# Leka v. Portuondo

> District Court, E.D. New York · December 30, 1999 · 76 F. Supp. 2d 258

URL: https://www.frixlaw.com/law-library/cases/2370380

## Case

- **Full name:** Sami LEKA, Petitioner, v. Leonardo PORTUONDO, Superintendent Shawangunk Correctional Facility, Respondent
- **Court:** District Court, E.D. New York
- **Decided:** December 30, 1999
- **Citations:** 76 F. Supp. 2d 258; 1999 U.S. Dist. LEXIS 20604; 1999 WL 1080621
- **Precedential status:** Published
- **Opinion:** Opinion by Trager
- **Judges:** Trager
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Sami Leka v. Leonard A. Portuondo, Superintendent, Shawangunk Correctional Facility, 257 F.3d 89 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2370380

## How later opinions describe it (automated extraction)

- applying without adopting standard

## Opinion text

REVISED MEMORANDUM AND ORDER
TRAGER, District Judge.
Petitioner Sami Leka is currently in the custody of New York State prison officials pursuant to a 1990 conviction on second degree murder and weapons charges. Asserting actual innocence, Leka petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that the police investigation and state court proceedings leading to his conviction violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. First, Leka argues that he was convicted partly as a result of imper-missibly suggestive police identification procedures. Second, he alleges that the prosecution suppressed material evidence in violation of
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Lastly, petitioner alleges that he was denied his Sixth Amendment right to the effective assistance of trial counsel.
*261
Background
(1)
On the evening of February 12, 1988, at approximately 6:00 p.m., Rahman Ferati was shot eight times in the legs, chest, hand, and back as he stood in front of 1954 Ocean Avenue, between Avenues N and 0, in Brooklyn, New York. Although an ambulance reached the scene within ten minutes of the shooting, efforts to save Ferati were unsuccessful, and he was pronounced dead at Coney Island Hospital at 6:43 p.m. Officers of the New York Police Department responded to the scene and, as part of their investigation, identified witnesses to the shooting. The witnesses included two passers-by, Elfren Torres (“Torres”) and his then-girlfriend (now-wife) Carolyn Módica Torres (“Módica”). Torres told Sergeant Thomas Mahony that he had seen two men and a light-colored car. Mó-dica told Sergeant Mahony that she had seen someone in a car prior to the shooting and would be able to recognize him if she saw him again. Módica then gave the officer their names and address, and the couple returned to their nearby home.
That evening, Módica and Torres discussed what they had seen with one another. Around midnight, two detectives came to the Torres’ home and asked them to come to the 70th Precinct station. Torres and Módica asked whether they could come in the morning, but when they were told that the matter was urgent, agreed to accompany the detectives.
Once at the precinct house, the police separated Módica and Torres. Módica provided detectives with a description and a drawing of the man she had seen in the light-colored car, and gave a tape-recorded statement to an assistant district attorney.
1
At around 4:45 a.m., Detective Pedro Vergara showed Módica two photo arrays. Each array consisted of six photographs arranged in two horizontal rows of three photographs each. The first array included a photograph of Zeni Cira, a man who would later be tried along with petitioner for the murder of Ferati and acquitted, but who, after his acquittal, would confess to the murder. Each of the men included in the first array, including Zeni Cira, was pictured without a mustache. Módica did not identify anyone from that photo array. The second photo array included a photograph of Leka,. and each of the men in the second array, including Leka, was pictured wearing a mustache. From this array, Módica identified Leka as the man she had seen in a car at the crime scene. Módica remarked to the detective that petitioner had appeared fifteen pounds heavier at the scene, but explained that petitioner had been wearing a bulky black leather jacket that made him appear bigger.
At about 1:30 a.m., Torres gave a statement to a Detective Lee (first name unknown). Torres explained that he and Mó-dica had walked by a light-colored car and, after passing it, heard two shots. Torres turned and saw a hand holding a gun extended out of the passenger-side window of the car. Torres ducked down but quickly looked up again and saw a man outside the car shooting in a downward direction at a man in the street. At some point thereafter, Torres and Módica ran into a building. Torres stated that he did not see the car leave. Torres described the man he had seen shooting as five feet, nine inches tall, medium build, in his late twenties or early thirties, dark hair, mustached, wearing a dark leather coat, and firing a black revolver with a brown handle.
At 5:10 a.m., Detective Vergara showed Torres the same two photo arrays that had been shown to Módica. Torres did not select anyone out of the first photo array but selected petitioner from the second photo array. The police then drove Módi-ca and Torres home.
The police apparently had Leka’s photograph due to a 1977 arrest, but it is not clear why his picture was included in an
*262
array shown to Torres and Módica so soon after the crime. At trial, Detective Ver-gara testified that he was aware that the victim and the alleged perpetrators were Albanians, but he did not know how petitioner’s name became involved in the investigation; nor was Detective Vergara aware of petitioner’s name until he was handed the photo array at the precinct house.
2
In any event, the police followed up on the identification of petitioner by Torres and Módica. Detective Vergara and Detective James Sanseverino went to petitioner’s apartment around 6:15 a.m. on February 13th. A woman answered the door and told the police that petitioner was not there. Detective Sanseverino spoke to petitioner later that same day when petitioner voluntarily came to the precinct. Petitioner explained that he had been home when the detectives had come to his apartment, but that he had been asleep. He also told Detective Sanseverino that around 6:30 p.m. or 7:00 p.m. of the preceding evening he had gone out with his sister-in-law Naze Alijaj to rent a videotape and that he had bought snacks while his sister-in-law rented the videotape.
3
Petitioner could not remember the name of the movie. In addition, petitioner claimed that he had borrowed his brother’s Cáma-ro and had driven around Manhattan for three hours between 11:00 p.m. on the 12th and 2:00 a.m. on the 13th.
4
On March 8, 1988, the police again brought Torres and Módica to the 70th Precinct house and had them separately view a line up which included petitioner. Again, both Módica and Torres independently identified petitioner as the man they had seen on the night of the shooting. Following the identification, petitioner was arrested.
The final important pre-trial event for purposes of this petition was a
Wade
hearing
5
held on February 20th and 21th, 1990, before Justice Philip E. Lagaña of the New York Supreme Court, Kings County. The prosecution called three witnesses, Módica, Torres and Detective Vergara, to rebut charges that the police engaged in suggestive conduct that resulted in Módica and Torres’ identifications of petitioner. The defense called no witnesses of its own, but it did assemble an in-court line up consisting of petitioner, Zeni Cira’s brother Luftim (who would testify at trial that he and another brother, Osman, murdered Ferati in self-defense), and six other Albanians, including relatives of both Zeni Cira and petitioner.
6
The prosecutor asked Módica and Torres each to identify the individual they had seen at the crime scene from the line up assembled by the defense, and without hesitation both selected the petitioner. Petitioner’s trial counsel, Joseph Benfante, cross-examined the three witnesses extensively in an unsuccessful effort to show that the police had engaged in some form of misconduct or had pressured Torres and Módica to identify petitioner.
At the close of the
Wade
hearing, the state trial court denied a motion by petitioner to adjourn the trial until all the police officers who had assembled the photo arrays or who had been in contact with either Módica or Torres could be identified, subpoenaed, and examined by the
*263
defense. The court did, however, state that it would re-open the hearing if petitioner could find any police officer whose testimony was helpful in his attack on the pre-trial identifications. The court also rejected a defense motion to hold a hearing on whether Módica and Torres had a reliable independent source for their line up identifications. The defense predicated this latter motion on the ground that the photo array was inherently suggestive because the five other pictures in the array were allegedly of Hispanic men, while petitioner was an Eastern European. There was (and is), however, no evidence in the record regarding the actual ethnicities of the photo array fill-ins.
(2)
Petitioner’s trial began with jury selection on February 26, 1990. The prosecution’s case detailed the intra- and inter-family feud which allegedly provided the motive for the shooting. The victim, Rah-man Ferati, was related to the Ciras through the marriage of his son Veli to Zeni Cira’s sister Lydia, and through the marriage of his daughter Julie to Zeni Cira’s brother Luftim. After Veli’s death in an automobile accident in 1978, Ferati took custody of Veli and Lydia’s children. In 1986, Ferati moved from New York to Houston, Texas, taking the grandchildren with him. In 1987, during a period in which Ferati was incarcerated, the Cira family regained custody of the children and brought them back to Brooklyn. Losing custody of his grandchildren angered Ferati greatly. Around New Year’s, 1988, Ferati returned to New York and took up residence -with his daughter Julie, her husband, Luftim Cira, and their children. Soon thereafter, tension developed between Ferati and his son-in-law. On February 11, 1988, matters came to a head when Ferati forced his daughter and her children to leave their home and held them against their will in his brother Sali’s apartment at 1947 Ocean Avenue. Ferati supposedly took this action as a quid pro quo against the Ciras for taking Velis children. The very next day, Rahman Ferati was shot to death across the street from Sali’s apartment. Petitioner was nominally an ally of the Ciras in their feud with the Feratis because his sister was married to his co-defendant, Zeni Cira. No additional explanation was offered as to what motive petitioner had to murder Fer-ati.
The prosecution’s direct case against petitioner consisted almost entirely of the eyewitness identification testimony of Torres and Módica. Torres testified to essentially the same account of the shooting that he had given to Detective Lee on the night of the shooting, and he also made an in-court identification of the petitioner.
Módica testified that around 6:00 p.m. on February 12, 1988, she and Torres had been walking along Ocean Avenue in the direction of Avenue N when she noticed two men sitting in a light-colored car that was double-parked in front of a psychoanalyst’s office at 1954 Ocean Avenue. As Módica passed the car, it seemed to her that the man in the passenger seat was looking toward her and whispering something to his companion about her. Módica, whose nose was bandaged due plastic surgery she had just had a week earlier, believed the two men were mocking her, and she therefore stared back as she walked past the car.
Módica testified that, in all, she stared at the man in the passenger seat for “[mjaybe about four seconds, five seconds.”
7
Although Módica testified that she was not able to see the driver’s face, she was able to describe the passenger:
He had like a medium olive complexion, but it didn’t have any sort of a yellowish cast to it or anything. And he had very dark brown or black hair. And it was like that D.A. disco type of style that he had. And he had on a black leather jacket. And it had padding, you know,
*264
like one of those bulky business black leather jackets.
8
Módica added that the man in the passenger seat had a full, thick mustache. Módi-ca then identified the petitioner as the man she had seen in the passenger seat of the light-colored car. Módica concluded her account of the shooting by testifying that, after she and Torres passed the car, they continued walking for what she estimated to be “about five car lengths” when she heard gunshots.
9
Módica then ducked down behind a parked car and some garbage cans until the shooting stopped and Torres told her that the car was leaving.
In its case against petitioner’s co-defendant, Zeni Cira, the prosecution introduced into evidence a dying declaration Rahman Ferati made to his brother Sali. In response to Sali asking who had shot him, Rahman replied, “Zeni, Zeni, Zeni,” while moving his hand in a manner that Sali believed was meant to indicate Zeni Cira was driving the car. Rahman Ferati was apparently unable to recognize anyone else in the car, although the Ferati family had known petitioner for many years.
The prosecution also introduced ballistics evidence showing that a gun recovered from a sewer located near petitioner’s apartment was the gun that had fired the bullets that had killed Rahman Ferati.
10
In addition, Assistant Medical Examiner Dr. Marie Macajoux, who performed Fera-ti’s autopsy, testified that some of the bullet wounds were consistent with the victim lying on his back, and someone standing four to six feet away, shooting downward.
Neither petitioner nor his co-defendant testified at trial.
11
Instead, petitioner’s defense consisted of attacks on Torres and Modica’s identifications, buttressed by meteorological evidence which suggested the lighting conditions at the crime scene were poor
12
and by witnesses who testified that petitioner had never worn a mustache or at least had not worn a mustache since 1978.
13
Petitioner also presented an alternate account of the murder, namely that Luftim Cira shot Ferati in self-defense while attempting to get his family back from Fera-ti. Luftim Cira testified that he had seen his brother, Osman, by chance and had Osman drive him to Sali Ferati’s apart
*265
ment. As they drove up, they spotted Rahman Ferati on the side of the street. When, on Luftim’s instruction, Osman stopped the car beside Rahman, Rahman allegedly began cursing Luftim and pulled out a gun. Luftim drew his own weapon and exchanged fire with Ferati through the passenger side window of the car.
