MEMORANDUM AND ORDER
Following a jury trial in the New York Supreme Court, Bronx County, petitioner Richard Rosario was convicted of one count of murder in the second degree under New York Penal Law Section 125.25. The trial court sentenced Rosario to a term of imprisonment of 25 years to life, pursuant to which he currently is incarcerated. He directly appealed his judgment and conviction to the New York Supreme Court Appellate Division, First Department,
People v. Rosario,
The habeas petition asserts four grounds for relief. First, he asserts that he was denied the effective assistance of counsel pursuant to
Strickland v. Washington,
I referred the petition to Magistrate Judge Henry B. Pitman on December 29, 2005. In a thorough, 107-page Report and Recommendation (the “R & R”) dated December 28, 2007, Magistrate Judge Pitman recommended that Rosario’s petition be conditionally granted as to his Batson claim and denied in all other respects. Both the petitioner and respondent have filed objections to the R & R.
I have reviewed the R & R de novo. R. 72(b), Fed.R.Civ.P.; 28 U.S.C. § 636(b)(1). For the reasons explained below, I modify the R & R to the extent that it conditionally recommends granting the petitioner’s Batson claim. I adopt the R & R in all other respects. The petition is denied.
Background
On June 19, 1996, George Collazo was fatally shot in the head on Turnbull Avenue in Bronx County, New York. (Trial Tr. at 19.) At least three eyewitnesses observed the incident, (Trial Tr. at 54-56, 133-66, 286-94.) though only two of them testified that Rosario was the shooter. One -witness, Michael Sanchez, was a friend of the victim and present with him at the time of the shooting. (Trial Tr. at 137-65, 286-94.) He testified that an ar *546 gument arose between Rosario and the victim after the victim uttered a racial epithet, and stated that he had a clear and unobstructed view of Rosario’s face during the verbal quarrel. (Trial Tr. at 139-50.) According to Sanchez, Rosario approached from behind shortly thereafter, and shot the victim with a revolver. (Trial Tr. at 152-55.) Three weeks after the shooting, a police lineup was organized, and Sanchez identified Rosario as the shooter. (Trial Tr. at 164-65.) At trial Sanchez again identified Rosario as the shooter, and stated that he had no doubt, either at the lineup or at trial, that his identification of Rosario was correct. (Trial Tr. at 165.) A second witness, Richard Davis, identified Rosario as the shooter after reviewing photographs provided by police; he testified at trial that he had an unobstructed view of the shooting. (Trial Tr. at 53-66.) A third witness, Jose Diaz, testified that he heard the fatal shot and stated that he might ■ be able to recognize the persons involved in the dispute preceding the shooting, but he did not identify Rosario in the courtroom. (Trial Tr. at 292-96.)
Two alibi witnesses — Jenine Seda and John Torres — testified at trial that Rosario was with them in Florida on the day of the shooting. (Trial Tr. at 305-09.) Seda testified that she specifically recalled Rosario’s presence in her home, because the date of the shooting was one day before she gave birth to a son, and she further testified that Rosario was present in her home when she returned from the hospital. (Trial Tr. at 328, 334-35.) John Torres, Rosario’s friend and the father of Seda’s baby, testified at trial that on the day of the shooting, Rosario had spent the day with him purchasing auto parts for a broken-down car. (Trial Tr. at 347.) Rosario also offered the testimony of a New York terminal manager for Greyhound Busline, who authenticated and explained a “readout of a transaction” dated June 30, 1996, indicating that Rosario had purchased bus tickets from Orlando, Florida to New York City. (Trial Tr. at 366-69.) The terminal manager also testified that passengers generally are not required to submit identification when they pay and board, and are not required to use the ticket on its date of purchase. (Trial Tr. at 371-72.)
Rosario testified in his own defense, and asserted that he was present in Florida from late May through June 30, 1996, during which he hoped to find work and ultimately relocate. (Trial Tr. 399^00.) Rosario further testified that his New York fiancée Minerva Godoy wired money to him in Florida via Western Union at least three times, and that the transfers were addressed to John Torres because Rosario himself lacked valid, government-issued identification. (Trial Tr. at 422-24.) He stated that he resided with John Torres and Jenine Seda until after the birth of their child on June 20, 1996 (Trial Tr. at 409-10); that he and John Torres spent a day looking for auto parts together, even though he could not recall the precise date (Trial Tr. at 419.); and that he returned to New York from Florida on June 30, 1996, upon hearing from his sister that detectives wished to speak to him in connection with the Collazo shooting. (Trial Tr. at 388-89.)
In rebuttal, the prosecution offered the testimony of Captain Bruce Bolton, records custodian of the Department of Corrections in Volusia County, Florida. Bolton testified that the Department’s records showed that Rosario was in Department custody from March 13, 1996, through April 12,1996. (Trial Tr. at 451.) Prior to this testimony, Rosario’s counsel objected that the rebuttal evidence would be unduly prejudicial, and that Rosario was never directly questioned about his incarceration, such that Bolton’s testimony constituted extrinsic evidence on a collateral matter. *547 (Trial Tr. a 435-38.) The objection was overruled. (Trial Tr. at 438-39.)
The jury found Rosario guilty of murder in the second degree. (Trial Tr. at 595-98.)
Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100 Stat. 1218 (“AEDPA”), federal courts must accord deference to the state court’s determination of a habeas petitioner’s claims. A federal court should not grant habeas relief to a person in custody pursuant to a state court judgment unless the state proceedings “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.” 28 U.S.C. § 2254(d)(1). “[T]he meaning of the phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ ... 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.”
Williams v. Taylor,
I. Pursuant to the Standard of Review Set Forth by AEDPA, the R & R is Adopted, and Petitioner’s Ineffective Assistance Claim is Dismissed
In support of his claim that he received ineffective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution, Rosario argues that his trial counsel failed to undertake a sufficient investigation of his alibi defense, and neglected to seek out relevant and readily available witnesses and documentary evidence that established his presence in Florida on the date of Collazo’s shooting. He contends that counsel’s actions were based in error and neglect, rather than conscious strategic decisions.
Rosario’s ineffective assistance claim is directed toward two of the four attorneys who represented him between his arrest and jury trial. Joyce Hartsfield represented Rosario from mid-July 1996 through mid-February 1998. (Hearing Tr. at 13-14, 117.) Steven J. Kaiser then represented Rosario through the conclusion of trial. (Hearing Tr. at 117.) The R & R recommended that I dismiss Rosario’s ineffective assistance claim based on the standard of review set forth in Section 2254(d)(1). For the reasons explained below, I adopt the R & R’s recommendation.
A. At Rosario’s Post-Conviction kkO.10 Hearing, Several Alibi Witnesses Testified that He was Present in Florida During June 1996
The R & R thoroughly and carefully sets forth the events and testimony relevant to the ineffective assistance claim. I briefly recount them here.
Following Rosario’s unsuccessful direct appeal of his judgment and conviction, he filed a motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law, arguing that he had been denied effective assistance of counsel in regard to his alibi defense. An evidentiary hearing was conducted before the Honorable Edward M. Davidowitz, Justice of the Supreme Court, Bronx County. In total, the 440.10 hearing included testimony from ten witnesses, including seven alibi witnesses, attorneys Kaiser and Hartsfield, and the private investigator that Hartsfield retained. Rosario was represented by counsel and presented his ineffective assistance case at length. (Miller Dec. Ex. 61.)
The R & R concluded that Rosario exhausted his ineffective assistance claim in state court (R & R at 568-69), a conclusion that I adopt.
*548 At the section 440.10 hearing, Hartsfield testified that she sought no documentary records to support Rosario’s alibi defense, including, among other things, money transfer records from Western Union that subsequently were destroyed pursuant to Western Union’s routine expunging of business records. (Hearing Tr. at 28, 32; Miller Ex. 53.) Hartsfield did, however, retain an investigator named Jessie Franklin, for the purpose of locating and interviewing prospective alibi witnesses. (Hearing Tr. at 42-43.) Franklin spoke to Fernando Torres (father of trial alibi witness John Torres) and Robert Torres (John’s brother). (Activity Log of Jessie Franklin, attached at Miller Dec. Ex. 17.) On April 16, 1997, Hartsfield successfully applied to the court for funds to further investigate the alibi defense, (Miller Dec. Ex. 29) and yet for reasons that are not entirely clear, pursued no subsequent investigation. She implied that logistical concerns and unawareness of funding availability both may have influenced her actions. (Hearing Tr. at 50.) Hartsfield stated that there was no conscious strategic decision not to press forward with investigating Rosario’s alibi defense:
Q. Miss Hartsfield, while you were representing Mr. Rosario, did you make a conscious strategic decision not to contact any particular witness?
A. No.
Q. And while you were representing Mr. Rosario, did you make a conscious strategic decision not to pursue any particular evidentiary leads?
A. No.
(Hearing Tr. at 73.) In objecting to the R & R, the respondent also notes the following testimony from Hartsfield:
Q. And you didn’t have a strategic reason not to send [Jessie Franklin] during that year [to Florida], did you?
A. Not that I can recall, no, no.
(Hearing Tr. at 52.) Hartsfield did, however, testify that a successful alibi defense relied on witness credibility, and that a non-credible witness could jeopardize the defense. (Hearing Tr. at 95.) When asked whether John Torres and Jenine Seda were the best possible witnesses to provide alibi testimony, Hartsfield stated that she was “not in a position to make that evaluation.” (Hearing Tr. at 95.)
Hartsfield’s successor, Kaiser, stated via affirmation that Hartsfield indicated to him that the court had not authorized funds for a Florida investigation, (Miller Dec. Ex. 50) 1 but then submitted a second affirmation retracting his assertion that Hartsfield told him about a lack of funds, noting that his “recollection is presently unclear” about the source of his misim-pression concerning the availability of investigation funds. (Miller Dec. Ex. 52.) He affirmed that he nevertheless attempted to locate and contact alibi witnesses in Florida. (Miller Dec. Ex. 52.) As to the decision not to present additional alibi witnesses, he testified at the 440.10 hearing that he was under an impression that John Torres’s parents, Fernando and Margarita, seemed unwilling to travel to New York on grounds of expense, and generally seemed reluctant to serve as witnesses. (Hearing Tr. at 192-95.) He further testified that additional witnesses merely may have duplicated the testimony of John Torres and Jenine Seda in a less-cooperative manner. (Hearing Tr. at 196, 276-78.) He stated that John Torres and Jenine Seda seemed like the best possible witnesses because *549 they could establish the date of Rosario’s presence, and had no prior convictions that would leave them vulnerable to impeachment. (Hearing Tr. at 196, 221, 225.) He noted at trial that they “weren’t impeached in any way as being bad characters.” (Hearing Tr. at 196.) He did, however, state that he would have preferred to call additional alibi witnesses, including those who did not live with Rosario. (Hearing Tr. at 196-98.) Kaiser testified at the hearing that he was under the impression that funds for an investigation had been denied, so he made no effort to pursue one. (Hearing Tr. at 128-29, 133, 210-11.)
Jessie Franklin, the investigator that Hartsfield retained to pursue Rosario’s alibi defense, also testified at the hearing. Her notes reflected that she held an hour-long meeting with Rosario, who provided contact information for John Torres, Robert Torres, Chenoa Ruiz, Ricardo Ruiz, Nerida Colon and Denise Hernandez. (Miller Dec. Ex. 19.) She stated that prior to drafting an affidavit supporting a grant of additional investigation funds, she had contacted only two potential witnesses, Fernando and Robert Torres. (Hearing Tr. at 384-85, 403-04.) Both men indicated to her that they saw Rosario in Florida in late June 1996. (Hearing Tr. 391-92, 437-38; Notes of Jessie Franklin, attached at Miller Dec. Ex. 21.) Franklin did not subsequently contact Fernando or Robert Torres, and assumed that the request for investigation funds had been denied in light of lack of communication from Harts-field. (Hearing Tr. at 403, 407.) She later resumed the investigation, contacted Je-nine Seda and John Torres, and was told by John Torres that he could provide names of other alibi witnesses. (Hearing Tr. at 411-14.) Franklin attempted to contact others named by Rosario, but was unsuccessful. (Hearing Tr. at 415-17.) She testified that Kaiser never contacted her as to the investigation. (Hearing Tr. at 421-22.)
Several alibi witnesses provided testimony stating that Rosario was present in Florida in or around late June 1996. Fernando Torres testified that on the day of Collazo’s murder, he accompanied Rosario and John Torres on trips to buy auto parts, and that he did not know until several years after the fact the crime for which Rosario was convicted occurred on June 19, 2006. (Hearing Tr. at 318-19, 364, 371-72, 374-75.) He then submitted a post-hearing statement stating that he saw Rosario in John Torres’s apartment on June 19. (Miller Dec. Ex. 56.) Chenoa Ruiz, a next-door neighbor to John Torres and Jenine Seda, testified that she observed Rosario on both June 18 and June 19, and recalled frequently feeling irritated with Rosario because he so often was “hanging out” with John Torres, who she believed should have been tending to Seda’s pregnancy. (Hearing Tr. 497, 503, 527.) Rosario also was memorable to her, she added, because he often kept her boyfriend out late at night, which caused her problems. (Hearing Tr. at 527.) She stated that she specifically observed Rosario at the home of John Torres and Jenine Seda on June 19, when she picked up Seda for a doctor’s appointment. (Hearing Tr. at 548, 550.) She stated that she was not contacted by any attorney for Rosario until after his conviction, and that she would have been willing to testify at his trial. (Hearing Tr. at 509-10.) Michael Serrano testified that he recalled Rosario being present when John Torres returned from the hospital after Seda gave birth on June 20 — one day after Collazo’s shooting. (Hearing Tr. 719-20.) Various other witnesses testified that they observed Rosario in Florida in June 1996, and the R & R summarizes their testimony in detail. (R & R at 572-74, summarizing testimony of Ricardo Ruiz Minerva Godoy, Denise Hernandez and Lisette Rivera.)
*550 B. Following the Ü0.10 Hearing, Rosario’s Motion for Relief Based on Ineffective Assistance was Denied in the New York Supreme Court, Bronx County
Justice Davidowitz issued a 22-page opinion denying post-conviction relief. (Miller Dec. Ex. 62.) He summarized the testimony provided by witnesses at the 440.10 hearing. (Miller Dec. Ex. 62 at 7-15.) Justice Davidowitz ruled that Rosario received effective representation pursuant to the constitutions of the United States and the State of New York, and evaluated effectiveness pursuant to New York’s “meaningful representation” standard set forth in
People v. Benevento,
C. AEDPA’s Deferential Standard of Review Requires Dismissal of Rosario’s Ineffective Assistance Claim
An ineffective assistance claim is determined under the well-known criteria of
Strickland v. Washington,
“The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
Kimmelman v. Morrison,
“An ineffective assistance claim asserted in a habeas petition is analyzed under the ‘unreasonable application’ clause of AEDPA because it is ‘past question that the rule set forth in
Strickland
qualifies as clearly established Federal law, as determined by the Supreme Court of the United States ... ’”
Lynn v. Bliden,
In a careful and detailed analysis, the R & R independently concluded that both prongs of the Strickland test had been violated, (R & R at 576-81) before recommending dismissal of petitioner’s ineffectiveness claim pursuant to AEDPA and the law of the Second Circuit. (R & R at 581-85.) I adopt Magistrate Judge Pittman’s recommendation that AEDPA requires dismissal of petitioner’s Strickland claim.
