Pilar v. Phillips

Full title: MICHAEL DEL PILAR, Petitioner, v. WILLIAM E. PHILLIPS, Respondent

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

Date published: Jul 21, 2003

03 Civ. 8636 (GBD) (AJP) (S.D.N.Y. Jul. 21, 2003)

Opinion

03 Civ. 8636 (GBD) (AJP).

July 21, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable George B. Daniels, United States District Judge:

Pro se petitioner Michael Del Pilar seeks a writ of habeas corpus from his December 18, 2000 conviction in Supreme Court, Bronx County, of second degree murder and second degree weapons possession, and sentence of concurrent terms, the longest of which is twenty-two years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.)

Del Pilar's habeas petition alleges that the trial court erred: (1) by allowing a witness to be recalled in order to identify Del Pilar after she had met with the prosecutor during a lunch recess (Pet. ¶ 9, Att., Point I; see also Del Pilar 12/23/03 Letter to Court);¹ (2) when it did not allow Del Pilar's trial counsel, during a mid-trial hearing, to question a witness as to what conversation she heard between the prosecutor and the identifying witness (Pet. ¶ 9, Point II); (3) in precluding evidence to show that only Del Pilar's co-defendant had the motive to commit the crime (Pet. ¶ 9, Point III Pet. ¶ 12(a)); and (4) in denying Del Pilar's initial motion to strike a hearsay statement and then granting that motion at the end of trial (Pet. ¶ 9, Point IV).

1 Del Pilar's December 23, 2003 letter advised the Court that he was raising in his habeas petition "all points of law raised in [his] . . . state appellate brief." (Del Pilar 12/23/03 Letter to Court.) Curiously, however, in his habeas reply brief, he states that "petitioner has presented only one ground for habeas relief" (i.e., motive issue) and he accuses the State of "attempting to cloud the issue being presented" by addressing points besides his "motive" claim. (Dkt. No. 8: 3/26/04 Del Pilar Reply Br. at 7.) In an excess of caution, however, the Court will address all of Del Pilar's possible claims.

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

FACTS

The Prosecution Case at Trial

In the early morning hours of August 26, 1998, Michael Del Pilar and William Maisonet entered 2423 Arthur Avenue in the Bronx. (State Opening: Trial Transcript ["Tr."] 385, 387.)² Benedicto Rivera opened the door and saw Michael Del Pilar standing on the other side, holding a gun. (State Opening: Tr. 388.) After Rivera and David Cruz managed to close the door, a shot was fired. (State Opening: Tr. 388.) The bullet went through the door and struck Cruz near his mouth, killing him. (State Opening: Tr. 388-89.) Petitioner Michael Del Pilar and co-defendant William Maisonet were each charged with two counts of second degree murder, one count of first degree criminal use of a firearm, and one count of second degree criminal possession of a weapon. (Tr. 9-11; State Opening: Tr. 382-84; Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 2: State 1st Dep't Br. at 3.)³ Background

2 The page numbers are to those in the State Record on Appeal.

3 Maisonet was convicted of second degree murder and second degree criminal possession of a weapon on November 21, 2000, and sentenced as a second felony offender to concurrent terms, the longest of which is twenty-five years to life imprisonment. His conviction was affirmed on appeal. People v. Maisonet, 300 A.D.2d 4, 751 N.Y.S.2d 13 (1st Dep't 2002), appeal denied, 99 N.Y.2d 617, 757 N.Y.S.2d 827 (2003). (Dkt. No. 6: A.D.A. Blira-Koessler Aff. at 2 n. 1.)

William Maisonet and Velmarie Valentin had a three year relationship, during which they had a son, William, who was five years old by the time of trial. (Valentin: Tr. 502-03, 585, 654.) For most of their relationship, they lived in Valentin's apartment at 2423 Arthur Avenue, apartment 2R. (Valentin: Tr. 503-04, 585-86.) When the relationship ended in April 1997, Maisonet moved out, leaving their son with Valentin. (Valentin: Tr. 504-05.) In July 1997, Valentin's new boyfriend, David Cruz, moved in. (Valentin: Tr. 505-06.) Maisonet's return to the apartment to see his son often resulted in arguments with Cruz. (Valentin: Tr. 506-07, 509-11, 591-93.)

In May 1998, when Maisonet attempted to take his son for the weekend, Valentin refused since Maisonet was about to enter a drug detox program. (Valentin: Tr. 511-16, 594.) Cruz intervened and "went [in] to [Maisonet's] face and [Maisonet] was really angry." (Valentin: Tr. 512-13.) Maisonet told Cruz, "you don't know, get in this and you don't know me." (Valentin: Tr. 513.)

On August 24, 1998, after Maisonet picked up his son at Valentin's apartment, he called Valentin to tell her that their son said he was hit by Cruz. (Valentin: Tr. 517-18, 520, 618-19.) Cruz took the phone and "was arguing with" Maisonet. (Valentin: Tr. 519.) Before Cruz hung up the phone, he said to Maisonet, "Whenever you want, you know where we live." (Valentin: Tr. 519.)

Valentin first met petitioner Del Pilar when he came to the apartment with Maisonet in June 1997. (Valentin: Tr. 521-22, 526, 653, 656.) Maisonet introduced Del Pilar as his cousin, although Valentin later discovered that they were not blood relatives. (Valentin: Tr. 522, 527-28, 654.) During this meeting, Del Pilar stayed inside the apartment for about ten minutes. (Valentin: Tr. 525, 656.) When Maisonet and Del Pilar left, Valentin observed that Del Pilar drove a four-door, light green Honda Accord. (Valentin: Tr. 522-25.) Valentin also had seen Maisonet driving this car. (Valentin: Tr. 677.) Del Pilar returned to the building on two other occasions, but remained outside both times. (Valentin: Tr. 528-36, 655-57.) Valentin was able to see Del Pilar in front of the building by looking out her apartment window. (Valentin: Tr. 530-31, 535, 614-15.)

August 26, 1998

On August 26, 1998, Cruz, Valentin and her two children, Bendicto Rivera and Rivera's girlfriend Vilma DeJesus were living in apartment 2R at 2423 Arthur Avenue. (Valentin: Tr. 536-38, 562-63; Rivera: Tr. 899-900; DeJesus: Tr. 1414, 1416.) At about 1:00 a.m., the doorbell rang. (Valentin: Tr. 536, 625-26, 673, 700; DeJesus: Tr. 1418.) Over the intercom, someone asked for BJ (Rivera). (Valentin: Tr. 538-39; Rivera: Tr. 904, 907, 968; DeJesus: Tr. 1419-20, 1423, 1438-39, 1499, 1509.) DeJesus went to the window to see who was there but "didn't see clear who it was because it was dark." (DeJesus: Tr. 1420, 1423, 1509.) She looked out the window for approximately two seconds and was able to see the man in front of the building look up at her and look back down. (DeJesus: Tr. 1426, 1437, 1500, 1533, 1537.) Rivera went to the window and saw a man wearing a green hood and dark pants. (Rivera: Tr. 907-09, 968.)

Valentin buzzed the man into the building, went to the apartment door and looked through the peephole. (Valentin: Tr. 538-41, 640, 672-74, 699-700.) She saw someone dressed in a blue sweatshirt with a hood over his head, putting on white, clear gloves. (Valentin: Tr. 541-42, 682-83.) Valentin recognized him as Del Pilar. (Valentin: Tr. 542, 640, 699-700.) Someone knocked on the apartment door and asked for Rivera. (Rivera: Tr. 909-10.) As Rivera began to open the door, the person asked for Cruz. (Valentin: Tr. 542-44; Rivera: Tr. 911-12, 915, 958, 965; DeJesus: Tr. 1420.) Rivera could see a black gun in the man's hand (Rivera: Tr. 913, 965, 972-73.) Cruz went to the door, looked outside, and tried to push the door closed. (Valentin: Tr. 544, 565; Rivera: Tr. 912-13, 916, 965-66; DeJesus: Tr. 1420.) The door was open for about three or four seconds. (Rivera: Tr. 966-67, 971.) As soon as they got the door closed, there was a gunshot, which hit Cruz on the right side of his mouth. (Valentin: Tr. 544-46; Rivera: Tr. 916-17; DeJesus: Tr. 1421.)⁴

4 Dr. Yvonne Milewski conducted the autopsy of Cruz and concluded that, "[t]he cause of death is the gunshot wound located close to the mouth, because it injured the carotid artery causing massive blood loss." (Milewski: Tr. 1231, 1249.)

Diana Garcia, resident of apartment 2L across the hall at 2423 Arthur Avenue, testified that her buzzer rang and she heard a man ask for David. (Garcia: Tr. 1074-76, 1078-81.) She heard a shot moments later. (Garcia: Tr. 1076.) Annette Aponte, another resident in the building, heard a shot, looked out her window and saw a green car with four doors and tinted windows take off after the shooting. (Aponte: Tr. 1088-90, 1101-02, 1115-16, 1122.) She had seen Maisonet enter the passenger side of the same car at 3:00 a.m. days before the shooting. (Aponte: Tr. 1090-94, 1102, 1110-11, 1122-23.) Irving Santiago, who had known Maisonet for four or five years (Santiago: Tr. 717, 735), was at the park across the street from 2423 Arthur Avenue around 1:00 a.m. when he heard a gunshot (Santiago: Tr. 718-20, 731). Santiago saw two men running from the apartment building, one of which he identified as Maisonet. (Santiago: Tr. 720-21, 742-44.) The other man was wearing a hooded sweatshirt and gloves. (Santiago: Tr. 720-21, 743.)

