Rosario v. Walsh

Full title: LOUIS ROSARIO, Petitioner, v. SUPERINTENDENT WALSH, Respondent

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

Date published: May 25, 2006

No. 05 Civ. 2684 (PKC) (AJP) (S.D.N.Y. May. 25, 2006)

Opinion

No. 05 Civ. 2684 (PKC) (AJP).

May 25, 2006

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable P. Kevin Castel, United States District Judge:

Pro se petitioner Louis Rosario seeks a writ of habeas corpus from his June 22, 1999 conviction in Supreme Court, New York County, of first degree robbery, first degree criminal use of a firearm, and second degree criminal possession of a weapon, and sentence as a second violent felony offender to concurrent determinate terms of imprisonment of twenty-five years, twenty-five years, and seven years respectively. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v. Rosario, 302 A.D.2d 266, 266, 753 N.Y.S.2d 836, 836 (1st Dep't), appeal denied, 100 N.Y.2d 645, 769 N.Y.S.2d 211 (2003).

Rosario's federal habeas petition raises six claims that his due process rights were violated because: (1) the prosecution's introduction of the victim's prior consistent statements was reversible error (Pet. Ex. A at 14-15); (2) the verdict was legally insufficient and against the weight of the evidence (Pet. Ex. A at 16-18); (3) the prosecutor's summation improperly shifted the burden of proof (Pet. Ex. A at 18-19); (4) the trial judge's instruction as to criminal liability for acting in concert was erroneous (Pet. Ex. A at 19-21); (5) the trial judge improperly denied the jury's request for testimonial readback (Pet. Ex. A at 21-22); and (6) Rosario's sentence was excessive (Pet. Ex. A at 22).

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

FACTS

The Trial The Prosecution's Case Testimony of Complainant Neftale Reyes

The prosecution's chief witness at trial was the complainant, Neftale Reyes, a twenty-three year old immigrant from the Dominican Republic. (Reyes: Trial Transcript ("Tr.") 129, 201, 290-92.) Reyes worked as a watchman over certain illegal drug activities in his uncle's apartment at 860 Riverside Drive, Apartment 2G. (Reyes: Tr. 133-35, 188-89, 198-201, 239-40, 243, 278-79, 282-84, 299-302, 381.) As a watchman, Reyes acted as a protector (although he was not armed), restricting access to the apartment and watching people prepare packages of cocaine. (Reyes: Tr. 134-36, 188-90, 198-201, 240-41, 243, 278-79, 282-84, 299-302, 306, 389-92.)¹

1 Reyes and his brother were convicted on July 1, 1997 of criminal facilitation, and as a result Reyes was on probation at the time of this trial. (Reyes: Tr. 191, 237-38, 260-61, 263-66, 273-74.) Reyes plead guilty to that crime so that he would be released from jail and get probation. (Reyes: Tr. 263-66, 269-73, 380.) That crime involved Reyes driving his brother to the airport with a half kilo of cocaine to sell to an undercover police officer. (Reyes: Tr. 261-66, 380.)
Shortly after arriving in the United States from the Dominican Republic in 1991, Reyes was arrested and convicted for possession of approximately three grams of cocaine. (Reyes: Tr. 256-58, 378-79.) Reyes was on probation for that crime for five years, from 1992 to 1997. (Reyes Tr. 259-60.)
On cross examination, Reyes plead the Fifth when defense counsel asked him a series of questions regarding whether or not he sold marijuana to the defendants and whether he ran a business selling marijuana. (Reyes: Tr. 246-49.)

Reyes had met petitioner Louis Rosario and his co-defendant, Jose Padilla, also known as Chino, two times before the incident on June 11, 1998. (Reyes: Tr. 130-33, 136, 194, 246, 251, 307, 385.) The first time, they met on the street near 158th Street and Riverside Drive, where they talked and drank beer together for approximately twenty minutes. (Reyes: Tr. 132-33, 136, 251, 307, 315.) During their second meeting, Rosario and Padilla went up to the 860 Riverside Drive apartment and talked, drank alcohol and smoked marijuana with Reyes for approximately twenty-five or thirty minutes.² (Reyes: Tr. 136-37, 246, 250-51, 314-15.) Reyes, Padilla and Rosario all got along well on those occasions. (Reyes: Tr. 251-52.)

2 During cross examination, Reyes testified that his second meeting with Padilla and Rosario lasted "several hours." (Reyes: Tr. 308, 313-14.)

At approximately 8:45 p.m. on June 11, 1998, Reyes was in the apartment at 860 Riverside Drive watching a soap opera on television. (Reyes: Tr. 138-39, 382.) At this time, there were no drugs in the apartment, but there was drug paraphernalia. (Reyes: 192-93, 238, 302-03.) Padilla rang the intercom from the street, said that it was "Chino," and Reyes buzzed him into the building. (Reyes: Tr. 139-40.) When Reyes looked through the apartment door's peephole, he saw Padilla, Rosario and an unidentified third man. (Reyes: Tr. 140-42, 252-53, 315, 382.) Because he knew Rosario and Padilla, Reyes let them into the apartment. (Reyes: Tr. 142, 241, 304, 314-15.) Padilla introduced the third man to Reyes, and all four sat down and started talking. (Reyes: Tr. 142-43, 304, 382, 385-87.) After a few minutes, Reyes gave them ten dollars to go get some alcohol and marijuana. (Reyes: Tr. 143-44, 305, 316-18.) Reyes stayed in the apartment while the other three left to get the alcohol and marijuana, returning after approximately twenty minutes. (Reyes: Tr. 144-45, 382-83.) Reyes noticed that when they came back, Rosario brought a gray coat or bag with him that he did not have before they left. (Reyes: Tr. 145, 181-83, 244-46, 324-27.)

The four of them sat and talked, drank the alcohol and smoked marijuana for about fifteen minutes. (Reyes: Tr. 146, 238, 249-50, 318-22, 392.) Reyes sat in front of the television, Padilla was in front of Reyes, and the other two were sitting on a sofa four or five feet from Reyes' chair. (Reyes: Tr. 145, 149, 165, 167-68.) The unidentified man asked Reyes for some water, and Reyes responded: "'You go get it yourself.'" (Reyes: Tr. 146, 331.) The unidentified man went into the kitchen to get the water, but Reyes did not hear water running. (Reyes: Tr. 146, 164-65, 331, 383.) The unidentified man came back into the room carrying a pistol, grabbed Reyes from behind, put the gun to the back of Reyes' head, and pushed Reyes' head down. (Reyes: Tr. 146-47, 150-51, 164-65, 331-32, 392-93, 397.) Reyes turned his head, heard a shot and there was a lot of blood down the right side of his body. (Reyes: Tr. 147, 151-52, 328-29, 331-32, 392-93.) While the gunman still had his arm around Reyes' neck, Padilla stood up in front of Reyes and took approximately $800 out of Reyes' front pocket. (Reyes: Tr. 149-53, 166-67, 169-70, 175, 192, 328, 332, 387, 392-93.)³ Padilla counted the money and asked Reyes where the rest of the money was. (Reyes: Tr. 166-67, 171, 332.) Rosario stood up and approached Reyes "a little bit." (Reyes: Tr. 167-71, 394, 396.)

3 Reyes also testified that both Rosario and Padilla searched his pockets and took his money. (Reyes: Tr. 152-53, 167.)

Reyes said that the rest of the money, approximately $600, was in between the two mattresses in the bedroom, and Padilla told Rosario to go get the money, which Rosario did.⁴ (Reyes: Tr. 171-73, 192, 332-35, 387, 393, 399-405.) After they took the money, Reyes heard Padilla say "'Kill him.'" (Reyes: Tr. 172, 175.) The gunman shot at Reyes' head, but Reyes put his arm up and was shot in the arm and partly in the head as a result. (Reyes: Tr. 175-76.) Reyes threw himself to the ground to "play dead," and the three men "took off running." (Reyes: Tr. 175-76, 337-38.)

4 Reyes testified before the grand jury that Padilla went to get the money from the mattress in the bedroom, and that there was $1,200 all together in the apartment. (Reyes: Tr. 333-37, 387-88, 394-95, 399-400.) During redirect examination at trial, the prosecutor refreshed Reyes' recollection with a prior consistent statement that Reyes made to the government, in which Reyes said that approximately two months after he was shot, which was after he had testified before the grand jury, while he was going over the details of the incident in his head, he remembered that it was Rosario who went into the bedroom to get the money, not Padilla. (Reyes: Tr. 404-05, 415-18.) Reyes' injury had effected his memory during the weeks that his wound was healing, and he remembered approximately two months after he was shot that it was Rosario who took the money from the bedroom, and this memory loss was why he testified differently in front of the grand jury. (Reyes: Tr. 404-05, 415-18.)

Once Reyes saw that the three men were gone, he went downstairs and saw a man, who he asked to call an ambulance. (Reyes: Tr. 177.) Reyes saw two girls coming that he knew, and they sat Reyes down on the ground and called an ambulance. (Reyes: Tr. 177-78.) Reyes waited on the ground for approximately twenty minutes until the police and ambulance arrived, and took him to the hospital. (Reyes: Tr. 177-78, 193.)

Detectives Rosado and Hernandez interviewed Reyes in the hospital. (Reyes: Tr. 193, 213-14, 244-45, 324, 399, 406-09.) After Reyes was released from the hospital, he identified Rosario and Padilla in two separate line ups. (Reyes: Tr. 193-94, 395.) Reyes found out Rosario's name only after Rosario was arrested. (Reyes: Tr. 194.)

Testimony of Rafael Casado

Rafael Casado testified that at approximately 9:00 or 9:30 p.m. on June 11, 1998, he witnessed "[m]ore than two . . . [l]ess than five" light-skinned Hispanic males running northbound together from the direction of 860 Riverside Drive near 158th Street. (Casado: Tr. 424-26, 430-32, 442-44, 451.) Casado could not give a detailed description of the men except that they were male Hispanics. (Casado: Tr. 432-33, 439, 448.) The men drew his attention because they were running, and because he did not recognize them as being from his neighborhood. (Casado: Tr. 431-32.) One of the men was holding his hand close to his waist as he was running. (Casado: Tr. 433-34, 448.)

