissibility of in-court identification testimony based on out-of-court pretrial identification procedures, the Second Circuit has adopted a two-step inquiry:

The Supreme Court has established a two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures.

[Step 1:] That inquiry "requires a determination of whether the identification process was impermissibly suggestive and, if so, whether it was so suggestive as to raise 'a very substantial likelihood of irreparable misidentification.'"

[Step 2:] If pretrial procedures have been unduly suggestive, a court may nonetheless admit in-court identification testimony if the court determines it to be independently reliable. The court should consider the reliability of the identification in light of the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. For both pretrial and in-court identifications, the linchpin of admissibility is reliability. However, if impermissibly suggestive procedures are not employed, "independent reliability is not a constitutionally required condition of admissibility, and the reliability of the identification is simply a question for the jury."

United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citations omitted), cert. denied, 514 U.S. 1113, 115 S. Ct. 1968 (1995).³⁰ B. Application of the Legal Standards to Curry's Lineup

30 Accord, e.g., Dunnigan v. Keane, 137 F.3d at 128;Yearwood v. Keane, 1996 WL 282134 at *1; United States v.Eltayib, 88 F.3d at 167; United States v. Thai, 29 F.3d at 807-08; United States v. Butler, 970 F.2d 1017, 1021 (2d Cir.), cert. denied, 506 U.S. 980, 113 S. Ct. 480 (1992).

At the suppression hearing, Justice Berkman denied Curry's tainted line-up claim (see page 8 above), and it also was denied by the First Department on the merits:

Defendant's motion to suppress identification testimony was properly denied. The record establishes that a victim's accidental viewing of defendant's photograph was the unavoidable product of the victim's unexpected arrival at the police station.

People v. Curry, 287 A.D.2d 252, 253, 731 N.Y.S.2d 1, 3 (1st Dep't 2001) (citations omitted).

Curry's habeas petition once again alleges that the trial court should have suppressed Frazier's identification testimony. (Dkt. No. 2: Pet. ¶¶ 6(e), 80-88.) Curry bases his argument on his belief that Detective Primus intentionally left his photograph on his desk for Frazier to see and consequently taint the line-up, asserting that one "would have to suspend belief to think that this was an accident." (Dkt. No. 3: Curry Br. at 66; see also Dkt. No. 21: Curry Traverse ¶¶ 4-5.)

The state court credited Detective Primus' testimony that Frazier's viewing of Curry's photograph prior to the line-up was accidental and momentary. (See page 15 above.) Although an accidental viewing of a defendant by a witness can be considered unduly suggestive, see, e.g., Pendergrass v. Herbert, 01 Civ. 4668, 2003 WL 21781963 at *10 (S.D.N.Y. July 16, 2003) ( cases cited therein), it depends on the circumstances. See Reese v. Fulcomer, 946 F.2d 247, 261 (3d Cir. 1991) ("[U]narranged confrontations of this sort have not been considered suggestive."); United States v. Stevens, 935 F.2d 1380, 1390 (3d Cir. 1991) ("[W]e doubt that the victims' fortuitous discovery of Stevens [on a police station 'wanted board'] resulted from an unnecessarily suggestive identification procedure."). The hearing judge, who observed Detective Primus' demeanor, found that Frazier's viewing of Curry's photograph was accidental (see page 8 above), and the First Department affirmed on that basis (see page 15 above). Under the AEDPA, this Court must give deference to the state courts' fact finding. (See Point I above.) Thus, despite Curry's belief that it was not an accident, the state courts found otherwise, and Curry has not rebutted that by clear and convincing evidence.

Moreover, Curry fails the second prong of the two-part test laid out in United States v. Wong. Frazier testified that he had seen Curry on at least three separate occasions before the line-up; first when Curry shot him, once at his parole office, and at least once around the neighborhood. (Primus: H. 248-49;see page 5 n. 2 above.) These earlier sightings certainly make Frazier's in-court identification of Curry independently reliable despite his having accidentally viewed Curry's photograph on Detective Primus' desk. See, e.g., Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir.) (identification procedure independently reliable based on witness's opportunity to view petitioner during the crime), cert. denied, 525 U.S. 840, 119 S. Ct. 101 (1998); Mendoza v. McGinnis, 03 Civ. 2598, 2004 WL 736894 at *7 (S.D.N.Y. Apr. 5, 2004) ("[E]ven assuming the identification procedure was unduly suggestive, a consideration of the factors outlined in Biggers supports the trial court's refusal to suppress the evidence because the procedure was sufficiently independently reliable. . . . Romero not only had the opportunity to view petitioner at the time of the crimes, but he also spoke to him, face-to-face, while standing approximately three feet away, for several minutes. . . . Similarly, when Romero identified petitioner at the scene of the arrest, he stood just a few feet away from petitioner, in well lit conditions, and viewed petitioner's face without any obstruction."); Pittman v.Portuondo, No. 97-CV-2426, 1999 WL 1251820 at *4 (E.D.N.Y. Dec. 17, 1999) ("[M]ilitating in favor of the independent reliability of [the witness'] in-court identification was its unequivocal nature . . . and the fact that [the witness] had seen [the defendant] before (both at the barbecue and around her neighborhood previously) . . .").

In short, the question is whether the lineup was tainted by Frazier's accidental view of Curry's photograph; the state court held that it was not, and this Court must give significant deference to the state court's factual findings. The state courts' decisions certainly were not "contrary to" or an "unreasonable application" of Supreme Court precedent. (See Point I above.)