Identification of Del Pilar

After realizing Cruz had been shot, Valentin called 911. (Valentin: Tr. 546-47, 549-50.) She told the 911 operator that she did not know who was on the other side of the door. (Valentin: Tr. 649-50.) When asked by the police after the shooting for possible suspects, Valentin said Maisonet may be a suspect because he and Cruz had been having problems. (Valentin: Tr. 627, 634-37, 678-81, 700-02; Larracuente: Tr. 1195.) She stated that Del Pilar used to bring Maisonet to the apartment in a green car, but sometimes Maisonet used the car to come by himself. (Larracuente: Tr. 1196, 1301-05, 1322.) Later that day, when asked at the precinct whether she recognized the person on the other side of the door, she again said she did not. (Valentin: Tr. 551-52, 642-45.)

Directly after the incident, Rivera informed police that he did not know the person at the door, but he did get a look at him and could make an identification. (Rivera: Tr. 929-32; Larracuente: Tr. 1294-95.) At the precinct, Rivera filled out a report about the incident. (Rivera: Tr. 919, 932-33.) Rivera returned to the precinct later that day and was shown a computer screen with pictures of Hispanic males. (Rivera: Tr. 933-95; Larracuente: Tr. 1164-65, 1168-69.) Del Pilar's picture was not shown and Rivera identified someone else as the shooter. (Rivera: Tr. 936-37; Larracuente: Tr. 1165-66, 1296-97.) Detective Larracuente later learned that the man Rivera identified was incarcerated on the date of the shooting. (Larracuente: Tr. 1170, 1300-01.) Detective Padilla showed Rivera a photo array on September 8 that contained Del Pilar's photograph, but Rivera said he did not recognize anyone. (Rivera: Tr. 943-45, Padilla: Tr. 1587.)

David Pagan testified that sometime around late August or the beginning of September 1998, he spoke with Del Pilar, who he had known for about two years. (Pagan: Tr. 771-74, 785.) Del Pilar drove up to Pagan's tire shop in a blueish green Honda. (Pagan: Tr. 773-75.) Del Pilar explained that the license plates had been switched from Virginia to Miami "because the car was hot." (Pagan: Tr. 775-76, 779.) Pagan testified that Del Pilar stated: "I think he's dead. I shot somebody." (Pagan: Tr. 776.) Del Pilar elaborated: "I shot somebody through the door in the face, a young guy, like nineteen years old" over a "family dispute." (Pagan: Tr. 777-79.) Pagan did not come forward with this information until he was arrested for auto stripping. (Pagan: Tr. 780-81, 835-36.)⁵ After speaking with Pagan, the police began searching for Del Pilar by putting out an alarm on his green 1990 Honda. (Larracuente: Tr. 1171-74.)

5 Pagan also testified that he saw Maisonet at Rikers Island, knew he was Del Pilar's cousin, and spoke about Del Pilar's comments; Maisonet told Pagan that he (Maisonet) also was involved in Cruz's homicide. (Pagan: Tr. 788-94.)
Maria Park, an Assistant District Attorney in Brooklyn, was assigned one of Pagan's narcotics prosecutions. (Park: Tr. 1029-30.) She testified that he was not given an offer or positive recommendation for parole based on his cooperation with the Bronx District Attorney's Office. (Park: Tr. 1031, 1033-34, 1038.)

Around September 9, 1998, detectives showed Valentin a photo array. (Valentin: Tr. 665-66.) When asked if she recognized anyone, Valentin pointed out Del Pilar, but did not tell the police officers that he was the shooter. (Valentin: Tr. 666-68). Del Pilar was taken into custody on September 15, 1998. (Larraceunte: Tr. 1174.)

On September 16, 1998, Rivera viewed a lineup and identified Del Pilar as the man who had shot Cruz. (Rivera: Tr. 919-21, 924; Larracuente: Tr. 1179-86.) Del Pilar was placed under arrest for Cruz's death after being identified in the line-up. (Larracuente: Tr. 1186-87.) Maisonet was arrested on October 9, 1998. (Larracuente: Tr. 1197.)

At trial, Valentin identified Del Pilar as the man she had seen through the peephole. (Valentin: Tr. 542, 640, 674-75, 699-700.) She said she had lied to the 911 operator and the police because she was frightened of Maisonet. (Valentin: Tr. 652-53, 688-90.) Rivera also identified Del Pilar at trial as the man who held the gun outside the apartment door. (Rivera: Tr. 924-25.)

DeJesus' Testimony

DeJesus, Rivera's girlfriend, also was living in the apartment on the night of Cruz's shooting. (DeJesus: Tr. 1416.) When she heard the bell ring, she looked out the window but "didn't see clear who it was because it was dark." (DeJesus: Tr. 1420.) When questioned further, she again said: "I did see somebody, but I didn't see it that good." (DeJesus: Tr. 1423.) At the end of her direct, she was asked whether she could picture in her mind the person at the front door of the building on August 26, 1998 and replied that she could not. (DeJesus: Tr. 1434.)

Before the close of the cross examination, there was a lunch break. Outside the courtroom, DeJesus approached Lera Terry, a crime victim's counselor for the Bronx County District Attorney's Office. (Tr. 1460, 1476.) While they walked to the bathroom, DeJesus said that she recognized Del Pilar's face from the night of the shooting. (Tr. 1460, 1477.) Terry told DeJesus to inform the Assistant District Attorney. (Tr. 1477.) The Assistant District Attorney spoke with DeJesus and informed the judge that DeJesus could identify Del Pilar. (Tr. 1459-61.)

Del Pilar's counsel argued that DeJesus had a suggestive opportunity to see Del Pilar sitting in the courtroom. (Tr. 1461-63.) The judge responded that "[t]he fact a spontaneous occurrence has given rise to a recognition even though the courtroom setting has inherent suggestiveness to it that suggestiveness can be made apparent to the jury and it is a matter that goes to the weight of not admissibility of this testimony, it is important testimony." (Tr. 1471-72.) Outside the jury's presence, the court held a hearing to "inquire as to . . . this witness's comments and identification." (Tr. 1472.) Terry was called to the stand to describe what occurred during the break. (Tr. 1473.)

Terry testified that DeJesus said to her, "that's the guy, I recognize his face, that's the guy that killed" Cruz. (Terry: Tr. 1477.) Terry told DeJesus to "tell Karen," i.e., the ADA. (Terry: Tr. 1477, 1482.) When questioned by Del Pilar's counsel, Terry stated that after this she saw DeJesus speaking to the ADA but "walked out" and "can't share the extent of that conversation." (Terry: Tr. 1478.) Del Pilar's counsel asked Terry if she witnessed any communication between the ADA and DeJesus. (Terry: Tr. 1479.) The ADA's objection was sustained. (Tr. 1479.) The judge questioned the ADA about the substance of her conversation with DeJesus. (Tr. 1485-89.)

DeJesus resumed testifying in the presence of the jury and testified that she recognized Del Pilar as the man she had seen outside her window in the early morning hours of August 26, 1998. (DeJesus: Tr. 1493.) She stated that the reason she did not tell Detective Larracuente she could make an identification was because she "was scared." (DeJesus: Tr. 1495, 1499.) Alleged Hearsay Evidence

During direct examination, DeJesus was asked, "Do you remember [Valentin] saying anything about not knowing who the person was on the other side of the door?" (DeJesus: Tr. 1427.) DeJesus replied, "I heard she [Valentin] said it was Willie's [Maisonet's] cousin," i.e., Del Pilar. (DeJesus: Tr. 1427.) Del Pilar's counsel objected and moved to strike, which the judge denied. (DeJesus: Tr. 1427.) Outside the jury's presence, the judge explained that the application was denied because counsel had not objected before the answer. (Tr. 1447-48.) Del Pilar's counsel argued that DeJesus was asked if anything was said, not what was said. (Tr. 1447.) Counsel also stated that no time frame was put on the question, leading to the inference that on the night of the incident Valentin had said it was "Willie's [Maisonet's] cousin." (Tr. 1445-47.) A mistrial was requested. (Tr. 1451.) The judge stated that the answer was responsive and that because there was no objection before the answer, the motion to strike and the motion for a mistrial were denied. (Tr. 1453-54.)

