BIANCHINI, United States Magistrate Judge.
INTRODUCTION
William Crenshaw (“Crenshaw”) filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County).* The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction at issue in the instant habeas petition stems from the armed robbery of Robert Harris (“Harris”), a parking lot attendant for All-Right Parking in the City of Rochester. On the morning of May 2, 1997, Harris was working in his booth when a black male wearing a pair of camouflage pants and a camouflage jacket entered the booth, drew a gun, and demanded the money that Harris was counting at the time. When Harris dropped the money, the robber grabbed it and ran towards Franklin Street. Harris chased the perpetrator across the street and observed him run past the drive-through window of a bank located across the street. At that point, Harris abandoned his pursuit of the robber' and asked a parking meter monitor to call 911.
A mounted police officer with the Rochester Police Department happened to be in the vicinity and responded to the scene. Harris informed him that the robber was a black male with a short build wearing camouflage pants and a camouflage jacket. Harris described the gun as a small, dark-colored automatic pistol. The description was broadcast, and, almost simultaneously, another police officer saw a person matching the description jogging a short distance from the robbery scene and dressed in camouflage pants and a blue hooded sweatshirt. The suspect, later identified as Crenshaw, was carrying a camouflage jacket under his arm. The second police officer stopped his car and called out to
About a minute and a half later, Cren-shaw was apprehended by Officer Peterson, also a member of the Rochester Police Department. Officer Peterson had responded to the 911 broadcast. No gun was found on Crenshaw’s person, but currency in various denominations (one ten-dollar bill, one five-dollar bill, and twenty-five one-dollar bills) were discovered. Harris had reported that he was not sure of the exact amount of money stolen, but he remembered that it was mostly one-dollar bills. The police brought Crenshaw back to the crime scene where Harris, without hesitation, identified him as the robber.
Whеn he was brought to the police station for questioning, Crenshaw gave a false name and claimed not to be the robber. He explained that he was in the area because he was looking to have a “quick fuck” with a woman named “Monique” before he had to go see his regular girlfriend. However, he was unable to provide the police with the woman’s last name or address. Crenshaw claimed that he was a “dope dealer,” not a robber, and that the money found in his pockets was proceeds from selling “weed.” He stated that “on the street,” buyers paid him for five-dollar bags of “weed” with one-dollar bills. Crenshaw also accused the police of stopping him solely because he was black.
Crenshaw testified in his own behalf before the grand jury which indicted him on one count of first degree robbery. During the subsequent suppressiоn hearing, the court held admissible Crenshaw’s statements to the police, the show-up identification, and the physical evidence seized at the time of his arrest.
At Crenshaw’s jury trial, the defense called Deborah Eabron (“Eabron”), who was at the drive-through window of a nearby bank and who told the police that she had seen Harris chasing a man in dark-colored clothing. Eabron, who had not seen the man’s face and could not identify the robber, testified for the defense at trial. At trial, she described the robber as wearing a “green waist jacket [sic] and dark pants, either black or dark, navy.” T.267. 1
The jury returned a verdict convicting Crenshaw of one count of first degree robbery as charged in the indictment. He was sentenced as a second felony offender to a determinate sentence of twenty years incarceration.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on December 27, 2000.
People v. Crenshaw,
Crenshaw filed his initial habeas petition in this Court on or about August 15, 2002. Thereafter, the petition was held in abeyance so that he could return to state court
DISCUSSION
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court’s adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court.
See
28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor,
Merits of the Petition
1. Brady violation
Crenshaw contends that he was improperly indicted because certain allegedly exculpatory material was not provided to him prior to the grand jury’s deliberations, namely, the investigative report completed by Officer McNamara in which he states that eyewitness Eabron saw Harris, the robbery victim," chasing a “male black wearing dark colored coat & pants” [sic ]. See A.185. According to Crenshaw, the report is exculpatory on its face because it described the suspect being chased as wearing clothes substantially different from the description of the robber’s clothes given by the victim to the police. On direct appeal, the court rejected this claim, finding that the report did not contain exculpatory evidence.
To- the extent that the prosecution knows of material evidence favorable to a criminal defendant, it has а due process obligation to disclose that evidence.