Approximately one or two minutes later, Casado saw another man come out of 860 Riverside Drive, holding his head with his right hand and waving for help with his left hand. (Casado: Tr. 435-38.) The man crossed Riverside Drive, then crossed back across the street, and collapsed in front of 860 Riverside Drive. (Casado: Tr. 437-38.) The man was bleeding from wounds in the head and the right arm. (Casado: Tr. 440.)

After he saw the man collapse, Casado saw two police officers, described what he saw, and accompanied other police officers to look for the men he had seen running up Riverside Drive. (Casado: Tr. 439, 441-42.) Testimony of Zulika Gonzalez and Wanda Rosario

On June 11, 1998 at approximately 9 p.m., Zulika Gonzalez and Wanda Rosario were walking near 860 Riverside Drive and observed a man on the other side of the street go up to a man and ask for help because he had just been shot. (Gonzalez: Tr. 456-58, 477, 481-82, 486; W. Rosario: Tr. 491.) The other man kept walking north on Riverside Drive, and the man who had been shot walked toward Gonzalez and Wanda Rosario from the other side of Riverside Drive while saying that he had just been shot and that he did not want to die. (Gonzalez: Tr. 462-64, 478, 482; W. Rosario: Tr. 491-92.) The man was holding his right hand to his head. (Gonzalez: Tr. 460, 463.) Gonzalez saw what appeared to be a burn mark and blood on his forearm. (Gonzalez: Tr. 461-62, 483-84.) The man seemed excited, nervous, and afraid, and was speaking very fast in Spanish. (Gonzalez: Tr. 463-65; W. Rosario: Tr. 493.) Gonzalez told the man to sit down and calm down, and to show her where he was shot in the head. (Gonzalez: Tr. 464, 478, 482; W. Rosario: Tr. 492.) When the man removed his hand from his head, Gonzalez observed a wound that looked like a "skid . . . [i]t looked like it burned him or skidded through his head." (Gonzalez: Tr. 464-65.) Gonzalez asked the man who had shot him, and he responded that it was "a friend." (Gonzalez: Tr. 478-79, 483; W. Rosario: Tr. 493.)

Wanda Rosario called 911. (Gonzalez: Tr. 479; W. Rosario: Tr. 492.) Approximately five minutes after they first observed the man who was shot, the police came, followed in approximately three minutes by an ambulance. (Gonzalez: Tr. 484-85; W. Rosario: Tr. 494-95.)⁵ Testimony of Detective William Menendez

5 Gonzalez noted that she and Wanda Rosario had seen the man who was shot approximately half an hour earlier, around 8:30 in the evening, talking on a phone in a phone booth at 156th Street and Broadway. (Gonzalez: Tr. 457, 459, 461, 488-89.) At that point, the man did not appear to have any injuries. (Gonzalez: Tr. 461, 489.)

Detective William Menendez of the Crime Scene Unit arrived at 860 Riverside Drive at approximately 11:00 p.m. on June 11, 1998. (Menendez: Tr. 498-501.) Detective Menendez observed blood on the living room floor, a trail of blood leading to the apartment's entrance, as well as a .45 caliber shell casing on the floor behind the sofa and a "deformed copper jacketed bullet on one of the chairs." (Menendez: Tr. 501, 507, 510, 514, 524-26, 529.) There was a bullet hole in the floor next to the blood. (Menendez: Tr. 507-08.) Detective Menendez tried to find the bullet that made the hole, but he could not, and he believed that it was still "somewhere in the floor." (Menendez: Tr. 508-09, 530-31, 534-35, 537-38.) Another detective pointed out a handgun in a knapsack on the sofa. (Menendez: Tr. 501-02, 507-08, 510-11, 515-17, 526.) The handgun was loaded with six live cartridges. (Menendez: Tr. 521.) Detective Menendez processed and fingerprinted the handgun at the scene, but did not find any fingerprints on the gun. (Menendez: Tr. 519-21.) Detective Menendez took photographs and drew a diagram of the apartment. (Menendez: Tr. 502-03, 507, 509-11.) Detective Menendez took three pieces of evidence from the apartment and forwarded them to the police lab: the deformed copper jacketed bullet, the shell casing, and the handgun with the knapsack. (Menendez: Tr. 511-12, 515, 516, 523.) Detective Menendez identified those items at trial. (Menendez: Tr. 512-18, 522-23.)

Testimony of Police Officer Steven Tirado

On June 11, 1998 at around 9 p.m., Police Officer Steven Tirado and his partner Police Officer Anthony Duncan responded to a radio call requesting backup at 860 Riverside Drive. (Tirado: Tr. 543-45.) When they arrived, other officers were helping someone on the ground who appeared to have been shot. (Tirado: Tr. 545-46.) Officers Tirado and Duncan followed a trail of fresh drops of blood leading from the sidewalk into the building, up the stairs to Apartment 2G and into the living room. (Tirado: Tr. 547.) Officer Tirado observed a pool of blood in the living room between the couches and the television. (Tirado: Tr. 547-48.)

Officer Tirado noticed that there was an open gray gym bag on the couch in the living room. (Tirado: Tr. 551, 558, 572-73.) Officer Tirado identified the bag at trial. (Tirado: Tr. 551-52.) Officer Tirado saw that there was something metal in the bag, so he picked the bag up, looked in the bag and saw the gun. (Tirado: Tr. 552-53, 558, 572-73.) Officer Tirado put the bag back on the couch where he found it. (Tirado: Tr. 553.) Officer Tirado examined the photograph that Detective Menendez took of the apartment and confirmed that the bag with the gun in it was in approximately the same place as where he saw the bag when he first entered the apartment. (Tirado: Tr. 557.)

Later that evening, Officer Tirado arrested the complainant for possession of the firearm in the apartment. (Tirado: Tr. 560-61, 566.) Officer Tirado learned that the man's name was William Parais from the officer guarding him at the hospital. (Tirado: Tr. 562-63, 567-68.) Officer Tirado testified that he never heard the person he knew as William Parais also go by the name of Neftale Reyes. (Tirado: Tr. 568-69.) A report that Officer Tirado completed noted that William Parais also went by the name of Wilton Rodriguez. (Tirado: Tr. 572.) Officer Tirado explained that it is routine procedure that if there is a gun in an apartment, whoever is in the apartment will get charged with gun possession. (Tirado: Tr. 561.) Officer Tirado explained that the district attorney declined to prosecute Parais for gun possession. (Tirado: Tr. 562.)

Testimony of Detective Frank Rosado

On June 11, 1998, Detective Frank Rosado of the Joint Robbery Apprehension Task Force responded to a call of a home invasion robbery at 860 Riverside Drive. (Rosado: Tr. 585-86.) When Detective Rosado arrived a few minutes after 10 p.m., there were already several other police units there. (Rosado: Tr. 586-87.) Upon entering the building, Detective Rosado followed the blood trail up to the second floor apartment. (Rosado: Tr. 587-88.) Detective Rosado spent ten to fifteen minutes at the crime scene, went back to the precinct and then went to interview the complainant. (Rosado: Tr. 590-91.)

Detective Rosado arrived at St. Luke's Hospital at approximately 3:55 a.m., went to the complainant's room and woke him up at approximately 4:05 a.m. (Rosado: Tr. 591.) Detective Rosado interviewed the complainant for an hour and a half. (Rosado: Tr. 591, 612, 635.) The complainant identified himself as Neftale Reyes, did not mention that he also used the names of Frias or Rodriguez, but said he also used the name William Parias. (Rosado: Tr. 592, 609-11, 616.) Reyes gave Detective Rosado descriptions of three men involved in the incident and told him that one had the nickname "Chino." (Rosado: Tr. 592, 643.) Reyes did not mention to the detectives during the interview that the three men left the apartment to purchase alcohol and marijuana or that when they returned to the apartment, one was carrying a bag or a coat. (Rosado: Tr. 613-15, 619-20.) Reyes told the detectives that it was Padilla who went to the bedroom to retrieve the money from the mattress. (Rosado: Tr. 623, 628-29.) Reyes told the detectives that he was shot in the arm first, and then in the head. (Rosado: Tr. 625.)

On June 16, 1998 at 4:20 p.m., Detective Rosado arrested Jose Padilla and Louis Rosario. (Rosado: Tr. 594.) Upon arrival at the precinct, Padilla admitted that his nickname was Chino. (Rosado: Tr. 596-97.) The detectives set up separate line ups involving Padilla and Rosario and had Reyes view the lineups. (Rosado: Tr. 599-605.) Reyes told the detective during Rosario's line up that Rosario stood next to Padilla while Padilla took his money. (Rosado: Tr. 626.)

Medical Evidence

Dr. Mark Flomenbaum of the Office of the Chief Medical Examiner testified that based on photographs, Reyes' wounds were gunshot wounds. (Flomenbaum: Tr. 347, 350-51.) Dr. Flomenbaum stated that there was a gunshot wound to Reyes' head that had both entrance and exit marks. (Flomenbaum: Tr. 352, 354-55.) The bullet entered at the back of the head, traveled under the scalp, and exited at the top of the head. (Flomenbaum: Tr. 354-55.) There was also a gunshot wound to Reyes' forearm that had both entrance and exit wounds. (Flomenbaum: Tr. 356-57, 359, 361-63, 365-66.) The shot to the forearm was fired at close range, possibly within three or four inches, because the entrance wound had gunpowder residue on it. (Flomenbaum: Tr. 359, 361-63, 365-66.) Dr. Flomenbaum was not able to determine whether one or two bullets contributed to Reyes' two wounds, although it was more likely that there were two bullets because it would be difficult to get the body into a position where one bullet could have made both wounds. (Flomenbaum: Tr. 367, 372-76.)

