Memorandum and ORDER

RAGGI, District Judge:

Anthony Torres, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 1998). Torres was convicted in 1994 after a jury trial in New York Supreme Court, Kings County, of one count of Criminal Sale of a Controlled Substance in the Third Degree. See N.Y. Penal Law § 220.39(1) (McKinney 2000). At the time he filed his petition with this court, Torres was incarcerated, serving the five-to-ten year sentence imposed in his case. At present, Torres is on parole. In urging this court to vacate his state conviction, Torres advances six arguments, which this court lists in the chronological order of occurrence of the relevant facts: (1) petitioner was denied due process before the grand jury; (2) his conviction was based on evidence procured in the course of an unlawful arrest; (3) the prosecutor's failure to make disclosures required byBrady v. Maryland, 373 U.S. 83, 87, (1963), and its progeny violated due process; (4) prosecutorial misconduct during trial violated due process; (5) the evidence was insufficient to support a verdict of guilty beyond a reasonable doubt; and (6) trial counsel was constitutionally ineffective in failing adequately to support a motion to set aside the verdict.

Having carefully reviewed the submissions of the parties as well as the record of proceedings in the state courts, this court finds that Torres's petition must be denied because many of his claims are procedurally barred and, in any event, all are without merit.

Factual Background

1. Introduction

Based in large part on the observations of a New York City undercover police officer, petitioner Anthony Torres was charged with three drug sales in Brooklyn on December 1, 1993. He was convicted of one of the sales, to Julia Canales, who testified on behalf of the defense but whose testimony was not credited by the jury.

2. The December 1, 1993 Drug Sales

In the early evening of December 1, 1993, a New York City undercover officer approached a group of people standing in the area of 46th Street and Third Avenue in Brooklyn. There, he observed Julia Canales handing money to petitioner Anthony Torres and receiving in return several silver-capped glass vials containing a white rocky substance. Moments later, the officer observed a man, Arax Odabashian, give Torres money in exchange for some orange-capped vials also containing a white rocky substance.

At this point, the officer told a woman subsequently identified as Eva Evans that he was "looking to get high." Ms. Evans asked Angel Canales to approach, and the officer asked him for "four nicks" of crack cocaine. Canales explained that he did not have that amount, but immediately asked Torres and another man, Edwin Medina, to join the discussion. When the officer repeated his order, Torres crossed the street and retrieved a clear plastic bag containing a number of orange-capped vials from a hole in the sidewalk. Torres gave the officer four vials and told him to pay $20.00 to Medina.

As he walked away, the officer, who was wearing a transmitting device, provided police colleagues with a description of the six individuals who had just participated in the three drug sales. Within minutes, police officers placed all of these persons under arrest. They recovered one orange-capped vial from Arax Odabashian, eight silver-capped vials from Julia Canales, and three silver-capped vials and a glass pipe from Edwin Medina. Subsequent laboratory analysis confirmed that the white substance in these vials, as well as that in the vials purchased by the undercover officer, was crack cocaine. The arresting officers also recovered $34.00 from Angel Canales, which included the $20.00 of prerecorded buy money that the undercover officer had used in making his crack purchase. No drugs were found on Anthony Torres or Eva Evans. Neither were any drugs or money found in any holes in the sidewalk.

3. Julia Canales' Testimony

Testifying on behalf of the defense, Julia Canales admitted that she had been in possession of eight vials of crack cocaine when she was arrested on December 1, 1993, but she denied buying those drugs from Anthony Torres. She claimed that the vials had been purchased the night before by her friend "Shorty," and that she had taken them from "Shorty" because she feared he was ingesting too much crack. Ms. Canales explained that the next day, December 1, 1993, her mother asked her to find her brother Angel. Before leaving on this errand, Ms. Canales zipped "Shorty's" drug vials into the fly area of her pants. Thus, when she and her brother were arrested, she was found in possession of the cocaine.

On cross-examination, Ms. Canales admitted two prior convictions for selling narcotics. Asked about her brother's whereabouts, Ms. Canales first said she knew where he was, then denied any knowledge, and finally stated that he could likely be found in the vicinity of 49th Street and Knickerbocker Avenue.

4. Procedural History

a. Verdict

With respect to each of the three drug sales at issue — to the undercover, to Julia Canales, and to Arax Odabashian — Torres was charged with criminal sale of narcotics in the third degree as well as two lesser charges of possession with intent to sell and simple possession. The jury was unable to reach a unanimous verdict on any of these charges with respect to Torres's transaction with the undercover officer. But as to Torres's dealings with Ms. Canales, the jury unanimously found him guilty of the most serious charge, criminal sale of narcotics in the third degree. It acquitted Torres of all three charges relating to the transaction involving Arax Odabashian.

b. Section 330.30 Motions to Set Aside Verdict

Prior to sentence, defense counsel moved to set aside the guilty verdict pursuant to N.Y. Crim. Proc. Law section 330.30(3) (McKinney 1994), citing newly discovered evidence. Specifically, counsel claimed that certain members of the jury had told him that they had been confused by the verdict form and that they had meant to acquit Torres of selling drugs to Ms. Canales and to convict him of selling to Odabashian. Further, counsel advised that he had finally located Odabashian who told him that he had not purchased drugs from Torres on December 1, 1993 and that he was willing to testify to that effect. The court rejected the motion, finding that no sworn affidavits from Odabashian or any jurors supported the claims.