See, e.g., Kyles v. Whitley,
On the facts before me, I can find no violation of the mandates set forth
2. Erroneous introduction of evidence of immoral acts and prior misconduct
Crenshaw claims that the prosecution improperly was permitted to introduce evidence of his prior immoral acts and uncharged crimes, as well as his statement to the police that the only reason he had been stopped was because he was black. On direct appeal, the court agreed with Cren-shaw that the trial court erred in admitting his statement that the police arrested him solely because he is black: “Although that statement was not relevant to any issue at trial, its erroneous admission is harmless error because the statement was neither incriminating nor prejudicial.]”
People v. Crenshaw,
Federal habeas corpus relief will not he to rectify errors of state constitutional, statutory, or procedural law unless a federal constitutional issue is also presented.
See Estelle v. McGuire,
As part of the prosecution’s direct case, the officer who took Crenshaw’s statement was 'permitted to testify that Crenshaw told him (1) that he was in the vicinity of the crime because he was looking to have a “quick fuck” with a woman he knew; and (2) that he was in possession of the same denominations of currency as those taken during the robbery because was a “dope dealer” and sold “weed.” At that point, the trial court interrupted the prosecutor’s examination of the officer and gave a curative instruction. 3 The officer then testified that Crenshaw said that the only reason he had been stopped was because he was black. See T.217-20.
With regard to Crenshaw’s statement that he was merely looking to have a brief sexual encounter with a woman other than his girlfriend, I agree that it had some bearing on his credibility as a witness. However, in this Court’s opinion, there was no reason for the officer to quote Crenshaw’s vulgar phrase verbatim (and repeat it several times). Nevertheless, under New York state law, “trial courts have broad discretion in deciding whether a prosecutor should be precluded from impeaching a defendant’s credibility by reference to prior immoral, vicious or criminal acts[.]”
People v. Hall,
Crenshaw’s description of himself as a “dope dealer” and his statement that he sold five dollar-bags of “weed” and that people “on the street” normally paid him with one-dollar bills were relevant to determining how he came to be in possession of the same amount of money in the same denominations as that taken during the robbery.
See People v. Santarelli,
Crenshaw’s statement that the police stopped him on the basis of his race was, as the state court found, erroneously admitted since it bore no relevance to any issue presented at trial. However, the appellate court’s finding that the error was harmless because the statement was neither inсulpatory nor prejudicial was not an unreasonable application of clearly established federal law. Accordingly, Cren-shaw’s claims of evidentiary error do not warrant habeas relief.
3. Fourth Amendment claims
Crenshaw contends that the police lacked probable cause to arrest him, and therefore his arrest was in violation of the Fourth Amendment. He contends that because his arrest was unconstitutional, the “unattenuated fruits of the seizure”namely, his money and clothing, his statement to the police, and the show-up identification procedure -also must be suppressed. Crenshaw finally asserts that the police improperly searched his pockets, rendering the search unreasonable.
In general, state court defendants are barred from obtaining habeas relief based upon Fourth Amendment claims. “Where the Stаte has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
Stone v. Powell,
A petitioner receives a “full and fair opportunity” to litigate his Fourth Amendment claim wherе the state provides a “ ‘statutory mechanism’ for suppression of evidence tainted by an unlawful search and seizure.”
McPhail v. Warden, Attica Corr. Facility,
Crenshaw. may not raise his Fourth Amendment claims -on habeas review because he was provided with, and indeed took full advantage of, the opportunity to fully adjudicate these matters in state court. At the trial court level, defense counsel filed a motion contesting the validity of the police officers’ arrest of Crenshaw. Following a hearing, the court denied the motion to suppress in an oral opinion on the record setting forth its findings of fact and conclusions of law. Crenshaw raised his Fourth Amendment claims in a
pro se
supplemental brief on direct appeal, and he also filed a motion to vacate his conviction on the ground that his arrest was without probable cause; this, too, was denied. The Appellate Division subsequently denied leave to appeal with respect to both of his applications. Crenshaw’s various applications at the trial court and appellate levels challenging his arrest clearly show that he was given an opportunity for a “full and fair” litigation of his Fourth Amendment claims. In order for Crenshaw’s Fourth Amendment claims to be cognizable on habeas review, therefore, it must be based on a contention that there was an “unconscionable breakdown” in the underlying state court procedural mechanism.