The Defense Case Testimony of Co-Defendant Jose Padilla

Jose Padilla was twenty-five years old at the time of trial, and had been convicted of two felonies, one of which involved an assault on a law enforcement official. (Padilla: Tr. 660, 701-02.) Padilla had been friends with Rosario for approximately ten years, although he only knew Rosario by his first name, Louis, or his nickname, Moe, and Rosario only knew him by his street name, Chino. (Padilla: Tr. 699, 703, 734.) Padilla first met Neftale Reyes at the end of February 1998 near 158th Street and Broadway.⁶ (Padilla: Tr. 661-63.) Padilla, his friend Leo, and Rosario were eating near the window at a restaurant on the corner of 158th Street and Broadway, when Leo saw Reyes walking by outside. (Padilla: Tr. 663-64.) Leo introduced Reyes to Padilla and Rosario, they all sat together and talked for approximately half an hour, and when Reyes left he said that they should all stop by "the apartment" later. (Padilla: Tr. 664-65.) They did not speak about drugs with Reyes on that occasion. (Padilla: Tr. 665-66.) Later that same day, Padilla, Leo and Rosario went to Reyes' apartment at 860 Riverside Drive, watched sports together and smoked marijuana for approximately an hour. (Padilla: Tr. 666-67, 735-36.)

6 Padilla testified on direct examination that this and several other incidents occurred near 148th Street in Manhattan. (E.g., Padilla: Tr. 662.) On cross examination, he corrected himself, saying that he remembered the street numbers incorrectly, and that all of these incidents occurred near 158th Street in Manhattan. (Padilla: Tr. 706-07.)

Padilla next saw Reyes at the beginning of March 1998. (Padilla: Tr. 667-68.) Padilla was with Leo, but not Rosario, when they saw Reyes between 155th and 158th Streets. (Padilla: Tr. 667-68.) Padilla, Leo, and Reyes went to a pool hall and played pool and smoked marijuana for approximately two to three hours. (Padilla: Tr. 668-69.) They did not go back to Reyes' apartment on that particular date. (Padilla: Tr. 669.)

Padilla met Reyes at least two more times prior to June 11, 1998. (Padilla: Tr. 670, 723-24, 742-44.) One or more of those times, Padilla went to Reyes' apartment specifically to ask him for a particular type of marijuana, "hydro." (Padilla: Tr. 671, 723-24, 742-44.) Reyes gave Padilla the marijuana, and they smoked it together in Reyes' apartment. (Padilla: Tr. 671.) The times that Padilla visited Reyes' apartment at 860 Riverside Drive, Padilla noticed that several times people would ring the bell, come into the apartment, go into the kitchen for approximately five minutes, and leave. (Padilla: Tr. 697-99.)

On June 11, 1998, Padilla and Rosario wanted to buy marijuana, so they took a cab from the Bronx into Manhattan to Reyes' apartment. (Padilla: Tr. 673-74, 734, 736-37.) Padilla was wearing jean shorts with a t-shirt, but no jacket. (Padilla: Tr. 739.) Padilla believed that Rosario was wearing jeans and a t-shirt, but not a jacket. (Padilla: Tr. 740.) Padilla had $75 and Rosario was carrying money and a gun. (Padilla: Tr. 674.) After they got out of the cab at 158th and Broadway, Padilla greeted a man he knew only by his street name as Poppo. (Padilla: Tr. 674-75, 699, 737, 741.) Padilla had known Poppo for approximately six months and had met him on over a dozen occasions during those months. (Padilla: Tr. 675, 730, 793.) Leo had initially introduced Padilla to Poppo. (Padilla: Tr. 675.) Padilla introduced Rosario to Poppo and asked Poppo to come with them to Reyes' apartment at 860 Riverside Drive. (Padilla: Tr. 678-81, 744-45.) Padilla believed that Poppo was wearing a t-shirt and jeans that day and did not observe any gun in Poppo's waistband. (Padilla: Tr. 733-34, 745-46, 793-94.)

Padilla, Rosario and Poppo went to 860 Riverside Drive and buzzed the bell for Apartment 2-G. (Padilla: Tr. 680-81, 746.) After Reyes opened the door and let them in, Padilla introduced Reyes and Poppo. (Padilla: Tr. 681, 753.) Neither Padilla, Rosario nor Poppo were carrying a bag. (Padilla: Tr. 681-82.) They stayed in the apartment for approximately half an hour, talking about buying marijuana, and watching a Chicago Bulls game. (Padilla: Tr. 681-82, 755-56.) Padilla and Rosario got along well with Reyes on June 11, 1998, and had never had any problems or arguments with him before that. (Padilla: Tr. 683, 741-44.)

After approximately half an hour, Reyes made a quick phone call, and when he got off the phone, he told Padilla to go downstairs and he would be able to buy some marijuana from "a kid with a hat and a jacket." (Padilla: Tr. 683-85, 729, 754.) Reyes did not have any marijuana in the apartment, and he gave Padilla $10 toward the purchase. (Padilla: Tr. 684, 753.) Padilla, Rosario and Poppo left the apartment to go buy marijuana. (Padilla: Tr. 683-84, 753, 756.)

Padilla saw the kid with the hat and the jacket, said that Reyes had sent them, gave the kid money and went to the corner to wait for the kid to bring him the marijuana. (Padilla: Tr. 685-66.) Poppo went over to talk to a crowd of people who were hanging out by a mailbox for a few minutes, and rejoined Padilla and Rosario. (Padilla: Tr. 685-86, 756-57.) Padilla thought that Poppo had the marijuana, so they walked away, went back up to Reyes' apartment, at which time they all realized that no one had gotten the marijuana; Poppo went downstairs to retrieve it while Padilla, Rosario and Reyes waited in the apartment. (Padilla: Tr. 686-88, 729-30, 758.) Padilla, Poppo and Rosario did not carry a bag with them upon reentering Reyes' apartment and did not buy alcohol while they were out. (Padilla: Tr. 687-89.)

Fifteen or twenty minutes later, Poppo came back to the apartment with the marijuana, and they all started smoking it. (Padilla: Tr. 689-90, 758, 763.) Reyes pulled out a bottle of Hennessy from his kitchen and they all drank that while smoking the marijuana. (Padilla: Tr. 690, 764.) Reyes was sitting in a chair, Padilla was sitting on a love seat four or five steps away, and Rosario and Poppo were sitting on a sofa in the living room. (Padilla: Tr. 690-91, 747-52, 759-60.)

After smoking and drinking for a "little while," Poppo asked Reyes if he could drink some water. (Padilla: Tr. 691, 764.) Reyes told Poppo that he could help himself, so Poppo went into the kitchen. (Padilla: Tr. 691, 764.) Reyes, Padilla and Rosario continued watching television. (Padilla: Tr. 691.) Poppo came out of the kitchen with a black gun, which Padilla believed was a.45 caliber. (Padilla: Tr. 691-92, 765-66.) Poppo cocked the gun, approached Reyes, and grabbed him by the back of his collar. (Padilla: Tr. 691-92, 764-67.) Padilla froze because he did not know Poppo's intentions. (Padilla: Tr. 692-93, 695, 771-72, 792.) Reyes put his arms up in a defensive posture, and Poppo hit Reyes over the head with the gun. (Padilla: Tr. 692-93, 767-69.) Poppo and Reyes briefly struggled, during which the gun went off. (Padilla: Tr. 693, 767-69.) Padilla saw blood dripping down from the top of Reyes' head. (Padilla: Tr. 770-71.) Reyes screamed, "'Chino, why is he doing this to me.'" (Padilla: Tr. 696, 769, 772-73, 776.)

Rosario got up and ran past Poppo toward the door out of the apartment, and Padilla ran after him. (Padilla: Tr. 694, 771-73, 792-93.) Padilla did not say anything after Poppo came out of the kitchen with a gun, during the struggle or after the shot went off. (Padilla: Tr. 693-95, 773.) Padilla was shocked that Poppo pulled a gun on Reyes, and was not sure whether Poppo would shoot him and Rosario as well. (Padilla: Tr. 695-96, 792.)

Padilla ran down the stairs and ran north up Riverside Drive for about five blocks to get out of the area because he was scared and felt his life was in danger. (Padilla: Tr. 695-96, 788-89, 796.) Padilla flagged a cab to take him to 996 Aldus Avenue, where Padilla lived at the time. (Padilla: Tr. 695-96.) Padilla did not know where Rosario went at that point. (Padilla: Tr. 796.)

Padilla knew that Reyes was hurt but did not try to help him because he was scared of Poppo and the gun and wanted to get away from the area. (Padilla: Tr. 696-97, 789-90, 796.)

Padilla testified that he never tried to rob Reyes, and never went through Reyes' pockets to look for money because everything happened so fast that there was no time to do that. (Padilla: Tr. 697.) Padilla also testified that he never ordered Poppo to kill or rob Reyes and never planned to kill or rob Reyes himself. (Padilla: Tr. 697, 791-92.)

Padilla testified that after he was arrested, he agreed to help the police. (Padilla: Tr. 776-78.) Padilla gave Detective Rosado a verbal statement about the incident willingly without a lawyer present after receiving his Miranda rights. (Padilla: Tr. 776-79, 795, 798-800.) Detective Rosado made written notes of the statement, and Padilla signed the notes after telling Detective Rosado about certain changes that should be made to the statement and after Detective Rosado told him that he was going to be released. (Padilla: Tr. 778-88.) Padilla testified that around the time of the June 11, 1998 incident, he had Poppo's beeper number but he never gave the police Poppo's beeper number to help them locate Poppo. (Padilla: Tr. 708-10, 714, 731.) Padilla told the police what Poppo looked like and reviewed photographs to see if he could recognize him. (Padilla: Tr. 714.) Padilla did not know whether Poppo usually carried a gun with him, and never saw Poppo with a weapon. (Padilla: Tr. 733-34.)

Testimony of Detective Kevin Martin

On June 11, 1998, the complainant told Detective Kevin Martin that his name was William Parais. (Martin: Tr. 805-07.) Detective Martin found out from one of the complainant's relatives that the complainant's name was Neftale Martes Reyes. (Martin: Tr. 810-11.) Reyes told Detective Martin that there were three Hispanic men involved in the incident, one of whom was named Chino. (Martin: Tr. 808.) Reyes told him that one of the men asked for a glass of water and "upon return to the living room produced a black handgun." (Martin: Tr. 808.) Reyes said that Chino took $800 from his left pants pocket. (Martin: Tr. 808-09.) Reyes said that the man with the gun asked him where the rest of the money was, but before he could respond, the man shot him in the arm. (Martin: Tr. 809.)