As Rosario points out, the law of the State of New York does not analyze ineffectiveness claims pursuant to the
Strickland
framework. Instead, New York law looks to whether a defendant received “meaningful representation” during the process as a whole.
Benevento,
First, I address whether the state court decision was “contrary to”
Strickland.
A state court decision is “contrary to” federal law if it is “diametrically different” from, “opposite in character or nature” to, or “mutually opposed to” relevant Supreme Court precedent.
Williams,
The R & R notes language from Henry, which appeared to question whether New York’s approach to ineffectiveness necessarily satisfies Strickland’s prejudice prong. A relevant portion of Henry observes:
[I]n light of the Strickland principle that an ineffective assistance claim is established if the court concludes that there is a reasonable probability that but for counsel’s professional deficient performance the outcome of the proceeding would have been different, we find it difficult to view so much of the New York rule as holds that “whether defendant would have been acquitted of the charges but for counsel’s errors is ... not dispositive,” as not “contrary to” the prejudice standard established by Strickland.
Henry,
While
Henry
may or may not portend an eventual differentiation between
Strickland
and New York’s ineffectiveness standard, the R & R correctly noted that both
Henry,
Second, I conclude that the state court decision was not an “unreasonable application” of
Strickland.
Under the “unreasonable application” prong of Section 2254(d)(1), a federal court may grant relief when a state court “ ‘correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of a particular case.’ ”
Harris v. Kuhlmann,
A cold reading of the testimony at the 440.10 hearing does not point to only one clear conclusion concerning the possible impact of calling Chenoa Ruiz and Fernando Torres at trial. Yet the record does not support the conclusion that the state court’s fact-finding was objectively unreasonable. A state court’s findings of fact are presumed to be correct, and can be rebutted only by clear and convincing evidence produced by the petitioner.
Lynn,
Justice Davidowitz considered testimony from ten witnesses, recorded in more than 750 pages of hearing transcripts. (Miller Dec. Ex. 61.) His opinion included firsthand observations as to witness credibility and the comparative persuasiveness of the various witnesses presented, and, while not employing the terminology commonly used in a Strickland analysis, nevertheless found that 1.) counsel’s handling of the alibi defense was not ineffective, and 2.) counsel’s performance did not undermine the reliability of the trial’s outcome. In light of Justice Davidowitz’s opinion and the record before me, I cannot hold that this conclusion was an unreasonable application of Strickland.
I therefore adopt the R & R’s recommendation that Rosario’s ineffective assistance claim be dismissed. 3
II. The R & R is Modified as to Petitioner’s Batson Claim, Which is Dismissed
Jury selection in Rosario’s trial occurred in three rounds. It is undisputed that, before the second round concluded, the prosecutor exercised six peremptory strikes, and that all six were exercised against African-American members of the jury pool. Petitioner then raised an objection pursuant to
Batson v. Kentucky,
MR. KAISER: Judge, most respectfully, and I hate to do it, but it’s reached the point now where I notice a pattern *554 of challenges that are consistent only by one factor and that’s the race of the person that’s being challenged, all of whom are black. Every single one of them.
Now, granted this is the Bronx and there’s a lot of black jurors and there’s a couple or. few that she didn’t take off, but the ones that she did take off without exception are Afro Americans.
THE COURT: Let’s see if there is a pattern.
(Whereupon, there is a brief pause in the proceedings.)
THE COURT: I do not see a prima facie case of exercised peremptory challenges by race. The People have exercised six peremptories of Afro Americans and there were four that were not challenged by her, three of whom are jurors, one of them whom you challenged. I deny your challenge.
(Miller Dec. Ex. 65 at 161-62.) The court then corrected itself and stated that five African-American veniremembers went unchallenged by the prosecutor, not four. (Miller Dec. Ex. 65 at 163.) Jury selection resumed. The prosecution exercised five additional peremptory strikes, including one of an alternate juror. (Miller Dec. Ex. 65 at 164, Ex. 66 at 85-88.) Petitioner raised no additional Batson objection, and the race of the five additional challenged veniremembers is not reflected in the record.
In his direct appeal to the Appellate Division, First Department, Rosario asserted that because the prosecution exercised all of its first six peremptory strikes against African-American veniremembers, he established a
prima facie
case of discrimination under
Batson,
and that the prosecution should have then been compelled to set forth race-neutral explanations for its challenges. The Appellate Division rejected the argument.
People v. Rosario,
To guard against the discriminatory exercise of peremptory strikes in violation of the Equal Protection Clause of the Fourteenth Amendment,
Batson
and its progeny set forth a three-step framework for evaluating such a claim. First, the party challenging the strikes must establish a prima facie case that its adversary’s challenges are race-based.
Batson,
The threshold for establishing a prima facie case merely requires “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”
Johnson v. California,
The R
&
R concluded that the state trial court unreasonably applied federal law in ruling that Rosario failed to establish a prima facie case under
Batson
and recommended that the habeas petition be conditionally granted as to its
Batson
claim. (R & R at 586-93.) It reasoned that “[t]he prosecutor’s disproportionate strikes of black jurors, despite the fact that not all blacks were stricken from the jury, was sufficient to raise an inference of discrimination and, therefore, sufficient to establish a
prima facie
case under
Bat-son
” (R
&
R at 592-93.) In reaching this conclusion, the R
&
R relied on
United States v. Alvarado,
The Second Circuit often has noted the perils of using a snapshot in time amid an incomplete voir dire when reviewing a
Batson
objection raised in a habeas petition. To ascertain the existence of a prima facie case, “[t]he discharge of this burden may entail a review of prosecutorial strikes over the span of the selection process.”
Sorio,
In
Overton v. Newton,
[T]he trial judge never confronted, and the trial record does not reveal, what the statistics would have shown at the conclusion of jury selection. If those statistics sufficiently established the inference that challenges were based on race, the court could then have implemented the Batson process to ensure that impermissible challenges would not be allowed. If, on the other hand, the statistics at the conclusion failed to support a sufficient inference, there would be no need to engage in the process. We cannot say, on this record, that the trial judge’s refusal to implement Bat-son’s process for testing each questioned challenge midway in the process was an unreasonable application of the Batson requirements.
Id.
at 279-80.
Overton
noted that this caution is particularly warranted when reviewing a state court’s
Batson
determinations pursuant to a habeas petition.
Id.
at 280 n. 12. In
Williams v. Burge,
2005 WL
*556
2429445, at *4-6 (S.D.N.Y. Oct.3, 2005),
aff'd,
Subsequent to the R & R in this case, the Second Circuit again affirmed dismissal of a habeas petition raising a statistics-based Batson objection prior to the conclusion of jury selection:
[H]ere, petitioner’s Batson challenge was denied as premature, she failed to renew the motion, and the status of jury selection at the time of the challenge did not insure that the statistics would establish a prima facie case irrespective of what happened during the jury selection process thereafter.
Brown v. Alexander,
As in
Overton, Sorto
and
Brown,
the record of jury selection here precludes me from holding that the trial court’s ruling was unreasonable. In this instance, the reliance on
United States v. Alvarado,
*557
It is true that at the time petitioner raised his
Batson
objection, six of six peremptory strikes had been exercised against African-American veniremembers, while five other African Americans from the pool were unchallenged by the prosecution. (Miller Dec. Ex. 65 at 161-63.) Thus, under
Alvarado,
the relevant focus is that six of 11 — or slightly less than 55 percent — African-American venire-members were challenged, not that 100 percent of peremptory challenges were brought against African-American venire-members. The transcript of jury selection indicates that at the time of the
Batson
objection, there were 11 African-American veniremembers in a pool of 21 potential jurors, excluding those potential jurors removed on consent. (Miller Dec. Ex. 65 at, 88, 90-92, 94, 100-02, 156-63.) Thus, it appears from the transcript that at the time of the
Batson
objection, African Americans were 52 percent of the jury pool, and challenged at a rate of 55 percent. As the respondent argues, this challenge rate is not a significant variant from the overall percentage of African-American veniremembers, and is insufficient to establish a prima facie case under
Batson. See generally Harrison v. Ricks,
I also note that in
Alvarado,
the Second Circuit heard a direct appeal from a federal criminal case, and was not considering a habeas petition pursuant to Section 2254.
I conclude that the trial court was not unreasonable in ruling that petitioner failed to establish a prima facie case showing discriminatory exercise of peremptory strikes, and that the petition’s claim for relief on Batson grounds is denied. The R & R is modified accordingly.
III. The R & R Correctly Concluded that Rosario’s Constitutional Rights Were Not Violated by the Testimony of the Prosecution’s Rebuttal Witness
Rosario contends that he was denied his Fourteenth Amendment right to due process because the trial court allowed, over counsel’s objection, the testimony of the prosecution’s rebuttal witness, Captain Bruce Bolton, the records custodi *558 an of the Department of Corrections in Volusia County, Florida. (Petition, Ground Three.) Bolton testified that Rosario was in Department custody from March 13, 1996, through April 12, 1996. (Trial Tr. at 451.)
First, I adopt the R & R’s conclusion that Rosario exhausted this claim in the state courts. Consistent with
Davis v. Strack,
Second, I adopt the R & R’s conclusion that Bolton’s testimony did not violate the Fourteenth Amendment. As noted by the É & R, evidentiary rulings, even erroneous ones, rarely rise to the level of a constitutional violation.
See, e.g., Estelle v. McGuire,
Rosario’s testimony opened the door for impeachment evidence concerning his whereabouts during March and April, 1996. He testified that he was in Florida until mid-April because he was “having a good time” and “enjoying being out there.” (Trial Tr. at 384.) He stated that during this time, he “was staying in a girl’s house I met over there,” and resided with her from February through mid-April 1996. (Trial Tr. at 382, 394-95.) Bolton’s testimony was introduced for the purpose of impeaching Rosario’s factual statements. As noted in the R & R, when a defendant provides testimony as to a specific fact, the prosecutor may offer impeachment testimony showing that the defendant’s testimony was untruthful.
United States v. Beno,
Rosario also contends that the rebuttal evidence prompted the jury to conclude that he had a propensity toward criminal conduct, and that the resulting prejudice violated his due process rights. The trial judge, however, issued a limiting instruction directed toward Bolton’s testimony:
The defendant’s incarceration in Florida is not evidence of the defendant’s guilt in this case nor evidence that the defendant is the person who was disposed to commit crimes. You should consider such testimony only in determining the credibility of witnesses who have appeared before you. You should not consider his testimony for any other purpose.
(Trial Tr. at 565.) Jurors are presumed to follow instructions,
Zafiro v. United States,
I adopt Magistrate Judge Pitman’s recommendation that Rosario’s due process claim should be denied.
IV. The R & R Correctly Concluded that Rosario’s Actual Innocence Claim Should Be Dismissed
Rosario asserts that his habeas petition should be granted on grounds of actual innocence. (Petition, Ground Two.) He contends that relief on grounds of actual innocence is appropriate because nine witnesses have provided exculpatory testimony placing him in Florida at or around the date of Collazo’s murder, and because he was convicted on the basis of eyewitness testimony. (Id.)
Actual innocence may excuse a procedural default, and may arguably provide a basis not to apply the statute of limitations imposed by AEDPA.
Doe v. Menefee,
As the R & R notes, a successful claim for actual innocence requires the petitioner to come forth with new and reliable evidence making it more likely than not that no reasonable juror presented with that evidence would have convicted the petitioner.
Schlup v. Delo,
In concluding that the actual innocence assertion should be rejected, the R
&
R noted that, even if additional alibi testimony had been admitted, Rosario’s acknowl-edgement that he often traveled between New York and Florida might prompt a reasonable juror to conclude that Rosario was present in New York in mid-June. (R & R at 601.) It noted that the prosecution’s two eyewitnesses expressed great confidence that Rosario was the shooter, and that their testimony was unimpeached at trial. (R & R at 601.) The alibi witnesses all risked impeachment on grounds that they were friends of Rosario, the R & R noted. (R
&
R at 601.) I cannot conclude that no reasonable juror would have been persuaded by the prosecution’s case,
see Bousley v. United States,
In addition, as the R & R notes, an actual innocence claim considers “whether the new evidence on which the actual innocence claim is based is reliable.”
Doe,
I adopt in full Magistrate Judge Pit-man’s recommendation that the actual innocence claim be dismissed.
Conclusion
The R & R is modified to the extent that it recommends granting the petitioner relief on his Batson claim. It is adopted in all other respects. The petition is dismissed.
Petitioner has not made a substantial showing of the denial of a constitutional right, and, accordingly, a certificate of ap-pealability will not issue. 28 U.S.C. § 2253.
SO ORDERED.
REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, United States District Judge,
I. Introduction
Petitioner Richard Rosario seeks, by his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an Order vacating a judgment of conviction entered on November 23, 1998 after a jury trial in the Supreme Court of the State of New York, Bronx County (Fisch, J.), for one count of murder in the second degree in violation of New York Penal Law Section 125.25. By that judgment, petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life and is currently incarcerated pursuant to the judgment.
Petitioner asserts four claims in his petition: (1) that petitioner was denied his Sixth Amendment right to the effective assistance of counsel, (2) that the Trial Court erred when it failed to find that petitioner had made out a
prima facie
case of discrimination under
Batson v. Kentucky,
For the reasons set forth below, I respectfully recommend that the petition be conditionally granted with respect to petitioner’s Batson claim and denied in all other respects.
II. Background
A. Facts Leading to Petitioner’s Conviction
1. The Prosecution’s Case
Early in the afternoon on June 19, 1996 petitioner shot George Collazo in the head on Turnbull Avenue in Bronx County, New York, fatally injuring him (Trial Tr. 1 at 19). There were at least three eyewitnesses to the incident: Michael Sanchez, Collazo’s friend; Robert Davis, a porter who was working in the vicinity of the shooting when it occurred; and Jose Diaz, a food vendor who was also working in the vicinity of the shooting that day (Trial Tr. at 54-56,133-67, 286-94).
*561 Sanchez testified at trial that he and Collazo were walking on White Plains Road when they passed two males, one of whom Sanchez described at trial as a tall, thin Hispanic male with a fade haircut and a moustache; Sanchez described the other male as black (Trial Tr. at 139-47). Sanchez testified that after he and Collazo passed the two men, Collazo stated “why do these niggers always have to front” (Trial Tr. at 141). An argument ensued between Collazo and the Hispanic male, during which Sanchez stood approximately two feet from the Hispanic male and had an unobstructed view of the Hispanic male’s face (Trial Tr. at 145, 149-50). After about a minute of arguing, Collazo and Sanchez walked away, continuing down White Plains Road and then turning on to Turnbull Avenue (Trial Tr. at 150, 190).