At the start of the next day, the judge stated that he had "reviewed the transcript and decided that the evidence is more problematic than [he] had previously envisioned, and for that reason, notwithstanding the late objection, [he] will grant the motion to strike." (Tr. 1665.) The judge offered to the A.D.A. for comment a requested instruction submitted by Del Pilar's counsel. (Tr. 1665.) The request stated, "You heard Vilma DeJesus testify that at some unspecified point in time Velmarie Valentin . . . said Willie's [Maisonet's] cousin. That evidence is stricken. You are not to consider that evidence at all and you are not to speculate on the reasons that it is stricken." (Tr. 1665.) After the A.D.A. informed the judge that she had no comment (Tr. 1665), the judge gave the instruction to the jury (Tr. 1669-70). Evidence of Maisonet's Motive

At trial, Valentin recalled Maisonet saying, "You're letting him abuse my son and what you think, he told me so many things." (Valentin: Tr. 560.) Even though it was brought up on direct, when Maisonet's counsel asked Valentin if Maisonet and Cruz spoke about spanking their son, the prosecutor's objection was sustained. (Valentin: Tr. 595.) Maisonet's counsel said he was trying to show that Cruz was actually the aggressor in the situation. (Tr. 597.) The judge would not allow the evidence, explaining that it would only be relevant if Maisonet were seeking a justification defense. (Tr. 597.) Both Del Pilar's and Maisonet's counsel tried to convince the judge that evidence of whether Valentin allowed her child to be beaten by Cruz goes to her credibility as a witness. (Tr. 598-603.) Del Pilar's counsel also tried to show that while Maisonet may have had a motive to kill Cruz, Del Pilar had no such motive:

[DEL PILAR'S COUNSEL]: Then my position would representing Del Pilar I should be in a position to emphasis where Maisonet may have had a motive to kill this guy that my client had no such motive. And to do so by talking about what Maisonet was accusing the boyfriend of doing, whether there was any evidence that that was happening to establish that Maisont may have had a motive, but then to emphasize that my guy talked to this kid for ten minutes a year and-a-half before in the living room and therefore had no such motive.

THE COURT: Everything that you said and everything that Ms. Calvacca [counsel for co-defendant Maisonet] has said in order to raise this issue presume an acknowledgment that you are — that your client's are the actor's. Once that is conceded and you are seeking some other basis of an excuse or some clarification as to why that motivated them then you are free to do that. But you have not conceded that. You have not sought justification. You have not sought extreme emotional disturbance, and I adhere to my ruling. This is irrelevant.

[DEL PILAR'S COUNSEL]: It is my proving that somebody else had a motive that my client did not have a motive.

THE COURT: Not through this witness. If that is going to be your position perhaps you can raise it, but not in this fashion.

(Tr. 607-08.) After this discussion, the prosecutor asked Valentin on redirect what Maisonet had said to her on the phone after Cruz was killed. (Valentin: Tr. 696-97.) Valentin answered, "[Maisonet] was saying that why was I letting David [Cruz] abusing my son." (Valentin: Tr. 697.) During summation, Del Pilar's counsel stated that there was "[n]o evidence in this case that these guys [petitioner Del Pilar and Maisonet] are so close that [if] Maisonet had a motive to kill somebody, [then] my client [i.e., Del Pilar] will be the executioner." (Tr. 1730.)

Verdict and Sentence

The jury found Del Pilar (and Maisonet) guilty of second degree murder and second degree criminal possession of a weapon. (Verdict: Tr. 1930-33.)

On December 18, 2000, the judge sentenced Del Pilar to concurrent terms of twenty-two years to life and seven and a half to fifteen years. (Tr. 7.)

Del Pilar's Direct Appeal

Del Pilar appealed to the First Department, claiming that the trial court erred: (1) by allowing DeJesus to be recalled in order to identify Del Pilar after she had met with the prosecutor during a lunch recess (Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 1: Del Pilar 1st Dep't Br. at 29-36); (2) when it did not allow Del Pilar's counsel, during a mid-trial hearing, to question Terry as to what conversation she heard between the prosecutor and DeJesus (id. at 36-40); (3) in precluding evidence to show that only co-defendant Maisonet had the motive to commit the crime (id. at 41); and (4) in denying Del Pilar's initial motion to strike DeJesus' hearsay statement and later granting the motion at the end of trial (id. at 41-42).

On April 18, 2002, the First Department affirmed Del Pilar's conviction, holding:

The court properly exercised its discretion in permitting the prosecutor to reopen direct examination of a witness after cross-examination had commenced, as the result of a witness-initiated conference between the witness and the prosecutor that had occurred during a recess. . . . [A]lthough midtestimony conferences with witnesses are disfavored, the truth-seeking function of the trial was promoted rather than impaired, by permitting the witness to make an in-court identification. The court adequately safeguarded defendant's right to a fair trial by barring the prosecution from introducing any details about why the witness changed her story other than generalized testimony that she was frightened, permitting defendant to cross-examine the witness about her conversation with the prosecutor and about her change in testimony, and allowing defendant to argue in summation that improper coaching might have caused the change in testimony. Since the circumstances were fully explained to the jury by way of direct and cross-examination of the witness, we reject defendant's argument that there should have been further explanation by the court.

The record reveals that defendant received a sufficient opportunity to introduce evidence regarding the codefendant's motive for killing the victim, and defendant could not have been prejudiced by any restrictions imposed by the court. The motive evidence was not particularly exculpatory of defendant in the first place. Although defendant claims that this evidence tended to show that the codefendant had a homicidal motive not shared by defendant, the evidence cut both ways in that it also tended to establish a motive for defendant to assist the codefendant, his very close friend, in killing the victim. In any event, were we to find any error in the court's restriction on the introduction of this evidence, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt in this multiwitness case.

The court properly exercised its discretion in denying defendant's mistrial motion based on the introduction of hearsay testimony. The court ultimately struck the testimony with thorough curative instructions, which were based in part upon language requested by defendant and which were never claimed by defendant to be inadequate. These instructions, which the jury is presumed to have followed, were sufficient to prevent any prejudice.

We have considered and rejected defendant's remaining claims. People v. Delpilar, 293 A.D.2d 365, 365-66, 742 N.Y.S.2d 200, 201-02 (1st Dep't 2002) (citations omitted).

The Court of Appeals denied leave to appeal on July 12, 2002.People v. Delpilar, 98 N.Y.2d 696, 747 N.Y.S.2d 414 (2002).

Del Pilar's Federal Habeas Petition

Del Pilar's federal habeas corpus petition alleges that the trial court erred: (1) by allowing DeJesus to be recalled in order to identify Del Pilar after she had met with the prosecutor during a lunch recess (Dkt. No. 2: Pet. ¶ 9, Att., Point I; see page 1 n. 1 above); (2) when it did not allow Del Pilar's trial counsel, during a mid-trial hearing, to question Terry as to what conversation she heard between the prosecutor and DeJesus (Pet. ¶ 9, Point II); (3) in precluding evidence to show that only co-defendant Maisonet had the motive to commit the crime (Pet. ¶ 12(a)); and (4) in denying Del Pilar's initial motion to strike DeJesus' hearsay statement and later granting the motion at the end of trial (Pet. ¶ 9, Point IV).

ANALYSIS

I. THE AEDPA REVIEW STANDARD ⁶

6 For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Peakes v.Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *8-10 (S.D.N.Y. June 16, 2004) (Peck, M.J.); Brown v. Fischer, 03 Civ. 9818, 2004 WL 1171277 at *4-6 (S.D.N.Y. May 27, 2004) (Peck, M.J.);Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *10-13 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *22-24 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *8-10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *14-16 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *15-17 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *12-14 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.);Wilder v. Herbert, 03 Civ. 0397, 2003 WL 22219929 at *4-6 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *14 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 *11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v.Miller, 01 Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (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.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v.Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v.Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, 368 F.3d 179 (2d Cir. 2004); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 537 U.S. 1245, 123 S.Ct. 1353 (2003);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (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, 538 U.S. 978, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Del Pilar 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).⁷

7 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 1519.⁸ 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 1523.⁹ "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.

8 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 So. Ct. 865 (2001).

9 Accord, e.g., Yarborough v. Alvarado, 124 S.Ct. 2140, 2147 (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, 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 1519-20.¹⁰

10 Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848, 1853 (2003); Lockyer v. Andrade, 538 U.S. at 73, 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 So. Ct. at 1523.¹¹ 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. ¹² 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 1521.¹³ "Objectively unreasonable" is different from "clear error." Lockyer v.Andrade, 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 (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).¹⁴ "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v.Alvarado, 124 S.Ct. at 2149.¹⁵

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

12 See also, e.g., Yarborough v. Alvarado, 124 S.Ct. at 2150; Wiggins v. Smith, 123 S.Ct. at 2535; Price v.Vincent, 538 U.S. at 641, 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.'") (quotingWoodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockyer v. Andrade, 538 U.S. at 75-76, 123 So. 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.").

13 Accord, e.g., Yarborough v. Alvarado, 124 S.Ct. at 2150; Wiggins v. Smith, 123 S.Ct. at 2535; Price v.Vincent, 538 U.S. at 641, 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.

14 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.

15 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 45.¹⁶

16 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. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.); 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.").¹⁷ "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).¹⁸ 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.

17 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.

18 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)).

Del Pilar's claims were decided on the merits by the First Department (see page 13 above), and thus AEDPA deference applies.

II. DEL PILAR'S CLAIMS CONCERNING THE DELAYED STRIKING OF HEARSAY TESTIMONY AND EXCLUSION OF A VIDEOTAPE FROM EVIDENCE ARE UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED FROM HABEAS REVIEW ¹⁹

19 For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language substantially similar to that in this entire section of this Report Recommendation, see Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *16-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *6-9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *30-32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *6-8 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Jamison v.Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. July 12, 2001) (Peck, M.J.);Bailey v. People of State of New York, 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Bryant v.Bennett, 00 Civ. 5692, 2001 WL 286776 at *7-9 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v.Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.). aff'd, 303 F.3d 411 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003); Foreman v.Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v.Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).