The Prosecution's Rebuttal Case

In rebuttal, Detective Rosado was recalled and testified about Jose Padilla's statement on June 17, 1998 regarding the incident. (Rosado: Tr. 837-67.) When Detective Rosado read Padilla hisMiranda rights, Padilla stated he understood and signed the bottom of the Miranda form. (Rosado: Tr. 838-41, 854-55, 860.) Detective Rosado spoke to Padilla for approximately one hour and twenty minutes. (Rosado: Tr. 841.) The conversation happened after Reyes identified Padilla in a line up, and Padilla was arrested. (Rosado: Tr. 842, 852-53.) Padilla informed Detective Rosado that he wanted to speak with him regarding the incident on June 11, 1998, and requested that Detective Rosado write the statement out. (Rosado: Tr. 842-43, 855.) Detective Rosado did not promise to release Padilla or offer him anything in order to get him to make a statement. (Rosado: Tr. 843, 846, 860.) Detective Rosado recorded Padilla's statement on a legal pad as he was speaking and took steps to correct any error and to assure that there would be no way anyone could add anything to the statement afterward without Padilla's consent. (Rosado: Tr. 846-48, 861-67.) Padilla did not sign the statement. (Rosado: Tr. 848, 856, 866-67.) Detective Rosado testified that he accurately wrote down what Padilla told him in the statement, and read it back to Padilla paragraph by paragraph. (Rosado: Tr. 849-50.) After Detective Rosado finished writing the statement, he asked Padilla again if he wanted to sign the statement, but Padilla refused. (Rosado: Tr. 850.)

Detective Rosado testified that part of Padilla's statement was as follows:

"The victim grabbed at the gun and while they struggled the gun went off . . . the defendant states that when the shot went off, I heard when the victim said, hey, Chino, why did you do this to me. The defendant states that at this point he got up and he saw the blood on the floor by the TV area. Defendant states that the victim was on his knees saying why did you do this. The defendant saw a few drops of blood. Defendant states that he then heard when Mo (Rosario) ran out of the apartment followed by Poppo, I then ran out of the apartment. When we hit the street, we went our separate ways. Defendant states that once out of the building he made a right, went up until he flagged a cab and went toward The Bronx.

(Rosado: Tr. 850-51.) Discussion of the Jury Charge

When discussing what acting in concert charge to give the jury, the following colloquy ensued:

THE COURT: How do you want me to deal with the acting in concert charge from your standpoint?

MR. ORZICK [Rosario's Counsel]: [Defense attorney for Rosario] I know the CJI Charge has mere presence language. That would be the language I'm looking for. Mere presence is not enough. They have to prove beyond a reasonable doubt more than mere presence. I don't have the charge in front of me.

Basically the CJI charge I would think would be adequate. Something to the effect that mere presence even with knowledge would not — if that's the only evidence, if that's what they find would not be enough.

THE COURT: That's fine. I will certainly give that. . . .

(Colloquy: Tr. 820-21.)

The Prosecution's Summation

At the beginning of prosecutor's summation, the prosecutor stated that his "client is the City and State of New York." (Prosecution Closing: Tr. 943.) The prosecutor also said that "we have faith in your ability to be able to tell what's important in this case." (Prosecution Closing: Tr. 946.) Defense counsel objected to both statements, and the judge sustained the prosecutor's reference to his "client," but overruled the objection to the prosecutor's statement regarding faith in the jury's abilities. (Tr. 943-44, 946.)

The prosecutor noted that defense counsels' cross examination of Reyes focused primarily on his immigration and criminal history, rather than his testimony regarding the June 11, 1998 incident. (Prosecution Closing: Tr. 948-51.) Defense counsel objected, stating that the prosecutor was trying to shift the burden to the defendants. (Tr. 949-50, 1003.) In response, the judge stated: "I tell them the law. He can argue counter to what the law is if he wants to." (Tr. 949-50.) The judge, however, also admonished the prosecutor, saying: "Now you have to tell them because there comes a point when you can't just harp on what they didn't do, because mostly they didn't have to do anything. Now, is the time to tell them how you proved your case from your standpoint." (Tr. 951; see also Tr. 1003-04.)

The prosecutor stated that "counsel really don't want you to focus on why there may have been two bullets." (Prosecution Closing: Tr. 962.) Defense counsel objected, and the judge sustained the objection, stating: "Please don't argue it that way. There is enough written about that." (Tr. 962-63.)

The prosecutor also referred to Padilla's testimony regarding wanting to make changes in his statement to Detective Rosado: "Do you remember when he said that just yesterday. Do you remember what he testified that Rosado refused to make the changes that he wanted. If you evaluate his testimony, you will realize that his testimony is tailored. . . . [t]hat it is false." (Prosecution Closing: Tr. 994.) Defense counsel objected, and the judge ruled by saying: "Overruled. I'm sorry. Sustained as to tailored. Overruled as to false." (Tr. 994.)

The Jury Charge

The trial judge instructed the jury as to the elements of the crimes with which Rosario and Padilla were charged: second degree attempted murder, first degree robbery, first degree criminal use of a firearm, and second degree criminal possession of a weapon. (Charge: Tr. 1029-42.) The judge also instructed the jury multiple times during the charge that the burden was on the prosecution to prove each defendant guilty beyond a reasonable doubt, and explained the definition of reasonable doubt. (Charge: Tr. 1014-18, 1033-34, 1039.)

The judge instructed the jury regarding criminal liability for acting in concert, as follows:

The People's theory in this case is acting in concert. I will read that law to you. Certain circumstances under which one person can be liable for the act of another. In order for this acting in concert or joint responsibility theory to be applied to any defendant, the People have to prove two things beyond a reasonable doubt: preliminarily I will explain to you that a fair system of law as ours certainly is doesn't penalize simply thoughts and it doesn't penalize simply acts. It penalizes where there is a combination of thought and act.

So, for the in concert accessorial liability to apply as to one or more of the defendants, the People must first prove beyond a reasonable doubt two things: that each person supposedly involved in a crime had the same mental purpose, the same mental element that the crime will require. In this instance intent is the operative standard in three of the four charges.

The second component that the People must prove beyond a reasonable doubt in order for them to invoke successfully the in concert theory that somebody did something, doesn't have to be a lot, but it has to be an act or acts designed to further or bring about the common purpose. I will describe that in more detail but I wanted you to know that at the beginning as a kind of outline. The law says when one person engages in conduct which constitutes a crime another is criminally liable for the conduct that they don't do if the People can prove beyond a reasonable doubt that they either told the person to do an act, requested the person to do an act, directed the person to do an act or intentionally aided the other person in any way to do an act, that is of significance in bringing about the common purpose. It is not significant if the People simply establish the person on trial knew the other person or was associated with the actor, knew that the actor was committing a crime or even that the person was present while the actor was committing an act or acts designed to further the commission of the crime. Before you can be found liable for the conduct of another person it must be proven that both the actor and the non-actor possessed the required mental state in this case it's going to be intent to commit murder or an intent to commit the robbery as I will define those crimes or an intent to use a weapon unlawfully against another person. It [does] not require the People prove the identity of somebody not on trial. The way that this law, the in concert concept is framed, is that if you are involved in a crime, if the People have proven the mental and physical components, if you are involved in a crime it doesn't matter how much you are involved but it is clear as crystal that the People have to prove those two components because somebody simply present at an act even if somebody knows the person who is the actor, even if a person knows that there is a crime about to take place, unless the People prove the two components beyond a reasonable doubt then mere presence at a crime, knowledge that a crime is going to happen is not sufficient for criminal liability. The usual example is the orchestra as far as involved or not involved, not being a factor. In an orchestra, the feature soloist or the conductor, those two people have a heck of a lot to do. The other people play around, they take a break. Everybody up there on stage, at the end of a performance, somebody is nudged, they rouse themselves and they pick up the triangle or the cymbal and when the great moment arrives they bang away. They are both in the orchestra. They don't have much, but they are an integral part of the orchestra. If somebody is on the stage, though present on the stage, not a part of the orchestra, the fact that they know members of the orchestra, the fact that they are close, the fact that they know there is going to be a performance, not in the orchestra, even though close, not involved. The jury is not asked to find whether somebody is ten percent guilty or a hundred percent guilty or fifty-fifty or ninety-ten. It's like pregnancy, you're either there or you're not. You're in or out. The People have proven the two elements beyond a reasonable doubt or they have not.

(Charge: Tr. 1024-29.)

At a sidebar conference at the end of the charge, defense counsel stated: "[t]he acting in concert charge, I found it a little confusing. When you said some one must do something for a common purpose, I think you have to make it clear that it is the person who is charging that must do something, not the other person." (Tr. 1046.) The judge provided a further explanation to the jury:

Let me say something else about the in concert theory what has to be established. The People have to establish that there was a common purpose. If they establish there is a common purpose they then have to in order to attribute the act of somebody else to one who didn't do that act they have to establish that in that context the non-actor while not doing one act did something in order to bring about the common purpose. That's why I told you that the law doesn't prohibit thought by itself, doesn't prohibit acts by itself. Has to be beyond a reasonable doubt establishment by the People that there was a common purpose and that each person did something to bring about the common purpose.

(Charge: Tr. 1049-50.)

Jury Deliberations

During deliberations, the jury sent a note requesting that the cross examination testimony of Reyes and Padilla be read to them. (Tr. 1053.) The court reporter began reading the testimony, but a juror interrupted the reading, stating that they wanted "just parts, not the whole thing." (Tr. 1053-54.) The judge asked the jury to send another note specifying the testimony they wanted to hear. (Tr. 1054.) The jury sent another note requesting the "'June 11th testimony of Reyes and Chino . . . Chino when they first met Papa, Reyes, when they first buzzed them in.'" (Tr. 1055, 1064.) Because it was approximately 5:00 p.m., the judge told the jury that they would hear the read-back the next morning. (Tr.: 1056-58.)