According to Sanchez, while he and Col-lazo were walking on Turnbull Avenue, the Hispanic male, with whom Collazo had just argued, approached them from behind and said something to get their attention (Trial Tr. at 153). When Sanchez turned around, the male was pointing a chrome revolver at Collazo; he then fired a single shot that hit Collazo in the head and ran away (Trial Tr. at 152-55). Sanchez ran after the shooter for a short distance, but then returned to the scene and yelled to nearby workers to call the police (Trial Tr. at 156). Sanchez testified that he had no doubt that petitioner was the shooter both when he identified petitioner in a lineup almost three weeks after the shooting and when he identified petitioner at trial (Trial Tr. at 165).
On the day of the murder, Robert Davis, a porter, was working on Turnbull Avenue when he heard someone say, “You won’t do this anymore” (Trial Tr. at 53-56). Davis then saw three men walking towards him when one shot another in the head and ran (Trial Tr. at 56-57). Davis testified that he was able to see the faces of the three men, none of whom he had ever seen before and who were approximately two car lengths away from him at the time. Although it had started to drizzle, Davis had an unobstructed view of the incident (Trial Tr. at 58).
Davis reviewed “mug books” at the police precinct on the day of the shooting, but could not then identify the shooter (Trial Tr. at 80). Later that day detectives went to Davis’ place of work with additional photographs. Davis believes he looked at 50 to 75 more photos before he identified petitioner’s (Trial Tr. at 86). Davis testified that the officers and detectives who presented the photographs to him did not tell him that he had to select a photograph, and the photograph he selected was not marked (Trial Tr. at 85-86). Davis also testified that after he selected petitioner’s photograph, he never saw the photo again (Trial Tr. at 88). Davis testified that when he recognized petitioner in a lineup on July 9 and in court, he had no doubt that petitioner was the shooter (Trial Tr. at 66).
Jose Diaz, a food vendor operating a hot dog truck on the day of the shooting, witnessed the argument between Collazo and the other two males, which he believed lasted about ten minutes; Diaz witnessed the argument from approximately twenty-eight feet away (Trial Tr. at 292-93). Diaz testified that after the argument, the males walked in separate directions, but one of the males with dark skin ran down the street. Diaz did not see the shooting, but heard the shot (Trial Tr. at 295). Diaz testified that he might be able to recognize the men he saw arguing that day, but did not identify petitioner in the courtroom (Trial Tr. at 295).
Detective Martinez of the 43rd, precinct testified that he interviewed both Sanchez and Davis the day of the shooting, and that while the men were in the precinct they *562 were separated from each other so that they could not discuss the incident (Trial Tr. ^at 116). Detective Martinez also testified that when Diaz and Sanchez viewed a lineup on July 9 that included the petitioner, they were not permitted to speak to each other and were kept in separate rooms before viewing the lineup (Trial Tr. at 110).
2. Petitioner’s Defense
Petitioner presented an alibi defense. Specifically, petitioner contended that on the day of the shooting he was in Deltona, Florida, where he had been residing since approximately May 26, 1996, and that he did not leave Florida until June 29 after he heard from his family in New York that the police were looking for him.
Petitioner presented two alibi witnesses at trial, Jenine Seda and John Torres, who traveled from Florida to testify that petitioner was living with them, and that they both saw him on the day of the murder, June 19.
Seda testified that she had known petitioner since December of 1995, and that petitioner was staying at her house in Del-tona from approximately the end of April or beginning of May, 1996 until about June 30 (Trial Tr. at 307-08, 323). Seda testified that while petitioner was living with her and her boyfriend, John Torres, petitioner and John 2 , who were good friends, spent most of their time together because neither of them were working (Trial Tr. at 311). Seda testified that she knew petitioner was at her house on June 19 (Trial Tr. at 312), and that she remembers that day because it was the day before her son was born (Trial Tr. at 335). Seda also stated that she was admitted to the hospital at about 5:00 a.m. on June 20 and that petitioner was at her home when she returned from the hospital on June 21 (Trial Tr. at 328). Seda testified that while traveling from Florida to New York for the trial, she and John Torres did not discuss either their memories regarding June 19 or the fact that they were testifying (Trial Tr. at 324-25).
John Torres testified that petitioner was living with him from about April until June 19, 1996, when petitioner went to live with John’s brother, Robert Torres, to make room for John and Seda’s new baby (Trial Tr. at 344, 360-61). John testified that on June 19 his car broke down and he spent the day with petitioner looking for car parts before returning to John’s home (Trial Tr. at 347). John had no receipts or other documents to corroborate that his car had broken down or that parts were purchased that day (Trial Tr. at 349). John testified further that Seda was working on June 19. John also stated that in June, 1996 he was working at a toll plaza five days a week (Trial Tr. at 349). John testified that while he and Seda were traveling to New York for the trial they discussed the fact that they would be testifying and what might happen (Trial Tr. at 351).
Petitioner also offered the testimony of the New York terminal manager for Greyhound Busline and introduced as evidence a “readout of a transaction” for the sale of a bus ticket. The “readout” indicated that Richard Rosario had purchased tickets to travel from Orlando, Florida to New York on June 30, 1996 (Trial Tr. at 366-69). The manager testified that while the “readout” gives the name of the passenger, date of purchase, and destinations, Greyhound does not routinely require a passenger to submit identification upon paying or boarding (Trial Tr. at 371-72).
*563 Petitioner testified in his own defense regarding three different time periods when he was in Deltona, Florida. The first was a two-week visit in late December, 1995 until early January of 1996, during which he met John Torres and Jenine Seda (Trial Tr. at 377-80). The second was a visit from February through mid-April, 1996 (Trial Tr. at 386-87). The third was from late May, 1996 until June 30, 1996. During the second and third trips, petitioner had hoped to find work, re-locate to Florida, and have his fiancé, Minerva Godoy, and their children join him in Florida (Trial Tr. 399-400). Petitioner stated that both he and his friend John Torres were not working in June 1996 and that during his trip in May and June, Ms. Godoy wired money to him via Western Union on at least three occasions (Trial Tr. 422-24). Because petitioner did not have a valid, government-issued identification that was required to receive a money wire transfer, Ms. Godoy transmitted the money to John to give to petitioner (Trial Tr. at 423). Petitioner testified that he lived at John and Seda’s home from the end of May until after the baby was born on June 20, when he left to stay with his friend Ray so that John and Jenine could have more privacy and space (Trial Tr. at 409-10). Petitioner recalled that he was with John Torres when John’s car broke down and they went looking for parts; however, petitioner could not recall whether this occurred on June 19 or a different day before the baby was born (Trial Tr. at 419). On June 30, petitioner left Florida and returned to New York after his sister told him that detectives were looking for him in connection with a murder (Trial Tr. at 388-89).
During Cross-examination, the prosecutor questioned petitioner about his February to April, 1996 visit to Florida. Petitioner testified that he stayed at the home of a friend, Shannon Beane, until he left for New York on April 13 (Trial Tr. at 394-95).
3. The Prosecution’s Rebuttal Case
The prosecution presented as a rebuttal witness Captain Bruce Bolton of Volusia County, Florida, Department of Correction. Captain Bolton testified that he was the records custodian of the Volusia County Department of Corrections in Daytona, Florida and that the Department’s records showed that petitioner was in custody in Volusia County from March 13, 1996 until April 12,1996.
Before Captain Bolton testified, petitioner’s attorney, Steven Kaiser, objected to the rebuttal evidence on the grounds that: (1) petitioner was never directly questioned about whether he was incarcerated during the period of time at issue and given the opportunity to address the issue before the improper introduction of extrinsic evidence on a collateral matter and (2) the introduction of this “bad act” evidence would result in unjust prejudice against petitioner and that petitioner had never been given the opportunity of seeking a Sandoval 3 hearing outside the presence of the jury concerning this period of incarceration (Trial Tr. at 435-37). The Court allowed the testimony, accepting the prosecution’s argument that the captain’s testimony was part of disproving petitioner’s alibi defense that he was living with the other witnesses in Florida (Trial Tr. at 439).
4. Summations
Defense counsel’s summation focused on inconsistencies between the descriptions of the shooter that the eyewitnesses gave to detectives and in court, such as differences regarding the shooter’s approximate *564 height, facial characteristics, and clothing. Defense counsel also stressed the unreliability of eyewitness identifications (Trial Tr. at 488-503). Counsel pointed out that if petitioner’s alibi witnesses, John and Seda, were conspiring to give false testimony on petitioner’s behalf, then their testimonies would be more, not less, consistent with each other (Trial Tr. at 474). Defense counsel suggested to the jury that petitioner was not dishonest when he testified that he stayed with a friend during a time period that included his four weeks in the county jail, as it is consistent for a person to say they live in one place even if they are temporarily incarcerated elsewhere during that time (Trial Tr. at 485).
During its summation, the prosecution focused on the credibility of the eyewitnesses, Sanchez and Davis, while minimizing the inconsistencies in the descriptions they gave to detectives after the shooting (Trial Tr. at 520-21). With regard to petitioner’s witnesses, the prosecutor explained to the jury “that the little things about the testimony [are] what you have to look at to determine if you can rely on the witnesses” (Trial Tr. at 528-29). The prosecution then suggested that Jenine Seda and John Torres “are interested witnesses, interested because they have an interest in the outcome of the case. They don’t want to see their friend go to jail” (Trial Tr. at 529). Because John and Seda were inconsistent on “little things,” such as whether John was working on and around June 19, 1996, the prosecution suggested that John and Seda were unreliable witnesses (Trial Tr. at 530). The prosecution argued that John and Seda’s inconsistent testimony about whether they discussed the trial while traveling to New York also demonstrated their unreliability (Trial Tr. at 532). The prosecution pointed out that John and Seda both testified inaccurately that defendant lived with them from early April through June (Trial Tr. at 531). Moreover, the prosecution noted that the Greyhound ticket evidence offered by the defense does not really establish anything since Greyhound does not check the identification of its passengers (Trial Tr. at 533).
With respect to petitioner’s testimony that he lived with Shannon Bean while he was actually incarcerated, the prosecution suggested that petitioner’s responses were untruthful because he did not want the jury to know that he was in jail. According to the prosecution, this showed that petitioner was willing to lie on the stand and mislead the jury (Trial Tr. at 536).
5. Jury Instructions
The Trial Judge informed the jury that an interested witness is one who, “by reason of relationship [or] friendship” with either a party or a witness, might give biased testimony in favor of that person and that an interested witness’ testimony may be accepted despite, or rejected in light of, that witness’ interest in the outcome of the case (Trial Tr. at 558-559).
The Trial Judge also gave a limiting instruction regarding the evidence concerning petitioner’s incarceration in Florida in March and April of 1996. The judge told the jury that the evidence of the incarceration could not be considered as evidence of petitioner’s propensity to commit crimes. He did, however, advise the jury that it could be considered “in deter mining the credibility of witnesses who have appeared before you” (Trial Tr. at 565).
B. Procedural History
1. Petitioner’s Direct Appeal
Petitioner appealed his conviction to the Appellate Division of the New York State Supreme Court, First Department, arguing: (1) the prosecutor’s introduction of extrinsic evidence that petitioner was incarcerated during a period that ended over two months before the June 19 shooting *565 deprived petitioner of his Fourteenth Amendment Due Process right to a fair trial (Brief for Defendant-Appellant (“App. Div. Br.”) at 32-46, annexed as Exhibit 1 to Affidavit in Opposition to Ha-beas Corpus Petition (“Resp. Op.”) (Docket Item 12)); (2) the prosecutor’s use of all six peremptory challenges to strike prospective African-American jurors established a prima facie case of discrimination under Batson, requiring the prosecution to offer race-neutral reasons for its challenges (App. Div. Br. at 46-53); and (3) the cumulative impact of the prosecutor’s improper tactics misled and unfairly influenced the jury in violation of petitioner’s Fourteenth Amendment Due Process right to a fair trial (App. Div. Br. at 53-63).
The Appellate Division unanimously affirmed petitioner’s conviction on November 27, 2001. The Appellate Division held that (1) the Trial Court properly exercised its discretion in allowing the prosecution to introduce rebuttal evidence that petitioner was incarcerated, as it tended to disprove his alibi, was not collateral because petitioner made his multiple trips to Florida “integral parts of his alibi defense,” and had minimal prejudicial effect particularly in light of the Trial Court’s limiting instruction; (2) petitioner had failed to establish a
prima facie
case of racial discrimination by the prosecutor’s use of peremptory challenges because the mere number of the prosecution’s peremptory challenges against African-American prospective jurors did not establish a
pri-ma facie
case, and petitioner failed to show disparate treatment or other relevant circumstances raising an inference of discriminatory purpose; and (3) petitioner’s challenges to the prosecutor’s questioning of witnesses and comments in summation were not preserved, and, in any event, did not present a basis for reversal.
People v. Rosario,
The New York State Court of Appeals denied petitioner’s leave to appeal on March 26, 2002.
People v. Rosario,
2. Petitioner’s Motion to Vacate
On June 11, 2003, petitioner filed a motion pursuant to New York Criminal Procedure Law Section 440.10 to vacate the judgment of conviction, arguing that he had been denied effective assistance of counsel. The Honorable Edward M. Davidowitz, Justice of New York State Supreme Court, Bronx County held an evidentiary hearing at which petitioner presented seven of his purported alibi witnesses, two of his defense attorneys (Joyce Hartsfield and Steven J. Kaiser) and Hartsfield’s investigator on the case, Jessie Franklin. In a twenty-two page opinion, Justice Davidowitz denied relief, finding that both Hartsfield and Kaiser provided petitioner with “meaningful representation” (Decision and Order of the Honorable Edward M. Davidowitz, Justice of the Supreme Court, dated April 4, 2005 (“440 Order”), annexed as Exhibit 17 to Resp. Op., at 18).
The Appellate Division denied leave to appeal Justice Davidowitz’s decision on September 8, 2005 (Certificate Denying Leave, annexed as Exhibit 19 to Resp. Op.).
Petitioner filed his petition for a writ of habeas corpus on September 16, 2005.
C. The Current Petition
As noted above, petitioner asserts four claims: (1) that petitioner was denied his Sixth Amendment right to effective assistance of counsel based on his attorneys’ failure to adequately investigate and to present additional witnesses and documentary evidence in support of his alibi defense; (2) that the Trial Court erred when
*566
it refused to find a
prima facie
case of discrimination under
Batson v. Kentucky, supra,
III. Analysis
A. Standard of Review
Where the state court has decided a habeas petitioner’s claims on the merit s, a habeas petitioner must meet a stringent standard before a federal court can issue the writ. Specifically, 28 U.S.C. § 2254(d), modified by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), provides that in such a situation, habeas relief may be granted only when the Trial Court’s decision
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The Supreme Court has explained the alternative standards contained in the former paragraph as follows:
First, we have explained that a decision by a state court is “contrary to” our clearly established law if it “applies a rule that contradicts the governing law set forth in our cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor,529 U.S. 362 , 405-406,120 S.Ct. 1495 ,146 L.Ed.2d 389 (2000). See also Early v. Packer,537 U.S. 3 , 7-8,123 S.Ct. 362 ,154 L.Ed.2d 263 (2002) (per curiam)....