Del Pilar's habeas petition alleges that the trial court erred in belatedly striking hearsay testimony by DeJesus and by refusing to admit into evidence a videotape which Del Pilar claimed would establish that co-defendant Maisonet had a motive to commit the crime. (See page 14 above; see also Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 1: Del Pilar 1st Dep't Br. at 41-42; Del Pilar Br. at 28.) The State contends that these claims are unexhausted but deemed exhausted and forfeited since Del Pilar can no longer raise them in state court. (Dkt. No. 6: State Br. at 22, 31.)

Section 2254 codifies the exhaustion requirement, providing that "[a]n 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 unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A).²⁰ As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S.Ct. at 1732.

20 See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 So. Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990);Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc).

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.

Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v.Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845-48, 119 S.Ct. at 1732-34.

"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v.Attorney Gen., 696 F.2d at 191.²¹ The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue.E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. InDaye, the Second Circuit en banc stated:

21 Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.), cert. denied, 124 S.Ct. 804 (2003); Cox v.Miller, 296 F.3d 89, 99 (2d Cir. 2002), cert. denied, 537 U.S. 1192, 123 S.Ct. 1273 (2003); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye v. Attorney Gen., 696 F.2d at 194.²²

22 Accord, e.g., Cox v. Miller, 296 F.3d at 99;Ramirez v. Attorney Gen., 280 F.3d 87, 95 (2d Cir. 2001);Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v.Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v.Coombe, 735 F.2d at 688.

Here, Del Pilar's claims under discussion were not properly raised in his direct appeal to the First Department. (See pages 12-13 above.) The claim regarding wrongful preclusion of the videotape was not raised before the First Department but rather was raised for the first time in Del Pilar's habeas petition. (Del Pilar Br. at 28.) In Del Pilar's appeal to the First Department and to the Court of Appeals, he cites only the trial court's error in refusing to allow the motive evidence into court through the testimony of Valmarie Valentin. (Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 1: Del Pilar Br. at 41; A.D.A. Blira-Koessler Aff. Ex. 3: 5/15/02 Letter to Court of Appeals.) Since Del Pilar never made reference to the videotape, the state courts were not properly alerted to the claim in any terms, let alone federal terms.

In addition, Del Pilar's claim concerning the hearsay statement did not fairly present any federal constitutional issue. He cited no federal cases nor state cases employing constitutional analysis. (See Del Pilar 1st Dep't Br. at 41.) Del Pilar claimed that in denying the mistrial motion based on the introduction of hearsay evidence, "the court improperly exercised its discretion." (A.D.A. Blira-Koessler Aff. Ex. 3: 5/14/02 Letter to Court of Appeals.) Del Pilar's arguments on his state appeal did not assert claims so particular as to call to mind a specific right protected by the Constitution, nor did they set forth a pattern of facts within the mainstream of constitutional litigation. (See cases cited on pages 24-25 above.) Thus, Del Pilar's claims are unexhausted.

"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))).²³ "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., McKethan v.Mantello, 292 F.3d at 122-23; Ramirez v. Attorney Gen., 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v.James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.

23 Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"); Ramirez v. Attorney Gen., 280 F.3d at 94;Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.").

In this case, it is clear that Del Pilar is now barred from raising these claims in federal terms in state court because they could have been raised on direct appeal, but were not.²⁴ As the Second Circuit explained in Washington v. James:

24 New York C.P.L. § 440.10(2)(c) states, in pertinent part:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:

. . . .

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .

Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.

. . . .

As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted. 996 F.2d at 1446-47.²⁵

25 See also, e.g., Jones v. Keane, 329 F.3d at 296 ("[Petitioner] has procedurally defaulted his vagueness claim since New York's procedural rules now bar [petitioner] from raising it in New York courts. Further direct review by the Court of Appeals is no longer available. . . ."); Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added).

To avoid such a procedural default, Del Pilar would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claims will result in a 'fundamental miscarriage of justice,"'i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043 (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 So. Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d at 415;Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v.Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).²⁶

26 See also, e.g., Bailey v. People of State of New York, 2001 WL 640803 at *8; Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3 (S.D.N.Y. July 5, 2000); Bond v. Walker, 68 F. Supp.2d 287, 297 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.), adhered to on reconsideration, 97 Civ. 3026, 2000 WL 460592 (S.D.N.Y. Apr. 19, 2000), aff'd, No. 00-2274, 242 F.3d 364 (table), 2000 WL 1804557 (2d Cir. Dec. 7, 2000); Avincola v. Stinson, 60 F. Supp.2d 133, 149 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.);Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Farrington v.Senkowski, 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998), aff'd, 214 F.3d 237 (2d Cir. 2000); Gibriano v. Attorney Gen., 965 F. Supp. at 492 n. 5; Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v.Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).

Here, Del Pilar has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of these claims is procedurally barred.²⁷ III. DEL PILAR'S CLAIM THAT THE TRIAL COURT ERRED IN ALLOWING A WITNESS TO RETAKE THE STAND AFTER A CONFERENCE WITH THE PROSECUTOR DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings ²⁸

27 In any event, the hearsay claim is particularly frivolous. The trial judge initially declined to strike the answer but the next day did so and gave the jury the instruction requested by Del Pilar's counsel, who did not renew his alternative mistrial motion. Any claim that waiting a day somehow prejudiced Del Pilar is purely speculative. A jury is presumed to follow the court's instructions. See, e.g., Greer v. Miller, 483 U.S. 756, 767 n. 8, 107 S.Ct. 3102, 3109 n. 8 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence . . ., unless there is an 'overwhelming probability' that the jury will be unable to follow the court's instructions."); Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709 (1987) ("juries are presumed to follow their instructions"); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S.Ct. 488, 463 (1962) (When a limiting instruction is clear, "[i]t must be presumed that the jury conscientiously observed it."); United States v. Linwood, 142 F.3d 418, 426 (7th Cir.) ("Juries may not be familiar with the hearsay rule, but the law assumes that they can and do follow the limiting instructions issued to them."), cert. denied, 525 U.S. 897, 119 S.Ct. 224 (1998); Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.) (the court "assume[s] that a jury applies the instructions it is given"), cert. denied, 519 U.S. 834, 117 So. Ct. 106 (1996); United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *18 n. 29 (S.D.N.Y. June 16, 2004) (Peck, M.J.);Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *31 n. 26 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (citing cases).

28 For additional cases authored 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 Recommendation, see Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *10-11 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.);McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *19-21 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Green v.Herbert, 01 Civ. 11881, 2002 WL 1587133 at *12-13 (S.D.N.Y. July 18, 2002) (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.'").²⁹ 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).³⁰

29 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.).

30 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.³¹ 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).³²

31 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).

32 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 purelystate evidentiary errors not cognizable in the federal system.³³ Here, Del Pilar claims that allowing DeJesus to retake the stand and make an identification constituted legal error and resulted in an improper conviction. (Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 1: Del Pilar 1st Dep't Br. at 29-35.) Del Pilar does not cite any Constitutional rights that were violated by the trial court's evidentiary ruling. (Id.)

33 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).
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).³⁴ The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'"³⁵ "'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).³⁶

34 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 So. 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. . . .").

35 "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).

36 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 276.³⁷

37 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 Del Pilar 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 Del Pilar's Claim That the Trial Court Erred in Allowing the Witness to Retake the Stand

In his brief to the First Department, Del Pilar asserted that:

The truth seeking function of a trial is best served by requiring the witness to undergo direct examination and cross examination without being interrupted for counseling. See Perry v. Leeke, 488 U.S. 272, 282, 109 S.Ct. 594, 600, 102 L.Ed.2d 6, 12 (1989). The decision of a trial court to grant a recess and allow a conference to occur between a lawyer and a testifying witness "falls within the broad discretion allowed a trial court in its management of trial." See People v. Branch, 83 N.Y.2d 663, 667, 634 N.E.2d 966, 968, 612 N.Y.S.2d 365, 367 (1994).

(Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 1: Del Pilar 1st Dep't Br. at 30.) Del Pilar argued that the trial judge abused his discretion because he did not employ the safeguards that were utilized in Branch. (Del Pilar 1st Dep't Br. at 31-36.)

In Perry v. Leeke, the United States Supreme Court held that it did not violate a criminal defendant's Sixth Amendment right to counsel to prohibit the defendant from consulting with counsel during a short recess in his trial testimony. Perry v.Leeke, 488 U.S. at 280-85, 109 S.Ct. at 600-02. The Supreme Court in Perry emphasized that while it was upholding the trial judge's direction to the defendant not to talk to counsel during a short recess in the case on appeal, in future cases a trial judge could prohibit or allow a defendant to speak with counsel during a short recess:

Our conclusion does not mean that trial judges must forbid consultation between a defendant and his counsel during such brief recesses. As a matter of discretion in individual cases, or of practice for individual trial judges, or indeed, as a matter of law in some States, it may well be appropriate to permit such consultation. We merely hold that the Federal Constitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in progress if the judge decides that there is a good reason to interrupt the trial for a few minutes.

Perry v. Leeke, 488 U.S. at 284-85, 109 S.Ct. at 602 (fn. omitted).