Curry's tainted identification habeas claim should be DENIED. VI. CURRY'S CLAIM THAT HE WAS DENIED HIS CONSTITUTIONAL RIGHTS BASED ON ADMISSION OF "HEARSAY TESTIMONY" DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF

Curry claims that improper hearsay testimony was allowed into his homicide trial in violation of his Constitutional rights. (Dkt. No. 2: Pet. ¶¶ 6(f), 89-95.) A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings ³¹

31 For additional decisions by this Judge discussing the habeas corpus review standard for claims of error in state evidentiary rulings in language substantially similar to that in this entire section of this Report and Recommendation, see Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *15 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *19-21 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *8-10 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *15-16 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.);Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *5-6 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'").³² Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . .");Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of afundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S. Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v.McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).³³

32 See also, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (citing cases); Roldan v. Artuz, 78 F. Supp. 2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v.Demskie, 75 F. Supp. 2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd, 234 F.3d 1262 (2d Cir. 2000); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4-5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v.Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).

33 See also, e.g., Roldan v. Artuz, 78 F. Supp. 2d at 276 (citing cases); Grant v. Demskie, 75 F. Supp. 2d at 209;Benitez v. Senkowski, 1998 WL 668079 at *5; James v.Senkowski, 1998 WL 217903 at *5.

The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.³⁴ See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp. 2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).³⁵

34 This assumes that the petitioner has not attacked the constitutionality of the state evidentiary rule itself. See Jones v. Stinson, 94 F. Supp. 2d 370, 387 n. 19 (E.D.N.Y.) (distinguishing between cases "where an evidentiary rule was correctly applied as a matter of state law, but is either unconstitutional on its face or violates a constitutional right as applied," and cases where the petitioner took no exception to the constitutionality of the state evidentiary rule, but asserted that the state court decision misapplied the state rule, resulting in a constitutional violation), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).

35 See also, e.g., Williams v. Walker, No. 00-CV-5912, 2001 WL 1352105 at *3 (E.D.N.Y. Oct. 31, 2001) (habeas court must first determine if ruling was erroneous under state law, and then whether ruling was of a constitutional magnitude); Coleman v. Greiner, No. 97-CV-2409, 1999 WL 320812 at *5 (E.D.N.Y. May 19, 1999); Till v. Miller, 96 Civ. 4387, 1998 WL 397848 at *4 (S.D.N.Y. July 16, 1998); Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at *5-6 (S.D.N.Y. Apr. 20, 1998); Copes v. Schriver, 97 Civ. 2284, 1997 WL 659096 at *3 (S.D.N.Y. Oct. 22, 1997); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) ("[T]he Court engages in a two part analysis, examining 1) whether the exclusion [of evidence] was error under state law, and 2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial."); see generally Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (in determining whether failure to give state jury charge violated federal constitution, first question for habeas court is whether the charge was required under New York law, and only if so, was the failure to give the charge of constitutional dimension).

Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system.³⁶ Here, Curry asserts that his constitutional rights of due process were violated by the trial court's evidentiary rulings. (Pet. ¶ 6(f).)

36 See, e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at *1 (2d Cir. Mar. 9, 1998) ("To the extent that this claim is based on a Rosario violation, it must fail, because a habeas petition can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law. Thus, the only question is whether the prosecution violated Brady.") (emphasis in original); 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, 2000 WL 995497 at *12 (same);Roldan v. Artuz, 78 F. Supp. 2d at 276 (Molineux claim not cognizable as such on habeas); Benitez v. Senkowski, 1998 WL 668079 at *5 (bolstering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "bolstering" of eyewitness identification testimony held to be, at most, violation of state rule, and thus not could not form basis for constitutional claim).
Indeed, courts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [out of court declarant's] statement violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it falls within Rule 801(d)(2)'s co-conspirator exception"), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Ford v.Crinder, 97 Civ. 3031, 2001 WL 640807 at *5 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a [state] criminal defendant's due process rights or provide the basis for habeas corpus relief.").

Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "'where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original).³⁷ The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'"³⁸ "'create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S. Ct. at 2401-02).³⁹

37 See also, e.g., Jones v. Stinson, 229 F.3d at 120;Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) ("The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'"), cert. denied, 525 U.S. 840, 119 S. Ct. 101 (1998); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) ("In order to prevail on a [habeas] claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial. . . .").

38 "If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. 97, 112-13, 96 S. Ct. 2392, 2402 (1976).

39 Accord, e.g., Jones v. Stinson, 229 F.3d at 120;Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996); Johnson v.Ross, 955 F.2d 178, 181 (2d Cir. 1992); Blissett v.Lefevre, 924 F.2d 434, 439 (2d Cir.), cert. denied, 502 U.S. 852, 112 S. Ct. 158 (1991); Collins v. Scully, 755 F.2d at 19; Rosario v. Kuhlman, 839 F.2d at 925; Roldan v. Artuz, 78 F. Supp. 2d at 276; Grant v. Demskie, 75 F. Supp. 2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v.Senkowski, 1998 WL 217903 at *6; Dey v. Scully, 952 F. Supp. at 971.

The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v.Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181);Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp. 2d at 276.⁴⁰

40 For the reasons stated by Judge Block in Dey v.Scully, "[h]armless error analysis is simply inapplicable to [trial] error that only attains constitutional significance when considered in the context of the entire trial because such analysis inheres in the initial finding that the error was constitutionally significant. A determination that such error was not harmless, after having already concluded that it denied the defendant a fundamentally fair trial, would be tautological."Dey v. Scully, 952 F. Supp. at 974; see also Kyles v.Whitley, 514 U.S. 419, 436, 115 S. Ct. 1555, 1567 (1995) ("Agurs . . . opted for its formulation of materiality . . . only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal underKotteakos."); Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) ("The creation of otherwise non-existent reasonable doubt [under Agurs] satisfies the 'substantial and injurious' standard" under Brecht.) (quoting Jones v.Stinson, 229 F.3d at 120); Coleman v. Greiner, 1999 WL 320812 at *4-5.

The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial.Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard.Id. at 120-21.

In sum, for Curry to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) under Agurs, that admission/exclusion of evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of the Agurs standard.