Second, [petitioner] can satisfy § 2254(d) if he can demonstrate that the [State] Court’s decision involved an “unreasonable application” of clearly established law. As we have explained:
“[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly. See Bell v. Cone,535 U.S. 685 , 698-699,122 S.Ct. 1843 ,152 L.Ed.2d 914 (2002); Williams, supra, at 411,529 U.S. 362 ,120 S.Ct. 1495 ,146 L.Ed.2d 389 . Rather, it is the habeas applicant’s burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner.”
Woodford v. Visciotti,537 U.S. 19 , 24-25,123 S.Ct. 357 ,154 L.Ed.2d 279 (2002) (per curiam).
Price v. Vincent,
In addition to the definition of “unreasonable application” set forth above, a state court may unreasonably apply Supreme Court precedent “if the state court unreasonably extends a legal rule established by the Supreme Court or if it unreasonably fails to extend a legal rule to a context in which the rule reasonably
*567
should apply.”
Serrano v. Fischer,
“Unreasonableness is determined by an ‘objective’ standard.”
Gersten v. Senkowski,
The nature of the rule in issue also impacts the assessment of the reasonableness of the state court’s action.
[Wjhile very specific rules may not permit much leeway in their interpretation, the same is not true of more general rules, the meaning of which “must emerge in application over the course of time.” [Yarborough v. Alvarado,541 U.S. 652 , 664,124 S.Ct. 2140 ,158 L.Ed.2d 938 (2004) ]. “The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.” Id.
Serrano v. Fischer, supra,
Both the “contrary to” and “unreasonable application” clauses “restrict[] the source of clearly established law to [the Supreme] Court’s jurisprudence.”
Williams v. Taylor, supra,
In order to be entitled to the deferential standard of review under subsection 2254(d), the state courts must have resolved the petitioner’s claims “on the merits.”
Cotto v. Herbert,
For habeas purposes, a state court is deemed to have reached the merit s of a federal claim when the state court’s decision “fairly appear[s] to rest primarily on federal law or to be interwoven with federal law,” unless there is a “clear and express statement of reliance on a state procedural bar.”
Jimenez v. Walker,
I shall address the nature of the state court’s disposition of each of petitioner’s claims in connection with my discussion of each of the claims.
B. Petitioner’s Claims
1. Ineffective Assistance of Counsel
Petitioner claims that he did not receive effective assistance of counsel based on counsel’s failure to investigate petitioner’s alibi defense adequately and to produce additional witnesses and documentary evidence that would have supported petitioner’s alibi (Pet. Mem. at 18).
Petitioner was represented by at least four defense attorneys after his arrest. The representation provided by petitioner’s first two attorneys, one of whom represented petitioner at arraignment, the other at petitioner’s lineup, is not at issue. Petitioner’s third attorney, Joyce Harts-field, represented petitioner from about mid-July, 1996 until mid-February of 1998 (Hrg. Tr. 4 at 14). Steven J. Kaiser represented petitioner after Hartsfield and through his trial (Hrg. Tr. at 117). Petitioner claims that Hartsfield and Kaiser’s representation was ineffective.
Petitioner asserts that he had always maintained that he was in Florida on the date of the murder. Immediately after turning himself in, petitioner wrote a statement for the police describing various events in Florida, providing the names of at least eleven potential alibi witnesses and identifying potential documentary evidence that he believed would establish his presence in Florida at the time of the murder (Pet. Mem. at 18; Petitioner’s Post-Arrest Statement (“Post-Arrest Stmnt.”), annexed as Exhibit 10 to the Declaration of Jodi K. Miller (“Miller Decl.”)). In his statement, petitioner claimed that he went to Florida on a Greyhound bus around the end of May and did not leave Florida until June 29, 1996. Petitioner claimed that several individuals in Florida could attest to his presence there, including John Torres’ mother, Margarita Torres, and his father, Fernando Torres, as well as John Torres, Jenine Seda, Robert Torres, David Guzman, Nerida Colon, “Ray MH,” “Mike,” “Gordo,” and “Hector.” 5 Petitioner had addresses for most of these individuals but not telephone numbers. Petitioner also reported in his post-arrest statement that during June, he and Gordo went to a bail bondsman to bail out their friend Michael. Petitioner also noted in his post-arrest statement that he had been incarcerated during a previous trip to Florida, but that he had been released from jail on April 12, 1996 (Post-Arrest Stmnt.).
While Hartsfield was representing petitioner, she moved for funds to investigate petitioner’s alibi defense in Florida, and the Trial Court granted that motion during a hearing in the presence of Hartsfield and petitioner (Calendar Call Transcript, dated March 19, 1997, annexed as Exhibit 29 to Miller Deck). Nevertheless, for unknown reasons, many of those alibi witnesses were never contacted by detectives, prosecutors, investigators, or petitioner’s attorneys until petitioner’s appellate counsel found them in Florida after petitioner was convicted of Collazo’s murder.
a. Petitioner’s 440 Hearing
Because petitioner’s claim of ineffective assistance raised factual issues that were
*569
outside the record of his trial, he properly asserted and exhausted the claim by way of a motion to vacate pursuant to New York Criminal Procedure Law Section 440.10.
Arce v. Smith,
Hartsfield testified that she made no efforts to obtain any documentary evidence in support of petitioner’s alibi (Hrg. Tr. at 32). Though Hartsfield was aware that petitioner claimed he bailed a friend out of jail in Florida in June of 1996, she did not make any efforts to contact the bail bondsman identified by petitioner (Hrg. Tr. at 27-28). Hartsfield also admitted that although petitioner had told her that his fiancé had wired money to him in Florida in June of 1996, Hartsfield did not contact Western Union to obtain records of those transactions (Hrg. Tr. at 28). 6 Petitioner also told Hartsfield that his fiancé had called petitioner in Florida at a public pay phone, yet Hartsfield made no effort to obtain toll records of those calls (Hrg. Tr. at 30). Petitioner’s counsel questioned Hartsfield about a police “field contact report” that noted that petitioner had been stopped by the police in Deltona, Florida on May 30, 1996, but Hartsfield could not recall whether petitioner had told her about that event (Hrg. Tr. at 30-31).
Petitioner had told Hartsfield that he knew several people who could corroborate that he was in Florida on the day of the murder (Hrg. Tr. at 14). In response to this information, Hartsfield hired an investigator, Jessie Franklin, to assist her in finding and interviewing petitioner’s potential alibi witnesses (Hrg. Tr. at 43). Harts-field and Franklin initially decided that they would focus their investigation on the couple with whom petitioner had lived during June, 1996, John Torres and Jenine Seda, because it appeared they were in the best position to confirm petitioner’s presence in Florida on the day of the murder, June 19 (Hrg. Tr. at 88). Hartsfield did not know whether other witnesses could also provide an alibi for June 19 (Hrg. Tr. at 107). On October 25, 1996, Franklin spoke by telephone with John Torres’s father, Fernando Torres, and his brother, Robert Torres, but was unable to locate John Torres at that time (Jessie Franklin Activity Log, annexed as Exhibit 17 to Miller Deck).
On October 29, 1996, after Franklin was unsuccessful in her attempts to contact John Torres, Jenine Seda, and several other potential witnesses, Hartsfield filed an omnibus motion on behalf of petitioner requesting, inter alia, court authorization to send an investigator to Florida to find credible alibi witnesses (Hrg. Tr. at 43). The motion was accompanied by an affidavit signed by Franklin, stating that she had only been able to speak with two potential alibi witnesses, that her attempts *570 to contact other witnesses who had moved or who did not have access to a telephone had been unsuccessful, and that she needed to travel to Florida to conduct an effective investigation concerning petitioner’s defense (Affidavit of Jessie Franklin, sworn to Oct. 29, 1996 (“Franklin Af.”) attached to Notice of Omnibus Motion, annexed as Exhibit 25 to Miller Deck). During a hearing on March 19, 1997, the Honorable Joseph Fisch, Justice of New York State Supreme Court, Bronx County, granted Hartsfield’s request to send Franklin to Florida (Hrg. Tr. at 48). Hartsfield, however, did not recall whether the request had been granted until she reviewed the transcript of the March 19, 1997 proceeding in preparation for the 440.10 hearing (Hrg. Tr. at 50).
On September 22, 1997, several months after Justice Fisch granted Hartsfield’s request to send an investigator to Florida, Franklin finally located and interviewed John Torres and Jenine Seda in Pennsylvania, where the two were then residing (Hrg. Tr. at 91).
Hartsfield never sent Franklin to Florida and was unable to explain why, although she believed there could have been logistical reasons (Hrg. Tr. at 50). Harts-field also testified that if she had realized the motion had been granted, then she would have sent Franklin to Florida, suggesting that she had been unaware of the outcome of her omnibus motion in 1997 (Hrg. Tr. at 51). She testified that she did not make a conscious strategic decision to limit potential alibi witnesses to Jenine Seda and John Torres (Hrg. Tr. at 73). Rather, Hartsfield acknowledged the success of an alibi defense turned on the credibility of the witnesses and that an incredible alibi witness could jeopardize the defense (Hrg. Tr. at 95).
Kaiser represented petitioner from February 18, 1998 through pre-trial hearings and his trial (Hrg. Tr. at 117). Immediately before petitioner’s 440.10 hearing, Kaiser submitted an affirmation, in which he stated that when he took petitioner’s defense, Hartsfield had told him that the Court “had specifically denied her request to send the assigned investigator to Florida to follow-up on initial alibi evidence already adduced” (Affirmation of Steven Kaiser, dated Dec. 31, 2003, annexed as Exhibit 50 to Miller Decl. (“Dec. 31, 2003 Kaiser Affirm.”)). Hartsfield’s then submitted an affirmation, stating that after she reviewed the transcript of the March 19, 1997 hearing before Justice Fisch, she recalled that the justice had granted expenses for a Florida investigation; she did not recall telling Kaiser that the judge had denied the expenses (Affirmation of Joyce Hartsfield, dated Jan. 29, 2004, annexed as Exhibit 51 to Miller Deck). On February 7, 2004 Kaiser submitted another affirmation, stating that on January 30, 2004 he received and read Hartsfield’s affirmation and the minutes of the March 19, 1997 hearing before Justice Fisch, and Kaiser retracted his prior statement that Harts-field had told him her request to send an investigator to Florida had been denied (Affirmation of Steven Kaiser, dated Feb. 7, 2004, annexed as Exhibit 52 to Miller Deck (“Feb. 7, 2004 Kaiser Affirm.”)). Kaiser asserted in this second affirmation that he did the best he could under the mistaken belief that the request for investigative expenses had been denied, that he used mail and telephone to try to establish contact with witnesses in Florida, and that he made arrangements for the known alibi witnesses to be able to travel to New York to testify (Feb. 7, 2004 Kaiser Affirm.).
Kaiser testified that he is not certain who he spoke with in Florida other than John Torres and Jenine Seda, but he believed he spoke to John’s father, Fernando Torres, his wife, Margarita Torres, and “contemporaries of Torres and Seda” (Hrg. Tr. at 124-25). These individuals *571 told Kaiser that they could not afford to travel to New York. Kaiser suspected that lack of finances was being used as an excuse by people “not as eager to help Mr. Rosario when [Kaiser] was dealing with them as they might have been when Mr. Barry, the investigator for Legal Aid Society was with them in their home ... not necessarily because they weren’t going to be truthful. But just that they weren’t that thrilled about the prospect of having to leave whatever they were doing and come up and it was more than just the money” (Hrg. Tr. at 194-95). Because Kaiser believed the court had denied funding to send an investigator to Florida, he testified that he also believed funding for witnesses to travel to New York would likewise be denied. Kaiser did not, therefore, request such funds or advise any potential witnesses that such costs could be reimbursed (Hrg. Tr. at 128).
Kaiser testified that while preparing petitioner’s trial, he (Kaiser) believed John Torres and Jenine Seda were the best witnesses because they could establish the date of petitioner’s presence in Florida by virtue of their son’s birth on June 20 and because they had no prior convictions that the prosecution might use to impeach them (Hrg. Tr. at 196, 221, 225). Kaiser believed that other potential witnesses with whom he spoke would have only provided similar testimony and were not as cooperative (Hrg. Tr. at 195). Kaiser also admitted, however, that he would have preferred to have had more alibi witnesses, especially ones who did not live with petitioner (Hrg. Tr. at 196-99).
Jessie Franklin testified that she was hired by Hartsfield to investigate petitioner’s alibi defense. According to Franklin’s notes, she met with petitioner on September 23, 1996 at Rikers Island, and petitioner gave Franklin addresses for John Torres, Robert Torres and his wife Chenoa, Ricardo Ruiz, and Nerida Colon. He also gave Franklin a telephone number where he believed another potential witness, Denise Hernandez, could be reached (Jessie Franklin’s notes, dated Sept. 23, 1996, annexed as Exhibit 19 to Miller Deck).
Franklin also testified that prior to drafting an affidavit in support of the motion for funding to investigate in Florida, she was only able to reach two of petitioner’s potential alibi witnesses, Fernando and Robert Torres, with whom she spoke for a total of approximately one hour (Hrg. Tr. at 384-85, 403-04). Franklin’s notes indicate that on October 25, 1996, Fernando told her that “in the latter part of June” he, his son John and petitioner had looked for car parts and that petitioner had contributed thirty dollars toward the purchase of the parts because he had been using the car and was going to New York (Hrg. Tr. at 391-92, 438). Franklin testified that, according to her notes, Fernando did not specifically tell her that he saw petitioner on June 19, and she had not asked Fernando about his arrest history as she normally would have if a potential witness were cooperative (Hrg. Tr. at 437-38). Franklin’s October 25 notes also indicate that Robert Torres had reported to her that petitioner left John’s home after the baby was born on June 20 and then stayed with David Guzman (Jessie Franklin’s notes, dated Oct. 25, 1996, annexed as Exhibit 21 to Miller Deck). Franklin did not contact Fernando or Robert again and assumed the request for funding for her to investigate in Florida had been denied because she never heard otherwise from Hartsfield (Hrg. Tr. at 404, 407).
Franklin re-opened her investigation into petitioner’s case in September, 1997 and interviewed Jenine Seda and John Torres (Hrg. Tr. at 411). John Torres informed Franklin that he could provide a list of names of other alibi witnesses in Florida (Hrg. Tr. at 413). Franklin also *572 attempted at that time to contact a number of other individuals named by petitioner, but was unsuccessful (Hrg. Tr. at 416-17). When Franklin spoke with Seda and John Torres, she did not make any determinations as to whether they would be the best witnesses for petitioner. Rather, John and Seda were the ones Franklin could contact at that time, and Franklin still considered it necessary to investigate petitioner’s alibi further (Hrg. Tr. at 418-20, 433). After Kaiser took petitioner’s case, Kaiser never contacted Franklin to discuss witnesses or to follow up on what she learned in her investigation (Hrg. Tr. at 422).