14
Luftim testified that he never left the car
15
and that, after the shooting, he and Osman sped away. Subsequently, Luftim and Osman split up, and Luftim proceeded on foot. While walking towards his older sister’s house, he threw his gun in the sewer where detectives later recovered it. In support of the self-defense aspect of Luftim’s account, various defense witnesses testified that Rahman Ferati was known to be a violent and dangerous man who regularly carried a gun.
The final component of petitioner’s trial defense consisted of calling petitioner’s friend and two neighbors/in-laws to testify that petitioner was essentially incapacitated by arthritis at the time of the murder. Petitioner also introduced medical records from Coney Island Hospital, which indicated that Leka had visited its outpatient clinic on February 2nd and February 10th of 1988, complaining of swollen fingers and pain in the back, shoulder, and left knee. The records further showed that Leka had reported a six- to seven-year history of arthritis.
16
Through this evidence, petitioner sought to create the inference that he was physically incapable of committing the murder.
On rebuttal, Detective Vergara was asked to indicate on a map the relative locations of the murder scene, 1954 Ocean Avenue, the sewer where the murder weapon was found, 1657 Ocean Parkway, and Leka’s apartment, 209 Avenue P. The prosecution apparently sought to suggest that, since the sewer was only about one block away from Leka’s apartment, it was more likely that Leka had dropped the gun there than had Luftim Cira. Based on his review of police log books, Detective Vergara also testified that no police officers or detectives visited Leka’s apartment building on the night of February 12th and that two sets of detectives left the precinct house at 3:10 a.m. and 4:10 a.m. on February 18th, respectively, to obtain a photograph of Leka. This testimony contradicted testimony given by Leka’s two neighbors/in-laws that the police had come to their apartment at 9:30 p.m. on the 12th and showed them a picture of Leka with a mustache. Finally, Detective Sanseverino recounted the alibi petitioner had given to the police, viz., that he had been out renting a movie and buying snacks at the time of the murder, which contradicted the testimony of the neighbors and friend that petitioner was too sick on the day of the murder to leave the house or get out of bed.
(3)
On the morning of March 26, 1990, the jury was charged. After several read-backs of the transcript, supplemental in
*266
structions, and a deadlock at one point as to both defendants, the jury returned with a unanimous verdict on the evening of March 28, 1990, finding petitioner guilty of Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. The jury acquitted Zeni Cira on all charges.
(4)
After the verdict, petitioner retained new counsel and began a series of state court proceedings aimed at overturning the jury’s verdict. Less than eight weeks after the verdict, on May 18,1990, petitioner filed a motion under N.Y. C.P.L. § 380.30 for an order setting aside the verdict due to newly discovered evidence and ineffective assistance of counsel. The newly discovered evidence consisted mainly of Zeni Cira’s videotaped confession that he shot Rahman Ferati and that his brother Luftim drove the car. Petitioner alleged ineffective assistance of counsel due to a conflict of interest stemming from Zeni Cira’s payment of petitioner’s legal fees.
17
On May 31, 1990, the state trial court denied petitioner’s motion without a hearing
18
and sentenced Leka to concurrent, indeterminate terms of imprisonment of twenty years to life on his conviction for Murder in the Second Degree, five to fifteen years on his conviction for Criminal Possession of a Weapon in the Second Degree, and two and one-third to seven years on his conviction for Criminal Possession of a Weapon in the Third Degree. On June 18, 1990, petitioner filed a notice of appeal from the denial of the § 330.30 motion. Leka subsequently appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department (the “Appellate Division”).
On February 8, 1991, petitioner moved the trial court for an order vacating the judgment of conviction under N.Y. C.P.L. § 440.10 . Petition repeated the same claims he advanced in his § 330.30 motion, but he submitted additional newly discovered evidence, including the evidence at the heart of the petition now before this court — affidavits in which Torres recants, and both he and Módica cast doubt on, their trial testimony.
In his affidavit, Torres claimed that he was pressured to identify petitioner as the shooter and that detectives led him to believe that petitioner was in fact the shooter.
See
Elfren Torres Aff. of 1/2/91, ¶ 5, Pet.’s Mem., Ex. 7 [hereinafter Torres 1991 Aff.]. Torres recanted his trial testimony, alleging that he had only seen shots fired from the car and that the only person he had seen outside the car was Rahman Ferati.
See id.
¶ 6.
In contrast, Módica did not actually recant her identification of petitioner. In her affidavit, Módica stated that, based on information supplied to her by petitioner’s then-counsel Stephen G. Murphy, it was “possible” that the double-parked car she had seen drove off after she passed by:
3. ... Mr. Murphy explained to me that the car I saw (in which I identified MR. LEKA as a passenger) had already pulled out and that the car the murderer was in was seen pulling up double parked and shooting by a bus driver.
4. This makes me feel that it is possible that it was a different light/white
*267
car I saw with a passenger who looked like SAMI LEKA by coincidence. That there is a realistic possibility that as we walked by, the car I saw pulled away, and another similar car pulled in.
Carolyn Módica Torres Aff. ¶¶ 3M=, Pet.’s Mem., Ex. 8 [hereinafter Módica Aff.]. In a handwritten addendum to the affidavit, Módica clarified that her “recantation” was predicated on Murphy’s factual representations and indicated that she nonetheless continued to believe that the man she had seen resembled Leka:
In conclusion after obtaining the other information given to me by Mr. Murphy & [Murphy’s investigator] and after my discussion of the events on the day in question, I cannot honestly say I am positive that Mr. Leka was the man in the car I passed — Its [sic] possible to have been someone who had his style of hair (DA) and coloring with brown eyes.
Id.
¶ 7.
With his § 440.10 motion, petitioner also presented affidavits from three other witnesses to the murder, as well as grand jury testimony from one of those witnesses and a police interview report from another.
19
This evidence, he argued, showed that no one got out of the car during the shooting. Although this evidence would not directly exculpate petitioner, since none of these three witnesses could conclusively state that petitioner was not in the car or at the scene, petitioner argued that it impeached Torres’ testimony and cast doubt upon the time line, position of the car, and sequence of events to which Torres and Módica testified.
In a written opinion, the state trial court concluded that the evidence offered by petitioner did not meet the state law criteria for granting a new trial and denied petitioner’s motion to set aside the judgment.
See People v. Leka,
Indict. 2520/1988 (N.Y. Sup.Ct., Kings County, Dec. 6, 1991) (corrected order denying § 440.10 motion at 8) [hereinafter Section 440.10 Opinion],
On November 6, 1991, petitioner requested leave to appeal the denial of his § 440.10 motion and to consolidate that appeal with his direct appeal and his appeal from the trial court’s denial of his § 330.30 motion. On February 18, 1992, the Appellate Division granted petitioner’s motion and consolidated all three appeals. Petitioner, represented by yet another lawyer, raised three claims on the consolidated appeal. First, he argued that the verdict was against the weight of the evidence.
See
Pet.’s App. Mem. at 30-36. Second, the trial court erred in denying petitioner’s pre-trial motion to suppress the identification testimony because the photo array shown to Torres and Módica on the morning after the shooting was impermissibly suggestive.
See id.
at ST-42. Lastly, petitioner challenged the denial without a hearing of his § 330.30 and § 440.10 motions, essentially repeating the arguments he had made to the trial court.
See id.
at 43-79.
On November 28, 1994, a unanimous panel of the Appellate Division affirmed petitioner’s conviction.
See People v. Leka,
209 A.D.2d 723 , 619 N.Y.S.2d 144 (2d Dep’t 1994) (per curiam). The Appellate Division concluded that the photo array was not suggestive because all the subjects were sufficiently similar in appearance to petitioner. The Appellate Division further held that the trial court had properly denied Leka’s post-trial motions.
20
*268
On March 14, 1995, the New York Court of Appeals denied petitioner leave to appeal.
See People v. Leka,
85 N.Y.2d 911 , 627 N.Y.S.2d 334 , 650 N.E.2d 1336 (1995).
(5)
On April 21, 1997, petitioner, acting pro se, filed this petition for a writ of habeas corpus. The State of New York moved to dismiss the petition on the grounds that it fell outside the one-year statute of limitations prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244 (d)(1) (Supp.1999) (“AEDPA”). This court denied the motion.
See Leka v. Portuondo,
No. CV-97-2061 (DGT) (E.D.N.Y. Sept. 26, 1997) (order denying motion to dismiss). On February 6,1998, the petitioner’s motion for appointment of counsel was granted, but the court was notified shortly thereafter that the firm of McDermott, Will
&
Emery would represent petitioner.
Discussion
Petitioner raises three claims in support of this petition. First, he attacks the police identification procedures as impermis-sibly suggestive. Second, he alleges that the prosecution concealed and/or delayed disclosure of
Brady
material. Finally, petitioner argues that he received ineffective assistance of counsel at trial.
(1)
Petitioner’s claim that the police used impermissibly suggestive identification procedures raises two distinct issues: first, whether the composition of the photo array was inherently suggestive, and, second, whether police pressured Torres to pick Leka from the photo array. As discussed below, petitioner cannot be granted a writ with respect to either theory of tainted identification.
a. The Photo Array
Petitioner argues that the photo array that included petitioner’s photograph was inherently suggestive because he was the only Albanian pictured in the array, while the rest of the photographs were of Hispanics. Petitioner further contends that Módica and Torres’s subsequent in-person identifications of the petitioner at the precinct house line up, at the
Wade
hearing, and at trial, were all irreparably tainted by the suggestive photo array, and should have been excluded from evidence.
Whether a pre-trial identification procedure, such as a photo array, is so suggestive that it denies a defendant due process is a mixed question of law and fact.
See Sumner v. Mata,
455 U.S. 591, 597 , 102 S.Ct. 1303, 1306 , 71 L.Ed.2d 480 (1982) (per curiam). Because petitioner’s argument was fairly presented to the state courts and adjudicated on the merits, both by the trial court,
see
W. 205, 210-11, and by the Appellate Division,
see Leka,
209 A.D.2d at 724 , 619 N.Y.S.2d at 145-46 , the state courts’ rejection of petitioner’s claim can be overturned on federal habeas review only if the 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 (d)(1) (Supp. 1999).
21
*269
The Supreme Court has established a two-part inquiry for evaluating in-court identification testimony based on pre-trial identification procedures.
See Neil v. Biggers,
409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972). The inquiry “ré-quires [1] a determination of whether the identification process was impermissibly suggestive, and if so, [2] whether it was so suggestive as to raise a ‘very substantial likelihood of irreparable misidentification.’
” Id.
at 196 , 93 S.Ct. at 380 (quoting
*270
Simmons v. United States,
390 U.S. 377, 384 , 88 S.Ct. 967, 971 , 19 L.Ed.2d 1247 (1968));
accord Manson v. Brathwaite,
432 U.S. 98, 113-14 , 97 S.Ct. 2243, 2252-53 , 53 L.Ed.2d 140 (1977).
In light of the Appellate Division’s opinion and the evidence on the record, the state court’s decision was not contrary to, nor did it involve an unreasonable application of, federal law as determined in the
Neil
decision. The Appellate Division treated petitioner’s claim at length, offering the following explanation for its ultimate rejection of the claim:
The hearing court properly declined to suppress the proposed identification testimony of the eyewitnesses.
Contrary to the defendant’s claim, the photographic array was not suggestive and did not draw the viewer’s attention to the defendant’s photograph. Even if the other men depicted in the photographic array were of Hispanic origin, they were similar in appearance to the defendant, who is Albanian, insofar as each had dark hair and eyes, a mustache, some facial hair on their chins, and a prominent nose. Further, all but one of the men in the photographic array had a dark skin tone similar to the defendant’s skin tone. As conceded by the defendant, there is no requirement that a defendant be surrounded by individuals nearly identical in appearance during identification procedures.
Leka,
209 A.D.2d at 724 , 619 N.Y.S.2d at 145-46 (citations omitted).
Examination of the photo array that included petitioner’s photograph, as well as the relevant case law, reveals that the Appellate Division’s decision was entirely reasonable. While there is no evidence in the record regarding the actual ethnicities of the fill-ins, at least one of the fill-ins, viz., number three, could clearly pass for an Eastern European, and another of the fill-ins, viz., number one, looks as though he could be of European descent. In any case, whatever the racial or ethnic backgrounds of the other subjects in the photo array, they are indeed not so dissimilar from petitioner so as to impermissibly suggest that he was the perpetrator.
22
Moreover, other courts applying the
Neil
standard have agreed that due process does not require line up or photo array fill-ins to share the defendant’s exact characteristics, ethnic or otherwise.