In People v. Branch, the New York Court of Appeals citedPerry v. Leeke for the proposition that "the truth-seeking function of a trial will most often be best served by requiring that the witness undergo direct questioning and cross-examination without interruption for counseling," but it noted (again citingPerry) that "the Supreme Court and [the New York Court of Appeals] have been careful to note that trial courts may allow such conferences as a matter of discretion." People v.Branch, 83 N.Y.2d at 666, 612 N.Y.S.2d at 366-67 (emphasis in original).³⁸ While noting the safeguards that the trial judge had employed, the Court of Appeals' holding emphasized trial judge's broad discretion:

38 The New York Court of Appeals stated that while thePerry line of cases involved testifying defendants, there was "no reason why the rules articulated in those cases should not apply generally to other witnesses, including the prosecution witness here." People v. Branch, 83 N.Y.2d at 666-67, 612 N.Y.S.2d at 367.

Though a trial court's discretion is not boundless, these decisions, like Perry v. Leeke . . ., underscore the wisdom of leaving trial courts with broad discretion to determine when a conference is called for and when it is not. A midtestimony conference may be a strategic maneuver designed to frustrate the other side's case, or it may be an important step toward making sure a flustered witness does not inadvertently misstate the facts. The trial court is in the best position to distinguish between the two. Its ruling necessarily turns on judgments we, as an appellate court, cannot easily make from a cold record: the apparent condition of the witness, the possible motivation of the attorney, the likelihood of undue delay, and the probability that cross-examination will be an adequate remedy. To unduly limit a trial court's discretionary power in matters concerning trial management increases the likelihood that rigid rules will replace common sense and that the truth-seeking function of a trial will be impaired not advanced.

People v. Branch, 83 N.Y.2d at 669, 612 N.Y.S.2d at 368.

In Del Pilar's case, the recess conference was initiated by the witness, not by the prosecutor. (See page 8 above.) When the prosecutor informed the judge that she had learned that DeJesus could identify Del Pilar, the judge conducted a hearing to determine whether this information was admissible. (See page 9 above.) Both Lera Terry, the crime victim counselor originally approached by DeJesus during the recess, and the Assistant District Attorney were questioned regarding the conversation that took place. (See page 9 above.) The trial judge decided that the identification testimony was admissible and allowed the prosecutor to question DeJesus about it in the presence of the jury. (See page 9 above.)

The First Department affirmed, holding:

The court properly exercised its discretion in permitting the prosecutor to reopen direct examination of a witness after cross-examination had commenced, as the result of a witness-initiated conference between the witness and the prosecutor that had occurred during a recess. The court conducted a hearing, outside the presence of the jury, in which it was established that the witness had originally been too frightened to identify defendant but had become willing to do so. She had not been asked to make an in-court identification during her original direct examination because at that time the prosecutor did not know that the witness had the ability to do so. Accordingly, although midtestimony conferences with witnesses are disfavored, the truth-seeking function of the trial was promoted, rather than impaired, by permitting the witness to make an in-court identification. The court adequately safeguarded defendant's right to a fair trial by barring the prosecution from introducing any details about why the witness changed her story other than generalized testimony that she was frightened, permitting defendant to cross-examine the witness about her conversation with the prosecutor and about her change in testimony, and allowing defendant to argue in summation that improper coaching might have caused the change in testimony. Since the circumstances were fully explained to the jury by way of direct and cross-examination of the witness, we reject defendant's argument that there should have been further explanation by the court.

People v. Del Pilar, 293 A.D.2d 365, 365-66, 742 N.Y.S.2d 200, 201-02 (1st Dep't 2002) (citations omitted).

This Court agrees. The jury heard both DeJesus' prior statements that she could not identify the person at the door on the night of the shooting and her subsequent testimony that Del Pilar was that person. (See pages 8-9 above.) Defense counsel was given the opportunity to cross-examine DeJesus about her meeting with the prosecutor and the change in testimony. (See page 9 above.) DeJesus informed the jury that the first time she indicated to anyone that she recognized Del Pilar was in court and that she had a conversation with Terry during the break. (DeJesus: Tr. 1491-94.)

The trial judge's decision to allow DeJesus' identification testimony after the recess conference between the Assistant District Attorney and DeJesus was within the judge's discretion. Federal cases, under the appellate courts' supervisory powers, recognize such discretion. See, e.g., United States v.Malik, 800 F.2d 143, 149 (7th Cir. 1986) ("We view it as a matter of the court's sound discretion depending upon the particular circumstances in the case" whether to forbid prosecutorial discussion with a witness during a recess in the witness's trial testimony.); United States v. Loyd, 743 F.2d 1555, 1564 (11th Cir. 1984) ("The decision whether to allow a prosecutor to 'work with' a witness is within the discretion of the trial court and will not be reviewed absent an abuse of that discretion. . . . A showing of prejudice is necessary for the court to find an abuse of discretion."); United States v.Burke, 495 F.2d 1226, 1233 (5th Cir.) (defense counsel was unable to show prejudice resulting from a two hour conference between prosecutor and witness in order to prepare for cross-examination. "Thus, we cannot say the district court abused its discretion in allowing it."), cert. denied, 419 U.S. 1079, 95 S.Ct. 667 (1974). Under New York law as well, a trial court is permitted to allow witnesses to confer with the prosecutor during a recess as a matter of discretion. See, e.g., People v. Branch, 83 N.Y.2d at 666, 612 N.Y.S.2d at 366-67; People v. Nayyar, 3 A.D.3d 387, 388, 772 N.Y.S.2d 1, 1 (1st Dep't 2004) ("The court properly exercised its discretion in permitting the prosecutor and the five-year-old victim's foster mother to have a private conversation with the victim in the middle of her testimony."); People v. Cox, 297 A.D.2d 589, 589, 747 N.Y.S.2d 178, 179 (1st Dep't 2002) (court properly exercised its discretion in permitting prosecutor to confer with witness "with appropriate safeguards" after witness gave unexpected and damaging responses); see also, e.g., People v. Guiterrez, 270 A.D.2d 184, 184, 707 N.Y.S.2d 7, 8 (1st Dep't 2000) (court properly exercised its discretion in allowing complainant to be recalled in order to make an in-court identification); People v. Young, 266 A.D.2d 93, 94, 698 N.Y.S.2d 643, 645 (1st Dep't 1999) (court properly exercised its discretion in permitting witness to be recalled to the stand in order to state that fear of an unknown spectator resulted in her conflicting testimony).

Even assuming arguendo that the trial court's ruling was erroneous as a matter of state law, Del Pilar has failed to show how DeJesus' post-recess identification testimony deprived him of a fundamentally fair trial in light of all the other evidence against him, and he has failed to show that the state court's ruling constituted an objectively unreasonable application of theAgurs standard. See cases cited on pages 32-34 above; see also, e.g., United States v. Bautista, 23 F.3d 726, 731 (2d Cir.) ("While the contact [by the prosecutor with a government witness during a recess] may well have been improper, it did not rise to the level of a constitutional violation or a violation that would in some way cause us to exercise our supervisory powers."),cert. denied, 513 U.S. 862, 115 S.Ct. 174 (1994); United States v. De Jongh, 937 F.2d 1, 3 (1st Cir. 1991) (Where the defense, the court, and the jury were informed of the prosecutor's recess meeting with a witness in enough time to assess the effect on the testifying witness' credibility, "[t]he appellant has not shown any actual prejudice."); People v.Giap, 273 A.D.2d 54, 55, 709 N.Y.S.2d 62, 63 (1st Dep't 2000) ("The conference [between prosecutor and a witness during a recess] did not impair the truth-seeking function of the trial or cause any prejudice to defendant, who was able to exploit this incident fully on resumed cross-examination.").

In short, this Court cannot say that the trial court's and First Department's rulings as to DeJesus' identification testimony after she approached the prosecutor during a recess were incorrect; certainly, the rulings were not an objectively unreasonable application of the Supreme Court's Perry v.Leeke decision or the Agurs fair trial standard. Accordingly, Del Pilar's habeas claim about DeJesus' identification testimony should be denied.

IV. THE TRIAL JUDGE'S RESTRICTION ON CROSS EXAMINATION OF TERRY DURING A HEARING DID NOT VIOLATE DEL PILAR'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES

The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Crawford v. Washington, 124 S.Ct. 1354, 1359 (2004); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068 (1965).³⁹ The primary purpose of the Confrontation Clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. E.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S.Ct. at 1076-77;see, e.g., Crawford v. Washington, 124 S.Ct. at 1373-69.⁴⁰

39 See also, e.g., Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *14 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.),report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *31 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *9 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *29 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411 (2d Cir. 2002),cert. denied, 123 S.Ct. 1353 (2003); Avincola v. Stinson, 60 F. Supp.2d 133, 153 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.).

40 See also, e.g., Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir. 2003); Ryan v. Miller, 303 F.3d 231, 247 (2d Cir. 2002); Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir. 1991);Hernandez v. Filion, 2004 WL 286107 at *14; Skinner v.Duncan, 2003 WL 21386032 at *31; Aramas v. Donnelly, 2002 WL 31307929 at *11; James v. People, 2001 WL 706044 at *9;Mendez v. Artuz, 2000 WL 722613 at *29; Avincola v.Stinson, 60 F. Supp.2d at 153.

The right to cross-examination, however, is not unlimited:

As long as a defendant's right to confront the witnesses against him is not violated, limitations on cross-examination are not grounds for reversal. . . . Cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a "discriminating appraisal" of the particular witness's credibility.