Fernando Torres testified he remembered spending June 19 with petitioner and his son, John Torres, after John’s car broke down and the three of them looked for car parts. Fernando did not know until several years later that the crime for which petitioner was arrested had occurred on June 19 (Hrg. Tr. at 318, 364, 372, 374). 7 Fernando’s written statement, which was also submitted as evidence in support of the motion to vacate, asserts that he knew petitioner was in Florida on June 19 because he saw petitioner in John’s apartment; the statement does not mention that Fernando spent time that day with petitioner looking for car parts (Statement of Fernando Torres, signed Nov. 9, 2002, annexed as Exhibit 56 to Miller Deck). Fernando could not recall being contacted by a lawyer or an investigator regarding petitioner until 2004, although he testified that Jessie Franklin’s name sounded familiar to him (Hrg. Tr. at 329, 332-33). Fernando testified that petitioner’s sisters had to pay for John and Seda to travel to New York to testify, and that the sisters had told him petitioner’s attorney suggested John’s testimony would be sufficient (Hrg. Tr. at 332-33). Fernando testified that he would have come to New York to testify at petitioner’s trial if he had been asked to and been provided with money to cover travel expenses (Hrg. Tr. at 333-34).
Ricardo Ruiz testified that he saw petitioner about five times a week during the month of June, 1996, and that he saw petitioner several days after John Torres’ baby was born (Hrg. Tr. at 463, 488). Ricardo could not recall whether or not he saw petitioner on June 19 (Hrg. Tr. at 476), but he believed petitioner had been in Florida since the winter of 1995-96 except for a brief period after his release from jail in April (Hrg. Tr. at 479).
Chenoa Ruiz lived next door to John Torres and Jenine Seda while petitioner was staying with them in June, 1996 (Hrg. Tr. at 497). Chenoa testified that she did not like petitioner because John was “hanging out” with petitioner instead of properly attending to Seda during her pregnancy (Hrg. Tr. at 503). Chenoa testified that on the night of June 18, 1996, when she took Seda to the hospital, she saw petitioner with John and some of their friends at John and Seda’s home (Hrg. Tr. at 500, 547). Chenoa also testified that she saw petitioner at John and Seda’s home on June 19, both at about 11:30 a.m. when she picked up Seda for a doctor’s appointment, and gain several hours later when she brought Seda back (Hrg. Tr. at 548, 550). Petitioner’s presence at John and Seda’s home on these days stuck in Chenoa’s mind because, in her words, petitioner was like a “spotlight” and caused *573 problems for her and Seda by staying out late with their boyfriends (Hrg. Tr. at 527). Chenoa could not recall whether petitioner went to New York after he got out of jail in April, 1996. Chenoa also did not know when petitioner left Florida after Seda gave birth (Hrg. Tr. at 530-31). Chenoa testified that petitioner’s appellate counsel was the first person to contact her about petitioner’s case (Hrg. Tr. at 509), and that she would have testified at petitioner’s trial had she been asked to (Hrg. Tr. at 510).
Minerva Godoy is the mother of petitioner’s children and was his fiancé at the time of his arrest (Hrg. Tr. at 566). Godoy testified that petitioner left New York in May, 1996 intending to relocate in Florida (Hrg. Tr. at 568). Godoy sent money to petitioner using Western Union in June 1996, but that money had to be sent to John Torres because petitioner did not have proper identification to receive a money transfer (Hrg. Tr. at 570-72). Go-doy testified that she informed petitioner’s “female attorney” of the money transfer and that she telephoned petitioner in Florida on multiple occasions in June, 1996 (Hrg. Tr. at 580). Godoy recalled that petitioner called her the day after John and Seda’s baby was born and told her that he was going to see their baby (Hrg. Tr. at 618).
Denise Hernandez testified that she and petitioner dated in Florida from about February, 1996 until some time in June of 1996, and that during that time she saw petitioner approximately four times per week (Hrg. Tr. at 627-28). Hernandez could not attest to petitioner’s whereabouts on June 19, 1996 or the days immediately before or after that day. All Hernandez could recall was that she and petitioner had an argument in Florida in mid to late June because petitioner had taken her car without permission (Hrg. Tr. at 628). Hernandez believed the argument occurred close to the day of the shooting because her sister’s birthday present was in the car when petitioner took it, and her sister’s birthday is June 26 (Hrg. Tr. at 629). Hernandez testified that she broke up with petitioner, in Florida, about two weeks before he left for New York (Hrg. Tr. at 629).
Lisette Rivera is a friend of Denise Hernandez who testified that she was present when petitioner took Hernandez’s car in approximately June, 1996 (Hrg. Tr. at 672). Rivera believed the incident occurred about five days before Hernandez’s sister’s birthday; however, she also testified that she believed the sister’s birthday was in mid-June rather than late June (Hrg. Tr. at 673). Before Rivera learned the date of the shooting for which petitioner was convicted, she submitted an affidavit that she saw petitioner regularly in Florida between June and November of 1996 (Hrg. Tr. at 698).
Both Hernandez and Rivera admitted that they had been in touch with petitioner since his conviction and had written and visited with him at least twice (Hrg. Tr. at 633, 677).
Michael Serrano testified that he was a good friend of John Torres’ brother, Robert, and knew petitioner while he was staying with John Torres in June, 1996 (Hrg. Tr. at 718). Though Serrano could not recall the date that Jenine and John’s baby was born, he remembered that he was with petitioner, Robert Torres and Ricardo Ruiz outside Jenine and John’s home when John returned from the hospital on the day of the child’s birth (Hrg. Tr. at 719, 732). Serrano testified he was never contacted by anyone regarding petitioner’s case.until an investigator reached him in 2002. Serrano also stated that he would have testified at petitioner’s trial had he been asked (Hrg. Tr. at 722-24).
After hearing all the foregoing testimony and considering additional written sub
*574
missions, Justice Davidowitz denied petitioner’s motion to vacate, holding that Hartsfield and Kaiser provided petitioner with “meaningful representation” as required by
People v. Benevento,
In addition, Justice Davidowitz found that the testimony of the alibi witnesses petitioner presented at his hearing was not “newly discovered evidence” because: (1) petitioner knew who the witnesses were and gave their names to police at the time of his arrest; (2) the substance of the alibi witness’ testimony was known before trial and (3) counsel had made efforts to speak to the witnesses prior to petitioner’s trial. Moreover, Justice Davidowitz found that the testimony of these witnesses would have been merely cumulative of the testimony of the alibi witnesses presented at petitioner’s trial (440 Order at 19-20).
Justive Davidowitz’s decision constitutes a ruling on the merits of petitioner’s ineffective assistance claim and is, therefore, entitled to the AEDPA’s deferential standard or review. “An ‘adjudication on the merits’ is one that ‘(1) disposes of the claim on the merit s, and (2) reduces its disposition to judgment.’ ”
Bell v. Miller,
b. Failure to Investigate and Present Additional Alibi Evidence as Ineffective Assistance of Counsel
In order to prevail on a claim of ineffective assistance of trial counsel, the petitioner here must show that the State Supreme Court unreasonably applied the now familiar two-part test set forth in
Strick
*575
land v. Washington,
The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
Accord Lynn v. Bliden,
In determining whether counsel’s performance was objectively deficient, courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”
Strickland v. Washington,
supra,
The second prong of the test — actual prejudice — requires the petitioner to show that, but for trial counsel’s errors, there is a “reasonable probability” that the result of the trial would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland v. Washington,
supra,
Petitioner claims that but for his trial counsel’s failure to adequately investigate and present his alibi defense there is a reasonable probability that the jury would not have found him guilty of Collazo’s murder and that Justice Davidowitz’s decision denying petitioner’s ineffective assistance of counsel claims was both contrary to, and an unreasonable application of, clearly established federal law. I agree with petitioner that under the
Strickland
two-part test, petitioner’s counsel performed below constitutionally reasonable standards, and counsel’s deficient performance caused petitioner to suffer prejudice at his trial. However, applying AEDPA’s “objective” standard articulated by the Supreme Court in
Williams v. Taylor, supra,
c. The Strickland, Standard and the Merits of Petitioner’s Claim
i. Deficient Performance
Defense counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”
Strickland v. Washington, supra,
After successfully contacting only Robert and Fernando Torres, Hartsfield believed that it was necessary to send an investigator to Florida in order to prepare petitioner’s alibi defense adequately. Hartsfield drafted Franklin’s affidavit in which Franklin described her difficulties contacting witnesses who had moved or who did not have telephones. Hartsfield also recalled that it was important for Franklin to go to Florida to have “face-to-face eonversation[s]” with Robert and Fernando Torres, to obtain additional leads for witnesses, and to establish petitioner’s exact movements (Hrg. Tr. at 44-45). Yet, the only explanation Hartsfield could offer for not sending Franklin to Florida was that funding would have been difficult to arrange (Hrg. Tr. at 50-52). Even though Franklin eventually located two key alibi witnesses, John Torres and Jenine Seda, Hartsfield admitted that she made no conscious strategic choice to limit the alibi witnesses to John and Seda (Hrg. Tr. at 73). Hartsfield had also been informed, either through her investigator or petitioner’s post-arrest statement, of several possible items of documentary evidence that tended to support petitioner’s alibi, yet she made no efforts to obtain any of them (Hrg. Tr. at 32).
Kaiser’s performance was also lackluster. Kaiser never contacted Franklin to discuss her investigation (Hrg. Tr. at 422). Kaiser never reviewed the record to determine if Hartsfield’s motion for funding to send an investigator to Florida had been granted. Kaiser never conducted an investigation in Florida due to his mistaken belief that Hartsfield’s motion for funding had been denied. Rather, Kaiser worked “as best he could” from New York to secure petitioner’s witnesses (Dec. 31, 2003 Kaiser Affirm.).
A failure to investigate that is a result of inattention rather than strategic judgment is unreasonable conduct for defense counsel.
Wiggins v. Smith,
In this case, counsels’ failure to locate and interview the potential witnesses whom petitioner had identified concerning a viable defense cannot be deemed strategic; it was only by contacting the witnesses that counsel could determine whether they could help petitioner’s case or lead counsel to additional defense witnesses or evidence.
See Garcia v. Portuondo,
Assuming Kaiser knew before petitioner’s trial that Fernando Torres could have provided useful testimony regarding petitioner’s alibi
9
, Kaiser’s decision not to pursue Fernando as a witness appears to have been based on a mistaken belief that he could not obtain funds for his travel expenses, and the decision was flawed because it was not based on “a plausible strategic calculus or an adequate pre-trial investigation.”
Pavel v. Hollins,
Respondent suggests that since Fernando’s testimony “mimicked” his son’s trial testimony, defense counsel might have purposely decided not to use it because it
*578
was “ ‘unnecessarily cumulative’ ” (Resp. Op. at 8
quoting United States v. Luciano,
For the reasons stated above, I find that Hartsfield’s and Kaiser’s performances were objectively deficient for failing to adequately investigate petitioner’s alibi and present additional witnesses at his trial.
ii. Prejudice
As to the prejudice prong of Strickland, I conclude that there was a reasonable probability that Fernando and Chenoa’s testimony would have affected the outcome of petitioner’s trial
To show prejudice as a result of his counsel’s failure to call additional alibi witnesses, petitioner must show that the uncalled witness would have provided relevant, non-cumulative testimony.
United States v. Luciano, supra,
At petitioner’s 440 hearing, Fernando testified consistently with John Torres that he spent part of June 19 with petitioner searching for car parts, and Chenoa testified that she saw petitioner twice on June 19 at the home of John Torres and Jenine Seda. Respondents argue that the testimony of Fernando and Chenoa was cumulative to John Torres and Jenine Seda’s testimony, and therefore, petitioner’s counsel cannot be found ineffective for failing to present Fernando and Chenoa at trial (Resp. Op. at 8, 9-10).
A habeas petitioner cannot satisfy the prejudice prong of
Strickland
by showing that defense counsel failed to present exculpatory witnesses that would have been merely corroborative of or cumulative to those who testified at trial.
See United States v. Luciano, supra,
Respondent also claims that Fernando’s testimony is not credible because he may have been “honestly mistaken” about seeing petitioner on June 19 (Resp. Op. at 7). Respondent points out that Franklin’s notes of her conversation with Fernando state that Fernando was with petitioner looking for car parts in “latter June,” rather than stating that Fernando reported doing so specifically on June 19 (Resp. Op. at 7). However, respondent offers no evidence that when Franklin spoke to Fernando in October, 1996, Franklin had asked Fernando specifically about June 19, or that Franklin had told Fernando that June 19 was the date of the crime for which petitioner was arrested. Moreover, respondent’s argument is applicable to any uncalled witness, and, if accepted, all claims of ineffective assistance could never be predicated on counsel’s failure to call a witness.
Respondent also argues that Fernando’s 2004 hearing testimony was unreliable because he failed to remember other details, such as his conversations with Kaiser and Franklin, what day of the week Seda was admitted to the hospital to give birth, when John and Seda moved to Pennsylvania, when petitioner traveled to and from Florida, and when petitioner was incarcerated in Florida (Resp. Op. at 7-9). Respondent’s argument is unavailing. Fernando’s inability to recall those other details does not necessarily mean Fernando’s memory is flawed regarding June 19, 1996, the day before his first grandson was born. Moreover, since Fernando was not a close friend of petitioner, he would have no reason to remember when petitioner traveled or was incarcerated. Fernando’s inability to remember these details does not excuse Kaiser’s failure to communicate more fully with Fernando and to produce him as a witness at petitioner’s trial.
Respondent argues that Chenoa Ruiz’s testimony was also completely cumulative because her testimony would have placed petitioner at the same exact location during the same time periods as John Torres and Jenine Seda (Resp. Op. at 9-10). Chenoa testified, however, that she was not friends with petitioner; to the contrary, Chenoa testified that she did not *580 like petitioner because she believed his presence was making things more difficult for Seda during her pregnancy (Hrg. Tr. at 500-08). Thus, like Fernando Torres, Chenoa could not have been impeached on the ground of bias, and her testimony would not have been cumulative to that of John Torres and Jenine Seda.
Respondent also makes several unpersuasive attempts to discredit Chenoa.
Respondent first argues that Chenoa was not credible because although she recalled seeing petitioner on June 19, she could not remember when petitioner traveled back and forth between Florida and New York during his previous Florida trip, and she did not know exactly when petitioner left Florida in the end of June, 1996 (Resp. Op. at 10-12). Chenoa testified that she specifically recalled seeing petitioner at Seda’s apartment on June 19 because she took Seda to the doctor that day and Seda’s baby was born the following day (Hrg. Tr. at 548, 550). In addition, Chenoa testified that she had heard only a few weeks after June 19 that petitioner was arrested for a crime that occurred that day (Hrg. Tr. at 506-07). Hence, Chenoa’s precise memory of seeing petitioner on June 19 is explainable because there were other significant events connected with that day and the following day. There were no other similar landmark events in Chenoa’s life to mark the other dates about which she was asked. Thus I do not agree with respondent that Che-noa’s 440 testimony was unreliable because she could not recall petitioner’s whereabouts on dates other than June 19.