23
Finally, although the Appellate Division did not allude to the point in its opinion, to
*271
the extent petitioner argues that Torres and Módica picked Leka simply because his photograph was the only picture of an Eastern European man with which they were presented, his claim is severely undercut by the fact that each of the witnesses saw two photo arrays, and each failed to pick anyone out of the first array, which included several persons of Eastern European descent — albeit without mustaches, among them petitioner’s Albanian co-defendant, Zeni Cira, who later confessed to the murder.
See
T. 506-508 (Módi-ca); W. 72-76 (Torres).
Petitioner attempts to shore up his tainted identification claim with respect to Torres through additional allegations— which, as discussed below, were expressly rejected by the state trial court
24
' — that the police pressured him to choose Leka. Módica, however, even in her “recanting”' post-trial affidavit makes no such allegations that police misconduct influenced her choice of petitioner.
25
Thus, distilled to its essence, petitioner’s claim with respect to Modica’s identification is that she picked Leka solely because his photograph was the only one that she saw of a non-Hispanic with a mustache. At trial, however, Módica disagreed when petitioner’s trial counsel suggested that all of the other men pictured in the Leka photo array were Hispanic. In response to questioning intended to elicit such testimony, Módica stated only that she believed the three fill-ins on the bottom row of the photo array “look[ed] Spanish.” T. 517. Furthermore, when asked whether numbers one and three also looked “Spanish,” Módica testified: “I can’t guess by looking at them.” T. 518. Notably, trial counsel also asked Torres whether he and Módica had discussed “the fact that you saw a photographic array that had five Hispanies and one Caucasian-looking person,” and Torres answered, “No.” T. 725-26. Thus, considering the record as a whole, there does not appear to be any evidence that would support petitioner’s theory that the photo array was inherently suggestive.
Because the Appellate Division reasonably found the photo array was not imper-missibly suggestive, there was no need for it to proceed to the second stage of the
Neil
inquiry, viz., whether the in-court identifications were independently reliable. The state appeals court decision rejecting petitioner’s claim, therefore, was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law. Accordingly, no writ can be granted with respect to Leka’s claim that the composition of the photo array was inherently suggestive.
b. Post-Trial Recantations
Petitioner bases a second attack on the photo array and subsequent identifications on Torres’ 1991 affidavit, as well as a new, more elaborate affidavit prepared for this petition, Elfren Torres Aff. of 4/10/98, Pet’s Supp. Mem., Ex. 3 [hereinafter Torres 1998 Aff.], in which Torres alleges — in direct contradiction of his
Wade
hearing and trial testimony — that the police coerced him to pick Leka from the photo array.
i. Exhaustion
On behalf of respondent, Kings County District Attorney Charles J. Hynes (the “District Attorney”) argues that petitioner has failed to exhaust available state court remedies for this aspect of his suggestive identification claim. As the District Attorney observes, examination of petitioner’s brief to the Appellate Division reveals that his arguments regarding the photo array identification focused exclusively on the composition of the photo array; petitioner made absolutely no argument regarding police coercion. Moreover, although petitioner did submit Torres’ 1991 affidavit to both the trial court and the Appellate Division, he
*272
did so only in connection with his argument for a new trial in light of newly discovered evidence. Specifically, petitioner presented the 1991 affidavit as newly discovered evidence supporting his theory that Rahman Ferati was the individual Torres had seen outside the car, not Leka. Finally, Torres’ 1998 affidavit, which was prepared in conjunction with this petition, has never been presented to the state courts for any purpose.
Nonetheless, under the standard delineated in
Daye v. Attorney General of the State of New York,
696 F.2d 186 (2d Cir.1982) (en banc), petitioner’s presentment claim, tenuous though it may be, has merit. In
Daye ,
the Second Circuit held that to satisfy the exhaustion requirement a petitioner must have informed the state court of both the factual premises of his claim and “essentially the same legal doctrine he asserts in his federal petition.”
Id.
at 191— 92 (citations omitted). The court clarified that “[b]y the same legal ‘basis’ or ‘doctrine,’ we do not mean that there can be no substantial difference in the legal theory advanced to explain an alleged deviation from constitutional precepts.”
Id.
at 192 n. 4. As an example, the court stated that the exhaustion requirement would be met in a case where a state defendant made an involuntary confession claim in the state courts based on physical coercion, but argued in federal court that coercion was shown by the totality of the circumstances including psychological coercion.
See id.
(citing
United States ex rel. Kemp v. Pate,
369 F.2d 749 (7th Cir.1966)). In addition, the Second Circuit held that a state defendant may fairly present a constitutional claim to the state courts for exhaustion purposes by “allegation of a pattern of facts that is well within the mainstream of constitutional litigation.”
Id.
at 194.
In this case, petitioner argued a tainted identification claim (albeit one based on the composition of the photo array) in his brief to the Appellate Division.
See
Pet.’s App. Mem. at 37-42. In addition, by submitting copies of Torres’ 1991 affidavit to the trial court and the Appellate Division, petitioner presented a pattern of facts— Torres’ being pressured to pick Leka and subsequently persuaded that Leka was the-shooter — to the state courts,
26
which, if true, would clearly provide an alternative ground for such a claim. Under
Daye ,
petitioner’s police coercion theory of tainted identification was, therefore, fairly presented to the state courts notwithstanding the fact that petitioner’s brief to the Appellate Division did not invoke Torres’ allegations of police misconduct in the context of petitioner’s tainted identification claim.
27
ii. Independent and Adequate State Grounds
The Appellate Division’s opinion on the tainted identification issue specifically addresses only the question whether the composition of the photo array was inherently suggestive. Petitioner’s “remaining contentions” — including, presumably, the police coercion aspect of his tainted identi
*273
fication claim — were dismissed as being “either unpreserved for appellate review or without merit.”
See Leka,
209 A.D.2d at 725 , 619 N.Y.S.2d at 146 . The facial ambiguity of the Appellate Division’s leaves uncertain the whether the particular claim now under discussion — the police coercion claim — was “adjudicated on the merits,” 28 U.S.C. § 2254 (d) (Supp.1999), or was dismissed on the ground of a state procedural default and hence not subject to federal habeas review,
see Coleman v. Thompson,
501 U.S. 722, 750 , 111 S.Ct. 2546, 2565 , 115 L.Ed.2d 640 (1991) (holding that federal habeas review is generally barred where a state prisoner defaults his federal claims pursuant to an “independent and adequate” state procedural rule). Moreover, because the police coercion claim was not presented to the state trial court, there is no lower court ruling to which this court may look to illuminate the basis for the Appellate Division’s decision.
See Ylst v. Nunnemaker,
501 U.S. 797, 801-03 , 111 S.Ct. 2590, 2593-95 , 115 L.Ed.2d 706 (1991) (holding that when a lower state court spoke clearly, all unexplained affirmances of that opinion by higher state tribunals must ordinarily be read to confirm the unambiguous holding of the lower court).
In similar circumstances, one recent Second Circuit panel has held that habeas review of a petitioner’s claims was not procedurally barred where the New York Court of Appeals summarily rejected those claims as “meritless or unpreserved.”
See Tankleff v. Senkowski,
135 F.3d 235, 247 (2d Cir.1998) (citing
Coleman,
501 U.S. at 735 , 111 S.Ct. at 2557 ). However, a different Second Circuit panel presented with a case in nearly the same procedural posture later declared: “Whether this language [viz., that defendant’s remaining claims are “unpreserved or without merit”] in a state court’s affirmance is too ambiguous to preclude federal court review on the independent ground of procedural default has yet to be determined in this circuit.”
Hayes v. Coombe,
142 F.3d 517, 519 (2d Cir.1998) (per curiam), ce
rt. denied sub nom. Hayes v. Goord,
— U.S. -, 119 S.Ct. 879 , 142 L.Ed.2d 779 (1999). Although it questioned the basis of the
Tanklejf
court’s decision on this issue,
see id.
at 519 n. 2, the
Hayes
panel ultimately decided the case before it on other grounds,
see id.
at 519 (holding that petitioner’s claims were “patently devoid of merit” and invoking the doctrine of hypothetical jurisdiction).
In absence of clear precedent to the contrary, I will give petitioner the benefit of the doubt on the issue and follow the earlier panel’s holding in
Tanklejf.
Accordingly, I decline to hold that the Appellate Division’s summary dismissal of Leka’s remaining claims as “either unpre-served for appellate review or without merit” announces an independent and adequate state ground barring habeas review of his police coercion claim.
Accord Avincola v. Stinson,
60 F.Supp.2d 133 , 153 n. 7 (S.D.N.Y.1999) (following
Tankleff); Santana v. Filion,
55 F.Supp.2d 136, 140 (E.D.N.Y.1999) (same);
McLean v. McGinnis,
29 F.Supp.2d 83 , 92
&
n. 7 (E.D.N.Y.1998) (same).
iii. Standard of Review
Because review of petitioner’s police coercion theory of tainted identification is not procedurally barred, the next issue that must be resolved is which standard of review should be applied to the Appellate Division’s summary rejection of the claim. Generally, under the AEDPA a state court decision on a mixed question of law and fact, such as that presented by petitioner’s police coercion claim, is reviewed under § 2254(d)(1) to determine whether the decision “was contrary to, or involved an unreasonable application” of federal law.
See supra
§ (l)(a). By its terms, however, § 2254(d)(1) only applies to claims that were “adjudicated on the merits.” This case raises the question whether a state court’s summary rejection of a defendant’s claim constitutes an “adjudication] on the
*274
merits” sufficient to qualify for review under § 2254(d)(l)’s deferential standard.
Some courts and commentators have opined that where a “state court summarily disposes of a claim without setting forth the legal or factual basis for its denial,” § 2254(d)(1) does not apply, and the federal habeas court should, in accordance with pre-AEDPA law, review the claim de novo.
United States ex rel. Maxwell v. Gilmore,
37 F.Supp.2d 1078, 1089 (N.D.Ill.1999);
see
2 James S. Liebman & Randy Hertz,
Federal Habeas Corpus Practice and Procedure,
§ 30.2b, at 1238 (3d ed.1998) (arguing that summary denial of relief should not suffice for § 2254(d)(1) to apply). These authorities have reasoned that § 2254(d) does not cover summary dispositions because in such cases “there is no state court analysis to examine for ‘unreasonableness.’ ”
Gilmore,
37 F.Supp.2d at 1088 ;
see
2 Liebman
&
Hertz,
supra,
§ 30.2b, at 1238 (same).
Other courts have held that a summary disposition of a petitioner’s claim is an “adjudication] on the merits” within the meaning of § 2254(d)(1), but that in such cases, “the practical significance of (d)(l)’s deferential standard of review is lessened.”
Cardwell v. Netherland,
971 F.Supp. 997, 1015 (E.D.Va.1997). “ “Where ... there is no indication of how the state court applied federal law to the facts of a case,”’ a federal habeas court must necessarily undertake its own independent review of the record, with the result that “ ‘the distinction between de novo review and “reasonableness” review becomes less significant.’ ”
Cardwell v. Greene,
152 F.3d 331, 339 (4th Cir.) (quoting
Netherland,
971 F.Supp. at 1015 ),
cert. denied,
— U.S. -, 119 S.Ct. 587 , 142 L.Ed.2d 491 (1998);
see also Delgado v. Lewis,
181 F.3d 1087, 1091 (9th Cir.1999) (“[W]hen confronted with a state court decision that does not provide the basis of its decision, [a federal habeas court] must determine whether, in light of an independent review of the record and the relevant federal law, the state court’s resolution of a petitioner’s claim was ‘contrary to, or involved an unreasonable application of, clearly established Federal law ....,’” because “when a state court does not articulate the rationale for its determination, a review of that court’s ‘application’ of clearly established federal law is not possible.”);
Wright v. Angelone,
151 F.3d 151, 157 (4th Cir.1998) (declining to “presume that a summary order is indicative of a cursory or haphazard review of a petitioner’s claims,” but requiring “independent review of applicable law” by federal habeas court).
Still other courts have held the summary nature of a state-court opinion does not affect the applicable standard of review under § 2254(d)(1).
See James v. Bowersox,
187 F.3d 866, 869 (8th Cir.1999);
see also Hennon,
109 F.3d at 335 (holding that “perfunctory” state court rulings are nonetheless evaluated pursuant to § 2254(d) for reasonableness);
cf. McLee v. Angelone,
967 F.Supp. 152, 156 (E.D.Va.1997) (“There is no requirement in the statute that the state court decision be detailed or explanatory in nature for § 2254(d) to apply.”). In adopting such an interpretation, Chief Judge Posner of the Seventh Circuit reasoned that a contrary approach that focused on the “quality of the reasoning process articulated by the state court in arriving at the determination” “would place the federal court in just the kind of tutelary relation to the state courts that the recent amendments are designed to end.”