B. Application of This Standard to Curry's Hearsay Claim

Detective DeLeon testified during Curry's July homicide trial that, in an effort to persuade Curry to talk to him about the homicide, he told Curry that there were witnesses and that Curry had been picked out of a line-up. (See page 12 above.) Curry alleges that this testimony was impermissible hearsay testimony. (Dkt. No. 2: Pet. ¶¶ 6(f), 89-95.) Specifically, Curry asserts that:

The statement concerning being picked out in a line-up was even more prejudicial and improper, and especially because the government knew that there was not going to be any evidence of any line-up introduced at trial, and it was improper to allow this statement to which the jury had no other choice but to speculate that he had been picked out in a line-up. The jury hearing this prejudicial statements, no matter what curative instructions the trial court gave the jury, could only conclude that Petitioner was identified by witnesses who implicated him in the homicide. In addition, the hearsay testimony improperly bolstered the testimony of the witness. . . . It is clear from the record that this prejudicial hearsay testimony was admitted for the sole purpose to lead the jury to conclude that at one point Petitioner had been identified by witnesses who implicated him in the murder . . .

(Dkt. No. 3: Curry Br. at 77-78.)

Curry asserted this claim in his direct appeal, and the First Department denied it summarily on the merits. People v.Curry, 287 A.D.2d 252, 253-54, 731 N.Y.S.2d 1, 3 (1st Dep't 2001) ("We have considered and rejected defendant's remaining claims. . . .").

The general rule in New York is that an out-of-court statement is admissible if it is not admitted for the truth of the matter stated, but for another purpose. See, e.g., Soto v.Greiner, 02 Civ. 2129, 2002 WL 1678641 at *10 (S.D.N.Y. July 24, 2002) (Peck, M.J.) (citing N.Y. cases); People v. Ealey, 272 A.D.2d 269, 270, 710 N.Y.S.2d 321, 322-23 (1st Dep't) (Testimony establishing victim's state of mind "was not hearsay because it was not received for its truth."), appeal denied, 95 N.Y.2d 865, 715 N.Y.S.2d 219 (2000); People v. Daniels, 265 A.D.2d 909, 909-10, 698 N.Y.S.2d 120, 121 (4th Dep't 1999) (Testimony of surviving passengers that passenger in the car told drunk defendant to pull over because "he did not want to die" was admissible because the statements "were not hearsay because they were offered not for their truth, but to establish that they were made and they were relevant to show circumstantially the state of mind of the hearer.") (citation omitted), appeal denied, 94 N.Y.2d 878, 705 N.Y.S.2d 10 (2000); Diaz v. Garrastequi, 189 A.D.2d 574, 575, 592 N.Y.S.2d 29, 31 (1st Dep't) ("[S]ince the alleged hearsay evidence elicited from Detective Brosnan was not offered for its truth but was brought out to explain matters first brought up on cross-examination, the evidence regarding the specifics of his investigation, including the references to gang membership, did not constitute inadmissable hearsay . . ."),appeal denied, 81 N.Y.2d 885, 597 N.Y.S.2d 947 (1993); People v. Griffin, 173 A.D.2d 216, 216, 569 N.Y.S.2d 97, 98 (1st Dep't 1991) ("Testimonial reference to that later description, by the victim and a detective, was not hearsay because it was offered not for its truth, but for the jury's evaluation of her opportunity to have observed the crime sufficiently to have been able to report it accurately to the police."), appeal denied, 78 N.Y.2d 1076, 577 N.Y.S.2d 239 (1991).⁴¹

41 See also, e.g., Tennessee v. Street, 471 U.S. 409, 413, 105 S. Ct. 2078, 2081 (1985) ("[T]he prosecutor did not introduce [the] out-of-court confession to prove truth of [the] assertions. Thus, . . . [the out-of-court statement] was not hearsay under traditional rules of evidence.") (emphasis in original); United States v. Slaughter, 386 F.3d 401, 403 (2d Cir. 2004) ("Testimony containing hearsay may be admissible not for its truth but as background information if (1) 'the non-hearsay purpose by which the evidence is sought to be justified is relevant,' and (2) 'the probative value of this evidence for its non-hearsay purpose is [not] outweighed by the danger of unfair prejudice resulting from the impermissible hearsay use of the declarant's statement.'") (quoting Ryan v.Miller, 303 F.3d 231, 252-53 (2d Cir. 2002)); United States v. Bellomo, 176 F.3d 580, 587 (2d Cir.) (Testimony that "bore on [witness's] state of mind not on the truth of the motive for murder" and "went to [witness's] state of mind not to the truth of any fact in any declaration to which he testified" was not hearsay.), cert. denied, 528 U.S. 987, 120 S. Ct. 447 (1999).

The giving of a curative, or limiting, instruction regarding the purpose for which the testimony is received further averts any prejudice to the defendant. See, e.g., People v.Rivera, 96 N.Y.2d 749, 751, 725 N.Y.S.2d 264, 265 (2001) ("Any possible prejudice arising from this testimony was averted by the court's comprehensive limiting instructions" "admonishing the jury not to consider the officer's testimony for any purpose other than to explain why the officer acted as he did. . . . not to consider the testimony on the issue of defendant's guilt or innocence."); People v. Marrero, ___ N.Y.S.2d ___, 2004 N.Y. slip. op. 07939, 2004 WL 2473890 at *1 (1st Dep't Nov. 4, 2004) ("The court minimized any prejudicial effect [of highly probative evidence] by delivering an appropriate limiting instruction.");People v. Gordon, 308 A.D.2d 461, 461-62, 764 N.Y.S.2d 115, 116 (2d Dep't) ("[T]he description of the defendant's arrest, as well as the evidence relating to the statements he gave at the police station, explained why he confessed to the charged crimes, and rebutted his allegations of police misconduct both during and after his arrest. In addition, the trial court's limiting instructions effectively prevented prejudice to the defendant."),appeal denied, 1 N.Y.3d 572, 775 N.Y.S.2d 289 (2003); People v. Footman, 297 A.D.2d 566, 566-67, 748 N.Y.S.2d 350, 351 (1st Dep't) ("The court properly admitted portions of defendants videotaped statement. . . . Any prejudice was alleviated by the court's careful limiting instruction to the jury."), appeal denied, 99 N.Y.2d 558, 754 N.Y.S.2d 210 (2002);People v. Jackson, 276 A.D.2d 806, 806, 715 N.Y.S.2d 421, 421 (2d Dep't 2000) (no error in admission of hearsay to explain the police's conduct where "the court gave the jury proper limiting instructions regarding the purpose for which the testimony was received."), appeal denied, 96 N.Y.2d 735, 722 N.Y.S.2d 802 (2001).⁴²