Counsel then submitted another section 330.30 motion prepared by Torres himself. This urged the court to set aside the verdict on the grounds that (1) the prosecution had failed to prove Torres's knowledge of the weight of the drugs, (2) the jury selection process had been unfair, and (3) there were factual problems with the prosecution's case. The court denied this motion as well, finding that the weight of the drugs was not an element of the charged crime, no objection had been raised to the jury selection process, and the jury was singularly empowered to resolve the factual disputes between the parties.

c. Direct Appeal

With the assistance of new counsel, Torres challenged his conviction on direct appeal, asserting that (1) the guilty verdict was against the weight of the evidence, (2) the jury misspoke its verdict due to confusing instructions and a confusing verdict sheet, (3) the trial court erred in denying the section 330.30 motion to vacate without holding a hearing, and (4) prosecutorial misconduct denied petitioner a fair trial. The Appellate Division, Second Department, rejected these arguments as without merit and affirmed Torres's conviction. People v. Torres, 226 A.D.2d 486, 640 N.Y.S.2d 796 (2d Dep't 1996). The court expressly concluded from its own review of the record that the evidence was sufficient to support a verdict of guilty. Id., 226 A.D.2d at 486, 640 N.Y.S.2d at 797. It further found that the trial court acted within its discretion in denying Torres's section 330.30 motion in light of the lack of supporting affidavits as provided in N.Y. Crim. Proc. Law section 330.40(2). Id.

Torres filed a pro se motion to reargue his appeal, which was rejected on May 30, 1996. Three months later, on August 14, 1996, the New York Court of Appeals summarily denied Torres's application for leave to appeal. People v. Torres, 88 N.Y.2d 995, 649 N.Y.S.2d 402 (1996).

d. Coram Nobis Petition

On November 15, 1996, Torres again challenged his conviction before the Appellate Division, Second Department, by filing a pro se petition for a writ of error coram nobis on the grounds that his appellate counsel was constitutionally ineffective. Specifically, Torres faulted counsel for not arguing on direct appeal that trial counsel had been constitutionally ineffective in not submitting affidavits to support the section 330.30 motion. The petition was summarily denied on the merits on June 9, 1997. People v. Torres, 240 A.D.2d 520, 659 N.Y.S.2d 783 (2d Dep't 1997).

e. Section 440.10 Motion

On August 8, 1997, Torres moved pro se pursuant to N.Y. Crim. Proc. Law section 440.10 (McKinney 1994) to vacate his conviction, raising a variety of old and new arguments: (1) the prosecution's failure to disclose in advance of trial that Odabashian was then incarcerated violated the holding in Brady v. Maryland, 373 U.S. at 87; (2) prosecutorial misconduct denied him a fair trial; (3) Torres was mentally incompetent to participate in his trial; (4) trial counsel was constitutionally ineffective; (5) the prosecutor and trial judge used fraud, physical and psychological pressure, and false testimony to secure a conviction; (6) certain trial evidence had been procured in violation of Torres's constitutional rights; and (7) jury challenges had been used impermissibly to exclude Hispanics. On October 1, 1997, the motion was denied on the ground that the arguments raised were procedurally barred under sections 440.10 and 440.30. See People v. Torres, Ind. No. 14622-93 (N.Y.Sup.Ct. Oct. 1, 1997) (unpublished) (Lipp, J). Torres's motion for leave to appeal was denied on January 15, 1998. People v. Torres, No. 97-10747 (2d Dep't Jan. 15, 1998)(unpublished).

f. Federal Habeas Petition

On August 28, 1997, Torres filed his petition for a writ of habeas corpus with this court.

Discussion

This court's review of Torres's petition is governed by the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), which significantly amended the federal habeas corpus statute, 28 U.S.C. § 2254. Subsection (d) of § 2254 provides:

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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Last year, the Supreme Court provided some guidance for lower courts in applying these standards, particularly subpart (1). In Williams v. Taylor, 529 U.S. 362, 412 (2000), Justice O'Connor, writing for the Court, stated that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," should be understood to refer to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." The Court then identified two circumstances under which a state court decision could be deemed "contrary to" clearly established Federal law: when the state court (1) "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or (2) "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. As to the alternative "unreasonable application" clause, the Court held that habeas relief was warranted only "if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The Court ruled that reasonableness was to be assessed objectively rather than subjectively. See id. at 409-10. Moreover, whatever difficulty there might be in defining the term "unreasonable," courts were cautioned that "an unreasonable application of federal law" did not equate with "an incorrect application of federal law." Id. at 410. Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (cautioning 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" (quotation omitted)).