At 9:45 a.m. the next day, the jury sent another note stating, "will the judge please read to us again the definition of reasonable doubt. PS before we hear testimony read back then we would like ten or fifteen minutes." (Tr. 1059.) The judge re-read the definition of reasonable doubt (Tr. 1060-62) and said that the testimony read-back would occur in fifteen minutes "unless we have heard something else from you." (Tr. 1062.) At 11:00 a.m., the jury sent a note requesting the definition of second degree possession of a weapon and first degree criminal use of a firearm. (Tr. 1065.) The judge gave the jury the requested definitions, at the beginning of which he stated, "I assume that we are still putting aside the reading of the testimony. I'll deal with the request which is at note 11 o'clock." (Tr. 1073;see also Tr. 1088-89.) The jury went back to the jury room, did not send any more notes, did not request any more testimonial read back, and by 12:15 p.m. reached a verdict. (Tr. 1090.)

Verdict and Sentence

The jury found Rosario and Padilla not guilty as to second degree attempted murder, and guilty as to first degree robbery, first degree criminal use of a firearm, and second degree criminal possession of a weapon. (Verdict: Tr. 1091-94.)

On June 22, 1999, the trial judge sentenced Rosario and Padilla as predicate violent felony offenders. (6/22/99 Sentencing Tr. ("S.") 2-4, 13-14.) Defense counsel for Rosario and Padilla moved for judgment notwithstanding the verdict, which the judge denied. (S. 22-23.) The judge sentenced both Rosario and Padilla to twenty-five years imprisonment for the first degree robbery charge, twenty-five years concurrently for the criminal use of a weapon charge, and seven years concurrently for the possession of a weapon charge. (S. 29.)

Direct Appeal

Rosario's counseled appeal brief to the First Department raised six claims: (1) the prosecution's introduction of Reyes' prior consistent statements was reversible error (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 14-15); (2) the verdict was legally insufficient and against the weight of the evidence (id. at 16-18); (3) the prosecutor's summation was improper, depriving Rosario of a fair trial (id. at 18-19); (4) the trial judge's instruction as to criminal liability for acting in concert was erroneous (id. at 19-21); (5) the trial judge improperly denied the jury's request for testimonial read back (id. 21-22); and (6) Rosario's sentence was excessive (id. at 22.).

The First Department affirmed Rosario's conviction, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's arguments on this issue are similar to arguments rejected by this Court on a codefendant's appeal and there is no basis for reaching a different result herein.⁷

Any error on the part of the court in permitting the People to rehabilitate their main witness with proof of a prior consistent statement to a prosecutor was harmless under the circumstances. Since the People could not establish that the alleged prior consistent statement was ever made, defendant made affirmative use, as additional impeachment material, of the witness's assertions in this regard.

The prosecutor's summation did not deprive defendant of a fair trial. Nothing in the summation shifted the burden of proof, and, in any event, the court's curative instructions in this regard prevented any possibility of prejudice.

Viewed as a whole, the court's instructions properly conveyed the principles of acting in concert.

We perceive no basis for reducing the sentence.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

People v. Rosario, 302 A.D.2d 266, 266-67, 753 N.Y.S.2d 836, 836 (1st Dep't 2003) (citations omitted).

7 The First Department had earlier affirmed Padilla's conviction, holding:

The verdict was not against the weight of the evidence. Issues of credibility, including the weight to be given the victim's background and the minor inconsistencies in his testimony, were properly considered by the trier of facts and there is no basis upon which to disturb its determinations. The fact that defendant was acquitted of attempted murder does not warrant a different conclusion.

We perceive no basis for a reduction of sentence.

People v. Padilla, 291 A.D.2d 312, 312, 737 N.Y.S.2d 845, 845-46 (1st Dep't), appeal denied, 98 N.Y.2d 655, 745 N.Y.S.2d 512 (2002).

The New York Court of Appeals denied leave to appeal on October 29, 2003. People v. Rosario, 100 N.Y.2d 645, 769 N.Y.S.2d 211 (2003).

Rosario's Federal Habeas Petition

Rosario's habeas petition raises the same claims that he raised on direct appeal: (1) the prosecution's introduction of Reyes' prior consistent statements was reversible error (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 14-15); (2) the verdict was legally insufficient and against the weight of the evidence (id. at 16-18); (3) the prosecutor's summation improperly shifted the burden of proof (id. at 18-19); (4) the trial judge's instruction as to criminal liability for acting in concert was erroneous (id. at 19-21); (5) the trial judge improperly denied the jury's request for testimonial read back (id. 21-22); and (6) his sentence was excessive (id. at 22). The State concedes that Rosario's habeas petition is timely. (Dkt. No. 9: State Br. at 8-9.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD ⁸

8 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, e.g., Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *6-8 (S.D.N.Y. May 16, 2006) (Peck, M.J.); Harris v. Woods, 05 Civ. 5582, 2006 WL 1140888 at *13-16 (S.D.N.Y. May 1, 2006) (Peck, M.J.); Nelson v. Sears, 05 Civ. 10341, 2006 WL 775123 at *5-8 (S.D.N.Y. Mar. 28, 2006) (Peck, M.J.); Hopkins v.Burge, 05 Civ. 8230, 2006 WL 519782 at *7-10 (S.D.N.Y. Mar. 3, 2006) (Peck, M.J.); Bryant v. Fischer, 05 Civ. 0437, 2005 WL 3418282 at *10-14 (S.D.N.Y. Dec. 14, 2005) (Peck, M.J.); Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292542 at *5-8 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.); Ellis v. Phillips, 04 Civ. 7988, 2005 WL 1637826 at *9-11 (S.D.N.Y. July 13, 2005) (Peck, M.J.);Murray v. Schultz, 05 Civ. 0472, 2005 WL 1523504 at *7-10 (S.D.N.Y. June 29, 2005) (Peck, M.J.); Roman v. Filion, 04 Civ. 8022, 2005 WL 1383167 at *14-17 (June 10, 2005 S.D.N.Y) (Peck, M.J.); Yapor v. Mazzuca, 04 Civ. 7966, 2005 WL 894918 at *9-11 (S.D.N.Y. Apr. 19, 2005) (Peck, M.J.), report rec. adopted, 2005 WL 1845089 (S.D.N.Y. Aug. 3, 2005); James v.Artus, 03 Civ. 7612, 2005 WL 859245 at *5-8 (S.D.N.Y. Apr. 15, 2005) (Peck, M.J.); Boyd v. Smith, 03 Civ. 5401, 2004 WL 2915243 at *5-7 (S.D.N.Y. Dec. 17, 2004) (Peck, M.J.) (citing my earlier cases); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my earlier cases); 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);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, 41 Fed. Appx. 497 (2d Cir. 2002), cert. denied, 538 U.S. 978, 123 S. Ct. 1787 (2003).

Before the Court can determine whether Rosario 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).⁹

9 See also, e.g., Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005), cert. denied, 126 S. Ct. 1622 (2006); Howard v.Walker, 406 F.3d 114, 121-22 (2d Cir. 2005); Cox v.Donnelly, 387 F.3d 193, 197 (2d Cir. 2004); Dallio v.Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 541 U.S. 961, 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)).

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 1519.¹⁰ 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 1523.¹¹ "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, 341 F.3d at 110;accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

10 Accord, e.g., Henry v. Poole, 409 F.3d at 68;Howard v. Walker, 406 F.3d at 122; Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1404 (2001);Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 865 (2001).

11 Accord, e.g., Yarborough v. Alvarado, 541 U.S. 652, 659, 124 S. Ct. 2140, 2147 (U.S. 2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'");Wiggins v. Smith, 539 U.S. 510, 519, 123 S. Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Howard v. Walker, 406 F.3d at 122;Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 541 U.S. 1047, 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, 341 F.3d 104, 109-110 (2d Cir. 2003); 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 1519-20.¹²

12 Accord, e.g., Brown v. Payton, 544 U.S. 133, 125 S. Ct. 1432, 1438-39 (2005); Bell v. Cone, 543 U.S. 447, 452-53, 125 S. Ct. 847, 851 (2005); Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 1848, 1853 (2003); Lockyer v.Andrade, 123 S. Ct. at 1173-74; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d 210, 219 (2d Cir.), cert. denied, 126 S. Ct. 215 (2005); Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 341 F.3d at 109; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523.¹³ 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 "an unreasonable application of federal law is different from an incorrect application of federal law." Id. ¹⁴ 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 1521.¹⁵ "Objectively unreasonable" is different from "clear error."Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).¹⁶ "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v.Alvarado, 541 U.S. at 663, 124 S. Ct. at 2149.¹⁷

13 Accord, e.g., Brown v. Payton, 125 S. Ct. at 1439;Wiggins v. Smith, 123 S. Ct. at 2534-35; Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir. 2006); Howard v. Walker, 406 F.3d at 122; Parsad v. Greiner, 337 F.3d at 181.

14 See also, e.g., Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v. Vincent, 123 S. Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quotingWoodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v.McCray, 396 F.3d at 219; Cox v. Donnelly, 387 F.3d at 197;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.").

15 Accord, e.g., Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v. Vincent, 123 S. Ct. at 1853; Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v.Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Lynn v.Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68;Howard v. Walker, 406 F.3d at 122; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 125; Ryan v.Miller, 303 F.3d 231, 245 (2d Cir. 2002); Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

16 Accord, e.g., Lynn v. Bliden, 443 F.3d at 246;Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 219; Cox v.Donnelly, 387 F.3d at 197, 200-01; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v.Walker, 341 F.3d at 110; Loliscio v. Goord, 263 F.3d at 184.

17 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, 541 U.S. at 663, 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 45.¹⁸

18 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 341 F.3d at 109; see Yarborough v.Alvarado, 541 U.S. at 665-66, 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, 341 F.3d at 109; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853.

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

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

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); 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."); Lynn v. Bliden, 443 F.3d at 246; Howard v. Walker, 406 F.3d at 122; Rosa v.McCray, 396 F.3d at 220: Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 543 U.S. 872, 125 S. Ct. 110 (2004);Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("InSellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").¹⁹ "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).²⁰ 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.