See Capellán,
Crenshaw cannot demonstrate that an “unconscionable breakdown” occurred in the courts below. His assertions that the state courts were incorreсt and defense counsel incompetent do not constitute the sort of “breakdown” referred to in
Gates v. Henderson.
Nor is Crenshaw’s dissatisfaction with the outcome of the suppression hearing evidence of a “breakdown” in the state’s procedures for litigating Fourth Amendment claims. Rather, an “unconscionable breakdown in the state’s process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society.”
Cappiello v. Hoke,
4. Batson claim
Crenshaw contends that the prosecutor used his peremptory strikes in a racially discriminatory manner to prevent black jurors from being seated on the jury panel. In
Batson v. Kentucky,
First, the movant-ie., the party challenging the other party’s attempted peremptory strike-must make a
prima facie
case that the nonmovant’s peremptory challenge is based on race.
Id.; Hernandez v. New York,
Lastly, the trial court must determine whether the movant carried its burden of demonstrating by a preponderance of the evidence that the peremptory challenge at issue was based on race.
Batson,
Batson
held that to make out a
prima facie
case, a defendant must demonstrate that (1) he is a member of a “cognizable racial group”; (2) that the prosecutor has exercised peremptory challenges to remove from the juror
venire
persons of the defendant’s race; and (3) that these facts and any other relevаnt circumstances raise an inference that the prosecutor used the peremptory challenges to exclude potential jurors.
Batson,
During voir dire, defense counsel made a Batson objection with regard to the prosecutor’s striking of juror number ten, a black man named Mr. Hall, after two other black jurors had been dismissed from the jury pool:
... [The juror] is a male black. My client is a male black. This is the second African American black person taken off by the District Attorney. I submit that shows a pattern as Mr. Hall [the juror]... said nothing different than anybody else.
T.104. The parties and the court engaged in a brief colloquy wherein it was revealed that of the two black jurors whom defense counsel claimed were wrongly stricken, one was removed with the defense’s consent, T.105, and the other was removed for cause upon the juror’s request, T.106. Apparently, the latter juror had a conflict beсause she was attending college and would suffer dismissal from one of her courses if she were to miss three class sessions. T.67. Defense counsel challenged the removal of that juror at the time, stating that the court subpoena should be sufficient to excuse her from class. However, he did not mention the issue of her race. T.68.
The prosecutor then explained his reasons for striking Mr. Hall:
... [H]e was evasive. He didn’t come-He wasn’t forthright. He didn’t come out and tell us about the-If I hadn’t persisted, he would not have told me about his brother being convicted of a felony and him visiting his brother in jail. Also, about a friend who was convicted of murder, and he writes to him. This is not the type of Juror that I would pick whether, regardless of raise [sic ], and has nothing to do with the raise [sic ]. In fact, I have excused other jurors for the reason that they haveeither family members that are convicted of crimes or are visiting them and might be concerned about sentencing. I think that this is a raise [sic] neutral reason, and I don’t think, counsel, your Honor, has overcome that race neutral reason. It is incumbent upon, upon him to do that, and we have to make a finding as to that.
T.107. The court agreed, finding that the prosecutor’s reasons for striking Mr. Hall were race-neutral. Id. A review of the record substantiates the prosecutor’s articulated reasons. See T.92-94.
It thus appears that the prosecutor only exercised one peremptory strike which was challenged by the defense as being racially-based. The Court doubts' that this is sufficient to establish the third element of a
prima facie Batson
claim.
See United States v. Stavroulakis,
Even assuming for the sake of argument that Crenshaw has made out a
prima facie Batson
challenge, he cannot fulfill his burden on the remaining steps since the prosecutor articulated a legitimate explanation for his decision to excuse Mr. Hall.
Compare with Copeland v. Walker,
Thus, the prosecutor’s. stated reason at Crenshaws’s trial clearly was sufficient to fulfill the state’s obligation at the second stage of the
Batson
inquiry.