42 See also, e.g., United States v. Ortiz, No. 99-1228, 205 F.3d 1326 (table), 2000 WL 233698 at *2 (2d Cir. Feb. 10, 2000) ("Moreover, even assuming that the District Court erred in admitting some of the statements [to demonstrate the victim's state of mind], the error was harmless because [among other things] the District Court gave the jury a limiting instruction regarding the use of the evidence. . . ."), cert. denied, 530 U.S. 1249, 120 S. Ct. 2702 (2000); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) ("There was no error of constitutional or non-constitutional dimension here. First, the district court gave appropriate limiting instructions concerning the hearsay statements."); Soto v. Greiner, 2002 WL 1678641 at *10.

Here, the trial judge admitted the statement to describe Detective DeLeon's questioning of Curry and in particular Curry's response, not to prove that Curry had been identified by witnesses and/or in a lineup. (See page 13 above.) Almost immediately following this testimony, the trial judge gave the curative instruction that the testimony was "not admitted for the truth" of the line-up and that the testimony "is only admitted for purposes of evaluating what the defendant said in response, if anything." (See page 13 above.)

Accordingly, the trial court's actions, affirmed by the First Department, were not an error of state law, much less an error of constitutional magnitude. See, e.g., Soto v. Greiner, 2002 WL 1678641 at *10; Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *17 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *5 n. 14, *8

(S.D.N.Y. Jan. 9, 2002) (Peck, M.J.) ("Because [petitioner] has 'failed to make the threshhold showing that the First Department erred as a matter of state law in upholding the trial court's decision' to admit the [challenged evidence], 'this Court need not reach the question of whether [petitioner's] due process rights were violated.'") (quoting Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *17 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.)); Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner could not demonstrate an error under state evidentiary law, much less an error of constitutional magnitude);Dey v. Scully, 952 F. Supp. at 969 (petitioner must show both state law error and violation of constitutional rights).

Since the First Department's decision was not an unreasonable application of Supreme Court precedent, Curry's hearsay habeas claim should be DENIED. VII. CURRY'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ⁴³ 1. Strickland and Trial Counsel

43 For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report and Recommendation, see, e.g., Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *26 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *20-21 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *13-15 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.);Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *14-16 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Guzman v.Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my prior opinions);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S. Ct. 1787 (2003).

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; accord, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.⁴⁴

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."

Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).⁴⁵

44 Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1850 (2002).

45 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S. Ct. at 1852; 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 2068.⁴⁶

46 See also, e.g., Wiggins v. Smith, 123 S. Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S. Ct. at 1850;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).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S. Ct. at 1953; cf. id. at 297-301, 119 S. Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

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.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

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." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.⁴⁷

47 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 2066.⁴⁸

48 See also, e.g., Yarborough v. Gentry, 124 S. Ct. 1, 5-6 (2003); 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 (2d Cir.) (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 at 199.

2. Strickland and the AEDPA Review Standard

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).⁴⁹ "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. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S. Ct. at 1852; see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003).

49 See also, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S. Ct. 1843, 1852 (2002); Sellan v. Kuhlman, 261 F.3d at 315.

B. Curry's Claims of Ineffective Trial Counsel Should Be Denied

Curry alleges that his trial counsel was ineffective for: (a) failing to call three witnesses that Curry claims could have exculpated him; (b) failing to inform Curry that he could testify on his own behalf; (c) failing to move for discovery; (d) abandonment of the Rosario and Batson issues; and (e) a defective summation. (Dkt. No. 2: Pet. ¶¶ 6(a), 7-40; Dkt. No. 3: Curry Br. at 1, 8-28.)

1. Counsel's Alleged Failure to Call Eyewitnesses and Defective Summation

Curry asserts that his trial counsel was ineffective due to his "failure to pursue and call [three] exculpatory eyewitnesses to trial." (Dkt. No. 3: Curry Br. at 17; see also Dkt. No. 2: Pet. ¶¶ 6(a), 15-16.) Curry also claims that counsel's summation was defective, in part because he drew "undue attention" to Curry's failure to take the stand. (Curry Br. at 32, 35; see also Pet. ¶ 39.) Both of these claims involve matters of trial strategy and as such should be denied.

Courts in this Circuit have made clear that "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 357 (1987);⁵⁰ see, e.g., United States v. DeJesus, No. 01-1479, 57 Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003) ("A trial counsel's 'decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.' United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999). Because of this inherently tactical nature, the decision not to call a particular witness generally should not be disturbed." Counsel's decision not to call a character witness was grounded in strategy and not deficient, "even though [defendant] requested that she do so and provided her with contact information for potential witnesses."), cert. denied, 123 S. Ct. 2110 (2003).⁵¹

50 Accord, e.g., Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *27-28 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.);Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *41 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *31 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *25 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *37 (S.D.N.Y. June 17, 2003) (Peck, M.J.).

51 See also, e.g., United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."), cert. denied, 123 S. Ct. 1949 (2003); United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 526 U.S. 1164, 119 S. Ct. 2059 (1999); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.),cert. denied, 522 U.S. 846, 118 S. Ct. 130 (1997); Nieves v.Kelly, 990 F. Supp. 255, 263-64 (S.D.N.Y. 1997) (Cote, D.J. Peck, M.J.); Rodriguez v. Mitchell, 92 Civ. 2083, 1993 WL 229013 at *3, 5 (S.D.N.Y. June 24, 1993) ("Counsel's decision not to call a witness, if supported by valid tactical considerations, does not constitute ineffective assistance of counsel.").