Applying these principles to this case, it is apparent that Torres is not entitled to federal habeas corpus relief.

II. Grand Jury Proceedings

Torres argues that the prosecutor's effort to question him before the grand jury about a prior drug conviction violated due process. This claim, first raised in Torres's supplemental brief in support of his habeas petition, has never been presented for review to any state court and as such is unexhausted. 28 U.S.C. § 2254(b)(1)(A) specifically proscribes federal courts from granting relief on habeas claims "unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." Dismissal, however, is not required where, as here, it appears certain that the state courts would now hold the unexhausted claim procedurally barred. See Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); accord Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing N.Y. Ct. Rules § 500.10(a) (McKinney 1998) (permitting only one application for leave to appeal), and N.Y. Crim. Proc. Law § 440.10(2) (barring collateral review of claims that could have been raised on direct appeal)). Under such circumstances, a federal court will deem the claim exhausted but treat review of the merits as procedurally barred absent (1) a demonstration that the failure to consider the federal claim will result in a fundamental miscarriage of justice such as the conviction of an actually innocent person, or (2) a showing of both good cause for the procedural default and ensuing prejudice. See Harris v. Reed, 489 U.S at 262; Grey v. Hoke, 933 F.2d at 121. Torres cannot clear this procedural hurdle.

The direct testimony of the undercover officer and the patently incredible testimony of Julia Canales provide strong evidence of guilt that precludes Torres from claiming actual innocence. Further, petitioner offers no explanation for his failure to raise his procedurally barred grand jury claim, let alone one that would provide good cause for the court to excuse his default. In any event, Torres cannot demonstrate prejudice for the simple reason that his due process claim is meritless.

The right to testify before a grand jury in New York derives exclusively from state law see N.Y. Crim. Proc. Law § 190.50(5)(a) (McKinney 1993), and is not of constitutional dimension, see United States v. Williams, 504 U.S. 36, 52 (1992) ("[N]either in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented."). Thus, petitioner's claim that his grand jury appearance failed in some way to comport with state law is not grounds for the granting of federal habeas relief. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (holding that deficiencies in state grand jury proceedings are not cognizable in a federal habeas corpus proceeding).

In any event, Torres's conviction by a petit jury transforms any defect in his grand jury appearance into harmless error. United States v. Mechanik, 475 U.S. 66, 70 (1986); accord Lopez v. Riley, 865 F.2d at 32 ("If federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.").

Accordingly, this court rejects Torres's claim of grand jury error both as procedurally barred and without merit.

III. Evidence Procured in Unlawful Arrest

Torres claims that his conviction was based on evidence obtained pursuant to an unlawful arrest. He asserts that the arresting officers did not actually observe Torres commit any criminal act and did not have any trustworthy information that he had done so.

This claim cannot be considered on a petition for a writ of habeas corpus. In Stone v. Powell, 428 U.S. 465, 482 (1976), the Supreme Court removed Fourth Amendment search and seizure claims from federal habeas review as long as a state provides "an opportunity for full and fair litigation" of the claims. New York clearly provides the opportunity for such review through N.Y. Crim. Proc. Law section 710 (McKinney 1995). See Capellan v. Riley, 975 F.2d 67, 70 n. 1 (2d Cir. 1992). Further, nothing in the record indicates that there was any "unconscionable breakdown" in that process in Torres's case. See id. at 70. To the contrary, it appears that Torres simply never availed himself of state procedures for challenging either his arrest or any seizures made pursuant thereto.

Even if Stone v. Powell did not bar this court's review of Torres's Fourth Amendment claim, he would still face a significant procedural hurdle: his claim is not exhausted. Certainly, Torres did not raise it on direct appeal, and his section 440.10 challenge to unconstitutional evidence related to the number of crack vials sold not to the lack of probable cause for his arrest. Nevertheless, dismissal is not warranted since it appears clear that the state courts would now treat this claim as procedurally barred. See Harris v. Reed, 489 U.S. at 263 n. 9; Grey v. Hoke, 933 F.2d at 120. Accordingly, this court deems it exhausted but procedurally barred from federal review absent a showing of actual innocence or good cause and ensuing prejudice.

Plaintiff cannot show actual innocence and makes no effort to establish good cause to excuse his default. In any event, he cannot demonstrate prejudice. First, no evidence used at trial was in fact seized from Torres when he was arrested; thus, this cannot be the basis for any prejudice claim. As for evidence seized from the persons of third parties, Torres lacks standing to challenge the prosecution's use of such items. See Rakas v. Illinois, 439 U.S. 128, 134 (1978). Finally, Torres cannot establish prejudice because his Fourth Amendment claim is patently without merit. The undercover officer's direct observations of Torres's drug sales and his transmittal of that information to the arresting officers supplied ample probable cause to support petitioner's arrest.See, e.g., Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) ("[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness." (quoting Miloslavsky v. AES Eng'g Soc'y, 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd 993 F.2d 1534 (2d Cir. 1993))); United States v. Cruz, 834 F.2d 47, 51 (2nd Cir. 1987) (holding that probable cause can be based on the collective knowledge of all officers involved in an investigation who are in communication with each other).