See Purkett v. Elem,
With regard to the third step of the burden-shifting analysis, Crenshaw offered nothing at trial, nor has he adduced anything on habeas review, to show that the prosecutor purposefully discriminated against the excused black juror. Thus, Crenshaw has supplied the Court with no evidence on which appellate counsel could have argued persuasively that the prosecutor engaged in discriminatory tactics, which is fatal to his ineffective assistance of counsel claim, see infra, premised on the composition of the jury pool.
5. Victim gave false testimony at the grand jury hearing
Crenshaw complains that the victim, Robert Harris, “never gave a description of a blue hoody sweatshirt in his description” of the robbery suspect. Crenshaw points out that the first time Harris ever mentioned a “blue hoody sweatshirt” was at the grand jury hearing. He surmises that the prosecutor, after checking Cren-shaw’s property sheet and seeing that he had a blue hooded sweatshirt when he was booked, told Harris to mention the sweatshirt at the grаnd jury proceeding.
To the extent Crenshaw is asserting defects in the grand jury proceeding, such a claim is not cognizable because Crenshaw was convicted by a jury after a trial. The trial jury’s guilty verdict necessarily renders any irregularities before the grand jury harmless as it establishes not only that there existed probable cause to indict the defendant, but also that the defendant was “in fact guilty as charged beyond a reasonable doubt.”
United States v. Mechanik,
However, because Crenshaw raises other claims relating to the victim’s supposed “perjury” before the grand jury, I feel that I must address this issue. First of all, there is absolutely no evidence that the victim or any of the other witnesses testified falsely during Crenshaw’s criminal proceeding. The fact that Hаrris, the victim, neglected to mention that the robber was wearing a blue hooded sweatshirt under his camouflage outfit when the police spoke with him immediately after the incident does not, without more, establish that he committed perjury when he testified otherwise before the grand jury. In any event, even were the blue hooded sweatshirt removed from the equation, the police still had probable cause to arrest Crenshaw because he fit the description in
Finally, I note that defense counsel cross-examined the victim about these discrepancies at trial and thereby properly placed before the jury the issue of whether the victim’s recollection "was accurate. Harris stated thаt he did not mention the sweatshirt because the police did ask what the robber was wearing underneath his outer clothing; it was for the jury to decide whether this was a credible explanation. In sum, none of Crenshaw’s allegations concerning the victim’s grand jury testimony provide a basis for habeas relief.
6. Ineffective assistance of appellate counsel
a. Legal standard
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in
Strickland v. Washington,
Appellate counsel need not present every non-frivolous argument that could be made on pеtitioner’s behalf.
Mayo,
b. Grounds for finding ineffectiveness
i. Failure to properly argue claim of racially-biased jury composition
Crenshaw’s allegations relating to the composition of his jury are confusing. He first states that “trial counsel failed to renew his motion with the composition of the jury pool.” It is not clear whether he is alleging that trial counsel was ineffective on this basis, or that appellate counsel was deficient in failing to argue the ineffectiveness of trial counsel. To the extent that this claim can be read as suggesting that trial counsel erred in his handling of voir dire and objecting to peremptory challenges, it is without merit because, as discussed above, Crenshaw does not have a viable Batson claim.
Crenshaw goes on assert that appellate counsel “failed to investigate and show the court’s [sic ] that their [sic ] was a disproportionately low number of minorities on [his] jury.” Petitioner’s Reply Memorandum of Law at 42 (Docket # 23). Cren-shaw points to the fact that there were eleven whites on his jury but only one black person as evidence that the composition of the jury pool was racially biased. Id. Crenshaw seems to be arguing both a Batson violation-that the prosecutor engaged in racially discriminatory tactics to prevent black jurors from being impaneled on his jury, and an equal protection violation-that the system of jury selection resulted in a disproportionately low number of minorities in the superior court jury pool. As discussed above, Crenshaw’s Batson claim is without merit.
Turning to his second claim, I note that it is well established that under the Sixth and Fourteenth Amendments, a criminal defendant is guaranteed a trial by a jury “drawn from a source fairly representative of the community...”
Taylor v. Louisiana,
In closing, I note that appellate counsel raised and cogently presented an argu
ii. Failure to argue that trial counsel was ineffective
As hereinafter discussed, I find that defense counsel provided Crenshaw with constitutionally effective representation during pre-trial proceedings, at trial and at sentencing. There was no basis upon which appellate counsel successfully could argue that trial counsel was ineffective.