United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397 (1991).⁴¹ "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986).⁴²

41 Accord, e.g., United States v. Crowley, 318 F.3d 401, 417-18 (2d Cir. 2003), cert. denied, 124 S.Ct. 239 (2003); United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999), cert. denied, 529 U.S. 1108, 120 S.Ct. 1961 (2000);United States v. Laljie, 184 F.3d 180, 192 (2d Cir. 1999);United States v. Sasso, 59 F.3d 341, 347 (2d Cir. 1995);United States v. Rosa, 11 F.3d 315, 335-36 (2d Cir. 1993),cert. denied, 511 U.S. 1042, 114 S.Ct. 1565 (1994); United States v. Singh, 628 F.2d 758, 763 (2d Cir.) ("In determining whether a trial judge has abused his discretion in the curtailment of cross-examination of government witnesses, the test is whether the jury was already in possession of sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely in favor of the government."), cert. denied, 449 U.S. 1034, 101 S.Ct. 609 (1980); Hernandez v. Filion, 2004 WL 286107 at *14; Rosario v. Attorney Gen., 00 Civ. 6681, 2001 WL 267641 at *9 (S.D.N.Y. Mar. 19, 2001) (Peck, M.J.), report rec. adopted, 2001 WL 521828 (S.D.N.Y. May 15, 2001); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *16 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Lugo v. Edwards, 97 Civ. 7789, 1998 WL 601080 at *2 (S.D.N.Y. Sept. 9, 1998); United States v. Millan-Colon, 836 F. Supp. 1007, 1012 (S.D.N.Y. 1993).

42 Accord, e.g., Guttman v. Commodity Futures Trading Comm'n, 197 F.3d 33, 38 (2d Cir. 1999); United States v.Laljie, 184 F.3d at 192; Henry v. Speckard, 22 F.3d 1209, 1214 (2d Cir.), cert. denied, 513 U.S. 1029, 115 S.Ct. 606 (1994); Harper v. Kelly, 916 F.2d 54, 57 (2d Cir. 1990),cert. denied, 499 U.S. 943, 111 S.Ct. 1403 (1991); Hernandez v. Filion, 2004 WL 286107 at *14; Munoz v. Barkley, 02 Civ. 8075, 2003 WL 21373349 at *2 (S.D.N.Y. June 12, 2003); Rosario v. Attorney Gen., 2001 WL 267641 at *9; Nieves v. Smith, 96 Civ. 3650, 1997 WL 289730 at *2 (S.D.N.Y. May 30, 1997); Dukes v. McGinnis, 2000 WL 382059 at *16; Laboy v. Demskie, 947 F. Supp. 733, 740 (S.D.N.Y. 1996), aff'd, 141 F.3d 1151 (2d Cir. 1998); Bell v. Coughlin, 778 F. Supp. 164, 174 (S.D.N.Y. 1991).

The Confrontation Clause "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 21, 106 So. Ct. 292, 294 (1985).⁴³

43 Accord, e.g., United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842 (1988); Pennsylvania v.Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 999 (1987);Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664 (1987); United States v. Brooks, 82 F.3d at 54; Hernandez v. Filion, 2004 WL 286107 at *14; Rosario v. Attorney Gen., 2001 WL 267641 at *9; Dukes v. McGinnis, 2000 WL 382059 at *16; Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *16 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Mercado v. Stinson, 37 F. Supp.2d at 276 n. 5;Lee v. Harris, 91 Civ. 6716, 1992 WL 247037 at * 3 (S.D.N.Y. Sept. 16, 1992).

In this case, Lera Terry was cross-examined by defense counsel during a hearing in order to ascertain "the circumstances surrounding [DeJesus'] comments and identification" and to "determine whether the events as described by [the prosecutor] occurred." (Tr. 1472, 1474.) Terry testified, out of the presence of the jury, that she was approached by DeJesus during a recess and that she recommended DeJesus speak with the prosecutor. (See page 9 above.) Terry said she was not present during the conversation between DeJesus and the prosecutor:

THE COURT: Did you see [DeJesus] then talk to Karen [the A.D.A.]?

THE WITNESS: After, in the hallway? I saw the witness talk to Karen at lunch time when I told her to tell, but I walked out. I can't share the extent of that conversation.

. . . .

Q. Did you escort [DeJesus] upstairs to the office?

A. No, I did not escort her to the office upstairs. Karen, ADA Yaremko, and the witness and the police officer all went upstairs together. I think he may have been upstairs already.

Q. In other words, you did not witness any communication between Miss Yaremko and the witness, is that what you're saying?

[ASSISTANT DISTRICT ATTORNEY]: Object.

THE COURT: Objection sustained. Irrelevant.

(Tr. 1478-79, emphasis added.) Del Pilar points to this sustained objection in arguing that the court impermissibly violated his right to confront witnesses by limiting his cross examination of Terry at the hearing. (Dkt. No. 6: A.D.A. Blira-Koessler Aff. Ex. 1: Del Pilar 1st Dep't Br. at 38.)

Del Pilar's right to confront witnesses was not violated by the judge's limitation of the cross examination. Terry stated that she did not hear the conversation between the A.D.A. and DeJesus the first time that she was asked the question. (Tr. 1478, quoted above.) Any limitation on cross-examination thereafter — in essence, preventing repetitive questioning at a hearing outside the jury's presence — was within the trial judge's discretion.See, e.g., United States v. Flaharty, 295 F.3d 182, 190 (2d Cir.) ("The trial court has wide discretion to impose limitations on the cross-examination of witnesses."), cert. denied, 537 U.S. 936, 123 S.Ct. 37 (2002); United States v.Griffith, 284 F.3d 338, 352 (2d Cir.) ("District courts are afforded wide discretion to impose limitations on the cross-examination of witnesses."), cert. denied, 537 U.S. 986, 123 S.Ct. 461 (2002); Lombard v. Mazzuca, No. 00 CV 74622, 2003 WL 22900918 at *8 (E.D.N.Y. Dec. 8, 2003) ("The Confrontation Clause does not prohibit a trial judge from imposing reasonable limits on a defense attorney's cross of a government witness.); Rosario v. Attorney Gen., 2001 WL 267641 at *10; Mendez v. Artuz, 2000 WL 722613 at *31-32;Dukes v. McGinnis, 2000 WL 382059 at *16-17 Beverly v.Walker, 899 F. Supp. 900, 912-13 (N.D.N.Y. 1995), aff'd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 211 (1997).

Even if the Court were to assume, arguendo, that the limitation on the defense's cross-examination of Terry at a hearing outside the jury's presence was erroneous, however, any such error clearly was harmless.

It is settled law that "violations of the confrontation clause may, in an appropriate case, be declared harmless" error. Klein v. Harris, 667 F.2d 274, 290 (2d Cir. 1981), overruled on other grounds by Daye v. Attorney Gen., 696 F.2d 186, 195 (2d Cir. 1982); see, e.g., Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438 (harmless error applies to Confrontation Clause issue); Carracedo v. Artuz, No. 02-2569, 81 Fed. Appx. 741, 744, 2003 WL 22055115 at *3 (2d Cir. Sept. 4, 2003); Cotto v. Herbert, 331 F.3d at 253-54; Khan v.Portuondo, No. 97-2942, 1 Fed. Appx. 16, 17-18, 2001 WL 11048 at *1-2 (2d Cir. Jan. 4, 2001), cert. denied, 533 U.S. 904, 121 S.Ct. 2247 (2001).⁴⁴

44 See also, e.g., Yarborough v. Keane, 101 F.3d 894, 896 (2d Cir. 1996) (citing Arizona v. Fulminante, 499 U.S. 279, 307, 111 S.Ct. 1246, 1263 (1991)), cert. denied, 520 U.S. 1217, 117 S.Ct. 1706 (1997); United States v. Aulicino, 44 F.3d 1102, 1109 (2d Cir. 1995); Samuels v. Mann, 13 F.3d 522, 526-27 (2d Cir. 1993), cert. denied, 513 U.S. 849, 115 S.Ct. 145 (1994); Tinsley v. Kuhlmann, 973 F.2d 163, 165-66 (2d Cir. 1992) (holding that any violation of defendant's confrontation rights was harmless), cert. denied, 506 U.S. 1081, 113 S.Ct. 1050 (1993); Hernandez v. Filion, 2004 WL 286107 at *15; Aramas v. Donnelly, 2002 WL 31307929 at *17;Mendez v. Artuz, 2000 WL 722613 at *29; Mercado v.Stinson, 37 F. Supp.2d at 277; Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *5 (S.D.N.Y. May 29, 1997) ("Confrontation Clause violations are subject to harmless-error analysis," citing Delaware v. Van Arsdall).
The Second Circuit has not yet determined "which harmless error standard applies to post-AEDPA habeas cases." Ryan v. Miller, 303 F.3d 231, 253-54 (2d Cir. 2002):

Before the enactment of AEDPA, courts applied two different harmless error standards. For cases on direct appeal, courts applied the Chapman standard, holding an error was harmless if it was "harmless beyond a reasonable doubt," meaning that the reviewing court found "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). For cases on collateral review, courts applied the more stringent Brecht standard, holding that an error was harmless if it did not result in "actual prejudice," that is, it did not have a "'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

After the enactment of AEDPA, many courts have questioned whether they should continue to apply the pre-AEDPA Brecht standard to cases on collateral review, or whether courts should now apply a mixed AEDPA/Chapman standard, examining "whether the state court's decision was 'contrary to, or involved an unreasonabl[e] application of' Chapman." Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.) (per curiam) (quoting 28 U.S.C. § 2254(d)(1)), cert. denied, 534 U.S. 886, 122 S.Ct. 197 (2001). Post AEDPA Second Circuit cases have declined to rule on this issue, finding instead that the result is the same under either standard.