19 Accord, e.g., Cox v. Donnelly, 387 F.3d at 197 ("Neither the Appellate Division nor the New York Court of Appeals addressed [petitioner's] argument beyond a brief statement that the argument was without merit. In the absence of any expressed reasoning behind this conclusion, we turn directly to the facts of the case to determine whether Strickland was applied unreasonably."); 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.

20 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.

Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.

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); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47; Rosa v. McCray, 396 F.3d at 220. "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)); accord, e.g., Lynn v.Bliden, 443 F.3d at 246-47. II. ROSARIO'S FIRST, FOURTH AND FIFTH CLAIMS SHOULD BE DENIED BECAUSE THEY ARE UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED

Rosario's first habeas claim argues that the prosecutor's rehabilitation of Neftale Reyes with prior consistent statements was reversible error. (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 14-15.) Rosario's fourth habeas claim challenges the trial court's instruction to the jury regarding acting in concert. (Rosario 1st Dep't Br. at 19-21.) Rosario's fifth habeas claim states that the jury was improperly denied the opportunity for requested testimonial readback. (Rosario 1st Dep't Br. at 21-22.) Rosario's First Department brief raised these three issues solely on state law grounds; there are not even any vague references to the Fourteenth Amendment, due process, a fair trial or anything similar; no federal cases are cited. (See Rosario 1st Dep't Br. at 14-15, 19-22.)

A. The Exhaustion Doctrine: Background ²¹

21 For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language similar to that in this section of this Report Recommendation, see, e.g., Ellis v. Phillips, 04 Civ. 7988, 2005 WL 1637826 at *16-17 (S.D.N.Y. July 13, 2005) (Peck, M.J.); Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *9-10 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Castro v.Fisher, 04 Civ. 0346, 2004 WL 1637920 at *26-27 (S.D.N.Y. July 23, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 2525876 (S.D.N.Y. Nov. 8, 2004) (Cote, D.J.); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *10-11 (S.D.N.Y. July 21, 2004) (Peck, M.J.); Hernandez v. Fillion, 03 Civ. 6989, 2004 WL 286107 at *16-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (citing my prior opinions), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.) (citing my prior opinions); 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).

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).²² 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 845, 119 S. Ct. at 1732.

22 See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 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 S. 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), cert. denied, 464 U.S. 1048, 104 S. Ct. 723 (1984).

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 843-48, 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 191.²³ 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:

23 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, 540 U.S. 1046, 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 194.²⁴ B. Rosario's First, Fourth, and Fifth Habeas Claims Were Not Presented To The First Department In Federal Terms And Thus Are Unexhausted and Procedurally Barred

24 Accord, e.g., Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005); Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir. 2005); Rosa v. McCray, 396 F.3d 210, 217-18 (2d Cir.),cert. denied, 125 S.Ct. 215 (2005); St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 871 (2005); 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.

Rosario's first habeas claim, asserting that the prosecutor's rehabilitation of Neftale Reyes with prior consistent statements was reversible error, was not fairly presented to state court in any federal constitutional terms. Rosario did not cite to the Constitution not refer to "due process," "fair trial," or similar constitutional phrases; Rosario cited no federal cases nor state cases employing constitutional analysis. (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 14-15.) Rosario claimed that "it was plain error to permit the People to introduce two separate prior consistent statements going to the critical issue of whether Defendant took any action whatsoever to participate in the robbery. This error was manifestly prejudicial as it unfairly permitted the People to bolster Reyes' statement at trial that Defendant took part in the robbery by taking money, and requires a new trial." (Rosario 1st Dep't Br. at 15.) Rosario's argument on his state appeal did not assert a claim so particular as to call to mind a specific right protected by the Constitution, nor did it set forth a pattern of facts within the mainstream of constitutional litigation.²⁵ Thus, Rosario's first habeas claim is unexhausted.

25 It is well-settled that "bolstering" is a state law issue that is not cognizable on federal habeas review. See, e.g., Murray v. Schultz, 05 Civ. 0472, 2005 WL 1523504 at *16 (S.D.N.Y. June 29, 2005) (Peck, M.J.) ( cases cited therein).

Rosario's fourth habeas claim, asserting that the trial judge's instruction to the jury regarding acting in concert was erroneous, also was not fairly presented to state court in federal constitutional terms. Rosario did not cite to the Constitution or refer to "due process," "fair trial" or similar constitutional phrases; Rosario cited no federal cases nor state cases employing constitutional analysis. (See Rosario 1st Dep't Br. at 19-21.) Rosario claimed that the trial judge's instruction regarding acting in concert was "erroneous because it [did] not state that the People must prove that the non-actor did something to aid the perpetrator in committing the crime." (Rosario 1st Dep't Br. at 20.) Rosario's argument on his state appeal did not assert a claim so particular as to call to mind a specific right protected by the Constitution, nor did it set forth a pattern of facts within the mainstream of constitutional litigation. Thus, Rosario's fourth claim is unexhausted.

Rosario's fifth habeas claim, asserting that the jury was improperly denied the opportunity for requested testimonial readback, also was not fairly presented in federal constitutional terms in state court. Rosario did not cite to the Constitution or refer to "due process," "fair trial" or similar constitutional phrases; Rosario cited no federal cases nor state cases employing constitutional analysis. (See Rosario 1st Dep't Br. at 21-22.) Rosario claimed that "[t]he Court here improperly responded to the request for the readback by stating that the jury must ask for it again, following additional requests by the jury for further legal instruction. Coming from the Court, this response could have any number of effects on the jury, including intimating to the jury that their first request was somehow erroneous or otherwise discouraging a further request for readback of the already requested testimony. This was error." (Rosario 1st Dep't Br. at 22.) Rosario's argument on his state appeal did not assert a claim so particular as to call to mind a specific right protected by the Constitution, nor did it set forth a pattern of facts within the mainstream of constitutional litigation. Thus Rosario's fifth claim is unexhausted.²⁶

26 The claim was denied by the First Department as "unpreserved" (see page 25 above), since no objection was lodged at trial. As such, this claim also is barred from habeas review by adequate and independent state grounds. See, e.g., Harris v. Woods, 05 Civ. 5582, 2006 WL 1140888 at *34-36 (S.D.N.Y. May 1, 2006) (Peck, M.J.); Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292542 at *9 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.).

"'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))).²⁷ "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., St. Helen v.Senkowski, 374 F.3d at 183; DiGuglielmo v. Smith, 366 F.3d at 135; 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 120-21.²⁸

27 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"); St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) ("even if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it has become procedurally barred under state law."); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (petitioner's procedurally defaulted claims deemed exhausted where he could no longer obtain state-court review because of his procedural default); 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 825, 828 (2d Cir. 1994) ("[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.").

28 Accord, e.g., cases cited in fn.27 above.

In this case, it is clear that Rosario 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.²⁹ As the Second Circuit explained in Washington v. James:

29 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 [petitioner] 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 1446-47.³⁰

30 See also, e.g., Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.) ("a petitioner cannot claim to have exhausted his or her remedies by dint of no longer possessing 'the right under the law of the State to raise, by any available procedure, the question presented,' if at some point the petitioner had that right but failed to exercise it.") (citation omitted), cert. denied, 544 U.S. 1025, 125 S. Ct. 1996 (2005); DiGuglielmo v.Smith, 366 F.3d at 135 (Second Circuit affirmed denial of petitioner's habeas claim because "his claims were not properly exhausted and . . . his procedural default is not excusable.");Jones v. Keane, 329 F.3d 290, 296 (2d Cir.) ("[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. . . ."), cert. denied, 540 U.S. 1046, 124 S. Ct. 804 (2003); 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, Rosario 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 S. Ct. 2546, 2557 (1991); Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006); Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005); Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005);DeBerry v. Portuondo, 403 F.3d 57, 64 (2d Cir.), cert. denied, 126 S. Ct. 225 (2005); St. Helen v. Senkowski, 374 F.3d at 183-84; DiGuglielmo v. Smith, 366 F.3d at 135;Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); 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).

Here, Rosario has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of Rosario's first, fourth and fifth habeas claims is procedurally barred.

III. ROSARIO'S WEIGHT OF THE EVIDENCE CLAIM IS NOT COGNIZABLE ON HABEAS REVIEW, AND ROSARIO'S SUFFICIENCY OF THE EVIDENCE CLAIM IS WITHOUT MERIT

Rosario second habeas claim argues that "[t]he credible evidence is insufficient to establish Defendant's conviction, and even if deemed sufficient, the verdict is against the weight of the evidence." (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 16.)

A. A Weight of the Evidence Claim is not Cognizable on Habeas Review ³¹

31 For additional decisions authored by this Judge discussing weight of the evidence claims in language substantially similar to that in this entire section of this Report and Recommendation,see, e.g., Nelson v. Sears, 05 Civ. 10341, 2006 WL 775123 at *8-9 (S.D.N.Y. Mar. 28, 2006); Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292542 at *13-14 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.); Roman v. Filion, 04 Civ. 8022, 2005 WL 1383167 at *30-31 (S.D.N.Y. June 10, 2005) (Peck, M.J.); Brown v.Fischer, 03 Civ. 9818, 2004 WL 1171277 at *6 (S.D.N.Y. May 27, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *26-27 n. 33 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.) (citing my prior decisions).

A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he 'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).³²

32 The New York Court of Appeals in Bleakley explained the difference as follows:

Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.

To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony."

People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (citations omitted).

It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence . . ."),cert. denied, 476 U.S. 1123, 106 S. Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255, 44 S. Ct. 103 (1923); Guerrero v. Tracey, 02 Civ. 9600, ___ F. Supp. 2d ___, 2006 WL 851084 at *13 (S.D.N.Y. Mar. 31, 2006); Feliz v. Conway, 378 F. Supp. 2d 425, 430 n. 3 (S.D.N.Y. 2005); Glisson v. Mantello, 287 F. Supp. 2d 414, 441 (S.D.N.Y. 2003); Pitter v. Fischer, 234 F. Supp. 2d 342, 349 n. 6 (S.D.N.Y. 2002); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a 'weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review).³³

33 See also, e.g., Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) ("'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied.");Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable onhabeas review."), aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); cf., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").