More importantly, "[g]enerally, the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation. . . . [T]he habeas court 'will not second-guess trial strategy simply because the chosen strategy has failed . . .,' especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial." Jones v.Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995) (citations omitted), aff'd, No. 95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30, 1995); accord, e.g., Gomez v.Duncan, 2004 WL 119360 at *31; Montalvo v. Annetts, 2003 WL 22962504 at *26 ( cases cited therein); Skinner v. Duncan, 2003 WL 21386032 at *37; see, e.g., Henry v. Stinson, No. 96-2522, 129 F.3d 113 (table), 1997 WL 664631 at *1 (2d Cir. Oct. 17, 1997) ("[T]rial counsel's choice of what to argue in summation may permissibly be viewed as a strategic decision . . ."); United States v. Vegas, 27 F.3d 773, 777-78 (2d Cir.), cert. denied, 513 U.S. 911, 115 S. Ct. 284 (1994);Lawson v. Caspari, 963 F.2d 1094, 1096 (8th Cir. 1992) (counsel not ineffective for failing to call alibi witnesses he did not believe were credible, especially where counsel "presented a theory of the case by pointing out the 'weaknesses in the state's case and rais[ing] serious questions about the credibility of the state's sole eyewitness.'"); United States v. Simone, 931 F.2d 1186, 1195 (7th Cir. 1991) (Counsel's concession as to defendant's drug selling in summation was a "logical trial strategy" where "the admitted facts arose from indisputable evidence and credible testimony. . . . The attorney vigorously contested the most serious charges, such as conspiracy and continuing enterprise. We find this approach to be a logical trial strategy."); Wells v.Miller, No. 02-CV-5778, 2003 WL 23185759 at *14 (E.D.N.Y. Oct. 23, 2003) (Weinstein, D.J.) (Counsel was not ineffective where he refused to "argue on summation that [witnesses framed petitioner]. . . . Counsel's decision not to pursue this defense more vigorously was based on what was arguably his reasonable professional judgment. . . ."); Reese v. Greiner, 97 Civ. 5622, 2003 WL 21459577 at *5 (S.D.N.Y. June 23, 2003) ("Petitioner's complaints regarding counsel's trial strategy, however, do not constitute ineffective assistance of counsel, such as . . . inadequate summation, wasted cross-examination time, and failure to object to certain leading questions.");Harris v. Hollins, 95 Civ. 4376, 1997 WL 633440 at *6 (S.D.N.Y. Oct. 14, 1997) (counsel not ineffective for not securing alibi witnesses where counsel presented a vigorous defense); Virella v. United States, 750 F. Supp. 111, 118 (S.D.N.Y. 1990) ("[E]ven the failure to make any argument at all on summation is generally considered merely to be a matter of trial strategy and not one to be second-guessed by a reviewing court.").

In any event, in light of the extremely strong evidence against Curry, to the point that the trial judge noted that if Curry was convicted it would not be due to counsel but to the strong evidence (2/23/98 Tr. 448), any deficiency by counsel still would not satisfy the second Strickland prong, of showing that Curry was prejudiced. (See cases cited at pages 58-59 above.)

Curry's habeas claim that trial counsel was ineffective for not calling certain witnesses and for giving a "defective" summation should be DENIED. 2. Counsel's Alleged Failure to Inform Curry of His Right to Testify

Curry claims that his counsel failed to inform him of his right to testify at trial, and that this failure resulted in a violation of his constitutional rights. (Dkt. No. 3: Curry Br. at 8-9; see also Dkt. No. 2: Pet. ¶¶ 6(a), 10; Dkt. No. 21: Traverse ¶¶ 6-7.)

"A defendant in a criminal case has the constitutional right to testify on his own behalf, see Rock v. Arkansas, 483 U.S. 44, 49-51, 107 S. Ct. 2704 (1987), and [the Second Circuit has] held that a 'trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right.'" Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001) (quoting Brown v.Artuz, 124 F.3d 73, 78-79 (2d Cir. 1997), aff'g, 95 Civ. 2740, 1996 WL 511558 (S.D.N.Y. June 10, 1996) (Haight, D.J. Peck, M.J.), cert. denied, 522 U.S. 1128, 118 S. Ct. 1077 (1998)), cert. denied, 534 U.S. 1096, 122 S. Ct. 847 (2002);accord, e.g., United States v. Garcia, No. 02-1049, 51 Fed. Appx. 325, 328, 2002 WL 31309247 at *2 (2d Cir. Oct. 11, 2002); Chang v. United States, 250 F.3d 79, 82-83 (2d Cir. 2001); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *33 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Ruiz v. United States, 94 Cr. 392, 98 Civ. 6399, 2000 WL 1010828 at *4 (S.D.N.Y. July 21, 2000) (Preska, D.J.). In Brown v. Artuz, the Second Circuit also held that:

Although counsel should always advise the defendant about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best, counsel must inform the defendant that the ultimate decision whether to take the stand belongs to the defendant, and counsel must abide by the defendant's decision on this matter. 124 F.3d at 79; accord, e.g., Chang v. United States, 250 F.3d at 83; Gomez v. Duncan, 2004 WL 119360 at *33; Brown v. Rick, 01 Civ. 4310, 2003 WL 22801397 at *7 (S.D.N.Y. Nov. 25, 2003).

Curry states that he "was never aware that he had a right to testify on his own behalf" and that counsel never made a record waiver of Curry's right testify. (Curry Br. at 11-12.) The record demonstrates that Curry was in the courtroom during theSandoval hearing when his attorney discussed his right to testify, stating in Curry's presence: "The People will attempt to show through a tape he had the gun for purposes of committing a robbery, going into the facts of the first case would be overkill and will certainly, will curtail his right to testify. . . . I think the prejudicial value of that testimony, should he testify, so outweighs the probative value as to make it tantamount to denyhis right to testify on his own behalf." (2/23/98 Tr. 10-11, emphasis added, quoted at page 9 above.)