Hennon,
109 F.3d at 335. Chief Judge Posner, however, candidly admitted:
[O]f course the better the job the state does in explaining the grounds for its rulings, the more likely those rulings are to withstand further judicial review.
That is just realism. It doesn’t follow that the criterion of a reasonable determination is whether it is well-reasoned. It is not. It is whether the determination is at least minimally consistent with the facts and circumstances of the case.
Id.
In dicta, I recently agreed with Chief Judge Posner’s approach to § 2254(d)(1).
*275
See Sellan v. Kuhlman,
63 F.Supp.2d 262, 267-68 (E.D.N.Y.1999) (discussing
Hennon,
109 F.3d at 334-35). However, as in
Sellan ,
the facts of this case do not require a decision on the issue. Petitioner’s claim fails even on the least deferential standard of review. Accordingly, in the interest of judicial prudence, petitioner’s police coercion theory of tainted identification -will be reviewed de novo.
See Gilmore,
37 F.Supp.2d at 1089 .
When reviewing a mixed question of law and fact de novo, a federal habeas court is still bound to defer to relevant state court findings of fact under the standard of review prescribed by § 2254 for factual determinations.
See
28 U.S.C. § 2254 (d)(2)(e)(1) (Supp.1999);
Miller v. Fenton,
474 U.S. 104, 112 , 106 S.Ct. 445, 450 , 88 L.Ed.2d 405 (1985) (in context of de novo habeas review of the voluntariness of a confession, subsidiary factual questions such as “whether in fact the police engaged in the intimidation tactics alleged by the defendant are entitled to the § 2254(d) presumption [of correctness]” (citation omitted)); 1 Liebman & Hertz,
supra,
§ 2.4b, at 27 (if analysis of mixed question of law and fact turns on a historical fact, habeas court must defer to state courts’ findings with regard to that fact unless, inter alia, the finding is “unreasonable” under the AEDPA standard). Thus, in deciding whether the misconduct alleged in the 1991 affidavit constitutes an imper-missibly suggestive identification procedure, this court must accept the state trial court’s written assessment of the affidavit’s credibility as long as that factual determination meets the requirements of § 2254(d).
See Townsend v. Sain,
372 U.S. 293 , 309 n. 6, 83 S.Ct. 745 , 756 n. 6, 9 L.Ed.2d 770 (1963) (on habeas review, “ ‘issues of fact’” means “basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators’ ” (citation omitted)). Because the AEDPA changed the standard of review that § 2254(d) prescribes for state court factual determinations, some discussion of the new standard and its predecessor is warranted.
Prior to the enactment of the AEDPA, § 2254(d) directed federal habeas courts to accord a presumption of correctness to state court factual determinations that were evidenced by written findings made after an adversarial hearing on the merits unless, among other enumerated exceptions, the state court factual determination was not “fairly supported by the record [in the state court proceeding].” 28 U.S.C. § 2254 (d) (1994) (superseded).
28
If none of
*276
the exceptions applied, a writ could still be granted if the petitioner could establish by “convincing evidence” — including evidence outside the state court record — that the factual determination was erroneous.
See id. See generally
1 Liebman & Hertz,
supra,
§ 20.2c (describing pre-AEDPA standard of review).
The AEDPA substantially modified the applicable standard of review for state court factual determinations by eliminating the various exceptions enumerated in old subsection (d) and replacing them with a single inquiry into the substantive fairness of the factual determination. Section 2254(d) now provides, in pertinent part:
An application for a writ of habeas on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... (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.
28 U.S.C. § 2254 (d)(2) (Supp.1999). Notwithstanding its elimination of the old ha-beas statute’s various exceptions related to procedural fairness,
29
the AEDPA provides in a new subsection that state court factual determinations are still entitled to a presumption of correctness and that an applicant must now rebut that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1) (Supp.1999).
30
Neither the Supreme Court nor the Second Circuit has yet provided guidance on the interplay between the reasonableness inquiry prescribed by § 2254(d)(2) and the clear and convincing evidence standard of § 2254(e)(1). Some commentators have suggested that the two subsections should be read together in light of the former statute as prescribing a two-step inquiry: first, into the reasonableness of the state court’s determination on the record before the state court, and second, into whether the petitioner can establish by clear and convincing evidence (whether in the state record or not) that the factual determination is erroneous.
See
1 Liebman & Hertz,
supra,
§ 20.2c, at 751-52. On this reading, a federal habeas court could grant a writ based on a challenge to a state court factual determination that was reasonable in light of the evidence presented to the state court if a petitioner can establish factual error by clear and convincing evidence (including newly discovered evidence).
See id.; see also Valentine v. Senkowski,
966 F.Supp. 239, 241 (S.D.N.Y.1997) (after holding that state court determination was not unreasonable in light of evidence presented to state court, district court only dismissed petition upon additional holding that petitioner had not satisfied the burden of rebutting by clear and convincing evidence the presumption of the
*277
correctness accorded to that decision). By contrast, some courts, most notably the Fifth Circuit, have read subsections (d)(2) and (e)(1) to impose the more onerous requirement that petitioner
both
show that the state court determination was unreasonable in light of the state court record
and
demonstrate by clear and convincing evidence (including newly discovered evidence) that the determination was in fact erroneous.
See, e.g., Jackson v. Anderson,
112 F.3d 823, 824-25 (5th Cir.1997).
But see
Larry W. Yackle,
Developments in Habeas Corpus (Part 2),
Champion, Nov. 1997, at 16, 17 (arguing that such an interpretation inappropriately bars habeas relief where the content of the state court record was limited as a result of state court procedures that violated due process).
See generally
Note,
Rewriting the Great Writ: Standards of Review for Habeas Corpus under the New 28 U.S.C. § 2254 ,
110 Harv. L.Rev. 1868, 1873-76 (1997) (surveying attempts to reconcile subsections (d)(2) and (e)(1)).
Disposition of the present claim does not require a decision on the interplay of § 2254(d)(2) and § 2254(e)(1). Even if the more liberal, two-step inquiry suggested by Professors Liebman and Hertz is followed in this case, petitioner’s police coercion claim must be rejected. Therefore, without resolving the issue and solely for the purpose of disposition of this case, the two-step inquiry will be applied to petitioner’s claim.
iv. Reasonableness of the State Courts’ Factfinding
In its opinion denying petitioner’s motion to set aside the conviction on the basis of newly discovered evidence, the trial court expressly found Torres’ 1991 affidavit to be “incredible recanting testimony.” Section 440.10 Opinion,
supra,
at 9. In the pertinent paragraph of the affidavit, Torres states: “I was pressured to pick out Mr. Leka by the Police and then led to believe that it was Mr. Leka through conversations with various detectives.” Torres 1991 Aff. ¶ 5. However, as the trial court observed:
This allegation is conclusory. Mr. Torres does not state any specific action taken by police to coerce him into identifying Mr. Leka. The conclusion that he was pressured also fails to explain why he was unable to recant his identification earlier.
& ‡ ‡ #
%
‡
Additionally, the court finds the allegation incredible as defense attorney was present at both lineups in which Mr. Torres identified Sami Leka as the shooter. The allegation directly contradicts Mr. Torres’ trial testimony, and is recanting testimony.
Section 440.10 Opinion,
supra,
at 9 (citation omitted).
Indeed, both at the
Wade
hearing and at trial, Torres testified unequivocally that the police who drove him and Módica to the precinct on the night after the shooting did not relate any information about the case to them,
see
W. 96; that the police did not present the photo arrays to him in a suggestive manner,
see
W. 72-73; T. 707-OS; that no one told him who to choose,
see
W. 76; T. 708; that no one directed his attention to any particular photo,
see
W. 76; T. 708; that the police did not tell him that he and Módica had picked the same person,
see
T. 708-709; and that the police did not tell him he had chosen the right suspect,
see
W. 75, 102-03. In light of this evidence, the trial court’s finding that the allegations of police coercion and persuasion recited in Torres’ 1991 affidavit were unworthy of credence is not an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
As noted previously, on this habeas petition Leka’s police coercion argument focuses on a new, greatly elaborated affidavit which was given by Torres some seven years after his first affidavit and which has never been presented to the state courts. Assuming for the sake of argument that a
*278
federal habeas court may consider this new evidence under § 2254(e)(1), the 1998 affidavit, when taken in conjunction with the evidence before the state courts, does not constitute clear and convincing evidence sufficient to rebut the presumption of correctness accorded to the state trial court’s factual determination that Torres’ allegations of police misconduct are false.
As an initial matter, both federal and New York state courts view the recantation of testimony given at trial with “utmost suspicion” due to its inherent unreliability.
United States ex rel. Sostre v. Festa,
513 F.2d 1313 , 1318 (2d Cir.1975);
see People v. Donald,
107 A.D.2d 818, 819 , 484 N.Y.S.2d 651, 652 (2d Dep’t 1985) (“It is ancient learning that ‘[tjhere is no form of proof so unreliable as recanting testimony.’ ” (quoting
People v. Shilitano,
218 N.Y. 161, 170 , 112 N.E. 733, 736 (1916))). Upon considering the record as a whole, this court can find no facts that would redeem Torres’ most recent recantation.
In his 1998 affidavit, Torres expands on and amplifies his recantation, now claiming that he knew from conversations with his wife and the police that Albanians were involved in the shooting.
See
Torres 1998 Aff. ¶ 4. In particular, Torres alleges that the police discussed this with him and Módica while they were driving together to the precinct.
See id.
Torres states that he focused on the only non-Hispanie in the photo array shown to him at the precinct and that once he told the police that he thought the non-Hispanic was the shooter, the police began to pressure and reassure him in an effort to make him more definite about his identification.
See id.
¶¶ 6-8. Torres explains that he succumbed to these police tactics because it was the middle of the night, and he was concerned about Modica’s health.
See id.
¶ 8.
31
In addition, Torres now claims that the police informed him and Módica that they had both picked the same person.
See id.
¶ 9. As noted above, each of these statements is directly contradicted by Torres’
Wade
hearing testimony, in which he denied that the police had related any facts regarding the case to him, had suggested which individual he should pick from the photo array, or had advised him that he had picked the right person.
See
W. 72-73, 75-76,102-03.
Torres also asserts that when he and Módica discussed the events at the precinct, they discovered that they had similar experiences while being shown the photo array.
See
Torres 1998 Aff. ¶ 9. For her part, Módica makes no such allegation of police “pressure” in her 1991 affidavit,
32
see
Módica Aff.
passim,
which is consistent with the testimony she gave both at trial and the
Wade
hearing that the police did not present the photo array to her in a suggestive or coercive manner,
see
T. 523-24; W. 23-26.
Torres goes on to explain that he continued to identify petitioner as the shooter because he recognized petitioner from the photo array and he believed that he was doing the right thing.
See
Torres 1998 Aff. ¶¶ 10-12, 13. However, when Torres identified Leka from the line up conducted at the
Wade
hearing, Torres testified that the reason he was identifying Leka was because he recognized Leka from the incident, not because he remembered Leka from the photo array or the earlier precinct house line up.
See
W. 86.
Finally, Torres claims that upon seeing a picture of Ferati after the trial, he recognized Ferati as the man he had seen firing a gun on the evening of February 12, 1988.
See
Torres 1998 Aff. ¶ 13. This statement conflicts with Torres’ 1991 affidavit in which he stated that “the shooting only came from the car.” Torres 1991 Aff. ¶ 6. Moreover, in view of the fact that Torres told the police,
33
and later testified at trial,
*279
that he saw the victim, whom he later learned to be Ferati, lying mortally wounded on the street and had looked the victim in the face,
34
Torres’ explanation for his recantation is simply incredible. Before Torres ever saw Ferati’s picture, he should have been able to distinguish Leka from Ferati.
For the foregoing reasons, the allegations in Torres’ 1998 affidavit concerning police misconduct do not provide clear and convincing evidence rebutting the presumption of correctness accorded to the state trial court’s reasonable determination that Torres’ allegations of coercive or improper police tactics are false. Accordingly, this court is bound by that factual determination in deciding whether the pretrial identification procedures were unduly suggestive. Because the record does not otherwise contain any evidence of police misconduct in relation to Torres and Modi-ca’s photo array identifications of the petitioner, petitioner has not shown that the identification procedure was impermissibly suggestive in violation of the first prong of the
Neil
test. Consequently, there is no need to proceed to Neil’s independent reliability prong. The police conduct surrounding the photo array did not violate due process, and petitioner’s application for a writ cannot be granted on this ground.