In sum, Torres's challenge to evidence procured in what he asserts was an unlawful arrest is rejected as both procedurally barred and without merit.

IV. Non-disclosure of Brady Material

Torres submits that he was denied due process when the prosecution failed to make disclosures required by Brady v. Maryland, 373 U.S. at 87, and its progeny. Specifically, he faults the prosecution for failing to disclose the fact that Arax Odabashian was in state custody at the time of trial. Torres claims that Odabashian could have been a helpful defense witness because, as his lawyer discovered when he located Odabashian after trial, Odabashian would have denied purchasing drugs from petitioner.

When Torres first raised this claim in his section 440.10 motion to the state court, it was rejected on procedural grounds for failure to raise it on direct appeal. See People v. Torres, Ind. 14622-93, at 3 (citing N.Y. Crim. Proc. Law § 440.10(3)(a)). When a state court denies a federal claim on an adequate and independent state law ground, including procedural default, a federal court may not reach the merits unless petitioner can demonstrate actual innocence or satisfy the cause and prejudice standard. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)); accord Garcia v. Lewis, 188 F.3d 71, 76-78 (2d Cir. 1999). As this court has already noted, Torres fails to demonstrate actual innocence. Neither does he proffer any good cause to excuse his default. Finally, he cannot demonstrate prejudice since his Brady claim is without merit.

Brady v. Maryland and its progeny require the prosecution to disclose to the defense any evidence favorable to the accused that is material either to guilt or punishment. See Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (and cases cited therein). To establish a "Brady violation," a petitioner must show that (1) the evidence at issue is favorable to him, either because it is exculpatory or impeaching; (2) the evidence was suppressed by the government, either willfully or inadvertently; and (3) prejudice ensued. Id. at 281-82. Torres can satisfy none of these factors.

As to the first, Torres has yet to secure an affidavit from Odabashian indicating that he would actually waive any Fifth Amendment privilege and testify favorably to the defense.

Second, Torres fails to show that persons involved in the prosecution of his case ever knew of Odabashian's arrest or detention at the time of petitioner's trial. As the Second Circuit explained in United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998), Brady's disclosure obligations extend "only to material evidence . . . that is known to the prosecutor." While a prosecutor is presumed to have knowledge of all information gathered by investigative agents working on his particular investigation, see Kyles v. Whitley, 514 U.S. 419, 437 (1995), courts do not impute knowledge to a prosecutor of information possessed by government officials "not working with the prosecutor's office on the case in question," United States v. Avellino, 136 F.2d at 255 (noting that such a view would require the adoption of "'a monolithic view of government' that would `condemn the prosecution of criminal cases to a state of paralysis'" (quoting United States v. Gambino, 835 F. Supp. 74, 95 (E.D.N.Y. 1993), aff'd 59 F.3d 353 (2d Cir. 1995))). It appears undisputed that Odabashian's detention was pursuant to an arrest under a different name on charges unrelated to those involving Torres by law enforcement officers having no connection to petitioner's case. Under these circumstances, this court finds that the prosecutor in Torres's case cannot be charged with having suppressed favorable information known to him. See United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (refusing to impute knowledge to prosecutor of reports prepared by FBI agents who were uninvolved in the investigation or trial of the defendants-appellants) (cited approvingly in United States v. Avellino, 136 F.2d at 255).

Finally, Torres's Brady claim fails because he cannot show prejudice. The court notes that even without Odabashian's testimony, Torres was acquitted on the charge of selling narcotics to him. Thus, the lack of this witness's testimony did petitioner no harm on this count. The sole charge on which Torres was convicted related to a drug sale to Julia Canales. Nothing in the record suggests that Odabashian has any knowledge of this transaction. More to the point, Torres was able to call Ms. Canales as a witness. The jury heard her deny buying drugs from petitioner. It heard her somewhat far-fetched explanation for how she came to possess the drugs. It rejected this testimony as not credible. Under these circumstances, this court cannot say that any testimony from Odabashian disavowing his own drug dealing with Torres was likely to "have produced a different verdict" on the Canales charge. Strickler v. Greene, 527 U.S. at 281. Certainly, it would not "put the whole case in such a different light as to undermine confidence in the verdict" returned regarding the Canales transaction. Kyles v. Whitley, 514 U.S. at 435.

Torres's Brady challenge is rejected as procedurally barred and without merit.

V. Prosecutorial Misconduct

Torres asserts that the prosecutor violated his due process right to a fair trial when he (1) improperly cross-examined Julia Canales, and (2) delivered an unfair summation.