Curry's argument that his counsel was ineffective because he did not make on "on-the-record" waiver of his right to testify is not the correct standard in this Circuit. The Second Circuit has held that it "agree[s] with those courts that place no general obligation on the trial court to inform a defendant of the right to testify and ascertain whether the defendant wishes to waive that right." Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997). The Second Circuit went on to state that the habeas courts need not delve into whether the defendant knew of his right to testify because there were no "exceptional circumstances" present for the court to depart from the general rule that they should not interfere with "counsel's strategic decision not to place his client on the stand." Brown v. Artuz, 124 F.3d at 79 n. 2;see also, e.g., United States v. Montilla, No. 03-1241, 85 Fed. Appx. 227, 230, 2003 WL 23022068 at *2 (2d Cir. Dec. 23, 2003); United States v. Nobles, No. 98-1707,199 F.3d 1324 (table), 1999 WL 1012817 at *2 (2d Cir. Oct.14, 1999); King v.Mantello, No. 98-CV-7603, 2002 WL 32100251 at *9 (E.D.N.Y. Nov. 19, 2002) ("[A]lthough the trial record may not be sufficient for an unqualified finding that the defendant was aware 'that the ultimate decision to testify belonged to him,' clearly, there were no 'exceptional circumstances' present to warrant further inquiry into whether the trial court should have intervened with respect to the ultimate decision not to testify."). Here, Curry's prior arrest record was certainly a logical and strategic reason to not to put him on the stand. Moreover, Curry claims that the reason he wanted to testify was to show his confessions were coerced. (Pet. ¶ 11; Curry Br. at 14-15.) The trial court had already determined that his confessions were not coerced and therefore were admissible. (See page 8 above.) Curry's testimony on that issue was not likely to favorably advance his case, and it would subject him to vigorous cross-examination on all subjects. It was a reasonable strategy to not put him on the stand in this circumstance. See, e.g., United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) ("It was a reasonable tactical decision to rely exclusively on attacking the Government's witnesses and presenting independent testimony rather than to subject [defendant] to all of the risk attendant on cross-examination."),cert. denied, 507 U.S. 998, 113 S. Ct. 1619 (1993); King v.Mantello, No. 98-CV-7603, 2002 WL 32100251 at *11 (Counsel not ineffective for keeping defendant from testifying where "prior to trial, the court ruled that, if the petitioner testified at trial, the prosecution could inquire about four of the petitioner's prior convictions for larceny related offenses and the petitioner's use of aliases in connection with past arrests. . . . The decision not to testify clearly was a reasonable strategy to spare the petitioner from the prejudice of a potentially damaging cross-examination."); Santiago v.Superintendant, Ossining Corr. Facility, 98 Civ. 7900, 2000 WL 1010253 at *3 (S.D.N.Y. July 21, 2000) ("[T]he decisions of defense counsel to advise Petitioner not to testify and to waive his presence during the giving of a supplemental charge were well within the range of tactical strategy that is left to the professional judgment of defense counsel. . . ."); United States v. DeFeo, 90 Cr. 250, 1997 WL 3259 at *14 (Jan. 6, 1997) ("[T]he defense was concerned about Defendant's prior convictions as damaging material for cross-examination. . . . Because Defendant merely presented an unsubstantiated, bare assertion that [counsel] refused to let him testify, he has failed to establish a claim for ineffective assistance of counsel.").

Because there were sound strategic reasons why Curry should not testify, and since he was in the courtroom when his right to testify was discussed, thus indicating he knew he had the right to testify, his habeas claim should be DENIED. 3. Counsel's Alleged Failure to Conduct Discovery

Curry asserts that his counsel was ineffective because he "neither investigated, nor made reasonable decision not to investigate the state's case through discovery." (Dkt. No. 3: Curry Br. at 22-23; see also Dkt. No. 2: Pet. ¶¶ 6(a), 22-23; Dkt. Nos. 26-27: Curry 5/20-21/04 Letters to Court.) These claims are conclusory and give no indication as to what exculpatory evidence a proper investigation would have revealed, or how such evidence would have benefitted Curry's case. There is also no way to know that trial counsel did not consider investigating these claims but simply rejected them as being unpromising. Since "[s]uch speculation satisfies neither Strickland's deficient performance nor prejudice prongs," Curry's claim must be denied.McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *25 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.) ( cases cited therein);see, e.g., Vasquez v. United States, 96 Civ. 2104, 91 Cr. 153, 1997 WL 148812 at *2 (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. . . ."); Lawrence v.Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a postconviction review hearing, the petitioner ordinarily should explain their absence and 'demonstrate, with some precision, the content of the testimony they would have given at trial.'") (citations omitted); Lamberti v. United States, 95 Civ. 1557, 1998 WL 118172 at *2 (S.D.N.Y. Mar. 13, 1998) (Leval, C.J.) ("The allegations of failure to investigate or to communicate are vague and conclusory. They do not identify counsel's asserted failings with any specificity or show how any different conduct might have changed the result."), aff'd, No. 98-2875, 201 F.3d 430 (table), 1999 WL 1212654 (2d Cir. Dec. 10, 1999); Madarikan v. United States, No. 95 CV 2052, 1997 WL 597085 at *1 (E.D.N.Y. Sept. 24, 1997) (denying ineffective assistance claim based on failure to investigate or interview witnesses; petitioner's "allegations of ineffective assistance are conclusory, and give no indication as to what exculpatory evidence may have been revealed by an investigation"); Matura v. United States, 875 F. Supp. 235, 238 (S.D.N.Y. 1995) ("Petitioner has not stated why his counsel's investigation was inadequate, what his counsel should have investigated, what this investigation would have produced, or how the fruits of this investigation would have aided petitioner's case.").⁵²