I also disagree with Respondent that the fact that petitioner sent a single letter to Chenoa during the eight years in which he was incarcerated shows that Chenoa was biased. Chenoa testified that when petitioner was in Florida, he became friendly with her infant children and their father, that petitioner wrote mainly to inquire about the children, and that petitioner’s letter did not mention his case (Hrg. Tr. at 524). In addition, there is no evidence of any friendly relationship between petitioner and Chenoa prior to petitioner’s trial. Respondent’s allegation regarding petitioner’s letter to Chenoa is not sufficient to conclude that petitioner ever had, let alone maintained, a close relationship with Che-noa.
Respondent also contends that Chenoa is unreliable because she had previously prepared a written statement that lacked some of the details she provided in her testimony, and merely stated that she knew petitioner was in Florida on June 19 because she saw him that day (Resp. Op. at 10). The omission of details from Che-noa’s written statement does not call her reliability into question. There is no indication that anyone requested that Chenoa write a detailed statement that included everything she could remember about petitioner on June 19. Thus, there is no basis to conclude that, because she submitted a sparse written statement, Chenoa either lied or reconstructed details upon testifying at petitioner’s 440 hearing.
See Victory v. Bombard,
No physical evidence was presented at petitioner’s trial connecting petitioner to Collazo’s murder; the prosecution relied solely on the eyewitness identifications of two individuals, Sanchez and Davis, neither of whom had ever met petitioner. Sanchez testified that he only saw petitioner for a minute, and Davis, who was about fifteen feet away from the shooting, appears to have witnessed the relevant events for only several seconds (Trial Tr. at 150, 53-58). A third eyewitness, Jose Diaz, believed he would be able to recog *581 nize the perpetrator yet did not identify petitioner in court (Trial Tr. at 295-96).
Eyewitness evidence, uncorroborated by physical evidence, is not overwhelming evidence.
Griffin v. Warden, Maryland Correctional Adjustment Center,
The addition of Fernando Torres and Chenoa Ruiz would have presented the jury with a total of four alibi witnesses to contradict the prosecution’s two eyewitnesses, and Fernando and Chenoa were substantially disinterested in the outcome of the trial.
11
“In a case involving identification and identification alone, it is not easy to imagine a defense lawyer who would pass on the chance to bolster the defense with [additional alibi witnesses]— particularly since eyewitness evidence is ‘precisely the sort of evidence that an alibi defense refutes best.’ ”
See Bigelow v. Williams, supra,
In light of the thin evidence presented by the prosecution at petitioner’s trial, the additional alibi testimony from Fernando and Chenoa presented at petitioner’s post-conviction hearing was sufficient to “undermine confidence in the outcome” of petitioner’s trial.
Strickland, supra,
d. Application of the AEDPA Standard to Petitioner’s Claim
As discussed above, Justice Davidowitz rejected petitioner’s ineffective assistance of counsel claim, applying New York State’s “meaningful representation” standard as articulated by the New York Court of Appeals in
People v. Benevento, supra,
In his 440 Decision and Order, Justice Davidowitz looked at a number of issues routinely considered by New York courts in analyzing whether or not counsels’ errors amounted to ineffective assistance, such as did counsel perform competently in other respects and were counsels’ errors so seriously prejudicial as to compromise a defendant’s right to a fair trial (440 Order at 16-17,
citing People v. Flores,
The Second Circuit has repeatedly held that New York’s “meaningful representation” standard for analyzing habeas claims of ineffective assistance of counsel, as articulated in
People v. Benevento, supra,
in light of the Strickland principle that an ineffective assistance claim is established if the court concludes that there is a reasonable probability that but for counsel’s professionally deficient performance the outcome of the proceeding would have been different, we find it difficult to view so much of the New York rule as holds that “whether defendant would have been acquitted of the charges but for counsel’s errors is ... not dispositive,” Benevento,91 N.Y.2d at 714 ,674 N.Y.S.2d 629 ,697 N.E.2d 584 , ... as not “contrary to” the prejudice standard established by Strickland.
Henry v. Poole, supra,
Petitioner argues that Justice Davidow-itz’s analysis was contrary to
Strickland
because his opinion emphasized that Hartsfield and Kaiser’s misunderstandings regarding the granting of expenses to investigate were unintentional errors. Petitioner contends this “honest heart” standard imposes a heavier burden on petitioner than
Strickland’s
“reasonable professional” standard because it requires petitioner to demonstrate that trial counsel had an improper motive for his or her objectively deficient performance (Pet. Mem. at 39-40),
citing Cargle v. Mullin,
Petitioner also argues that Justice Davi-dowitz’s opinion was contrary to
Strickland
because it relied on a formulation of prejudice that precludes relief where the verdict was “amply supported by the evidence” (440 Order at 22,
quoting People v. Jackson, supra, 74
A.D.2d at 587, 424 NY.S.2d at 485), and that such a standard is diametrically different from
Strickland’s
requirement that a petitioner show only a reasonable probability of acquittal had counsel performed adequately (Pet. Mem. at 40). When referring to
People v. Jackson, supra,
Petitioner also contends that Justice Da-vidowitz unreasonably applied
Strickland
by focusing on counsels’ competent performance in other areas while assessing whether counsel was ineffective for failing to adequately investigate the alibi defense (Pet. Mem. at 42). Petitioner argues that the Court in
Henry v. Poole, supra,
e. Summary
Accordingly, despite the merits of petitioner’s ineffective assistance of counsel claim, I conclude that the state court’s rejection of petitioner’s claim is erroneous but not “unreasonable” or “contrary to” the United States Supreme Court’s precedent in Strickland. Thus, in light of the deference owed to the state’s decision under AEDPA, petitioner’s claim for relief based on the ineffective assistance of counsel should be denied.
2. Petitioner’s Batson Claim
Petitioner next claims that the prosecutor’s use of her first six peremptory challenges to strike African-American jurors established a
prima facie
case of racial discrimination, and that the Trial Court erred by failing to require the prosecutor to provide race-neutral explanations for her choices as required by
Batson v. Kentucky,
a. Jury Selection and State Court Proceedings
The twelve jurors and three alternate jurors who heard the case against petitioner were selected through three rounds of
voir dire.
Because New York classifies murder as a Class A felony, both the prosecution and defense had twenty peremptory challenges, exclusive of challenges to potential alternate jurors. N.Y.Crim. Proc. L. § 270.25(a). It appears from the record that the jury was selected using the “jury box” system, commonly used in criminal trials in New York. Under this system, groups of prospective jurors, randomly selected from the venire, are called to the jury box and questioned. Counsel then exercise challenges for cause. After “for cause” challenges are resolved, counsel exercise their peremptory challenges. The process is repeated until a jury is empaneled.
See generally Sorto v. Herbert,
During the first round of jury selection in petitioner’s case, sixteen venire persons were called to the jury box. Two were removed on consent (Jury Tr. 12 I at 88). After an unsuccessful challenge to one prospective juror for cause (Jury Tr. I at 90-92), the prosecution exercised four peremptory challenges, including a challenge to the prospective juror who was unsuccessfully challenged for cause (Jury Tr. I at 91). The defense exercised two peremptory challenges (Jury Tr. I at 92-93), and the remaining eight individuals were sworn in as jurors (Jury Tr. I at 94).
In the second round of jury selection, seventeen individuals were called to the jury box (Jury Tr. I at 100-02). After four of these individuals were excused on consent (Jury Tr. I at 156-60), Justice Fisch asked counsel if they had any peremptory challenges as to the first four prospective jurors remaining in the second round (Jury Tr. I at 160). The prosecution challenged one of those four, and then the defense challenged two of them (Jury Tr. I at 161). Justice Fisch then invited counsel to exercise their peremptory challenges with regards to the next three jurors (Jury Tr. at 161). The prosecution challenged one of those three individuals (Jury Tr. I at 161).
At that point, the following colloquy occurred:
[Defense Counsel:] Judge, most respectfully, and I hate to do it, but it’s reached the point now where I notice a pattern of challenges that are consistent only by one factor and that’s the race of the person that’s being challenged, all of whom are black. Every single one of them.
Now, granted this is the Bronx and there’s a lot of black jurors and there’s a couple or a few that she didn’t take off, but the ones that she did take off without exception are Afr[ican]-Americans.
THE COURT: Lett’s] see if there is a pattern.
(Whereupon, there is a brief pause in the proceedings.)
THE COURT: I do not see a prima faci[e] case of exercised peremptory challenges by race. The People have exercised six peremptories of Afr[ican-]Americans and there were four that were not challenged by her, three of whom are jurors, one of them whom you challenged. I deny your challenge.
[Defense Counsel:] All right.
*586 THE COURT: As a matter of fact, I should say that five [African-Americans] were not challenged. Six were • challenged, five were not.
[Defense Counsel:] Yeah, but I don’t think — it’s not necessarily who[’s] not challenged. I think it is who is challenged.
THE COURT: All right, that’s my ruling. I do not see a prima faci[e] case.
(Jury Tr. I at 161-63).
Defense counsel never raised any additional arguments concerning the prosecution’s use of its peremptory challenges. The prosecution subsequently exercised four more peremptory challenges in the remainder of the second round and during the third round of jury selection (Jury Tr. I at 168, Jury Tr. II at 84-87). The record does not reflect the race of any of the subsequently challenged venire persons or the final racial make-up of the jury.
Petitioner argued on direct appeal that the prosecution’s use of its first six peremptory challenges exclusively against African-Americans established a prima facie case of discrimination under Batson, and that the prosecution should have been required to provide race-neutral reasons for its challenges (App. Div. Br. at 46-49). The Appellate Division rejected petitioner’s arguments, stating:
Defendant failed to make a prima facie showing of racial discrimination by the prosecution in the exercise of its peremptory challenges, particularly in light of the racial makeup of the panel of prospective jurors (see, People v. Ware,245 A.D.2d 85 ,665 N.Y.S.2d 869 , lv denied91 N.Y.2d 978 ,672 N.Y.S.2d 858 ,695 N.E.2d 727 ). The mere number of peremptory challenges exercised by the prosecution against African-Americans did not establish a prima facie case and defendant failed to show disparate treatment of similarly situated panelists or other relevant circumstances to raise an inference of a discriminatory purpose (see, People v. Jenkins,84 N.Y.2d 1001 ,622 N.Y.S.2d 509 ,646 N.E.2d 811 ; People v. Bolling,79 N.Y.2d 317 ,582 N.Y.S.2d 950 ,591 N.E.2d 1136 ).
People v. Rosario, supra,
The Appellate Division’s decision clearly constitutes a decision on the merits of petitioner’s
Batson.
It addresses the substance of the claim and does not remotely suggest any procedural deficiency. Accordingly, the Appellate Division’s decision is entitled to the deferential standard of review set forth in the AEDPA, and relief can be granted only if the Appellate Division’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254;
Sorto v. Herbert, supra,
b. Analysis
In
Batson v. Kentucky, supra,
The Batson Court formulated a three-part test “for assessing a prima facie case under the Equal Protection Clause.”
The Batson Court ... established] a three-step burden-shifting framework for the evidentiary inquiry into whether a peremptory challenge is race-based, [476 U.S.] at 96-98,106 S.Ct. 1712 : First, the moving party — i.e., the party *587 challenging the other party’s attempted peremptory strike — must make a prima facie case that the nonmoving party’s peremptory is based on race. Batson,476 U.S. at 96-97 ,106 S.Ct. 1712 ; Hernandez v. New York,500 U.S. 352 , 358,111 S.Ct. 1859 ,114 L.Ed.2d 395 (1991). Second, the nonmoving party must assert a race-neutral reason for the peremptory challenge. Batson,476 U.S. at 97-98 ,106 S.Ct. 1712 ; Hernandez,500 U.S. at 358-59 ,111 S.Ct. 1859 . The nonmoving party’s burden at step two is very low. Under Burkett v. Elem,514 U.S. 765 ,115 S.Ct. 1769 ,131 L.Ed.2d 834 (1995) (per curiam), although a race-neutral reason must be given, it need not be persuasive or even plausible. Id. at 768,115 S.Ct. 1769 . Finally, the court must determine whether the moving party carried the burden of showing by a preponderance of the evidence that the peremptory challenge at issue was based on race. Batson,476 U.S. at 96, 98 ,106 S.Ct. 1712 ; Hernandez,500 U.S. at 359 ,111 S.Ct. 1859 .
McKinney v. Artuz,
“To establish a
prima facie
case, ‘a defendant must show facts and circumstances that raise an inference that the prosecutor used the peremptory challenge to exclude potential jurors from the petit jury on account of their race.’ ”
Sorto v. Herbert, supra,
There is no formula for determining what showing is sufficient to establish a
prima facie
case of discriminatory use of peremptory challenges.
Tankleff v. Senkowski,
[i]n deciding whether the defendant has made the requisite [prima facie ] showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against all black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.
Batson v. Kentucky, supra,
“[T]he threshold decision concerning the existence of a
prima facie
case of discriminatory use of peremptory challenges involves both issues of fact and an issue of law.”
United States v. Alvarado,
We review a district court’s ruling on a petition for a writ of habeas corpus de novo. See English v. Artuz,164 F.3d 105 , 108 (2d Cir.1998). Because a trial court’s determination of whether a juror was struck for a discriminatory reason turns largely on the judge’s observations of the attorneys and prospective jurors and an evaluation of their credibility, “a reviewing court ordinarily should give those findings great deference.” Hernandez v. New York,500 U.S. 352 , 364,111 S.Ct. 1859 ,114 L.Ed.2d 395 (1991). More particularly, when reviewing a Batson challenge in the context of a habeas petition, a trial court’s conclusion that a peremptory challenge was not exercised in a discriminatory manner is entitled to a presumption of correctness, except, inter alia, to the extent that the trial court did not resolve the factual issues involved in the challenge or if the finding is not fairly supported by the record. See 28 U.S.C. §§ 2254(d)(1) (presumption of correctness not applicable if “the merits of the factual dispute were not resolved in the State court hearing”) and (d)(8) (1994) (presumption of correctness not applicable if state court’s “factual determination is not fairly supported by the record”); see also Purkett v. Elem,514 U.S. 765 , 769,115 S.Ct. 1769 , 131 L.Edüd 834 (1995) (“[T]he factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are not fairly supported by the record.”) (internal quotation marks omitted); Washington v. Schriver,240 F.3d 101 , 110 (2d Cir.2001) (stating that the factual findings of state trial and appellate courts are entitled to a presumption of correctness absent special circumstances, including a determination that the factual finding is not fairly supported by the record).
Galarza v. Keane, supra,
In light of the deferential standard of review afforded to state court decisions in the context of a habeas corpus petition, the Court of Appeals seems to have suggested that a finding on a direct appeal in a federal criminal case that a particular set of facts supports a
Batson prima facie
case does not necessarily imply that a state court’s decision reaching the opposite result on the same facts is contrary to or constitutes an unreasonable application of federal law.