(2)
Petitioner’s second claim in support of his petition is that the prosecution suppressed material evidence in violation of
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Specifically, petitioner claims that the prosecution withheld: (1) a police interview report of Anthony Chiusano, a bus driver who drove past the scene of the shooting as it occurred; (2) grand jury testimony of Joseph Gonzalez, a postal worker who lived in an apartment across the street from the shootout; and (3) the identity of Officer Wilfredo Garcia as an impeachment witness. Garcia was an off-duty police officer who witnessed part of the shooting and administered first aid to Ferati before the ambulance arrived.
a. Petitioner’s Arguments
i. Suppression
Petitioner alleges that the prosecution suppressed the grand jury testimony of Gonzalez and the police report of Chiusa-no’s interview by withholding these two pieces of evidence until two days and “days” prior to trial, respectively, despite a defense request for “Brady Material” two years earlier.
See
Letter from Benfante to Assistant District Attorney Malaby of 4/26/88, at 7-8, Pet.’s Supp. Mem., Ex. 9. Petitioner claims that the incorrect spelling of Chiusano’s name as “Cansano” and the fact that Gonzalez had moved to Florida further precluded petitioner from using this evidence at trial.
See
Pet.’s Supp. Mem. at 12,14.
In the case of Garcia, petitioner’s allegations go beyond untimely disclosure. Petitioner accuses the prosecution of actively obstructing his efforts to contact Garcia through misrepresentations to defense counsel and the trial court. Petitioner claims that at some point before trial the prosecutor told his trial counsel that Garcia could identify Leka as the gunman. Later, when the defense attempted to contact Garcia during jury selection, the pros
*280
ecutor represented to the trial court that Garcia would be called as a prosecution witness and that he did not wish to speak to the defense. Relying on these representations, the trial judge forbade the defense from attempting to speak to Garcia before he was called. The prosecution, however, never called Garcia and thus— according to petitioner — effectively concealed the content of Garcia’s potential impeachment testimony from the defense,
ii. Materiality — Chiusano
During an interview with police on February 18, 1988, Chiusano stated that he was driving his bus south on Ocean Avenue at the time of the incident.
See
Chius-ano DD-5,
supra.
Chiusano stopped for a red-light at Avenue N.
35
See id.
A light-colored car pulled alongside his bus and also stopped for the red-light.
36
See id.
When the light changed to green, “the car pulled away faster than he could and he paid no attention to the auto.”
Id.
Chiusa-no then heard what sounded like a car backfiring and noticed that the light-colored car was double-parked on Ocean Avenue and that a white hand was sticking out the back window and firing a gun.
See id.
Chiusano told the passengers to duck, and he veered into the opposite lane to get away from the shooting.
See id.
When he finally came to a stop, the bus was near a gas station at the end of the block on the left hand side of the street.
See id.
Chi-usano stated that he believed there were three or four people in the car, but he could not identify anyone “because he was to [sic] busy driving the bus to get a look at anyone inside the auto.”
Id.
Petitioner argues that the sequence of events Chiusano described is inconsistent with Modica’s testimony that the light-colored car had been double-parked on Ocean Avenue before the shooting began.
See
Pet.’s Supp. Mem. at 24. In the alternative, petitioner argues that Chiusano’s testimony might actually exculpate the petitioner rather than merely impeach Módi-ca.
See id.
Notably, during summation, petitioner’s trial counsel argued a “two-car” theory to the jury, in which he credited Modica’s testimony that she had seen a car containing someone resembling Leka sitting double-parked on Ocean Avenue, but suggested that
that
light-colored car had pulled away after Módica passed by and that a second light-colored car containing the gunman pulled up just after it.
See id.
Petitioner’s habeas counsel argues that if the jury had been presented with and had credited both Chiusano and Modi-ca’s testimony, the jury would have concluded that Leka was not in the gunman’s car and, therefore, could not have been the gunman.
See id.
iii. Materiality — Garcia
In an affidavit prepared for petitioner’s § 440.10 motion, Garcia stated that he lived on the block of Ocean Avenue where the shooting took place.
See
Garcia Aff. ¶ 1. On the evening of the shooting, Garcia was doing his dishes when he heard what sounded like gunfire in the street.
See id.
¶ 4. Garcia looked out his window and saw a white car “stop” in front of a white male standing on the opposite side of the street.
Id.
Garcia also saw muzzle flashes coming
*281
from the passenger side of the car.
See id.
Concerned that a Mend for whom he was waiting might be involved in the shooting, Garcia ran to his bedroom to get his off-duty weapon.
See id.
¶¶ 4-5. As he was leaving his bedroom, Garcia heard additional shots, looked out his window again, and saw more muzzle flashes coming from the white car.
See id.
¶ 5. As Garcia rushed downstairs he heard additional shots, but when he reached the street, the shooting had stopped and the white car was gone.
See id.
¶ 6.
Petitioner argues that Garcia’s testimony would provide additional support for the theory that the gunman never stepped out of the car, thus impeaching Torres’ account of the incident.
See
Pet’s Supp. Mem. at 16-17. Petitioner also argues that Garcia’s testimony, like Chiusano’s, either would have refuted Modica’s account of the car as having been double-parked for any length of time before the shooting began, or, alternatively would have supported trial counsel’s two-car theory.
See id.
at 17.
iv. Materiality — Gonzalez
Before the grand jury, Gonzalez testified that he was in his living room on the evening of the murder when he heard five shots fired.
See
Gonzalez Grand Jury,
supra,
at 5.
[Gonzalez] ran to the window to see what it was and noticed a man across the street with a gun in his hand firing at a white car, and at that time there was a bus, a Command Bus driving around the car trying to avoid the car and before the bus got clear of the car the car took off with the bus, and the man fell back.
Id.
Gonzalez added that the victim was still firing as he fell back, but that he (Gonzalez) could not see the people in the white car, because the bus obscured his view.
See id.
at 6, 8-9.
Petitioner argues that Gonzalez’s testimony, like Chiusano and Garcia’s, demonstrates that, contrary to Torres’ account, there was never a time that anyone got out of the light-colored car.
See
Pet.’s Supp. Mem. at 23.
b. Respondent’s Arguments
In opposition to these claims, the District Attorney interposes four arguments. First, the District Attorney claims that petitioner is barred from asserting any
Brady
claim because he failed to raise it on his direct appeal and has consequently not exhausted it.
See
Resp.’s Supp. Mem. at 5-6. Second, the District Attorney claims that the prosecution did not suppress either Gonzalez’s grand jury testimony or the police report of Chiusano’s interview, since it turned over both items prior to trial.
See
Resp.’s Mem. at 28-29. Third, the District Attorney asserts that petitioner had knowledge of Garcia’s account before trial.
See
Resp.’s Supp. Mem. 6. Finally, the District Attorney claims that the evidence does not rise to the level of materiality necessary under
Brady ,
even if the court were to find that it was suppressed. See Resp.’s Mem. at 29.
c. Standard of Review
Because petitioner did in fact present a
Brady
claim, however inartfully, on his direct appeal,
see
Pet’s App. Mem. at 55, 77 (arguing that the Chiusano, Garcia, and Gonzalez evidence was not just newly discovered evidence but also
Brady
material), petitioner has exhausted the remedies available in the state courts with respect to his
Brady
claim.
37
However, neither the trial court nor the Appellate Division expressly considered petitioner’s
Brady
claim. Instead, the state courts disposed
*282
of petitioner’s arguments concerning Chi-usano, Gonzalez, and Garcia on the ground that the grand jury testimony and the police report, as well as the three witnesses’ affidavits, did not qualify as newly discovered evidence under N.Y. C.P.L. § 440.10 .
See
Section 440.10 Opinion,
supra,
at 5-6,
aff'd,
209 A.D.2d 723 , 725, 619 N.Y.S.2d 144, 146 (2d Dep’t 1994). The only state court adjudication of petitioner’s
Brady
claim is the Appellate Division’s summary rejection of his “remaining contentions” as “either unpreserved ... or without merit.” For the same reasons discussed in the context of petitioner’s police coercion claim, petitioner’s
Brady
claim will be reviewed de novo. Relevant factual determinations by the state courts will, however, be entitled to deference under § 2254(d)(2)-(e)(l).
See supra
§ (1)(b)(ii)-(iii).
In order to establish a
Brady
violation, petitioner must show (1) that the prosecution faded to disclosed favorable evidence, and (2) that the evidence it suppressed was material.
See United States v. Payne,
63 F.3d 1200, 1208 (2d Cir.1995) (citing
Brady,
373 U.S. at 87 , 83 S.Ct. at 1196-97 ;
Giglio v. United States,
405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972)). As discussed below, petitioner cannot establish either element.
d. The alleged
Brady
material was not suppressed.
A defendant has no constitutional right to receive
Brady
or
Giglio
materials before trial.
See United States ex rel. Lucas v. Regan,
503 F.2d 1 , 3 n. 1 (2d Cir.1974);
United States v. Heatley,
994 F.Supp. 483, 492 (S.D.N.Y.1998) (Sotomayor, J.). Exculpatory materials need only be disclosed in sufficient time to permit a defendant to make effective use of them at trial.
See Grant v. Alldredge,
498 F.2d 376 , 382 & 383 n. 7 (2d Cir.1974);
Heatley,
994 F.Supp. at 492 . Moreover, a defendant cannot satisfy the suppression requirement if the defendant, directly or through counsel, “ ‘either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence.’ ”
United States v. Zackson,
6 F.3d 911, 918 (2d Cir.1993) (quoting
United States v. LeRoy,
687 F.2d 610, 618 (2d Cir.1982)) (alteration added). If the defendant has information but fails to use due diligence to make use of it, the defendant cannot later claim that the government “suppressed” evidence.
See LeRoy,
687 F.2d at 618 .
The question of whether the petitioner, through the exercise of due diligence, could have located and interviewed Chiusano, Garcia and Gonzalez in time to make effective use of their testimony at trial is a factual one. In disposing of petitioner’s post-trial motion to vacate the judgment on the ground of newly discovered evidence, the trial court and the Appellate Division were required to, and did in fact, decide this question.
See
N.Y. C.P.L. § 440.10 (l)(g) (defining newly discovered evidence as evidence that, inter alia, “could not have been produced by the defendant at the trial even with due diligence on his part”). The trial court held that petitioner had “ma[d]e no showing as to why the evidence contained in [the Chiusano, Garcia, and Gonzalez affidavits] could not have been obtained for use at trial.”
See
Section 440.10 Opinion,
supra,
at 5-6. Further, the trial court specifically observed that Chiusano could have been located through rudimentary investigative work and that “Garcia was known [to the defense].”
Id.
at 6 n. 2.
38
The Appellate Division affirmed, holding that the “allega
*283
tions set forth in the moving papers failed to meet the requirements for newly discovered evidence.”
Leka,
209 A.D.2d at 724 , 619 N.Y.S.2d at 146 (citation omitted).
The state courts’ determination on this question of fact was reasonable in light of the evidence before them and thus binding on habeas review.
See
28 U.S.C. § 2254 (d)(2) (Supp.1999). The grand jury testimony of Gonzalez and the police report given by Chiusano were disclosed to the defense by February 22,
1990
— eight days before opening arguments were made on March 2, 1990, and
twenty-two
days before the defense began its case on March 16, 1990.
39
With respect to Anthony Chiusano, petitioner argues this was not enough time to locate him, because his name is misspelled as “Anthony Cansano” in the police report. However, as the state trial court pointed out in its opinion on Leka’s § 440.10 motion:
To the degree that the former attorney [Benfante] alleges that the name of the bus driver (Chiusiano [sic]) could not be obtained because of a wrong name, there is no evidence why the correct name could not be ascertained. An examination of the bus company records would have revealed the correct name.
Section 440.10- Opinion,
supra,
at 6 n. 2. Moreover, a copy of Chiusano’s DD-5 submitted by petitioner with his supplemental memorandum of law reveals that the report gave Chiusano’s home address, the name of his employer (“Command Bus Service”), his position (“bus driver”), which route he was driving (“BN3”), in which direction (Manhattan-to-Brooklyn), and at what time of the day (the “5 O’Clock run”).
See
Chiusano DD-5,
supra.
Thus, the misspelling of his last name could not have created any difficulty in locating Chiusano.
With respect to Gonzalez, petitioner states that he could not be located in time for the defense to offer him as a witness because he had moved to Florida. However, as of February 26, 1990, four days before opening arguments and eighteen days before the defense began its case, defense counsel already knew the particular town in Florida to which Gonzalez had moved, Atlantic Beach.
See
T. 3. Indeed, Gonzalez was apparently located as of March 6, 1990 — ten days before the defense began its case — but defense counsel
chose
not to present Gonzalez at that point:
THE COURT: Gentlemen, did you reach the witness you were looking for, Gonzalez?