Accordingly, Rosario's weight of the evidence habeas claim should be DENIED. B. Rosario's Sufficiency of the Evidence Claim Should Be Denied

Rosario's second habeas claim also asserts that the evidence was legally insufficient. (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 16-18.) Rosario's entire sufficiency of the evidence claim focuses on the credibility of the prosecution witness Neftale Reyes. Rosario claims that:

Reyes was not credible. He had a long history of drug activity, which he attempted to minimize with incredible explanations, such as his first felony drug conviction just happened to be the first time in his life he possessed drugs that were given to him as a gift he was forced to accept. He tried to blame his 1997 drug conviction on his attorney. He changed his story about practically everything: the order of the shots, the amount of money stolen, whether he contributed to the marijuana purchase, whether he drank "Hennessy" and whether it was Padilla or Defendant who stole money from the bedroom. . . . Rather, the credible evidence here shows that Defendant was merely present when the shooting and robbery occurred, and did not participate in any way.

(Rosario 1st Dep't Br. at 16-17.) Rosario's sufficiency of the evidence claim cited to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), the leading Supreme Court case on sufficiency of the evidence. (Rosario 1st Dep't Br. at 16.)

"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v.Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v.Virginia, 443 U.S. at 317, 99 S. Ct. at 2788. accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S. Ct. at 2791-92.³⁴

34 Accord, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).

The petitioner bears a very heavy burden:

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

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 2457 (1983).³⁵

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

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

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2789 (citations omitted).³⁶

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

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S. Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

Rosario's entire sufficiency of the evidence claim goes to witness credibility, however, questions of witness credibility are jury questions and a federal habeas court may not reassess the jury's finding of credibility: "'[f]ederal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution."' Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Peck, M.J.) (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993)).³⁷ The fact that Reyes was the only eyewitness and his testimony was the only evidence against Rosario and Padilla, and/or that there may have been some inconsistencies between Reyes' testimony and her prior statements, does not change the result. See, e.g., Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981) (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S. Ct. 2179 (1979) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction."); Edwards v.Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[T]his was 'not a case in which the sole witness was uncertain of his identification . . . [n]or is it one of testimony incredible as a matter of law.'"); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . . The alleged inconsistencies in Mendez's description of Means's earring and facial hair are insufficient to undermine Mendez's testimony.").³⁸

37 See also, e.g., Roman v. Filion, 04 Civ. 8022, 2005 WL 1383167 at *31-33 (S.D.N.Y. Jun. 10, 2005) (Peck, M.J.);Huber v. Schriver, 140 F. Supp. 2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. . . . However, under both the state law . . . and federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury. . . ."); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *5 (S.D.N.Y. Nov. 19, 1998) (Peck, M.J.) (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *5 (S.D.N.Y. Apr. 20, 1998) ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury."); Fagon v.Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").

38 See also, e.g., Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292592 at *16 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.) (testimony of single witness sufficient); cases cited in prior fn.

Reyes' testimony established that Rosario, Padilla and an unidentified third man robbed money from him, during which the third man shot Reyes. (See pages 4-5 above.) Reyes testified that after the unidentified man shot him, Padilla (or Rosario) took money from his pants and Rosario took additional money from the bedroom. (See pages 4-5 above.) Reyes testified that Rosario brought the bag with the gun (and even Padilla admitted that Rosario had a gun). (See pages 4, 13 above.) Reyes' testimony, if believed by the jury, was more than sufficient to support Rosario's (and Padilla's) conviction on all three counts. Rosario's habeas claim that he was denied a fair trial because Reyes was not credible and thus the evidence was insufficient should be DENIED.

IV. ROSARIO'S THIRD HABEAS CLAIM THAT THE PROSECUTOR'S SUMMATION DEPRIVED HIM OF A FAIR TRIAL IS WITHOUT MERIT

Rosario's third habeas claim asserts that the prosecutor engaged in misconduct during summation by accusing Padilla of tailoring his testimony after hearing testimony of the prosecution witnesses, by shifting the burden of proof to the defense by suggesting that defense counsel's cross examination tactics emphasizing Reyes' criminal history were indicative of guilt, by suggesting to the jury that the prosecutor's personal faith in their ability to ascertain the truth was a legitimate consideration, and by stating that the prosecutor's clients were the City and State of New York. (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 18-19.) The First Department held that "The prosecutor's summation did not deprive defendant of a fair trial. Nothing in the summation shifted the burden of proof, and, in any event, the court's curative instructions in this regard prevented any possibility of prejudice." People v. Rosario, 302 A.D.2d 266, 266-67, 753 N.Y.S.2d 836, 836 (1st Dep't 2003) (citations omitted).

A. Federal Habeas Review Standard for Prosecutorial Misconduct Claims ³⁹

39 For additional decisions by this Judge discussing the federal habeas review standard for prosecutorial misconduct claims in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *10-11 (S.D.N.Y. May 16, 2006) (Peck, M.J.); Murray v. Schultz, 05 Civ. 0472, 2005 WL 1523504 at *15 (S.D.N.Y. June 29, 2005) (Peck, M.J.); Roman v. Filion, 04 Civ. 8022, 2005 WL 1383167 at *17-18 (S.D.N.Y. Jun. 10, 2005) (Peck, M.J.); James v. Artus, 03 Civ. 7612, 2005 WL 859245 at *11 (S.D.N.Y. Apr. 15, 2005) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *20 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.) (citing my prior cases).

Prosecutorial misconduct violates a defendant's due process rights only when it is of "sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v.Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 3109 (1987);accord, e.g., United States v. Best, 142 Fed. Appx. 500, 501 (2d Cir.) ("We must examine whether the prosecutor's actions 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"), cert. denied, 126 S. Ct. 770 (2005); United States v. Muja, 102 Fed. Appx. 212, 216 (2d Cir. 2004) ("'It is a rare case in which improper comments in a prosecutor's summation are so prejudicial that a new trial is required.'"); United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (Even on direct federal appeal, "[b]efore a conviction will be reversed, a prosecutor's comments on summation must 'so infect the trial with unfairness as to make the resulting conviction a denial of due process.' The defendant must point to 'egregious misconduct.'") (quoting Donnelly v.DeChristofaro, 416 U.S. 637, 643, 647, 94 S. Ct. 1868, 1871, 1873 (1974)); United States v. Elias, 285 F.3d 183, 190 (2d Cir.) ("To warrant reversal, the prosecutorial misconduct must cause the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.") (internal quotations omitted), cert. denied, 537 U.S. 988, 123 S. Ct. 430 (2002); United States v.McCarthy, 54 F.3d 51, 55 (2d Cir. 1995), cert. denied, 516 U.S. 880, 116 S. Ct. 214 (1995); Blisset v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S. Ct. 158 (1991).⁴⁰ Stated another way, "the law is settled that 'federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S. Ct. 230 (1994).⁴¹

40 See also, e.g., Brown v. Schultz, 03 Civ. 3320, 2006 WL 156983 at *10 (S.D.N.Y. Jan. 18, 2006); Trinidad v.Annetts, 04 Civ. 9685, 2005 WL 2792398 at *4-5 (S.D.N.Y. Oct. 26, 2005); Readdon v. Senkowski, 96 Civ. 4722, 1998 WL 720682 at *4 (S.D.N.Y. Oct. 13, 1998); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *4 (S.D.N.Y. Sept. 19, 1997); Beverly v.Walker, 899 F. Supp. 900, 911 (N.D.N.Y. 1995), aff'd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883, 118 S. Ct. 211 (1997); Washington v. Walker, 89 Civ. 7841, 1994 WL 391947 at *3 (S.D.N.Y. July 28, 1994) ("Even where a prosecutor's remarks are improper, 'constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair."') (quoting Floyd v.Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (quoting Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986))).

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

To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blisset v. LeFevre, 924 F.2d at 440; accord, e.g., Greer v.Miller, 483 U.S. at 766, 107 S. Ct. at 3109 ("it is important 'as an initial matter to place th[e] remar[k] in context'");United States v. Best, 142 Fed. Appx. at 501; United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S. Ct. 104 (1986).⁴² B. Application of the Standard to Rosario's Prosecutorial Summation Misconduct Claim

42 See also, e.g., Brown v. Schultz, 2006 WL 156983 at *10; Trinidad v. Annetts, 2005 WL 2792398 at *5; Hurd v.Keane, 1997 WL 582825 at *4; Beverly v. Walker, 899 F. Supp. at 911.

First, Rosario challenges the prosecutor's comment during summation that Padilla tailored his testimony after hearing the prosecution witnesses' testimony. (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 18-19.) The Supreme Court has held that "[a]llowing comment upon the fact that a [testifying criminal] defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate — and indeed, given the inability to sequester the defendant, sometimes essential — to the central function of the trial, which is to discover the truth." Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 1127 (2000).⁴³ The prosecutor's suggestion that Padilla tailored his testimony after he heard the prosecution witnesses testify was appropriate and does not provide a basis for habeas relief (particularly to Rosario).

43 Accord, e.g., Policano v. Herbert, No. 02 CV 1462, 2004 WL 1960203 at *13 (E.D.N.Y. Sept. 7, 2004), aff'd, 430 F.3d 82 (2d Cir. 2005); Valdez v. Mazzuca, No. 00-CV-4961, 2002 WL 1364089 at *2-3 (E.D.N.Y. June 21, 2002); Porter v.Kelly, No. 99 CV 2706, 2000 WL 1804545 at *3-4 (E.D.N.Y. Dec. 5, 2000); see also, e.g., Portuondo v. Agard, 529 U.S. at 69, 120 S. Ct. at 1125 (a testifying criminal defendant's "'credibility may be impeached and his testimony assailed like that of any other witness'"); Dickens v. Herbert, 00 Civ. 3249, 2002 WL 1728514 at *9 (S.D.N.Y. July 25, 2002); Green v.Herbert, 01 Civ. 11881, 2002 WL 1587133 at *17 (S.D.N.Y. July 18, 2002) (Peck, M.J.).