In cross-examining Julia Canales about her version of the events of November 30 and December 1, 1993, the prosecutor asked if she knew the present whereabouts of her brother, Angel. Over defense objection, Ms. Canales initially said that she did, then claimed that she did not, and finally stated that Angel Canales could usually be found in the vicinity of 49th Street and Knickerbocker Avenue. At the close of the case, defense counsel moved for a mistrial on the grounds that the aforementioned cross-examination impermissibly attempted to shift the burden of proof to the defense by inviting the jury to speculate as to why Torres was not calling Canales as a witness. The trial court denied the mistrial motion, and the Appellate Division rejected the misconduct argument on the merits when it was raised on appeal.

This court's review of the challenged cross-examination is necessarily "quite limited." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (discussing habeas review of prosecutorial misconduct claims). It is not enough for Torres to show that a prosecutor's actions are objectionable, or even improper. Id. Rather, he must show "a substantial and injurious effect or influence in determining the jury's verdict." Id. (quotingBentley v. Scully, 41 F.3d 818, 823 (2d Cir. 1994)); see also United States v. Perez, 190 F.3d 71, 78 (2d Cir. 1999) (even on direct appeal, "[p]rosecutorial misconduct is a ground for reversal only if it causes the defendant `substantial prejudice'"). Torres cannot meet this burden.

A careful review of the record indicates that the prosecution never used the challenged cross-examination to shift the burden of proof. Certainly, no summation argument was ever made that the defense should have called Angel Canales as a witness. Instead, Ms. Canales's equivocal answers about her brother's whereabouts were used only to argue that her own credibility was doubtful. See Trial Tr. at 823. Moreover, in attacking Ms. Canales's credibility, the prosecutor hastened to acknowledge that it was his "burden to prove this case beyond a reasonable doubt." Id. Indeed, in its charge to the jury, the court repeatedly highlighted the law's presumption of Torres's innocence and the prosecution's burden of proof. In sum, when the challenged cross-examination is viewed in the context of the trial as a whole, it is apparent that there was no misconduct that denied Torres a fair trial.

Torres challenges the prosecutor's summation on numerous grounds, not all of which present themselves in the same procedural posture. Specifically, only Torres's complaint that (1) the prosecutor unfairly labeled him as "lucky" for not being arrested in possession of any drugs or money is fully exhausted. His claims that (2) the prosecutor impermissibly expressed his own opinion that Julia Canales was not credible, and (3) unfairly remarked on his guilt were raised in a section 440.10 motion, but rejected as procedurally defaulted. As such, this court cannot address their merits unless petitioner can demonstrate actual innocence or show cause to excuse the default and ensuing prejudice. See Edwards v. Carpenter, 529 U.S. at 451. Torres's conclusory claims that the prosecutor (5) insinuated he had a bad character, (6) implied that his office knew petitioner was guilty, and (7) misled the jury about the laboratory reports in the case have never been presented to any state courts. This court is convinced that if Torres were to attempt to do so now, the state courts would hold them procedurally barred. See Harris v. Reed, 489 U.S. at 263 n. 9; accord Grey v. Hoke, 933 F.2d at 120. Accordingly, it is appropriate that these too be subjected to the cause and prejudice or actual innocence standard for habeas review of their merits.

Having carefully reviewed Torres's summation challenges in the context of the trial as a whole see United States v. Young, 470 U.S. 1, 12 (1985) (holding that summation comments "must be examined within the context of the trial" to determine whether prejudicial error ensued); accord United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992), the court concurs with the Appellate Division that the first claim is without merit. As for the procedurally barred claims, (2)-(7), the court finds nothing in the record to evidence actual innocence and Torres proposes no cause to excuse his default. In any event, he cannot demonstrate prejudice because these claims are also lacking in merit. It is, of course, the "rare case" in which even improper comments will be deemed so prejudicial as to warrant vacating a conviction. Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir. 1990). This is not one of them.

The prosecution's description of Torres as "lucky" was in response to a defense argument that reasonable doubt as to guilt was created by the fact that Torres had neither drugs nor buy money on his person when arrested. In response, the prosecutor highlighted the testimony of the undercover officer and suggested that Torres was simply "lucky" not to be in possession of incriminating evidence at the precise moment of arrest. This is not the sort of "egregious" misconduct that violates due process. Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). A summation is not, after all, a "detached exposition [such] as would be appropriate to a lecture." United States v. Wexler, 79 F.2d 526, 530 (2d Cir. 1935);see also United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975) (observing that a prosecutor is not "an automaton whose role on summation is limited to parroting facts already before the jury"). It is "inevitably charged with emotion," United States v. Wexler, 79 F.2d at 530, and the sort of "occasional slip of the tongue not unknown in extemporaneous speaking," Orebo v. United States, 293 F.2d 747, 749 (9th Cir. 1961). Blunt and colorful language is often employed, particularly in response to opposing arguments. For example, in United States v. Rivera, 971 F.2d 876, 883 (2d Cir: 1992), the Second Circuit upheld a prosecutor's sarcastic rebuttal references to an adversary as a "know-it-all" and "Mr. Thorough" because defense counsel had asserted that he had been meticulous in obtaining certain materials presented in the case. In United States v. Simmons, 923 F.2d 934, 955 (2d Cir. 1991), a narcotics case, the prosecutor made reference in summation to the "collapsed veins of junkies." The court ruled that although the comment was "blunt and to the point. . . . that alone is not a basis to find [it] improper." Id. Compared to the arguments approved in Rivera and Simmons, the prosecutor's description of Torres's arrest circumstances as "lucky" is rather tame and does not violate due process.