52 See also, e.g., Polanco v. United States, 99 Civ. 5739, 94 Cr. 453, 2000 WL 1072303 at *10 (S.D.N.Y. Aug. 3, 2000) (denying claim of failure to investigate, because petitioner "does not say precisely what counsel would have learned or how counsel would have learned it"); Muhammad v. Bennett, 96 Civ. 8430, 1998 WL 214884 at *1 (S.D.N.Y. Apr. 29, 1998) ("petitioner's speculative claim about the testimony of an uncalled witness" is insufficient to show ineffective assistance of trial counsel); United States v. Vargas, 871 F. Supp. 623, 624 (S.D.N.Y. 1994) (Rejecting ineffective assistance claim based on failure to investigate, since "[t]here is no evidence that avenues suggested by the client which might have altered the outcome were ignored."); Gossett v. Henderson, 87 Civ. 5878, 1991 WL 135601 at *7 (S.D.N.Y. July 18, 1991) (denying claim of ineffective assistance for failure to investigate and develop an alibi defense based on entirely conclusory allegations which failed to show that any omission was prejudicial), aff'd, 978 F.2d 705 (2d Cir. 1992), cert. denied, 510 U.S. 997, 114 S. Ct. 564 (1993); Croney v. Scully, CV-86-4335, 1988 WL 69766 at *2 (E.D.N.Y. June 13, 1988) ("Petitioner's contention that assignment of an investigator would have been helpful to his defense is conclusory and speculative. Petitioner must show not only that the testimony would have been favorable, but also that the witness would have testified at trial."), aff'd, 880 F.2d 1318 (2d Cir. 1989).

Curry's failure to investigate ineffective assistance claim should be DENIED. 4. Counsel's Alleged Abandonment of a Rosario Claim

Curry asserts that counsel failed to pursue a valid Rosario claim. (Dkt. No. 3: Curry Br. at 24; see also Dkt. No. 2: Pet. ¶¶ 6(a), 28-29.) Curry's claim is based upon: (1) his attorney's failure to object when the prosecutor turned in a list ofRosario material instead of reading into the record the name and content of each of the 165 documents listed; (2) his attorney's alleged failure to at least make sure he had every item on the list; and (3) his attorney's alleged failure to request missing portions of a Rosario document. (Curry Br. at 24-25.)

Curry does not set forth how the Rosario material that counsel allegedly failed to secure would have affected the outcome of the case. Thus, Curry does not satisfy the second Strickland prong. See, e.g., Colson v. Mitchell, 798 F.Supp. 966, 972-73 (E.D.N.Y. 1992) ("Although it is true that receipt of such [Rosario] material puts defense counsel in a better position for cross-examination purposes, a violation of the [Rosario] rule does not constitute per se ineffective assistance of counsel."); see also Flores v. Demskie, 215 F. 3d 293, 306 (2d Cir. 2000) (Van Graafeiland, C.D., dissenting) ("[Petitioner] does not strengthen his Rosario argument by clothing it in the garb of ineffective assistance of counsel. A violation of Rosario does not constitute per se ineffective assistance of counsel."); Boyd v. Hawk, 965 F. Supp. 443, 453 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.). Moreover, Curry cites no authority for the proposition the list of Rosario material must be read with specificity into the record nor gives anything other than a conclusory explanation as to how this alleged omission, even if true, caused him prejudice. (See cases cited on pages 68-69 above.)

Curry's ineffective assistance Rosario claim should beDENIED. 5. Counsel's Alleged Abandonment of a Batson Claim

Finally, Curry asserts that counsel failed to pursue a validBatson claim, thereby rendering him constitutionally ineffective. (Dkt. No. 3: Curry Br. at 35; see also Dkt. No. 2: Pet. ¶¶ 6(a), 33-34.) a. Batson v. Kentucky and Its Progeny ⁵³

53 For additional decisions by this Judge discussing Batson in language substantially similar to that in this entire section of this Report Recommendation, see Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *30-31 (S.D.N.Y. March 15, 2004) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *24-26 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *17-18 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); Owens v.Portuondo, 98 Civ. 6559, 1999 WL 378343 at *10 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2002).

In Batson v. Kentucky, 476 U.S. 79, 84, 106 S. Ct. 1712, 1716 (1986), the Supreme Court reaffirmed that a state's purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Constitution. The Batson analysis applies to peremptory challenges by a criminal defendant as well as by a prosecutor. Georgia v. McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 2359 (1992); McKinney v. Artuz, 326 F.3d 87, 98 n. 12 (2d Cir. 2003); Walters v. Mitchell, No. 99-CV-2579, 2002 WL 1751400 at *2 (E.D.N.Y. July 18, 2002). For AEDPA purposes, "[t]he clearly established Supreme Court precedent applicable in this case is Batson v. Kentucky. . . ."Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002).

As the Second Circuit reiterated, "[t]he Supreme Court has set forth a three-part test trial courts are to employ when evaluating whether a party exercised a peremptory challenge in a discriminatory manner." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). The Second Circuit has summarized that test as follows:

[Step 1:] First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors. . . .

[Step 2:] If the party making the Batson challenge establishes a prima facie case, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror. The second step does not require the party to give an explanation that is persuasive or even plausible.

[Step 3:] Finally, if the non-moving party proffers a race-neutral explanation, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination.