Sorto v. Herbert, supra,
Finally, since the petitioner in a habeas proceeding bears the burden of demonstrating a violation of his constitutional rights, deficiencies in the record that make it impossible to determine whether the evidence supports an inference of discrimination require that the claim be rejected.
Sorto v. Herbert, supra,
Petitioner contends that he made out a prima facie case under Batson because the prosecution’s use of peremptory challenges *589 against African-Americans was grossly disproportionate to the percentage of African-Americans who made up the pool of prospective jurors after challenges for cause and after jurors had been excused on consent. Specifically, at the time the Batson challenge was made, a total of 33 prospective jurors had been called to be questioned; a total of six had been excused on consent; and the Trial Court had invited counsel to exercise peremptory challenges against a total of 21 prospective jurors. 13 The prosecution made peremptory challenges directed at six African-Americans; the Trial Court noted that there were five African-Americans who the prosecution did not challenge. Thus, of the 21 prospective jurors against whom the prosecution could have made peremptory challenges, 11, or 52%, were African-Americans, yet 100% of the prosecution’s peremptory challenges were directed at African-Americans.
Analogous facts were presented in
United States v. Alvarado,
After assuming that minorities represented 29% of the pool of prospective jurors, the Court of Appeals found that the pattern of peremptory challenges “strongly supported] a prima facie case under Batson: ”
Here, the prosecution’s challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates. Whether this rate creates a statistical disparity would require knowing the minority percentage of the venire; for example, if the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities. Only a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination. We are not informed of the minority percentage of the venire in this case, but we may accept as a surrogate for that figure the minority percentage of the population of the Eastern District, from which the venire was drawn. That percentage is 29. See Alvarado I,891 F.2d at 444 & n. 5.
We think a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson. The Government opposes this conclusion, pointing to the prosecution’s waiver of a challenge in the fifth round, when minority veniremen were in the jury box, subject to peremptory challenge. Though failure to exercise an available challenge against minority veniremen has been mentioned in the decisions of some courts finding no prima facie case of discrimination, see United States v. Moore,895 F.2d 484 , 486 n. 5 (8th Cir.1990); United States v. Grandison,885 F.2d 143 , 148 (4th Cir.1989), cert. de *590 nied,495 U.S. 934 ,110 S.Ct. 2178 ,109 L.Ed.2d 507 (1990), the fifth round waiver here does not defeat a prima facie case. The discrimination condemned by Batson need not be as extensive as numerically possible. A prosecutor may not avoid the Batson obligation to provide race-neutral explanations for what appears to be a statistically significant pattern of racial peremptory challenges simply by forgoing the opportunity to use all of his challenges against minorities.
Similarly, in
Truesdale v. Sabourin,
The prisoner then filed a petition for a writ of habeas corpus in this Court. After noting that the burden at the initial step of Batson is not a significant one, the Honorable Denise L. Cote, United States District Judge, concluded that petitioner had made a prima facie case of a Batson violation.
When a defendant relies on statistical arguments to establish a prima facie case of discriminatory jury selection, “a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.” Alvarado,923 F.2d at 255 . At the time the Batson challenge was made in this case, the rate of challenges against black members of the venire was 100% (8/8), and the percentage of blacks in the venire was 74% (14/19). Black prospective jurors were thus struck at a rate 36% higher than would be expected if peremptory challenges were exercised randomly across the venire. To be sure, this disparity is far below the greater than 100% difference relied upon by the Second Circuit in Alvarado, id. at 256, but that case did not purport to, and should not be read to, establish a minimum threshold for prima facie claims of discrimination. Were it otherwise, no inference of discrimination would be possible where members of the targeted group compose more than 50% of the venire.
In this case, as in both Alvarado and Truesdale, the prosecution used 100% of the peremptory challenges actually exercised up to the time of the Batson challenge to strike only African-American prospective jurors despite the fact that African-American prospective jurors made up a significantly smaller percentage of the pool of prospective jurors. Here, that percentage was 52% (11 out of 21). Alvarado teaches that this disparity is sufficient to trigger the prosecution’s obligation to proffer racially neutral reasons for its challenges.
In support of his position, respondent cites to a number of facts and cases; none of his arguments are convincing.
Like the Trial Court, respondent cites the fact that a number of African-Americans were not challenged (Resp. Op. at 47-48). Alvarado, however, expressly rejected this argument:
The discrimination condemned by Bat-son need not be as extensive as numerically possible. A prosecutor may not avoid the Batson obligation to provide *591 race-neutral explanations for what appears to be a statistically significant pattern of racial peremptory challenges simply by foregoing the opportunity to use all of his challenges against minorities.
United States v. Alvarado, supra,
Next, respondent argues that the result in this case should be governed by the decisions in
Overton v. Newton, supra,
In
Overton
the Second Circuit rejected a claim by a habeas petitioner that a state trial judge had incorrectly concluded there was no
prima facie
case under
Batson.
The petitioner in
Overton
made his
Batson
challenge after two rounds of jury selection and after the prosecution had exercised peremptory challenges against seven of the eleven African-Americans potential jurors and three against non-African-Americans.
Here, the prosecutor used four peremptory challenges in the first round of jury selection and struck two of five African-American potential jurors from the venire. Three African-American jurors were seated. In the second round, there were six African-American potential jurors in the box; one was struck for cause and the other five were excluded as a result of peremptory strikes by the prosecutor. At this point, before jury selection was completed and before the above facts were even fully established on the record, petitioner made his Bat-son challenge. It was at this stage that the trial court denied it; we cannot say that, in doing this, it unreasonably applied the Batson principle.
In Williams, during the first round of jury selection, the prosecutor had used his first five peremptory challenges against African-American potential jurors when the defendant made a Batson motion. The *592 trial judge found that the motion was premature at that point, stating:
I quite frankly feel that a prima facie case has not been made out.... Not at this point. [Five strikes is] not enough, in my judgment, to require the People to present me with non-eontextural [sic ]. It may be when we concluded the selection process for the first 17 that I will revisit the issue, but right now, no.
Your Honor concluded that the Trial Judge’s determination that no
prima facie Batson
claim had been established was not an unreasonable application of federal law.
Williams v. Burge, supra,
I conclude that both Overton and Williams are distinguishable because in neither case did the prosecution direct its peremptory challenges solely at African-Americans, as the prosecutor did in this case. Moreover, nothing in Overton suggests that the Court of Appeals intended to overrule Alvarado, which unequivocally held that a disproportionate use of peremptory challenges against a minority can satisfy the requirement of a prima facie case under Batson. Although I appreciate that the Court of Appeals has repeatedly noted that Batson claims raised in habeas petitions are entitled to more lenient review than similar claims raised on direct appeals from federal convictions, the rate of challenge here — 100% of the challenges exercised against a minority group that made up only 52% of the panel — was sufficiently disparate to at least require the prosecution to proffer a racially neutral reason for its challenges.
Finally, respondent also offers hypothetical racially-neutral reasons for the prosecution’s peremptory challenges (Resp. Op. at 52-53). Such after-the-fact suggestions are insufficient to remedy a
Batson
violation. “A
Batson
challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”
Miller-El v. Dretke,
The prosecutor’s disproportionate strikes of black jurors, despite the fact that not all blacks were stricken from the jury, was sufficient to raise an inference of discrimination and, therefore, sufficient to establish a prima facie case under Batson. Thus, the Trial Court erred in not requiring the prosecutor to offer race-neutral reasons for her peremptory challenges and the appellate divisions’ finding otherwise was an unreasonable application of clearly established federal law.
*593 c. Relief
There are three options available to a court in fashioning a remedy for a petitioner’s successful habeas claim based on a state court’s Batson rulings.
When a state court fails to fulfill its duties under Batson, a federal court sitting in habeas review has three options in its selection of a remedy. The federal court may “(1) hold a reconstruction hearing and take evidence regarding the circumstances surrounding the prosecutor’s use of the peremptory challenges ...; (2) return the case to the state trial court on a conditional writ of habeas corpus so that the state court could conduct the inquiry on its own; or (3) order a new trial.” Harris,346 F.3d at 347 (citation omitted). There are some limits, however, to the district court’s discretion to choose among these remedial options. Most importantly, the Second Circuit has cautioned that “if appropriate findings may be conveniently made” at a reconstruction hearing, “this should be done.” Id. at 348 (citation omitted). Thus, a district court has the discretion to order a new trial “only where it is demonstrably true that the passage of time has impaired the trial court’s ability to make a reasoned determination of the prosecutor’s state of mind when the jury was selected.” Id. (citation omitted).
Truesdale v. Sabourin, supra,
Despite the fact that approximately nine years have passed since petitioner’s trial, respondent reports that the prosecution is still capable of presenting its reasons for its peremptory challenges at a reconstruction hearing (Resp. Op. at 56-57).
Accordingly, I respectfully recommend that the writ be granted on the basis of petitioner’s Batson claim unless, within ninety (90) days of the final resolution of this matter, the New York courts conduct a reconstruction hearing concerning the prosecution’s non-discriminatory reasons for the exercise of its peremptory challenges.
3. Prosecutor’s Introduction of Extrinsic Evidence that Petitioner Was Incarcerated
Petitioner next claims that his Due Process rights were violated by the prosecution’s introduction of extrinsic evidence that petitioner was incarcerated in Florida for a period of time several months before the day of the crime charged (Pet. Mem. at 49). Petitioner argues that not only was the introduction of this evidence in violation of New York state’s evidentiary rules, but resulted in a “highly prejudicial inference of criminal propensity” that denied petitioner the right to a fair trial (Pet. Mem. at 49).
a. The Trial Testimony
Petitioner testified on his direct examination that he first met alibi witness John Torres during a two-week visit to Florida in December, 1995 (Trial Tr. at 379-80). Petitioner returned to Florida in January or February of 1996 in the hopes of getting a job with John’s father (Trial Tr. at 381). Although, petitioner was unable to obtain work with John’s father, he stayed in Florida at the house of a female friend until mid-April (Trial Tr. at 382-84). When asked why he stayed in Florida until April when he had no job, petitioner responded that “honestly I was enjoying being out there.... I was having a good time out there” (Trial Tr. at 384). Petitioner further testified that he left Florida in April because he missed his children in New York (Trial Tr. at 384).
On cross-examination, petitioner testified more specifically regarding his living *594 situation during his trip to Florida from February to April. ' Petitioner stated that every day, throughout that entire trip, he stayed with his • friend, Shannon Beane, until he left for New York in mid-April (Trial Tr. 394-98).
Over defense counsel’s objection, the prosecution presented as a rebuttal witness Captain Bruce Bolton of the Volusia County Department of Correction, who testified that petitioner was housed at the Volusia County Department of Corrections from March 13, 1996 until April 12, 1996 (Trial Tr. at 439). The Trial Judge also allowed the introduction of petitioner’s Florida arraignment photograph (Trial Tr. 452-54). No evidence was presented regarding the reason for petitioner’s incarceration, or the disposition of the Florida case (Pet. Mem. at 50). In addition the jury was not advised that petitioner disclosed the fact of his incarceration in Florida in his written, post-arrest statement (Posb-Arrest Stmnt.).
During its summation, the prosecution argued that petitioner should not be believed because he had lied to the jury about his incarceration in Florida, and was, therefore, willing to lie to the jury about his alibi for the day of the murder (Trial Tr. at 535-38). The Trial Judge subsequently instructed the jury that Captain Bolton’s testimony was not offered to show guilt or that petitioner has a predisposition to commit crimes, but should be used “only in determining the credibility of witnesses who have appeared before you” (Trial Tr. at 565).
b. Exhaustion
On his direct appeal, petitioner, citing the Fourteenth Amendment of the United States Constitution, argued that his due process right to a fair trial was violated by the introduction of Captain Bolton’s testimony.
The Appellate Division denied this claim on the merit s, stating:
The trial court properly exercised its discretion in permitting the People to introduce rebuttal evidence since it tended to disprove defendant’s alibi (see, People v. Harrington,262 A.D.2d 220 ,694 N.Y.S.2d 354 , lv. denied94 N.Y.2d 823 ,702 N.Y.S.2d 593 ,724 N.E.2d 385 ; see also, People v. Marsh,264 A.D.2d 647 ,696 N.Y.S.2d 14 , lv. denied94 N.Y.2d 825 ,702 N.Y.S.2d 596 ,724 N.E.2d 388 ). While the rebuttal evidence concerned defendant’s whereabouts several months prior to the crime, it was not collateral because defendant had made his various travels to Florida over an extended period of time integral parts of his alibi defense. Furthermore, the prejudicial effect of revealing to the jury that defendant had served 30 days in jail for an unspecified offense was minimal, particularly in light of the court’s limiting instructions, and was outweighed by the probative value of the rebuttal evidence. In any event, were we to find any error, we would find it harmless in light of the overwhelming evidence of defendant’s guilt.
People v. Rosario, supra,
Respondent first argues that petitioner did not properly present his federal claim to the State appellate courts, and, thus, the claim is procedurally barred from habeas review (Resp. Op. at 58). Respondent contends that even though petitioner’s brief to the Appellate Division cited to the Fourteenth Amendment of the United States Constitution and claimed that petitioner was denied a fair trial, petitioner failed to explain how the evidence violated his federal Due Process rights (Resp. Op. at 60). Respondent argues that under Second Circuit precedent, petitioner failed to put the state court on the required notice of his
*595
federal claim because to do so he “must demonstrate ‘(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’ ” (Resp. Op. at 59
quoting Daye v. Attorney General of State of New York,
Unlike petitioner here, the petitioner in
Daye
did not, in his briefs to the state courts, cite the provision of the United States Constitution on which he relied.
Daye v. Attorney Gen. of the State of New York, supra,
Respondent also argues that petitioner failed to exhaust his federal claim in state court because his letter to the New York State Court of Appeals did not identify any federal, constitutional claims (Resp. Op. at 61). This argument is equally without merit. Petitioner’s letter to Chief Judge Kaye uses language substantially identical to that of the petitioner in
Davis,
and requested that the Court of Appeals “consider and review all issues outlined in defendant-appellant’s brief’ (Jan. 2, 2002 Letter to Chief Judge Kaye, annexed as Ex. 3 to Resp. Op.).
See also Davis v. Strack, supra,
Finally, the Appellate Division’s opinion clearly disposed of petitioner’s evidentiary claim on the merit s. The Appellate Division’s judgment discussed the substance of the claim and did not assert any procedural issues. Accordingly, the Appellate Division’s judgment is entitled to AEDPA’s deferential standard of review, and petitioner cannot obtain habeas relief on this issue unless that decision was either contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).
c. Analysis
Generally, erroneous evidentiary rulings do not rise to the level of a constitutional
*596
violation — the essential predicate for habe-as relief.
Estelle v. McGuire,
Counsel who seeks to challenge the credibility of a witness’ testimony on a collateral matter generally may not introduce extrinsic evidence, such as calling a subsequent witness, to contradict answers given by the witness whose credibility is under attack.