Similarly, his occasional use of the formulation "I think" in referring to the physical evidence or the testimony of witnesses, rather than the preferred "I submit" or "I suggest," did not deny Torres due process. While it is plain that a prosecutor may not express his or her personal belief or opinion as to the facts of a case see United States v. Nersesian, 824 F.2d 1294, 1328 (2d Cir. 1987), a review of the comments, in context, reveals that the prosecutor was endeavoring to focus the jury's attention on the evidence presented and never on his own credibility or the integrity of his office.

Torres's claims of prosecutorial misconduct in summation are denied in part because they are procedurally barred and, in all events, because they are without merit.

VI. Sufficiency of the Evidence

As on direct appeal, Torres asserts that the evidence adduced at trial was insufficient to support a verdict of guilty beyond a reasonable doubt.The Fourteenth Amendment's Due Process Clause "prohibits conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997) (quoting In re Winship, 397 U.S. 358, 364 (1970)). Nevertheless, a prisoner raising a sufficiency challenge bears a heavy burden. See id. at 840; Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995); Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (and cases cited therein). A federal court is not, after all, a "forum in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887 (1983); accord Herrera v. Collins, 506 U.S. 390, 401 (1993). This court may not itself "weigh the evidence" in Torres's case. Herrera v. Collins, 506 U.S. at 400-01 (quoting Hyde v. Shine, 199 U.S. 62, 84 (1905)). Neither can it "make its own subjective determination of guilt or innocence." Jackson v. Virginia, 443 U.S. 307, 319 n. 13 (1979). Its inquiry is necessary limited, and petitioner can prevail only upon showing that when the evidence is viewed "in the light most favorable to the government, . . . no `rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Jones, 16 F.3d 487, 490 (2d Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. at 319); accord Farrington v. Senkowski, 214 F.3d 237, 240 (2d Cir. 2000). Applying these principles to this case, the court concludes that the Appellate Division did not unreasonably apply established federal law as determined by the United States Supreme Court see 28 U.S.C. § 2254(d)(1), when it ruled that the evidence was sufficient to support the jury's verdict.

Under New York law, a person is guilty of Criminal Sale of a Controlled Substance in the Third Degree when he "knowingly and unlawfully sells . . . a narcotic drug." N.Y. Penal Law § 220.39. In this case, Torres's knowing and unlawful sale of a narcotic drug to Julia Canales on December 1, 1993 was established by (1) the eyewitness testimony of the undercover officer about the transaction he observed between Torres and Julia Canales as well as his own direct drug dealings with petitioner, (2) the testimony of an arresting officer who found Ms. Canales in possession of drug vials identical to those described by the undercover as provided by Torres, and (3) the testimony of a chemist who found the vials to contain cocaine. To the extent Torres attacks the memory, perception, and credibility of the prosecution witnesses, particularly the undercover officer, this court is obliged to assume that the jury resolved these issues in favor of the prosecution. See Jackson v. Virginia, 443 U.S. at 319 (holding that reviewing court must consider all evidence in the light most favorable to the prosecution); accord United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997).

Torres submits that this assumption is not warranted in his case. He contends that the jury's failure to convict him of selling drugs to the undercover officer or to Odabashian shows that the witness's testimony was not believed. This is not so much an attack on the sufficiency of the evidence as it is a claim that the verdicts rendered in Torres's case were inconsistent. The Supreme Court, however, has long held that a prisoner found guilty on one count of an indictment cannot attack his conviction simply because it appears inconsistent with a finding of not guilty on another count. See Dunn v. United States, 284 U.S. 390 (1932);accord United States v. Powell, 469 U.S. 57 (1984) (unanimously rejecting exceptions to broad holding in Dunn); United States v. Carbone, 378 F.2d 420 (2d Cir. 1967) (Friendly, J.) (rejecting effort to applyDunn narrowly). While inconsistent verdicts suggest "that either in the acquittal or the conviction the jury did not speak their real conclusions, . . . that does not show that they were not convinced of the defendant's guilt." United States v. Dunn, 284 U.S. at 393. Indeed, courts recognize that inconsistent verdicts are often a product of jury lenity, which courts will not review. See United States v. Dunn, 284 U.S. at 393 (Holmes, J.) (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925) (Learned Hand, J.)); United States v. Powell, 469 U.S. at 65-66; United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997);United States v. Carbone, 378 F.2d at 423.