MR. BENFANTE: We know about where he is. I think it is academic at this point.
THE COURT: You are not going to call him?
MR. BENFANTE: No.
T. 280.
40
Finally, with respect to Garcia, although petitioner asserts that the prosecution
*284
thwarted his efforts to discover the substance of Garcia’s testimony, the unfolding of events as revealed by the record does not support petitioner’s claim. Despite the prosecutor’s alleged misrepresentations and obstructive tactics, petitioner’s trial counsel had already learned as of the second day of the
Wade
hearing, February 21,
1990
— nine days before opening arguments and
twenty-three
days before the defense began its case — that Garcia could not identify petitioner as the gunman.
See
W. 197.
The defense did make at least one unsuccessful attempt to interview Garcia between the time of the
Wade
hearing and opening arguments.
See
T. 44. On February 28, 1990, defense counsel represented to the court that Garcia had told a defense investigator that he would like to speak to the defense but that he had to get the prosecutor’s permission first.
See
T. 44-45. At that time, the prosecutor stated that he had not told Garcia that Garcia could not speak to defense counsel without his permission, and he represented that he would so advise Garcia.
See
T. 45-46.
Although petitioner’s trial counsel thus characterized Garcia as a willing defense witness,
see
T. 44^45, 50,158; Joseph Ben-fante Aff. ¶ 21, Pet’s Supp. Mem., Ex. 7, tellingly, there is no statement in either Garcia’s affidavit or the affidavit of Mary E. Mullin (which recounts an interview Garcia allegedly gave to a television news show in 1998) that indicates Garcia actually wished to speak to Leka’s defense counsel or that he was prevented from doing so by the prosecution.
See
Garcia Aff.
passim;
Mullin Aff.
passim,
Pet.’s Supp. Mem., Ex. 6.
At dny rate, on the next day, March 1, 1990, the prosecutor stated that he had unsuccessfully attempted to contact Garcia and that he would continue to trying.
See
T. 50-51. Finally, on March 2, 1990, the prosecutor represented to the court that he had succeeded in reaching Garcia and that Garcia had related a very different account of his contact with the defense investigator during the preceding week.
According to the prosecutor, the defense investigator misrepresented himself to the superintendent of Garcia’s building as a police lieutenant who needed to contact Garcia on emergency business.
See
T. 156-57. The superintendent relayed this message to Garcia, causing him some degree of concern.
See
T. 157. When Garcia spoke to the “lieutenant” and discovered that he was in fact a private investigator, Garcia refused to speak to him without the prosecutor’s permission be
*285
cause of the tactics the investigator had used to reach Garcia.
See id.
In response, petitioner’s trial counsel did not deny the use of such tactics in an endeavor to contact Garcia but, nonetheless, steadfastly insisted that Garcia had expressed a desire to speak to the defense investigator.
41
See
T. 158. Trial counsel, however, fell silent when the prosecutor then offered to bring Garcia to court and allow him to testify as to whether he wished to speak to the defense.
See
T. 157,159.
It was only at that point that the trial court issued its order prohibiting further defense attempts to contact Garcia.
See
T. 159. Contrary to petitioner’s claim, this order did not preclude the defense from further discovering the substance of Garcia’s testimony before he was called since the court stated that, before Garcia was called, the defense would be given an opportunity to examine him outside the presence of the jury.
See id.; see also
Ben-fante Aff. ¶ 22, Pet’s Supp. Mem., Ex. 7 (acknowledgment by trial counsel that this was his understanding of the trial judge’s order). Moreover, as the trial court pointed out in its § 440.10 opinion, the trial judge had informed defense counsel that it would entertain a motion to reconsider its order if the prosecution did not call Garcia: “An application after it became clear that Garcia would not testify could have been made. Indeed the court stated that if the prosecutor did not call Garcia, the rulings previously made would be reconsidered.” Section 440.10 Opinion,
supra,
at 6 n. 2. When the prosecution rested its direct case without calling Garcia, petitioner’s trial counsel apparently did not elect to make such an application.
The trial court’s determination that defense counsel could have, through the exercise of due diligence, contacted Chiusa-no, Garcia, and Gonzalez in time to present their testimony at trial was therefore reasonable in light of the record before it and is binding on this court under the AEDPA. Accordingly, petitioner has failed to establish the suppression element of his
Brady
claim.
e. The Chiusano, Garcia, and Gonzalez evidence was not material.
Even if petitioner had established that the Chiusano, Garcia, and Gonzalez evidence was “suppressed,” his
Brady
claim would still fail because the evidence in question was not material. “Evidence is material if there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ”
United States v. Zagari,
111 F.3d 307, 319-20 (2d Cir.1997) (quoting
United States v. Bagley,
473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481 (1985)(per Blackmun, J.)). “In other words, evidence is material if it ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ”
United States v. Orena,
145 F.3d 551, 557 (2d Cir.1998) (quoting
Kyles v. Whitley,
514 U.S. 419, 435 , 115 S.Ct. 1555, 1566 , 131 L.Ed.2d 490 (1995)). In applying this standard, the suppressed evidence must be considered collectively, not item by item.
See Kyles,
514 U.S. at 436 , 115 S.Ct. at 1567 .
Brady
applies to both exculpatory and impeachment evidence,
see Giglio,
405 U.S. at 154 , 92 S.Ct. at 766 , because “the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence,”
Napue v. Illinois,
360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959). Not every piece of impeachment evidence, however, meets the requirement of materiality.
*286
Evidence of impeachment is material if the witness whose testimony is attacked supplied the only evidence linking the defendants to the crime, or where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case. Suppressed evidence is not material when it merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.
United States v. Amiel,
95 F.3d 135, 145 (2d Cir.1996) (internal quotation marks and citations omitted);
see also Orena,
145 F.3d at 559 (“It is well settled that where ample ammunition exists to attack a witness’s credibility, evidence that would provide an additional basis for doing so is ordinarily deemed cumulative and hence immaterial.” (citations omitted)).
Once defense counsel chose not to pursue a self-defense strategy,
42
there can be no question that the credibility of Torres and Módica was crucial in convicting petitioner. Their testimony alone put petitioner at the crime scene, and Torres was the only witness who testified that he clearly saw petitioner firing a gun. No other affirmative evidence of petitioner’s guilt was presented at trial.
43
Nonetheless, the proffered impeachment evidence fails to rise to the level of materiality under
Brady
because petitioner cannot successfully argue that there was no other basis for attacking the two witnesses’ testimony or that the evidence otherwise undermines confidence in the verdict.
In addition to arguing that weather conditions precluded a good identification of the gunman,
44
petitioner’s trial counsel ably marshaled numerous discrepancies in Torres and Modica’s testimony during cross-examination and in his closing argument. With respect to Módica, counsel argued that her testimony that she stared at the man in the double-parked car for the length of time she described — four to five seconds — without her boyfriend (now husband) noticing was implausible on its face.
See
T. 1729-37. Counsel continued with this theme by pointing out that in earlier testimony she had characterized her look at the man as a mere “glance.”
See
T. 475, 1735. Counsel also argued that, based on the position of the victim’s car, the gunman in the light-colored car could not have successfully ambushed the victim if the car had been double-parked in the position where Módica testified it was.
See
T. 1741-42, 1744-45. Counsel also questioned Modica’s state of mind at the time she identified Leka from the photo array, observing that she had been awake for twenty-two hours and suggesting that she was, therefore, uncommonly susceptible to what he argued was an inherently suggestive photo array.
See
T. 515, 1743, 1763-64. Finally, counsel emphasized statements Módica had made which reflected some hesitancy in her photo array and line up identifications. Specifically, counsel observed that, when shown Leka’s photo array, she commented that Leka would be the perpetrator “if he were 15 pounds heavier” and remarked, “Gee, he looks skinny.” T. 509-12, 524, 1756-59. Later, at the precinct house line up, Módi-ca stated that she was “choosing between two of them,” and remarked of Leka, “Wow, I thought his body was bigger than it was.” T. 516,1765.
45
*287
Trial counsel questioned the reliability of Torres’ identification by emphasizing the brevity with which he had glimpsed the man outside the car and the fact that Torres had been in a “panicky” state of mind at the time. T. 663, 716, 1748-49. In support of this line of attack on Torres’ identification, trial counsel read back fairly damning portions of the statement Torres’ gave detectives in the early morning hours after the shooting.
See
T. 668-69, 677, 711-12, 1750, 1753, 1770. Trial counsel hammered away at the point that throughout the interview Torres repeatedly qualified his account of the man outside the car by stating that he “thought” he saw someone step out of the car.
See
T. 663-64, 666, 677, 1746-47, 1749. Indeed, on cross-examination, trial counsel forced Torres to concede that he did not actually see the man stepping out of the car.
See
T. 656. Furthermore, trial counsel noted that, when asked during the initial police interview whether he could recall what the gunman looked like, Torres answered “no” and explained “because it was real fast.” T. 664, 669, 717, 1750. Later in the interview, Torres admitted: “I didn’t get that good of a look.” T. 711, 1753, 1770.
In addition, trial counsel highlighted the discrepancy between Torres’ initial statement to the police that he did not see the gunman’s ham and Torres’ trial testimony in which he described the gunman’s hairstyle in detail.
See
T. 658, 668, 712, 1753, 1770. Counsel suggested that at trial Torres was just repeating a description of the gunman that his wife or the prosecutor had given him.
See
T. 1753,1770.
Finally, trial counsel developed the theory that the man with a gun Torres had seen outside the car was actually Ferati, not Leka.
See
T. 1747, 1751-52. In support of the theory, counsel noted that during the interview at the precinct house in the early morning hours after the shooting Torres described the man he had seen outside the car as being five feet nine inches tall with a medium build.
See
T. 656, 679, 1751; Torres DD-5,
supra.
At the time of the murder, Ferati was five feet nine inches tall and weighed 165 pounds, and thus fit the description in those respects.
See
T. 905. Although there is some discrepancy in the evidence on record, Leka was by all accounts a much smaller man. According to a March 8, 1988 arrest report, Leka was five feet five inches tall and weighed 120 pounds,
see
Arrest Report dated 3/8/88, Resp.’s Supp. Mem., Ex. 4 [hereinafter Arrest Report], while Coney Island Hospital records indicate that he was only five feet three inches tall and weighed 115 pounds,
see
T. 1295.
46
In farther support of the theory that Torres had mistaken Leka for Ferati, counsel observed that Torres told police detectives that the man he had seen was holding a black revolver with a brown handle.
See
T. 653-55, 853-55, 1747, 1752; Torres DD-5,
supra.
In fact, Ferati’s gun was a black .44 caliber revolver with a brown handle,
see
T. 654, 747, 756, 971-72, whereas the actual murder weapon was a black, nine millimeter semi-automatic,
see
T. 839-41, 953, 960-63, 969-70.
47
*288
The foregoing recitation makes it quite evident that petitioner had more than ample ammunition with which to impeach Mó-dica and Torres’ testimony. In light of the volume of the impeachment evidence presented to, and rejected by, the jury, the court’s confidence in the jury’s verdict is not undermined by the limited impeachment value of the three additional witnesses’ expected testimony.
Indeed, it is not clear that Garcia and Gonzalez would have even provided a noncumulative basis for impeaching Módica and Torres’ testimony. Sali Ferati, the victim’s brother, testified without qualification to exactly the same point that petitioner suggests can only be inferred from the proffered evidence of Garcia and Gonzalez. Namely, Sali Ferati testified that, during the shooting, no one got out of the ear.
48
The only proffered evidence that potentially provides a non-cumulative basis for impeaching Torres or Módica is the bus driver Chiusano’s statement that the light-colored car left the stop light at the end of the intersection at the same time he did. The impeachment value of the evidence, however, does not rise to the level necessary to find materiality under
Brady .
At most, the evidence shows that the car may have just pulled up when Módica glanced at its passenger, that the glance may have been quite brief, and that Módica and Torres perhaps walked something less than five car lengths ahead of the light-colored car when the shooting began.
49
Chiusano’s statement does nothing to contradict or
*289
explain away the most salient feature of Modica’s testimony, viz., her placement of Leka in the passenger seat of a light-colored car in front of the murder scene just moments before the shooting. Moreover, Chiusano did not witness the end of the incident, and, therefore, his statement in no way impeaches Torres’ identification of Leka as the gunman. Thus, even if Chiusano’s testimony would have provided a non-cumulative basis for attacking Modi-ca’s testimony, his account of the events does not so undermine Modica’s account as to overcome the presumption that additional bases for impeachment are not material evidence under
Brady .