Galarza v. Keane, 252 F.3d at 636 (citations omitted); see, e.g., Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1035 (2003); Batson v. Kentucky, 476 U.S. at 96-98, 106 S. Ct. at 1723-24; Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71 (1995); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 1865-66 (1991); McKinney v.Artuz, 326 F.3d at 97-98; Overton v. Newton, 295 F.3d at 276; Jordan v. LeFevre, 206 F.3d 196, 200 (2d Cir. 2000).⁵⁴

54 See also, e.g., Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 939-40 (7th Cir. 2001); United States v.Raysor, Nos. 99-1503, 99-1504, 9 Fed. Appx. 33, 34, 2001 WL 357030 at *1 (2d Cir. Apr. 10, 2001); Moore v. Walker, No. 99-2754, 234 F.3d 1262 (table), 2000 WL 1721120 at *1 (2d Cir. Nov. 16, 2000); Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999); Durant v. Strack, 151 F. Supp. 2d 226, 235-36 (E.D.N.Y. 2001); Green v. Kelly, 99 Civ. 9082, 2000 WL 1871711 at *6-8 (S.D.N.Y. Dec. 21, 2000); Morales v. Artuz, 98 Civ. 6558, 2000 WL 1693563 at *4 (S.D.N.Y. Nov. 13, 2000),aff'd, 281 F.3d 55 (2d Cir.), cert. denied, 123 S. Ct. 152 (2002); United States v. Moore, 4 F. Supp. 2d 319, 320-21 (S.D.N.Y. 1998), aff'd, No. 98-1274, 173 F.3d 847 (table), 1999 WL 132175 (2d Cir. Mar. 11, 1999), cert. denied, 527 U.S. 1029, 119 S. Ct. 2383 (1999).

In a footnote in Batson, the Supreme Court emphasized the deference to be accorded to the trial judge's determination: "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S. Ct. at 1724 n. 21; accord, e.g., Owens v.Portuondo, 1999 WL 378343 at *9.

The Second Circuit has held that a Batson claim "is a structural error that is not subject to harmless error review."Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998);accord, e.g., Galarza v. Keane, 252 F.3d at 638 n. 8; Dobbin v.Greiner, 249 F. Supp. 2d 241, 249 (S.D.N.Y. 2002); Harris v.Kuhlmann, 115 F. Supp. 2d 326, 338-39 (E.D.N.Y. 2000).⁵⁵ b. Application to Curry's Batson-Ineffectiveness of Counsel Claim

55 Other Circuits that addressed the issue have reached the same result. See, e.g., Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001), cert. denied, 534 U.S. 1085, 122 S. Ct. 822 (2002); United States v. Harris, 192 F.3d 580, 588 (6th Cir. 1999); United States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998) (suggestion that Batson error can be considered harmless error "has been resoundingly rejected by every circuit court that has considered the issue") (citing cases); Turner v.Marshall, 121 F.3d 1248, 1254 n. 3 (9th Cir. 1997), cert. denied, 522 U.S. 1153, 118 S. Ct. 1178 (1998), overruled to a limited extent on other grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999); Scarpa v. DuBois, 38 F.3d 1,14 (1st Cir. 1994), cert. denied, 513 U.S. 1129, 115 S. Ct. 940 (1995);United States ex el. Pruitt v. Page, No. 97 C 2115, 1999 WL 652035 at *8-9 (N.D. Ill. Aug. 20, 1999) ("It is the consensus of Courts of Appeals, including the Seventh Circuit, that Batson error is structural and cannot be harmless.").

Curry states that his "counsel was ineffective, when counsel had to be prompted by his client to raise a Batson challenge to what the court acknowledged was an almost entirely white jury and that all the minorities were being excluded." (Dkt. No. 3: Curry Br. at 35.) Curry continues, stating that his attorney "picked up where the People left off . . . by getting rid of, himself, the People of color on the jury panel that the People missed or skipped over." (Curry Br. at 36.) When Curry presented this claim below, the State asserted that: "[f]ar from 'abandoning' theBatson claim, as defendant asserts, counsel raised it again after challenges to the third panel of prospective jurors, arguing that the prosecutor had stricken every black panelist and most of the Hispanics." (Ex. D: State First Dep't Br. at 112).⁵⁶ According to the State, a proper Batson investigation was conducted. After Curry's counsel raised the issue, the prosecution explained his nonpretextual reasons for striking the minority panelists and pointed out that he had stricken white panelists for the same reason — their young age. (State 1st Dep't Br. at 112.) The trial judge found the reasons to be facially race-neutral and non-pretextual. (State 1st Dep't Br. at 113.) Therefore, even if Curry's allegation that he had to prompt his attorney to raise a Batson challenge is true, it appears that his attorney did pursue a Batson challenge — which was found to be without merit. An attorney's alleged failure to pursue a meritless Batson claim cannot be a foundation for an ineffective assistance of counsel claim. See, e.g., United States v. Franklin, 157 F.3d 90, 97 (2d Cir. 1998) ("[Petitioner] . . . contends that any Batson waiver by his lawyer amounted to ineffective assistance of counsel. But he clearly cannot meet the requirements of Strickland v.Washington, . . . because the challenge is meritless, as the district court found and concluded."); Morales v. Greiner, 273 F. Supp. 2d 236, 253 (E.D.N.Y. July 28, 2003) ("There is simply no cognizable claim under Strickland where the ineffectiveness concerns an alleged Batson violation but no indication of an unrepresentative, biased, or otherwise unfair jury."); United States v. Udogwu, 03 Civ. 422, 99 Cr. 795, 2003 WL 21344749 at *2 (S.D.N.Y. June 9, 2003) (No ineffective assistance of counsel found where counsel did not make a Batson motion but no basis for counsel to do so.); Morales v. Artuz, 98 Civ. 6558, 2000 WL 1693563 at *9-10 (S.D.N.Y. Nov. 13, 2000). Moreover, to the extent Curry's claim boils down to a claim that he had to prompt his attorney to raise a Batson challenge and that once prompted his attorney did so, there obviously can be no prejudice, and thus Curry does not satisfy Strickland's second prong.

56 Due to the missing status of the voir dire transcript,see n. 3 above, this Court is forced to rely upon the State's First Department Brief. The Court is unable to cross-reference these citations with Curry's brief because he does not give any citations for his claim that his attorney failed to pursue theBatson claim. The Court is, however, comfortable with using the State's brief as their other citations to the record have been demonstrated to be correct.

Curry's ineffective assistance Batson claim should beDENIED.

CONCLUSION

For the reasons set forth above, Curry's habeas petition should be DENIED and a certificate of appealability should not be issued.

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 Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. 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, 984 F.2d 85, 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).