Ryan v. Miller, 303 F.3d at 254; accord, e.g., Brown v.Keane, 355 F.3d 82, 91 (2d Cir. 2004) (citing cases);Carracedo v. Artuz, 2003 WL 22055115 at *3 n. 3; Ruiz v.Kuhlmann, No. 01-2432, 80 Fed. Appx. 690, 694 n. 6, 2003 WL 22056222 at *4 n. 6 (2d Cir. Sept. 4, 2003); Drake v.Portuondo, 321 F.3d 338, 347 n. 4 (2d Cir. 2003). Because in this case any error was harmless under either standard, the Court need not decide the issue that the Second Circuit has left open.

In conducting a Confrontation Clause harmless error analysis, the Supreme Court and the Second Circuit have set forth the appropriate factors to consider:

In conducting this analysis, we must consider (1) how important the witness' testimony was to the prosecution's case, (2) whether the testimony was cumulative, (3) whether other evidence in the record corroborated or contradicted the witness on relevant matters, (4) whether other cross-examination of the witness was permitted and the extent of it, and (5) what effect the testimony would have on proof of defendant's guilt. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Tinsley v. Kuhlmann, 973 F.2d at 166.⁴⁵ "[T]he weight of the prosecution's case against the defendant is the most significant" factor in determining whether a trial error is harmless. Samuels v. Mann, 13 F.3d at 526, 527 ("In order to find the [Confrontation Clause] error in this case to be harmless, we need not conclude that the evidence against Samuels was overwhelming. Indeed, in Brecht, the Court found the evidence of the petitioner's guilt to be 'if not overwhelming, certainly weighty.'").⁴⁶

45 Accord, e.g., Blount v. Artuz, No. 98-2923, 189 F.3d 460 (table), 1999 WL 710251 at *2 (2d Cir. Sept. 2, 1999);Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994), cert. denied, 514 U.S. 1006, 115 S.Ct. 1319 (1995); Henry v.Speckard, 22 F.3d 1209, 1216 (2d Cir. 1994); Hernandez v.Filion, 2004 WL 286107 at *15-16; Aramas v. Donnelly, 2002 WL 31307929 at *18; Mendez v. Artuz, 2000 WL 722613 at *30;Mercado v. Stinson, 37 F. Supp.2d at 277-78; see also, e.g., Ojeda v. Artuz, 1997 WL 283398 at *5.

46 Accord, e.g., Khan v. Portuondo, 1 Fed. Appx. at 18, 2001 WL 11048 at *2 ("In this Circuit, the weight of the evidence is the most important factor in determining prejudice."); Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir. 1996) ("The most dispositive factor in this [harmless error] analysis is the overall strength of the prosecution's case. . . . The Appellate Division considered the evidence supporting Glenn's conviction 'overwhelming' even without [the] statement, but we need not go that far. It is enough if we believe (as we do) that, [the] statement notwithstanding, Glenn's conviction was based on 'weighty' evidence."), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Latine v. Mann, 25 F.3d at 1167-68; Herandez v. Filion, 2004 WL 286107 at *16; Aramas v. Donnelly, 2002 WL 31307929 at *18.

The evidence against Del Pilar was at least weighty. The jury heard Bendicto Rivera and Valmerie Valentin identify Del Pilar as the man holding a gun outside the apartment door on the night of the incident (see page 8 above), and David Pagan testified that Del Pilar had confessed to him involvement in the murder (see page 7 above). Additionally, defense counsel was able to inquire into the conference between DeJesus and the A.D.A. through the judge's questioning of the Assistant District Attorney. (See page 9 above.) Defense counsel also was permitted to question DeJesus regarding the conference in the presence of the jury, and DeJesus' prior, contradictory statements that she could not make an identification remained on the record for the jury to consider. (See pages 8-9 above.) Thus, even assuming arguendo that the trial judge erred, any error was harmless.

Del Pilar's habeas claim that his Confrontation Clause rights were violated by the limitation on cross-examination of Lera Terry should be denied.

V. DEL PILAR'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE TRIAL COURT'S LIMITATION OF MOTIVE EVIDENCE

Del Pilar argues that the trial judge's refusal to allow him to question Velmarie Valentin about co-defendant Maisonet's motive to murder David Cruz deprived him of his constitutional right to present a defense. (Dkt. No. 2: Pet. ¶ 12(A); Del Pilar Br. at 26-34.)

"Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v.Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049 (1973);accord, e.g., Rosario v. Attorney Gen., 00 Civ. 6681, 2001 WL 267641 at *11 (S.D.N.Y. Mar. 19, 2001) (Peck, M.J.),report rec. adopted, 2001 WL 521828 (S.D.N.Y. May 15, 2001) (Kaplan, D.J.); Gillette v. Greiner, 76 F. Supp.2d 363, 373 (S.D.N.Y. 1999) (Peck, M.J.). "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' . . . [A]n essential component of procedural fairness is an opportunity to be heard."Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47 (1986) (citations omitted); accord, e.g., Christie v. Hollins, 01 Civ. 11605, 2002 WL 1149317 at *19 (S.D.N.Y. May 29, 2002) (Peck, M.J.), report rec. adopted as modified on other grounds, 2003 WL 22299216 (S.D.N.Y. Oct. 7, 2003); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *23 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); Rosario v. Attorney Gen., 2001 WL 267641 at *11; Cruz v. Greiner, 99 Civ. 7939, 1999 WL 1043961 at *32 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Gillette v.Greiner, 76 F. Supp.2d at 373; see, e.g., Chambers v.Mississippi, 410 U.S. at 294, 93 S.Ct. at 1045 ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations."); Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003) (right to present a meaningful defense is a fundamental constitutional right); United States v. Blum, 62 F.3d 63, 67 (2d Cir. 1995) ("the Constitution guarantees criminal defendants the right to present a defense"); Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993), cert. denied, 510 U.S. 1120, 114 So. Ct. 1073 (1994); United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) ("'[T]he right to present a defense is one of the "minimum essentials of a fair trial."'"); Rosario v.Kuhlmann, 839 F.2d 918, 924 (2d Cir. 1988).⁴⁷

47 See also, e.g., Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986); Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110 (1974).

However, "'the right to present relevant testimony is not without limitation.'" Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 1746 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711 (1987)); accord, e.g., Rosario v. Attorney Gen., 2001 WL 267641 at *12. "Restrictions on a defendant's presentation of evidence are constitutional if they serve 'legitimate interests in the criminal trial process,' and are not 'arbitrary or disproportionate to the purposes they are designed to serve.'"United States v. Almonte, 956 F.2d at 30 (quoting Rock v.Arkansas, 483 U.S. at 55-56, 107 S.Ct. at 2711); accord, e.g., United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 1264 (1998); Michigan v. Lucas, 500 U.S. at 151, 111 S.Ct. at 1747; Taylor v. Illinois, 484 U.S. 400, 424, 108 S.Ct. 646, 660-61; Wade v. Mantello, 333 F.3d at 58; Grant v. Demskie, No. 99-2744, 234 F.3d 1262 (table), 2000 WL 1715224 at *3 (2d Cir. Nov. 13, 2000); Lurie v.Wittner, 228 F.3d 113, 133 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); United States v. Wilson, No. 99-1110, 201 F.3d 433 (table), 1999 WL 1295330 at *1 (2d Cir. Dec. 27, 1999); United States v. Blum, 62 F.3d at 67 (right to present a defense "must be balanced against a court's leave to set reasonable limits on the admission of evidence"); United States v. Holmes, 44 F.3d 1150,1157(2d Cir. 1995) ("Absent a clear abuse of discretion, a trial judge retains a wide latitude to exclude irrelevant, repetitive, or cumulative evidence.");Williams v. Lord, 996 F.2d at 1483; Buie v. Sullivan, 923 F.2d 10, 11 (2d Cir. 1990) ("The right to present a defense, and its concomitant right to compulsory process, are not unqualified; they are subject to 'countervailing public interest. . . .'");Rosario v. Attorney Gen., 2001 WL 267641 at *12; Cruz v.Greiner, 1999 WL 1043961 at *32.⁴⁸

48 See also, e.g., Lugo v. Edwards, 97 Civ. 7789, 1998 WL 601080 at *2 (S.D.N.Y. Sept. 9, 1998); Sorenson v.Superintendent, Fishkill Corr. Facility, No. 97 CV 3498, 1998 WL 474149 at *5 (E.D.N.Y. Aug. 7, 1998); Lora v. Artuz, 95 Civ. 6319, 1997 WL 249966 at *4 (S.D.N.Y. May 12, 1997);Perfetto v. Hoke, 898 F. Supp. 105, 114 (E.D.N.Y. 1995);Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y.), aff'd, 71 F.3d 406 (2d Cir. 1995).