Moreover, if petitioner’s counsel had presented Chiusano and subsequently argued to the jury that Chiusano’s account proved that the shooting began immediately after the light-colored car stopped, he would have undermined the confession testimony of his own witness, Luftim Cira. Luftim Cira testified that the car had been stopped for “not more than
30 seconds
or so” before the gunfire began. T. 1439 (emphasis added).
50
Similarly, this argument would also undermine the confession of Zeni Cira, whom petitioner now claims was the gunman. In an affidavit which petitioner submitted to the state courts as well as this court, Zeni Cira states:
We [Zeni and Luftim Cira] drove down Ocean Avenue looking for a parking
*290
spot, made a u-turn at Avenue N and started slowly back to Avenue 0, when Luftim say his [sic] Rahman Ferati, standing outside his car in the middle of the block....
We pulled up to Rahman Ferati and he said in Albanian “You mother fucker, you came here too”, [sic] He took his right hand to his belt and started to pull out a gun. At this moment, my brother, Luftim handed me a gun.... I pointed the gun at Rahman Ferati and started firing.
Zeni Cira Aff. of 5/7/90, at 2-3, Pet’s Mem., Ex. 10. On Zeni Cira’s account, the car had already pulled up to Rahman Fer-ati and remained there at least long enough for Ferati to curse its occupants and for them to fumble for a gun before any shooting began. Thus, Zeni Cira’s confession would be equally impeached by the inference petitioner would draw from Chiusano’s statement.
51
Finally, as noted previously, Garcia’s affidavit, which was apparently drafted by counsel for petitioner on his § 440.10 motion, states that Garcia saw the light-colored car “stop” in front of the victim
after
he heard the first shots fired. Garcia Aff. ¶ 4. To the extent that the use of the present tense of the verb “stop” faithfully reflects Garcia’s account, Garcia’s statement presents the same dilemma for petitioner as does his suggested reading of Chiusano’s police report. If Garcia’s statement was presented to the jury and the jury had credited it, Garcia’s statement would have impeached not only Modica’s testimony but also the confession — be" it Luftim’s or Zeni’s — on which Leka’s claim of actual innocence rests. Thus, assuming for the sake of argument that Garcia’s affidavit is accurate on this point, there is no reasonable probability that the jury would have acquitted Leka had they been presented with his testimony.
In sum, because the proffered evidence was neither suppressed nor material, petitioner’s
Brady
claim is rejected.
(3)
Petitioner and his counsel each raise separate claims of ineffective assistance of trial counsel.
52
In his pro se memorandum, petitioner argues that his trial counsel, Joseph Benfante, was ineffective due to an actual conflict of interest stemming from the fact that Zeni Cira paid petitioner’s legal bills. Petitioner’s counsel contends that, should the court reject petitioner’s
Brady
claim, there is “no other option” but to find Benfante ineffective for failing to call Chiusano, Garcia, and Gonzalez as part of petitioner’s trial defense. Neither claim merits granting the writ.
a. Conflict of Interest
In his pro se memorandum, petitioner claims that Benfante had a conflict of interest due to the facts that Benfante had previously represented petitioner and his co-defendant, Zeni Cira, and that after Zeni Cira’s and petitioner’s trials were consolidated and another lawyer took over Zeni Cira’s case, Zeni Cira continued to pay petitioner’s legal bills.
See
Pet.’s Mem. at 15. According to petitioner, because Cira was paying the legal bills, Ben-fante failed to call certain alibi witnesses who would have “exonerated [petitioner] and convicted [Zeni Cira],” failed to exer
*291
cise “due diligence,” and failed to conduct a complete investigation.
Id.
at 16, 19.
The District Attorney points out that petitioner produced Zeni Cira’s brother Luftim, who testified that he and another brother (Osman) committed the murder.
See
Resp.’s Mem. at 33. This testimony exonerated both Zeni Cira and petitioner. The District Attorney also observes that petitioner’s trial counsel wisely chose not to call three potential alibi witnesses— petitioner’s wife, sister-in-law, and a brother with a felony conviction — both because it is professionally justifiable not to present an alibi defense based on the testimony of close relatives and because the failure to call witnesses is, in general, a tactical decision committed to counsel’s discretion.
See id.
at 35.
There is no dispute that this claim was presented the state courts and adjudicated on the merits. Petitioner presented his conflict of interest claim to the trial court on both his motion to set aside the verdict and his motion to set aside the judgment, and to the Appellate Division on direct appeal. The claim was rejected at each stage.
In denying the post-verdict motion, the trial court emphatically rejected the suggestion that Benfante’s representation had been anything less than diligent: “[Ben-fante] tried the case most diligently and vehemently. He tried his best to get this man acquitted. He tried like hell, I tell you that right now. And he still to this day believes in this man’s innocence.” Transcript of Sentencing Hearing held May 31, 1990, at 5-6,
quoted in
Pet’s App. Mem. at 47. The trial court again rejected the claim in the context of the post-judgment motion noting that the petitioner’s allegations were stated in conclusory terms and were contradicted by the Ben-fante affidavit that petitioner submitted in support of his post-judgment motion.
See
Section 440.10 Opinion,
supra,
at 10.
The Appellate Division subsequently affirmed on the ground that petitioner had not shown his defense was affected by the alleged conflict where “the moving papers established that trial counsel’s failure to call the defendant’s alibi witnesses was part of a reasonable trial strategy.”
See Leka,
209 A.D.2d at 725 , 619 N.Y.S.2d at 146 .
An ineffective assistance of counsel claim based on conflict of interest presents a mixed question of law and fact.
See Cuyler v. Sullivan,
446 U.S. 335, 342 , 100 S.Ct. 1708, 1715 , 64 L.Ed.2d 333 (1980). The state courts’ decision on the claim can, therefore, be overturned on habeas review only if the decision was contrary to, or involved an unreasonable application of, clearly established federal law.
See
28 U.S.C. § 2254 (d)(1) (Supp.1999).
There are two kinds of conflicts of interest: potential and actual. If a defendant establishes that his attorney had a potential conflict of interest, he must demonstrate prejudice in order to prevail on a claim that his Sixth Amendment right to effective assistance of counsel was violated.
See Strickland v. Washington,
466 U.S. 668, 692 , 104 S.Ct. 2052, 2067 , 80 L.Ed.2d 674 (1984);
Winkler v. Keane,
7 F.3d 304, 307 (2d Cir.1993). However, prejudice is presumed when a defendant establishes that his attorney (1) had an actual conflict of interest that (2) adversely affected the attorney’s performance.
See Cuyler,
446 U.S. at 350 , 100 S.Ct. at 1719 ;
Winkler,
7 F.3d at 307 . An actual conflict occurs when during the course of representation the attorney and defendant’s interests “diverge with respect to a material factual or legal issue or to a course of action.”
Cuyler,
446 U.S. at 356 n. 3, 100 S.Ct. at 1722 n. 3;
see Winkler,
7 F.3d at 307 . To demonstrate adverse effect, a defendant must establish that an “actual lapse in representation” resulted from the conflict.
Cuyler,
446 U.S. at 336 , 100 S.Ct. at 1711 ;
see Winkler,
7 F.3d at 307 . In order to show a lapse, a defendant must show (1) that there existed an alternative plausible defense strategy with sufficient substance to be a viable alternative, and
*292
(2) that this defense strategy was “inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.”
Winkler,
7 F.3d at 309 .
Even giving petitioner the benefit of the doubt and assuming that Zeni Cira’s continuing payment of legal fees created an actual conflict of interest, it cannot be said that the state courts’ rejection of his ineffective assistance claim was contrary to, or involved an unreasonable application of, clearly established federal law.
53
Petitioner has not explained how Benfante failed 'to exercise due diligence or fully investigate the murder of Rahman Ferati, let alone connect any such alleged failures to any divided loyalty on Benfante’s part. Petitioner submitted affidavits to the state courts that contain assertions by various members of the Albanian community that Zeni Cira’s guilt was well-known and that everyone, including the Feratis, knew that petitioner was not involved in the murder. If these were offered as evidence of Benfante’s failure to investigate the crime or exercise due diligence, they are unworthy of credence. The affidavits appear to be no more than attorney-created or inspired devices intended to exculpate petitioner and place the blame upon the now immune-from-prosecution Zeni Cira, and on Luftim Cira, whose confession the jury chose to ignore. That leaves only the failure to call certain alibi witnesses as a potential ground for a finding of ineffective assistance of counsel.
It was not unreasonable for the state courts to conclude that this alibi defense was either not viable or that Benfante’s failure to pursue it was in no way related to any conflict of interest. The three alibi witnesses Benfante did not call — Catip Leka (petitioner’s brother), Naze Alijaj (sister-in-law), and Shpresa Leka (wife)— provided affidavits detailing what their testimony would have been had they been called to the witness stand.
See
Catip Leka 1990 Aff., Pet’s Mem., Ex. 14; Naze Alijaj Aff., Pet's Mem., Ex. 27; Shpresa Leka Aff., Pet’s Mem., Ex. 30. Essentially, each of them corroborates the alibi that petitioner gave to the police, viz., that he was at home on the evening of the shooting except for a thirty minute trip to the video store with his sister-in-law Naze to rent a movie. Although this alibi defense might have been a viable alternative trial strategy, the proffered alibi testimony in no way inculpates Zeni Cira, or anyone else for that matter. Therefore, it cannot be said that this alibi evidence was inherently in conflict with Zeni Cira’s interests or that Benfante failed to present it due to a conflict of interest arising from Zeni Cira’s payment of his fee.
Accepting petitioner’s argument that the failure to call these witnesses resulted from Benfante’s alleged conflict of interest would require a shift away from an analysis of the effects of the conflict of interest to an across-thé-board per se rule of prejudice, which has been explicitly rejected by the Second Circuit.
See Winkler,
7 F.3d at 308 . The already relaxed adverse effect standard applied in actual conflict of interest situations reflects a heightened sensitivity toward and scrutiny of those cases where a defendant may have suffered directly because of his lawyer’s conflict of interest. It is designed to protect the
*293
defendant who might have received constitutionally adequate assistance of counsel but for the conflict of interest. It is not designed to force courts to read a conflict of interest into every move made by an attorney.
Petitioner’s innocence was not inconsistent with Zeni Cira’s innocence. Neither Zeni Cira nor petitioner were in a situation in which one had to foist the blame onto the other in order to avoid his own conviction. Indeed, both tried to foist the blame onto Zeni Cira’s brother Luftim. If Ben-fante had really been affected by a conflict of interest between defending petitioner and protecting the source of his fee, it hardly seems likely that he would have chosen the route of implicating Zeni’s brother. In light of the foregoing, the state courts’ rejection of petitioner’s conflict of interest claim was not contrary to, nor did it involve an unreasonable application of, clearly established federal law, and it is therefore binding on habeas review.
See
28 U.S.C. § 2254 (d)(1) (Supp.1999).
b. Actual Ineffectiveness
Finally, petitioner’s habeas counsel argues that Benfante was ineffective because he failed to use due diligence and avail himself of the potential testimony of Chiusano, Garcia, and Gonzalez.
See
Pet.’s Supp. Mem. at 38. According to petitioner’s counsel, this court has “no other option” but to find that petitioner received ineffective assistance of counsel at trial if it finds that the prosecution did not suppress this evidence.
Petitioner raised this actual ineffectiveness claim only in passing in his brief to the Appellate Division.
See
Pet’s App. Mem. at 78-79. Nonetheless, he did set forth the legal and factual basis for the claim; therefore, the claim will be deemed to have been fairly presented to the state courts.
See Daye,
696 F.2d at 191 . The Appellate Division, however, only gave an explanatory opinion with respect to the conflict of interest aspect of petitioner’s ineffective assistance claim.
See Leka,
209 A.D.2d at 725 , 619 N.Y.S.2d at 146 (dismissing “remaining contentions” as “either unpreserved ... or without merit”). Again, for the same reasons discussed in the context of petitioner’ police coercion claim,
see supra
§ l(b)(ii)-(iii), the court will review this mixed question of law and fact de novo.
See Strickland,
466 U.S. at 698 , 104 S.Ct. at 2070 (actual ineffective assistance claim presents mixed question).
Ineffective assistance of counsel claims that do not involve a conflict of interest are analyzed under the familiar
Strickland
framework, which requires a defendant to show “(1) that his attorney’s performance fell below an ‘objective standard of reasonableness,’ and (2) that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Kieser v. New York,
56 F.3d 16, 18 (2d Cir.1995) (quoting
Strickland,
466 U.S. at 688, 694 , 104 S.Ct. at 2064, 2068 ). However, “[bjecause of the difficulties inherent in [evaluating an attorney’s performance], a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland,
466 U.S. at 689 , 104 S.Ct. at 2065 .
Habeas counsel’s attempt to create an irreconcilable dilemma in which the court has “no other choice” but to find trial counsel ineffective has two fatal flaws, either of which is sufficient to defeat the argument: First, it glosses over the first prong of the
Strickland
standard which requires an objective deficiency in performance; and second, it assumes that the evidence of the three witnesses material. For the reasons stated above, the evidence was not material.