Second, Rosario argues that the prosecutor improperly shifted the burden of proof to the defense by suggesting that defense counsel's cross-examination tactics emphasizing Reyes' criminal history, as opposed to the June 11, 1998 incident, were indicative of guilt. (Rosario 1st Dep't Br. at 18-19.) When faced with an attack on prosecution witnesses, a prosecutor may properly respond to that attack and call it a diversionary tactic during summation. See, e.g., Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *11-12 (S.D.N.Y. May 16, 2006) (Peck, M.J.) (Prosecutor's remarks during summation that tended to shift the burden were a "fair response to the defense counsel's summation in which he focused on impeaching [the prosecution witness'] credibility and the reliability of [the prosecution witness'] in-court identification of" the defendant.); Roman v.Filion, 04 Civ. 8022, 2005 WL 1383167 at *18 (S.D.N.Y. June 10, 2005) (Peck, M.J.) ("Under New York law, statements during summation are permissible if they constitute a 'fair comment on the evidence' at trial and reasonable inference therefrom, or a 'fair response to remarks made by the defense counsel during summation.'") (citing N.Y. cases); Montero v. Sabourin, 02 Civ. 8666, 2003 WL 21012072 at *7 (S.D.N.Y. May 5, 2003) (prosecutor's response during summation to defense counsel's attack on prosecution witnesses' credibility was not held to be improper shifting of burden) (citing cases); Everett v.Fischer, No. 00-CV-6300, 2002 WL 1447487 at *3 (E.D.N.Y. July 3, 2002) ("The prosecutor's statement that defense counsel's attacks on the police officers was an attempt to divert attention away from the central testimony in the case, that of [a prosecution witness], also was a proper response to defense counsel's attack on the police officer's credibility.").⁴⁴ In this case, defense counsels' summations focused primarily on the credibility of the prosecution's main witness, Neftale Reyes. (Defense Summations: Tr. 871-902.) The prosecutor's statement during summation was a proper response to the argument advanced in defense counsel's summations and does not provide a basis for habeas relief.

44 See also, e.g., People v. Seit, 86 N.Y.2d 92, 99, 629 N.Y.S.2d 998, 1001 (1995) (Prosecutor's comments did not warrant reversal when made in "fair response to defense counsel's summation"); People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 381 (1993) ("[T]he prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response."); People v. Vasquez, ___ N.Y.S.2d ___, 2006 WL 1120445 at * 1 (4th Dep't Apr. 28, 2006); People v.Bello, 24 A.D.3d 236, 237, 808 N.Y.S.2d 164, 166 (1st Dep't 2005); People v. Parrella, 4 A.D.3d 132, 132, 771 N.Y.S.2d 511, 512 (1st Dep't), appeal denied, 2 N.Y.3d 804, 781 N.Y.S.2d 303 (2004).

Additionally, defense counsel objected every time the prosecutor made these statements, and each time the trial judge gave a curative instruction to the jury. (See pages 19-20 above.) The jury is presumed to obey a court's curative instruction. 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. 448, 463 (1963) (When a limiting instruction is clear, "[i]t must be presumed that the jury conscientiously observed it.").⁴⁵

45 See also, e.g., 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 S. Ct. 106 (1996); United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993); Murray v. Schultz, 2005 WL 1523504 at *16;Roman v. Filion, 2005 WL 1383167 at *21; James v. Artus, 2005 WL 859245 at *12 n. 26; Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *19 n. 31 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.), report rec. adopted, 2005 WL 2431416 (S.D.N.Y. Oct. 3, 2005); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *24 n. 45 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.) (citing cases); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *31 n. 26 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.).

Even if any of the prosecutor's comments during summation (such as that his client was the City and State) were improper, the curative instructions that the trial judge gave to the jury about the burden of proof and the presumption of innocence (see pages 19-21 above) were sufficient to cure the effects of the comments.See, e.g., Chalmers v. Mitchell, 73 F.3d 1262, 1271 (2d Cir.) (trial court's instruction on the burden of proof, which included language that the presumption of innocence remains with the defendant unless the jury finds the People proved their case beyond a reasonable doubt and that the burden of proof never shifts to the defendant, "likely corrected any misperception the jury may have held" as a result of the prosecution's comments.),cert. denied, 519 U.S. 834, 117 S. Ct. 106 (1996); Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *12 ("The trial court's charge to the jury on the burden of proof adequately addressed any prejudice that may have resulted from the prosecutor's summation."); Perez v. Fischer, 02 Civ. 3443, 2006 WL 510513 at *10 (S.D.N.Y. Mar. 1, 2006) ("Although the prosecution made two arguably improper comments during its closing arguments [that suggested burden should shift to defendant], the severity of such misconduct was limited as the Court took prompt curative measures to ensure the jury disregarded the comments."); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *18 n. 29 (S.D.N.Y. June 16, 2004) (Peck, M.J.) ("[I]mmediately following the prosecutor's summation, the judge's charge informed the jury that the 'burden [of proof] remains upon the prosecution throughout the trial and never shifts to the defendant' and that '[n]o defendant is required to prove his innocence.'"), report rec. adopted, 2004 WL 1656568 (S.D.N.Y. July 23, 2004) (Berman, D.J.); Lebron v. Girdich, 03 Civ. 2765, 2003 WL 22888809 at *3 (S.D.N.Y. Dec. 5, 2003) (prosecutor's comments during summation regarding petitioner's decision not to testify did not shift the burden of proof to petitioner, and in any event, court's instruction to jury regarding the prosecutor's burden of proof addressed "any point on which [prosecutor's comments] might be found objectionable."); Pimentel v. Walsh, 02 Civ. 570, 2003 WL 22493451 at *7 (S.D.N.Y. Nov. 4, 2003) ("the court's instructions to the jury were sufficient to address any potential confusion [regarding shifting of the burden] arising from the prosecutor's comments."), modified on other grounds, 2003 WL 22671464 (S.D.N.Y. Nov. 12, 2003); Trueluck v. Phillips, 03 Civ. 0904, 2003 WL 22390113 at *5 (S.D.N.Y. Oct. 20, 2003) ("The court's clear instruction that the burden on the prosecutor never shifts prevented any misunderstanding of the prosecutor's summation and rendered unnecessary any further corrective charge."); Crawford v. Keane, 00 Civ. 6672, 2001 WL 913947 at *6 (S.D.N.Y. Aug. 14, 2001) ("[T]he jury charge cured any effect that inappropriate prosecutorial comments might have had on the jury. . . . Here, the charge stated that the burden of proof 'never shifts from the People to a defendant' but 'remains on people throughout the trial and until the jury has reported its verdict.'").

The Court cannot say that the First Department's decision on this issue was contrary to or an unreasonable application of Supreme Court law. Rosario's third habeas claim that the prosecutor's summation deprived him of a fair trial should be DENIED.

V. ROSARIO'S SIXTH HABEAS CLAIM THAT HIS SENTENCE WAS EXCESSIVE DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Rosario's sixth habeas claim asserts that his sentences of twenty-five years imprisonment for the first degree robbery, twenty-five years concurrently for first degree criminal use of a weapon, and seven years concurrently for second degree possession of a weapon should be reduced because the minimum sentences "would be sufficient to serve the deterrent purpose of sentencing." (Dkt. No. 2: Pet. Ex. A: Rosario 1st Dep't Br. at 22.) Additionally, Rosario argues that the maximum sentence was unwarranted because the jury's acquittal on the attempted murder charge demonstrated that the jury did not believe that Rosario took part in the shooting and because the victim's injuries were minor. (Rosario 1st Dep't Br. at 22.)

Rosario's excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).⁴⁶

46 Accord, e.g., Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *15(S.D.N.Y. May 16, 2006) (Peck, M.J.);Harris v. Woods, 05 Civ. 5582, 2006 WL 1140888 at *39 (S.D.N.Y. May 1, 2006) (Peck, M.J.); Bryant v. Fischer, 05 Civ. 0437, 2005 WL 3418282 at *25-26 (S.D.N.Y. Dec. 14, 2005) (Peck, M.J.); Yapor v. Mazzuca, 2005 WL 894918 at *27-28 (S.D.N.Y. Apr. 19, 2005) (Peck, M.J.), report rec. adopted, 2005 WL 1845089 (S.D.N.Y. Aug. 3, 2005) (Casey, D.J.); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *13 (S.D.N.Y. June 16, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 1656568 (S.D.N.Y. July 23, 2004) (Berman, D.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *38 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *17 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.);Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, M.J.); Hoover v. Senkowski, No. 00 CV 2662, 2003 WL 21313726 at *10 (E.D.N.Y. May 24, 2003);Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, 245 F. Supp. 2d 493, 502 (E.D.N.Y. 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003); Pressley v. Bennett, 235 F. Supp. 2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J. Peck, M.J.); Schreter v. Artuz, 225 F. Supp. 2d 249, 258 (E.D.N.Y. 2002); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v.Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v.Greiner, 111 F. Supp. 2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995);Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988),aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S. Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

In this case, it is undisputed that Rosario's sentence was within the range prescribed by state law. Rosario was found guilty of first degree robbery and first degree criminal use of a weapon and sentenced as a predicate violent felon to twenty-five years imprisonment concurrently. Those crimes are class B felonies and carry a maximum sentence of twenty-five years imprisonment. Penal Law §§ 160.15, 265.09, 70.02(1)(a), 70.02(3)(a), 70.04(3)(a). Rosario was also found guilty of first degree criminal use of a weapon and sentenced to twenty-five years imprisonment concurrently. Rosario also was found guilty of second degree criminal possession of a weapon and sentenced as a predicate violent felon to seven years imprisonment concurrently. Second degree criminal possession of a weapon is a class C felony, carrying a maximum of fifteen years imprisonment. Penal Law §§ 265.03, 70.02(1)(b), 70.02(3)(b), 70.04(3)(b).

Because Rosario's sentence is within the statutory range, it is not reviewable on habeas corpus by this Court as "excessive."

CONCLUSION

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

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 P. Kevin Castel, 500 Pearl Street, Room 2260, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Castel (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal.Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994);Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v.Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v.Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).