7. Ineffective assistance of trial counsel
Crenshaw argues, that he was prejudiced by defense counsel’s incompetent handling of his Fourth Amendment claims. In particular, Crenshaw claims that the arresting police officer committed perjury at his probable cause hearing. According to Crenshaw, Officer Peterson falsely testified that he was the person who apprehended Crenshaw and that he gavе different testimony about the contents of the police broadcast before the grand jury and at the probable cause hearing. At the outset, Crenshaw provides no basis for his contention that Officer Peterson was not the arresting officer. Furthermore, the discrepancies that Crenshaw points out in Officer Peterson’s testimony are inconsequential. 4
Crenshaw also contends that he had a conflict of interest with the assistant public defender who represented him. Again, Crenshaw has provided no factual basis for this claim." He states that his guilty verdict “only confirms what he knew in his heart[,] that trial counsel was not investigating important issues in petitioner’s case.”
Contrary to Crenshaw’s contentions, he received the effective assistance of counsel at his trial. Defense counsel competently and zealously litigated all of Cren-shаw’s Fourth Amendment claims that had potential merit. He also presented a credible defense theory at trial — that the prosecution could’ not prove identity beyond a reasonable doubt. Defense counsel pointed out that the robbery occurred quickly and the victim, Harris, did not have much time to observe what was happening. He also argued that Harris did not have an opportunity to see the face of the person who robbed him. Counsel highlighted the inconsistencies between the Harris’s grand jury testimony and his statements at the time of the incident, forcing Harris to admit that, in his description to the police, he did not. mention
Crenshaw’s allegations about defense counsel do not evidence actual ineffectiveness; they are merely criticisms by a defendant dissatisfied with the outcome of his trial. Contrary to Crenshaw’s opinion, defense counsel competently litigated the Fourth Amendment issues presented by Crenshaw’s case. The arguments that counsel, in Crenshaw’s view, should have raised would not have succeeded, and therefore Crenshaw was not prejudiced by counsel’s failure tо raise them. After reviewing the record in this case, it is apparent that Crenshaw received constitutionally effective representation at all stages of his criminal proceeding. Accordingly, this claim provides no basis for habeas relief.
CONCLUSION
For the reasons stated above, William Crenshaw’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Crenshaw has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253.
IT IS SO ORDERED
Notes
. Citations to "T_” refer to the trial transcript.
. Respondent raises the failure to exhaust with respect to Crenshaw’s claim that he improperly was denied a hearing to challenge the composition of the superior court jury pool, stating that Crenshaw did not pursue this claim in the Court of Appeals. However, I find that appеllate counsel did raise this argument when he sought leave to appeal, and therefore the claim is exhausted and properly before this Court.
See
28 U.S.C. § 2254(b)(1);
Bossett
v.
Walker,
. "Before we go on, ladies and gentlemen, let me just advise you that I have allowed the People to introduce evidence here that the Defendant said something about weed. The fact that, that this Defendant may have committed another crime of some sort or committed another bad act of some sort is no proof that he possessed propensity or disposition to commit the crime charged in this indictment. It is not offered for that purpose. And must not be considered by you for that purpose.” T.220.
. According to Crenshaw's quotations of the relevant testimony, at the grand jury, Officer Peterson testified that the police bulletin said that the suspect was five feet, six inchеs tall and wearing a “camouflage army suit;” he did not mention a handgun. In fact, the bulletin actually said that the suspect was “short,” wearing a "green army jacket,” and carrying a gun. At the probable cause hearing, Officer Peterson testified that the broadcast described a male black carrying a handgun and wearing “camouflage army-type clothing.” Finally, at trial, Officer Peterson stated that he recalled tire bulletin as describing a “male, black, short in height, with camouflage clothing.” See Petitioner's Memorandum of Law in Support of Coram Nobis Application at 13 — 14, A.374-375. In no way would these minor differences call into question whether the police had probable cause to stop Crenshaw. Therefore, they were not an additional, separate basis for argument at the suppression hearing. In any event, defense counsel pointedly cross-examined Officer Peterson about the discrepancies in his testimony at trial.