Whether or not lenity played a part in the verdicts in Torres's case, this court recognizes that Ms. Canales testimony also likely influenced the jury. Her attempt to exculpate Torres with an illogical explanation for how she came to possess the drugs seized from her on December 1, 1993, could only have undercut defense efforts to challenge the undercover officer on this particular count.

However the jury reached its decision to convict Torres on a single count of selling drugs to Ms. Canales, this court is convinced, as was the Appellate Division, that there was sufficient evidence adduced to support this verdict. Torres's sufficiency claim is denied on the merits.

VII. Ineffective Assistance of Trial Counsel

Torres claims that trial counsel was constitutionally ineffective for failing to submit affidavits from Odabashian and various jurors in support of his section 330.30 motion. When Torres first raised this claim in his section 440.10 motion, the trial court ruled that his failure to present the issue on direct appeal procedurally barred him from obtaining collateral review. People v. Torres, Ind. 14622-93, at 3. That ruling bars this court from reviewing the merits of Torres's Sixth Amendment claim unless petitioner can show either actual innocence or cause to excuse his default and ensuing prejudice. See Edwards v. Carpenter, 529 U.S. at 451; accord Garcia v. Lewis, 188 F.3d at 76-78. Torres has not established his innocence nor suggested any cause to excuse his default. Even if he could establish good cause, he could not demonstrate the requisite prejudice since his Sixth Amendment claim is without merit.

A prisoner asserting a claim of ineffective assistance of counsel must demonstrate both (1) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687 (1984), and (2) that counsel's ineffectiveness prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. Accord United States v. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997).

In considering the first prong of this test, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound [legal] strategy.'" Strickland v. Washington, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, a court must consider any purported omissions in light of counsel's overall performance. See Kimmelman v. Morrison, 477 U.S. 365, 386 (1986). Paramount to the court's consideration of any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. at 686.

Torres cannot satisfy the strict requirements of Strickland. In this case, the record reveals trial counsel to have been a diligent and determined advocate for his client throughout the case. He vigorously cross-examined prosecution witnesses, exposing faulty recollections, inconsistent statements, and equivocal testimony. He called one defense witness, Julia Canales, to contradict the testimony of the key prosecution witness. Finally, he delivered a cogent summation that struck at several deficiencies in the prosecution's case and urged the jury to find that the proof presented was simply not enough to establish guilt beyond a reasonable doubt. As a result of these efforts, counsel secured an acquittal on one drug sale and a mistrial on another. As to the single sale of which Torres was found guilty, counsel endeavored even after verdict to develop facts to assist his client, speaking to some jurors about their deliberations and locating Arax Odabashian. Despite counsel's relentless efforts, Torres asserts that his representation was constitutionally ineffective because the section 330.30 motion he filed for a new trial was supported only by his own affidavit and not by sworn submissions from Odabashian and various.

For Torres to show that counsel's failure to submit such affidavits was objectively unreasonable, he must first show that they were in fact obtainable. He has not done this. Certainly he has not obtained these affidavits himself. The omission is significant. Many individuals might agree to speak informally with an attorney or his representative but then decline to provide a sworn statement. Counsel cannot be held constitutionally ineffective for failing to obtain something that may very well have been unavailable.

Further, to establish prejudice Torres must show that the affidavits at issue would have secured him a new trial. He has not met this burden. Focusing first on counsel's failure to submit an affidavit from Odabashian, this claim must be viewed in light of the fact that the jury acquitted Torres on the charges relating to Odabashian. Thus, there was no need for a new trial on this count. With respect to the Canales narcotics sale for which Torres was convicted, nothing in the record indicates that Odabashian has any direct evidence to offer regarding this charge. Any denial of his own drug dealing with Torres would, at best, provide collateral impeachment of the undercover officer. This is not the sort of evidence that will generally prompt a new trial under New York law. See People v. Pineda, 207 A.D.2d 915, 916, 616 N.Y.S.2d 660, 661 (2d Dep't 1994) (holding that newly discovered evidence does not warrant a new trial if it merely impeaches or contradicts former evidence); see also People v. Bugman, 254 A.D.2d 796, 797, 679 N.Y.S.2d 491, 492 (4th Dep't 1998) (denying without a hearing a motion to set aside the verdict based on newly discovered evidence impeaching the credibility of a prosecution witness); People v. Walker, 116 A.D.2d 948, 952, 498 N.Y.S.2d 521, 525 (3d Dep't 1986) (upholding trial court's discretion to deny without a hearing motion for new trial based on evidence that only impeached or discredited prior testimony).