The Supreme Court has "acknowledge[d] also our traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts. In any given criminal case the trial judge is called upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of evidence. . . . [T]he Constitution leaves to the judges who must make these decisions 'wide latitude' to exclude evidence that is 'repetitive . . ., only marginally relevant' or poses an undue risk of 'harassment, prejudice [or] confusion of the issues.'" Crane v. Kentucky, 476 U.S. at 689-90, 106 S.Ct. at 2146.⁴⁹ "Moreover, we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted." Crane v. Kentucky, 476 U.S. at 690, 106 S.Ct. at 2146; accord, e.g., Rosario v. Attorney Gen., 2001 WL 267641 at *12; Gillette v. Greiner, 76 F. Supp.2d at 373.

49 See also, e.g., Montana v. Egelhoff, 518 U.S. 37, 53, 116 S.Ct. 2013, 2022 (1996); Taylor v. Illinois, 484 U.S. at 410-16, 108 S.Ct. at 653-56; Delaware v. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435; Chambers v.Mississippi, 410 U.S. at 295, 93 S.Ct. at 1046; Rosario v.Attorney Gen., 2001 WL 267641 at *12; Gillette v. Greiner, 76 F. Supp.2d at 373.

Whether the exclusion of evidence violates a defendant's "right to present a defense depends upon whether the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist. Thus, where 'the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (citations omitted, brackets in original); accord, e.g., Wade v. Mantello, 333 F.3d at 5; Jones v.Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Rosario v.Attorney Gen., 2001 WL 267641 at *12; Gillette v. Greiner, 76 F. Supp.2d at 373.⁵⁰ "It is the materiality of the excluded evidence to the presentation of the defense that determines whether a defendant has been deprived of a fundamentally fair trial."Rosario v. Kuhlmann, 839 F.2d at 925; accord, e.g., Rock v. Arkansas, 483 U.S. at 52, 107 S.Ct. at 2709.⁵¹

50 See also, e.g., McLean v. McGinnis, No. 98-3753, 189 F.3d 461 (table), 1999 WL 642925 at *2 (2d Cir. Aug. 20, 1999), cert. denied, 528 U.S. 1050, 120 S.Ct. 589 (1999);Williams v. McCoy, 7 F. Supp.2d 214, 222 (E.D.N.Y. 1998);Deutsch v. Jacobson, 97 Civ. 2387, 1997 WL 381930 at *3 (S.D.N.Y. July 8, 1997), aff'd, 159 F.3d 1346 (2d Cir. 1998).

51 See also, e.g., Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983);Rosario v. Attorney Gen., 2001 WL 267641 at *12; Cruz v.Greiner, 1999 WL 1043961 at *33; Roberts v. Scully, 875 F. Supp. at 190; United States ex rel. Hunter v. Patterson, 374 F. Supp. 608, 610 (S.D.N.Y. 1974).

The Supreme Court has articulated the standard for materiality:

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. 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, 2401-02 (1976) (fns. omitted); accord, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 868, 102 S.Ct. 3440, 3447 (1982); Justice v. Hoke, 90 F.3d at 47; Rosario v.Kuhlmann, 839 F.2d at 925; Taylor v. Curry, 708 F.2d at 891; Rosario v. Attorney Gen., 2001 WL 267641 at *15; Cruz v. Greiner, 1999 WL 1043961 at *35; Deutsch v. Jacobson, 97 Civ. 2387, 1997 WL 381930 at *4 (S.D.N.Y. July 8, 1997); Taylor v. Scully, 875 F. Supp. at 190.

The testimony that Valentin may have provided (that Maisonet wanted to murder Cruz because Cruz had abused Maisonet's son), standing alone, does not create a reasonable doubt about Del Pilar's guilt.

First, as the First Department found (see page 13 above), Del Pilar introduced similar motive evidence at trial. The jury heard of Maisonet's angry exchanges with Cruz, his complaint to Valentin that Cruz had hit their son and Cruz's angry response to this. (See pages 3-4, 11-12 above.) Indeed, there was sufficient evidence of this that Del Pilar's counsel used it in his closing argument, telling the jury that there was "[n]o evidence in this case that these guys [petitioner Del Pilar and Maisonet] are so close that [if] Maisonet had a motive to kill somebody, [then] my client [i.e., Del Pilar] [would] be the executioner." (Tr. 1730.) The First Department held that "[t]he record reveals that defendant received a sufficient opportunity to introduce evidence regarding the codefendant's motive for killing the victim, and defendant could not have been prejudiced by any restrictions imposed by the court." People v. Del Pilar, 293 A.D.2d 365, 365-66, 742 N.Y.S.2d 200, 201-02 (1st Dep't 2002). Because Del Pilar did get Maisonet's motive before the jury in other ways, the excluded evidence did not prevent him from presenting a defense. See, e.g., United States v.Valenzuela-Bernal, 458 U.S. at 873, 102 S.Ct. at 3449 (to violate right to present witnesses defendant must make "a plausible showing that the testimony . . . would have been material and favorable to his defense, in ways not merely cumulative to the testimony of the available witnesses"); Buie v. Sullivan, 923 F.2d at 12 (evidence was not material where petitioner was able to present "comparable evidence"); Taylor v. Curry, 708 F.2d at 892 (excluded evidence was not material where it "would add little to refute" the prosecution's theory);Rosario v. Attorney Gen., 2001 WL 267641 at *15; Cruz v.Greiner, 1999 WL 1043961 at *35; Roberts v. Scully, 875 F. Supp. at 190 (excluded evidence was not material where petitioner was able to "communicate to the jury the essentials of what he claimed" the excluded evidence would have shown).

Second, the motive testimony was not really exculpatory. This was not a case where the prosecution witnesses testified to a single perpetrator, so shifting the blame (via motive) to Maisonet would have served to exculpate, or at least create a reasonable doubt as to the guilt of, Del Pilar. Rather, the prosecution evidence was that two people committed the crime together. (See page 6 above.) There also was undisputed evidence that Maisonet and Del Pilar shared a close relationship, and that Maisonet even referred to Del Pilar as his cousin, although they were not actually blood relations. (See page 4 above.) In addition, Valentin described her son, Del Pilar, and Maisonet speaking in her apartment "like together, family" (Valentin: Tr. 526-27), and Pagan testified that Del Pilar told him the reason for the shooting was a "family dispute" (Pagan: Tr. 777). Thus, if Maisonet was found to have had a motive to murder Cruz, a reasonable jury could infer that Del Pilar was assisting Maisonet. See, e.g., United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.) (it is the jury's task to determine among competing inferences), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995); compare, e.g., Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *3 (S.D.N.Y. June 6, 2000) (Peck, M.J.) ("Since the suppressed evidence would have cast doubt upon the shooter's identity, as well as the State's motive theory," the existence of an alternative suspect was favorable to defendant), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411 (2d Cir. 2002), cert. denied, 537 U.S. 1245, 123 S.Ct. 1353 (2003);with, e.g., Pidgeon v. New York State Bd. of Parole, No. 97-2428, 173 F.3d 845 (table), 1999 WL 197183 at *2 (2d Cir. Apr. 2, 1999) (defendant did not meet burden of proving materiality of excluded evidence where evidence left open possibility that defendant and alternative suspect were "partners in crime").

The First Department held: "Although defendant [Del Pilar] claims that this evidence tended to show that the codefendant [Maisonet] had a homicidal motive not shared by defendant [Del Pilar], the evidence cut both ways in that it also tended to establish a motive for defendant [Del Pilar] to assist the codefendant [Maisonet], his very close friend, in killing the victim." People v. Del Pilar, 293 A.D.2d at 365-66, 742 N.Y.S.2d at 201-02. While the Court might (or might not) have allowed the evidence in if it were the trial judge, under the deferential AEDPA standard, the Court cannot say that the First Department's holding was unreasonable.⁵²

52 Del Pilar argues that "this determination [that the motive evidence 'cut both ways'] clearly infringed on the jury's fact finding powers, as well as not considering how skilled defense counsel would have presented this evidence if given the opportunity to do so." (Dkt. No. 8: Del Pilar Reply Br. at 5.) This statement alone is not sufficient to prove that the motive evidence was exculpatory, and when the exculpatory value is speculative, the evidence is not material. See, e.g., Wade v. Mantello, 333 F.3d at 60 (upholding under AEDPA deference standard the Appellate Division's determination, that the trial court's decision to exclude third-party motive testimony "that would not have materially assisted the determination of Wade's guilt or innocence" did not violate defendant's right to present a defense); United States v. Diaz, 176 F.3d 52, 81 (2d Cir.) (district court did not err in excluding testimony that would show a third party had the motive to murder victim, when that evidence would "not make it more or less probable that" defendant had committed the murder), cert. denied, 528 U.S. 875, 120 So. Ct. 181 (1999); DiBenedetto v. Hall, 272 F.3d 1, 8-9 (1st Cir. 2001) (no constitutional violation where defendant tried to show that third-party culprits were guilty, and trial court did not admit this evidence, finding that it did not exclude defendant as executioner), cert. denied, 535 U.S. 1024, 122 So. Ct. 1622 (2002); cf. Levine v. Scully, 92 Civ. 8337, 1994 WL 455473 at *5 (S.D.N.Y. Aug. 22, 1994) (no due process violation where missing evidence's exculpatory value was speculative and "one can speculate equally that the absence of this evidence at trial may have been to petitioner's benefit").

CONCLUSION

For the reasons set forth above, Del Pilar's habeas petition should be denied in its entirety 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 George B. Daniels, 40 Centre Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 So. 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 So. 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).