See
4 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence
§ 607.06[3][a] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2007). Petitioner argues that the Trial Court erred by allowing the rebuttal testimony of Captain Bolton because his testimony “was collateral and used only to challenge Petitioner’s credibility” (Pet. Mem. at 53). However, it is not necessarily erroneous to permit a witness to testify for the purpose of impeaching another witness’ testimony; “[t]he determinative question in deciding whether extrinsic evidence contradicting a witness’ testimony is admissible is not whether the contradicting extrinsic evidence is material, but rather whether the assertions that the impeaching party seeks to contradict are themselves material or collateral.”
Rosario v. Kuhlman,
Petitioner testified on his direct examination that he made three separate trips to Florida in an attempt to make a life for himself there (Trial Tr. at 380-83). It was during these visits to Florida that petitioner came to know his alibi witnesses, John Torres and Jenine Seda. During his second visit, from February to mid-April of 1996, petitioner testified that he stayed at a *597 Mend’s house near the home of John Torres and Jenine Seda, both of whom he saw frequently during that time (Trial Tr. at 383). Petitioner’s presence in John and Seda’s neighborhood and his frequent association with them for the entirety of his second trip to Florida would tend to show that John and Seda were more capable then they might otherwise be of vouching for Petitioner’s whereabouts during his third trip in June. Thus, petitioner made his second sojourn in Florida a relevant material piece of his alibi defense. Moreover, when the prosecution cross-examined petitioner about the specifics of where he stayed in Florida from March to April, defense counsel made no objections to the relevancy of those questions. Since petitioner’s whereabouts from March through April of 1996 were material and relevant to his alibi defense, the Trial Court did not err by permitting the introduction of extrinsic evidence to contradict petitioner’s testimony on that matter.
Not only was it permissible to introduce extrinsic evidence impeaching petitioner’s testimony about his living arrangements because it was relevant testimony, but the evidence was also admissible because petitioner had opened the door for its introduction. Petitioner testified on direct examination that he “stayed [at Ms. Beane’s house] until April,” and the reason why he remained in Florida until the middle of April, even though he had not found employment, was because he was “having a good time” (Trial Tr. at 384). “[W]here a defendant, in his direct testimony, falsely states a specific fact, the prosecution will not be prevented from proving, either through cross-examination or by calling its own witnesses, that he lied as to the fact.”
United States v. Beno,
Petitioner also argues that there was no need for the prosecution’s rebuttal evidence because Rosario was not dishonest in his testimony — “no one could have reasonable expected petitioner to testify that he ‘stayed’ in a county jail when asked where he lived during his second trip to Florida. It is entirely consistent to ‘live’ in a residence while being ‘held’ in a correctional facility” (Pet. Mem. at 54). Even if I were to accept this logic, the argument still overlooks the nature of petitioner’s testimony during his cross-examination:
Q: How long did you stay with Miss Beane?
A: I stayed at her house until I came back to New York City.
Q: And you were in her house for the entire time?
A: Yes.
Q: And that was from March or February?
*598 A: From February.
Q: Until March?
A: It’s passed March.
Q: Into April in fact, isn’t that correct?
A: Yes.
Q: And during that time from February when you arrived there until you left for New York in April, you are telling this jury you were living with Miss Beane?
A: I was staying with her. That’s correct.
Q: And you would stay there on a daily basis, correct?
A: Yes.
Q: You weren’t staying with Johnny Torres in April?
A: No, I was not. I was staying with Shannon. I came back on the 15th. I got here a Monday [sic ]. No, I got here on Sunday. It was the 14th. I started working on the Monday. That’s how come I remember that date.
Q: But, for the first two weeks in April—
A: Yes
Q: When you were—
A: No. I was staying with Shannon and, yes, I did see Johnny.
Q: So, Mr. Rosario, for those first two weeks of April that you were in Florida—
A: yeah.
Q: — you were with Shannon and not with Johnny Torres, is that correct?
A: No, I wasn’t, but I did see Johnny in Florida.
Q: In March of 1996, you were in Florida, correct?
A: Yes.
Q: And again, you were with Shannon and Not Johnny Torres?
A: Correct
(Trial Tr. 394-98). Petitioner did not just testify that he “stayed” and “lived” with Ms. Beane while he was incarcerated. Petitioner agreed that from February until he left Florida in mid-April, he was “in [Ms. Beane’s] house for the entire time,” and that he would “stay [at Ms. Beane’s house] on a daily basis” (Trial Tr. at 394-397). I cannot agree that petitioner’s testimony regarding his whereabouts from March until mid-April of 1996 was truthful or even substantially truthful; the simple truth is that even though petitioner stayed with Ms. Beane during his second trip to Florida, the last month of that trip was spent not at her home, but in a correctional facility. Thus, petitioner’s testimony during cross, coupled with his misleading testimony on direct (discussed on page 83, above) gave cause for the prosecution’s rebuttal evidence.
Petitioner also asserts that the rebuttal evidence rendered his trial unfair and violated his Due Process rights because as a result of that evidence “the jury inevitably perceived him as a bad person with the propensity to commit crimes, such as the murder at issue” (Pet. Mem. at 53). To protect petitioner from such an adverse inference, the Trial Judge issued a limiting instruction to the jurors that they were not to consider evidence of Rosario’s incarceration as evidence of a propensity to commit crimes (Trial Tr. at 565). Jurors are presumed to abide by a trial judge’s instructions to limit consideration of evidence.
Zafiro v. United States,
Evidence of petitioner’s Florida incarceration at his murder trial does not, however, rise to the level of being substantially prejudicial under either theory. A month-long incarceration, regardless of what a juror may infer regarding its cause, is unlikely to be perceived by a juror as suggesting that a defendant committed murder, attempted murder or another similar violent offense. Evidence of petitioner’s incarceration was also probative of petitioner’s credibility, since it served to impeach his testimony that he was living with a friend during the time he was in jail. Thus, the prosecution’s rebuttal evidence did not result in unfair prejudice that substantially outweighed the evidence’s probative value, and it did not render petitioner’s trial fundamentally unfair in violation of his Due Process rights.
Lastly, it is of no moment that the jury was not informed that petitioner had initially told the police about his incarceration in Florida. The fact that petitioner reported his incarceration to the police is irrelevant to whether petitioner mislead the jury at trial. Petitioner fails to explain how informing the jury of this information could have rehabilitated him.
For all the foregoing reasons, I conclude that the Appellate Division’s decision that the Trial Judge properly acted within his discretion when he allowed the prosecution’s rebuttal evidence was not contrary to, or an unreasonable application of, clearly established federal law. Thus, this claim should be denied.
4. Actual Innocence Claim
Finally petitioner claims that his habeas petition should be granted because he is actually innocent of the murder for which he was convicted. This claim is denied on the merit s.
The doctrine of actual innocence in ha-beas claims developed to prevent a “miscarriage of justice” where procedural rules might otherwise prevent a federal court from considering a claim by a petitioner who is factually innocent of the crime for which he or she was convicted.
Schlup v. Delo,
Petitioner’s claim of actual innocence was not raised in state court and is asserted for the first time in his habeas petition. However any procedural default that might otherwise exist would not bar a meritorious claim of actual innocence.
15
Doe v. Menefee, supra,
To prevail on a claim of actual innocence, a petitioner must present new reliable evidence in light of which it is more likely than not that no reasonable juror would have convicted petitioner.
Schlup v. Delo, supra,
In support of petitioner’s actual innocence claim, petitioner cites the total of nine witnesses (Jenine Seda, John Torres, and the seven witnesses presented at his post-conviction hearing) who testified regarding petitioner’s presence in Florida on or around the date of the murder. Petitioner also relies on the documentary evidence that petitioner was stopped by police in Florida on May 30 and traveled by bus from Florida to New York on June 30 (Pet. Mem. at 57). Petitioner argues that in light of the totality of the evidence, no reasonable juror would find that petitioner returned to New York from Florida after May 30, failed to contact his fiancée, Minerva Godoy and their children, engaged in a random argument with the victim after which he shot the victim in the head, and traveled back to Florida only to return days later and turn himself in to the police. In addition, in order to find petitioner guilty, a juror would have to find that John Torres, Jenine Seda, Fernando Torres and Chenoa Ruiz all lied under oath when testifying that they each saw petitioner in Florida on June 19 (Pet. Mem. at 57-58).
As I stated in my analysis of petitioner’s ineffective assistance of counsel claim, the totality of evidence presented at petitioner’s trial and post-conviction hearing raised a reasonable probability that the jury could have found petitioner not guilty of murder had Fernando and Chenoa testified. However, in assessing all of the evidence presented at petitioner’s trial and post-conviction hearing, I cannot conclude petitioner’s evidence satisfies the substan
*601
tially higher standard necessary to sustain a claim of actual innocence.
Murden v. Artuz, supra,
First, in light of the evidence, it would not be unreasonable for a juror to find that petitioner was in fact in Florida in June of 1996, then returned to New York in the middle of the month, only to flee after the commission of Collazo’s murder. Petitioner freely admitted that he traveled back and forth to Florida on a number of occasions with only brief stays in New York between those trips (Trial Tr. at 377-80, 386-87, 399). It is likewise not implausible that petitioner would immediately flee New York after committing a murder and later turn himself in to the police, who were already looking for him, in the hope of prevailing on an alibi defense. At trial the prosecution’s eyewitnesses, Sanchez and Davis, testified that they were very confident when recognizing petitioner as the shooter (Trial Tr. at 165, 66), and their testimony has not been impeached. John Torres, Jenine Seda and Chenoa Ruiz were all part of a group of friends to which petitioner belonged, and Fernando Torres is the father of two of those friends. Thus these alibi witnesses were all still subject to impeachment based on their relationship to petitioner. In light of all the evidence. I cannot conclude that no reasonable juror would credit the prosecution’s witnesses over the greater number of defense witnesses. See 1 Hon. Leonard B. Sand, John S. Siffert, Walter P. Loughlin & Steven A. Reiss, Modem Federal Jury Instructions Inst. 4-3 (2005) (A jury is free to credit the side offering a smaller number of witnesses.).
Furthermore, in making an actual innocence determination the habeas court must determine “whether the new evidence on which the actual innocence claim is based is reliable.”
Doe v. Menefee, supra,
Thus, petitioner has failed to establish that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him,” and his claim of actual innocence should be denied.
See Bousley v. United States,
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that petitioner’s petition for a writ of habeas corpus be granted with respect to his claim that the prosecutor’s use of peremptory challenges established a prima facie case of racial discrimination unless within ninety (90) days of the final resolution of this proceeding, the New York State courts conduct a reconstruction hearing and conclude that race did not play a role in the *602 prosecution’s exercise of its peremptory challenges. I recommend that the habeas petition be denied with respect to petitioner’s claims that (1) he received ineffective assistance of counsel, (2) the Trial Court erred in allowing the prosecutor to introduce extrinsic evidence of his Florida incarceration, and (3) the evidence demonstrates he is actually innocent of the crime.
Since petitioner has made a substantial showing of the denial of a constitutional right with respect to his claim of ineffective-assistance, I also recommend that a certificate of appealability be issued for that claim but that no certificate of appeal-ability be issued for his evidentiary and actual innocence claims. 28 U.S.C. § 2253. To warrant the issuance of a certificate of appealability, “petitioner must show that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Middleton v. Attorneys Gen.,
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, United States District Judge, 500 Pearl Street,
Room 2260, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO OBJECT WITHIN TEN (10) DAYS
WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn,
Dec. 28, 2007.
Notes
. Hartsfield stated via affidavit that she did not recall making this representation to Kaiser. (Miller Dec. Ex. 51.)
. For example, as Rosario points out in his objections to the R & R the state court's opinion noted the diligence and integrity of counsel in matters of representation unrelated to the alibi defense. (Petitioner's Objections to the R & R at 564-65.) While such considerations would not arise under a
Strickland
analysis, their presence in the state court opinion does not, in itself, render the state court's analysis unreasonable under 2254(d)(1). To conclude otherwise would be a failure to apply
Eze,
. The R & R evaluated whether Rosario’s representation satisfied both
Strickland.
prongs. (R & R at 576-81.) It concluded that it did not. However, as the R & R correctly recognized, a petitioner "must do more than show that he would have satisfied
Strickland’s
test if his claim were analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied
Strickland
incorrectly."
Bell,
.
Alvarado’s
statistical breakdown is brief and somewhat cryptic, so it is worthwhile to point out the statistical analysis of its predecessor opinion,
U.S. v. Alvarado,
. "Trial Tr.” refers to the transcript of petitioner's trial.
. Because this report and recommendation repeatedly refers to witnesses with the same surname, I refer to individuals with non-unique surnames by their first name.
.
People v. Sandoval,
. “Hrg. Tr.” refers to the transcript of the hearing held in connection with petitioner’s 440.10 motion.
. The record does not reveal the full names of "Ray MH,” "Mike,” "Gordo,” or "Hector.”
. Petitioner’s post-conviction counsel attempted to obtain these records from Western Union in June, 2004, but Western Union responded that it only maintained these records for 60 months, i.e. until June, 2001 (June 17, 2004 letter from Stacy C. Anderson of Western Union to Morrison & Foerster, LLP in response to subpoena, annexed as Exhibit 53 to Miller Decl.).
. During Fernando’s cross-examination at the 440 hearing, respondent’s counsel reported that Fernando had informed petitioner’s counsel, Jodi Miller, that he, petitioner and John looked for car parts three or four days before John’s baby was born. Petitioner's counsel agreed to submit a stipulation regarding this, but no such stipulation has been included in petitioner’s habeas submissions (Hrg. Tr. at 344).
. As discussed in
Henry v. Poole,
. As noted at page 570, above, Kaiser was not sure whether he had spoken to Fernando Torres prior to petitioner's trial (Hrg. Tr. at 124).
. Respondent argues that, despite the prosecution's position at trial, Jenine Seda was not an interested witness and that petitioner’s counsel did, therefore, offer disinterested alibi witness testimony at trial (Resp. Op. at 18-20). At petitioner’s trial, the prosecution's summation clearly accused Seda, with whom petitioner had lived, of being interested and potentially biased towards petitioner (Trial Tr. at 529). Given the prosecution’s argument at trial, respondent's claimed recent epiphany is impossible to credit.
. None of the other five witnesses at petitioner’s hearing, or items of documentary evidence presented and described, establish petitioner’s presence in Florida on the day of the shooting. The failure to offer this evidence could not, therefore, have prejudiced petitioner.
United States v. Luciano, supra,
. "Jury Tr." refers to the transcript of jury selection proceedings in petitioner's case.
. In the first round, the Trial Court invited counsel to exercise their peremptory challenges against all 14 prospective jurors who remained after two were excused on consent. In the second round, the Trial Court subdivid ed the prospective jurors into a group of four and then a group of three. Petitioner made his Batson challenge after peremptories directed at the group of three were made. See pages 584-85, above.
. Petitioner cites
People v. Goggins,
. This is trae even after the passage of AED-PA, which codifies aspects of the actual innocence doctrine in provisions not relevant to this case.
See Doe v. Menefee, supra,