As for counsel's failure to secure juror affidavits — a claim that Torres lists in his form habeas filing but never develops in his subsequent submissions to the court — there is no reason to think petitioner was prejudiced by this omission. As the Supreme Court noted inTanner v. United States, 483 U.S. 107 (1987), the "firmly established common-law rule in the United States flatly prohibit[s] the admission of juror testimony to impeach a jury verdict," except "in situations in which an `extraneous influence,' [is] alleged to have affected the jury." 483 U.S. at 117 (quoting Mattox v. United States, 146 U.S. 140, 149 (1892)). New York has long adhered to this rule. See People v. Sprague, 217 N.Y. 373, 381 (1916) (noting "settled law of this state that jurors cannot by their affidavits . . . attack or discredit the verdict which they have in fact recorded"); accord People v. De Lucia, 15 N.Y.2d 294, 296 (1965); People v. Foti, 99 A.D.2d 517, 470 N.Y.S.2d 689 (2d Dep't 1984). The policy concerns underlying the rule were articulated by the Supreme Court in McDonald v. Pless, 238 U.S. 264 (1914):

[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party. . . . [T]he result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

Relying on this rule, courts routinely refuse to consider juror affidavits such as those that Torres asserts his attorney should have submitted in his case, i.e., affidavits claiming some misunderstanding as to the law or the consequences of a verdict. See Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence, § 606.04[3][a] (2d ed. 2000) (and cases cited therein). As the Fifth Circuit explained inUnited States D'Angelo, 598 F.2d 1002, 1003-04 (5th Cir. 1979), a case in which it refused to consider juror statements suggesting a misunderstanding of the law of conspiracy: "The possibility that the jury misunderstood or even intentionally misapplied the law . . . does not warrant reversal of the conviction." Id. (citing Sparf v. United States, 156 U.S. 51, 80 (1895) (recognizing that a jury verdict passes both on law and fact and "there is no judicial power by which the conclusion of the law thus brought upon the record by that verdict can be reversed, set aside, or inquired into" (citations omitted))). See United States v. Wickersham, 29 F.3d 191, 194 (5th Cir. 1994) (rejecting new trial claim based on juror's statement of purported misunderstanding of "Allen" charge); Farmers Coop. Elevator Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir. 1967) (declining to entertain juror affidavits indicating a misinterpretation of the court's instructions); United States v. Chereton, 309 F.2d 197, 200-01 (6th Cir. 1962) (disallowing evidence of possible juror mistake as to the numbers ascribed to the various counts charged); United States v. Delano, 825 F. Supp. 534, 547-48 (W.D.N.Y. 1993) (refusing to explore juror's post-verdict assertions suggesting misunderstanding of court's instructions).

In Dalrymple v. Williams, 63 N.Y. 361, 364 (1875), the New York Court of Appeals approved a modest exception to the common law rule, allowing post-verdict juror affidavits to be received in those "rare" cases where a verdict has been "misunderstood by the court, or erroneously reported." It is not enough, however, simply to submit a juror affidavit alleging that the verdict reported was not the verdict intended. See People v. Foti, 99 A.D.2d at 517, 470 N.Y.S.2d at 689 (rejecting Dalrymple claim based on foreman's affidavit that jury intended only to convict defendant of grand larceny, not second degree robbery and grand larceny as originally reported). Dalrymple focuses on reporting errors more akin to "clerical mistake[s]," and it expressly holds that relief "never will be granted except in cases free from reasonable doubt." 63 N.Y. at 364. That is not Torres's case.

Torres's unsupported claim that jurors were confused by the verdict form in his case is hardly established beyond a reasonable doubt. Indeed, the claim is dubious in light of the straightforward instructions of the trial court:

The first three counts, as indicated by the description, relates to the alleged sale of those drugs to the undercover. . . . The next three, counts four, five and six, relate to the alleged sale to the female buyer, Maria Torres.

Trial Tr. at 855.

Now we go to the seventh, eighth and ninth counts of the indictment. They relate to the alleged sale to the male civilian buyer. I believe his name was Arax Odabashian.

If litigants may sit by and acquiesce in every part of the trial, and then overturn verdicts upon the affidavits of weak and vacillating jurors that they have misunderstood or misapplied the instructions of the court, there would be an end of orderly administration of the law, and trial by jury would be a farce.

Torres's Sixth Amendment claim is denied both as procedurally barred and without merit.

Conclusion

For the reasons stated, this court concludes that Torres's claims that he was (1) denied due process before the grand jury, (2) convicted on unlawfully seized evidence, (3) denied his due process right to Brady disclosures, (4) denied a fair trial as a result of prosecutorial misconduct, and (5) denied effective assistance of counsel, are all procedurally barred from federal habeas review. In any event, Torres's petition for a writ of habeas corpus must be denied because these claims, as well as Torres's claim that (6) the evidence was insufficient to support his conviction beyond a reasonable doubt, are all without merit. The court also denies petitioner a certificate of appealability. The Clerk is to enter judgment on behalf of the respondent and mark this case closed.

SO ORDERED.