See supra
§ (2)(e). As to the first point, petitioner would infer objectively deficient performance by trial counsel from the state court’s finding that the witnesses could have been located through duly diligent investigative work. Agreement with the state court finding .does not compel acceptance of habeas counsel’s inference.
*294
The record does not show that Benfante tried throughout the trial to find the three witnesses but failed because of investigative incompetence. Rather, Benfante began to seek out Gonzalez and Garcia but, during the course of the trial, apparently made a tactical decision not to call the witnesses. Moreover, there is no evidence in the record that trial counsel ever sought out Chiusano. The state court’s finding that these witnesses could have been located through the exercise of due diligence came in the context of the post-trial attempt of a different attorney to win a new trial based on an alternative trial strategy that focused on impeaching Módica and Torres’ time line. Ordinarily, decisions as to trial strategy, including which witnesses to call, fall entirely within trial counsel’s professional discretion. Nothing on the record or in habeas counsel’s submissions overcomes the “strong presumption” that Benfante’s performance fell within the “wide range of reasonable professional assistance.”
Strickland,
466 U.S. at 689 , 104 S.Ct. at 2065 .
On the contrary, a review of the record compels agreement with the trial judge that Benfante put on a vigorous, threep-ronged defense that very well could have been credited by the jury, but simply was not. Benfante presented medical evidence which included the record of a clinic visit just two days before the shooting in an effort to show that petitioner’s arthritis was so severe that he could not physically participate in the murder. As has already been described at length above, Benfante also presented a forceful attack on Módica and Torres’ identifications based on inconsistencies in the testimony they gave at various stages of the prosecution and on physical evidence, such as his comparison of the two guns. Finally, Benfante presented a witness, Luftim Cira, who confessed to the crime before the jury. In light of this comprehensive, albeit unsuccessful, trial strategy, counsel’s argument that Benfante’s failure to present the time line evidence of Chiusano, Garcia and Gonzalez was objectively unreasonable, in effect, invites a habeas court to indulge in precisely the type of hindsight judgment that
Strickland
requires habeas courts to studiously avoid.
54
The invitation is declined.
Conclusion
Despite Sami Leka’s claim of actual innocence, there is little evidence to support the claim and much to negate it, including an implausible alibi.
55
The fact
*295
that the proof adduced at trial was not overwhelming does not establish that the jury’s verdict resulted in the conviction of an innocent man. In any case, absent a constitutional violation, petitioner’s claim of actual innocence is not a ground for habeas relief.
See Herrera v. Collins,
506 U.S. 390, 404 , 113 S.Ct. 853, 862-63 , 122 L.Ed.2d 203 (1993). Petitioner, however, has not shown that he was convicted due to impermissible identification procedures, nor has he shown a violation of the prosecution’s duty to disclose exculpatory evidence or ineffective assistance of counsel at trial.
Accordingly, the petition is denied. A certificate of appealability will not issue since petitioner has not made a substantial showing of the denial of a constitutional right.
See
28 U.S.C. § 2253 (c) (Supp. 1999);
Soto v. United States,
185 F.3d 48 , 51 & n. 3 (2d Cir.1999). The Clerk of the Court is directed to enter judgment and close the case.
SO
ORDERED.
MEMORANDUM AND ORDER DENYING PETITIONER’S MOTION FOR A CERTIFICATE OF APPEALABILITY
The strange facts of this case arise out of a feud within the Albanian immigrant community of Brooklyn.
1
In 1990, petitioner Sami Leka (“Leka”) was convicted in New York Supreme Court for the feud-related murder of his brother-in-law’s father-in-law. On November 30, 1999, this court issued a Revised Memorandum and Order, denying Leka’s application for a writ of habeas corpus.
See Leka v. Portuondo,
76 F.Supp.2d 258 (E.D.N.Y.1999). The order also declined to issue a certificate of appealability because petitioner had not made a substantial showing of the denial of a constitutional right.
See
28 U.S.C. § 2253 (Supp.1999). By letter brief dated December 8, 1999, petitioner moves the court to reconsider its denial of a certificate of appealability. Specifically, petitioner argues that he has made a substantial showing that the prosecution violated
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), by allegedly suppressing the testimony of the former police officer Wilfredo Garcia (“Garcia”). For the reasons that follow, this court will adhere to its previous ruling.
(1)
The factual background of this case has been fully detailed in this court’s Revised Memorandum and Opinion, familiarity with which will be assumed. Petitioner argues that, with respect to Garcia, he has made a sufficient showing of both suppression and materiality to warrant a certificate of ap-pealability on the alleged
Brady
violation.
In order to find a “substantial showing” of a denial of a constitutional right within the meaning of 28 U.S.C. § 2253 , an appeal must present at least one issue (1) that is “debatable among jurists of reason;” (2) “that a court could resolve in a different manner;” (3) that is “adequate to deserve encouragement to proceed further;” or (4) that is not “squarely foreclosed by statute, rule, or authoritative court decision, or ... [that] is not lacking any factual basis in the record.”
Barefoot v. Estelle,
463 U.S. 880 , 893 n. 4, 103 S.Ct. 3383 , 3394 n. 4, 77 L.Ed.2d 1090 (1983);
accord Lozada v. Deeds,
498 U.S. 430, 432 , 111 S.Ct. 860 ,
*296
862, 112 L.Ed.2d 956 (1991).
2
As discussed below, petitioner does not meet the substantial showing standard with respect to either the suppression or materiality of the Garcia evidence.
A. Suppression
Although petitioner acknowledges that a defendant cannot satisfy the suppression requirement if the defendant, directly or through counsel, “ ‘either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence,’ ”
United States v. Zackson,
6 F.3d 911, 918 (2d Cir.1993) (quoting
United States v. LeRoy,
687 F.2d 610, 618 , (2d Cir.1982)) (alteration added), petitioner argues that this court’s recital of the facts surrounding defense counsel’s opportunity to interview Garcia focused on a collateral issue. Petitioner asserts that
Brady
and its progeny place an “affirmative duty” on the prosecution to disclose exculpatory or impeachment evidence and that, as a result, it is irrelevant whether defense counsel could have gained access to Garcia by means independent of the prosecutorial disclosure. Letter from Michael S. Som-mer to Chambers of 12/8/99, at 2-3 [hereinafter Pet.’s Letter Br.]. Petitioner claims that the prosecutor did not meet its affirmative duty because “there was no disclosure at all of what Garcia had seen.”
Id.
at 3.
Petitioner’s argument is mistaken both as to the law under
Brady
and as to the facts of the alleged suppression. The Second Circuit has, indeed, noted that “[u]n-der
Brady
and its progeny, the [prosecution] has an affirmative duty to disclose favorable evidence known to it, even if no specific disclosure request is made by the defense.”
United States v. Payne,
63 F.3d 1200, 1208 (2d Cir.1995) (citing
Kyles v. Whitley,
514 U.S. 419 , 115 S.Ct. 1555, 1565, 1567-68 , 131 L.Ed.2d 490 (1995);
United States v. Agurs,
427 U.S. 97, 108-110 , 96 S.Ct. 2392, 2399-2401 , 49 L.Ed.2d 342 (1976)). However, the Second Circuit has clarified that its holding in
Zackson
announces an exception to the definition of “suppression” and, hence, to the prosecutor’s disclosure duty under
Brady :
Nonetheless, evidence is not considered to have been suppressed within the meaning of the
Brady
doctrine if the defendant or his attorney “ ‘either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence.’ ”
United States v. Zackson,
6 F.3d 911, 918 (2d Cir.1993) (quoting
United States v. LeRoy,
687 F.2d 610, 618 (2d Cir.1982),
cert. denied,
459 U.S. 1174 , 103 S.Ct. 823 , 74 L.Ed.2d 1019 (1983)). Thus, where a defendant and his codefendant had agreed to share information about their respective cases, and the defendant’s attorney had made representations indicating his awareness of the codefendant’s cooperation with the prosecution, the government’s failure to disclose a government agent’s statements concerning the scope of that cooperation was not a suppression within the meaning of
Brady. See United States v. Zackson,
6 F.3d at 919 .
See also United States v. Diaz,
922 F.2d 998, 1007 (2d Cir.1990) (no
Brady
violation by nondisclosure of witness’s testimony as to a fact within personal knowledge of defendant),
cert. denied,
500 U.S. 925 , 111 S.Ct. 2035 , 114 L.Ed.2d 119 (1991);
United States v. Esposito,
834 F.2d 272, 275 (2d Cir.1987) (no
Brady
violation where defendant had possession of transcripts containing the pertinent material). Documents that are part of public records are not deemed suppressed if defense counsel should know of them and fails to obtain them because of lack of diligence in his own investigation.
*297
See, e.g., United States v. Bermudez,
526 F.2d 89, 100 (2d Cir.1975) (state’s investigative files were not suppressed since defense counsel, who represented one of the defendants in the state proceedings, could have discovered them “with the exercise of due diligence”),
cert. denied,
425 U.S. 970 , 96 S.Ct. 2166 , 48 L.Ed.2d 793 (1976).
Payne,
63 F.3d at 1208-09 ;
see also id.
at 1209 (discussing whether facts of the case demonstrated that “the government’s
duty
to produce [a particular] affidavit
was eliminated
by that document’s availability in a public court file” (emphasis added)). Thus, the Second Circuit has made it clear that the prosecutor’s duty under
Brady
is affirmative only in the sense that the prosecutor must disclose material exculpatory or impeachment evidence to the defense even in the absence of a specific request by the defense. Contrary to petitioner’s argument, the
Brady
duty is not affirmative in the sense that a prosecutor’s failure to disclose evidence qualifies as a constitutional error even if the evidence was already in the possession of the defense or was, upon exercise of reasonable diligence, available to the defense through other sources.
The reason is that the
Brady
duty arises from the necessity of ensuring that defendant’s trial comports with due process.
See United States v. Bagley,
473 U.S. 667, 673 , 105 S.Ct. 3375, 3379 , 87 L.Ed.2d 481 (1985) (“The
Brady
rule is based on the requirement of due process.”). As such, the dispositive question in determining whether a verdict should be set aside on grounds of non-disclosure is whether the prosecutor’s “omission deprived the defendant of a fair trial.”
Agurs,
427 U.S. at 108 , 96 S.Ct. at 2399 . If all material evidence is in a defendant’s possession or is available to him through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence.
It is true that extending the right to a new trial in all cases where the prosecutor failed to make disclosure of material evidence (including those where the defense had the evidence anyway) might serve to ensure better compliance with the
Brady
rule among prosecutors. However, nothing in
Brady
or its progeny suggests that the Supreme Court has found prosecutorial misconduct with respect to disclosure to be a problem sufficiently pervasive to justify a rule that would require affording a new trial to a defendant who in fact did receive a fair first trial. Absent such a pronouncement from the Supreme Court, existing precedent does not support finding a breach of the prosecution’s duty under
Brady
where the defendant is actually or constructively in possession of the allegedly “suppressed” evidence.
Furthermore, leaving aside petitioner’s misapprehension of the scope and consequences of the
Brady
disclosure duty, in this case there simply was nothing for the prosecutor to disclose other than the fact that Garcia was an eyewitness to the crime. It is blackletter law that the duty to disclose only encompasses evidence in the prosecution’s possession or control.
See Morgan v. Salamack,
735 F.2d 354, 358 (2d Cir.1984) (“Clearly the government cannot be required to produce that which it does not control and it never possessed or inspected.” (citations and internal quotations omitted)). Here, the prosecutor represented to petitioner’s trial counsel that Garcia had not testified before grand jury, did not take notes on the incident, did not complete a DD-5, and did not give any other recorded statement to the police or the district attorney’s office.
See
Joseph R. Benfante Aff. ¶ 18, Pet.’s Supp. Mem., Ex. 7. Although petitioner’s trial counsel finds these representations incredible,
see id.
¶¶ 18-19, there is no evidence in the record to suggest that such documents do exist.
3
*298
Pertinently, in Ms affidavit, Garcia does not indicate that he made any notes about the shooting or that anyone from the police department or the district attorney’s office recorded any statement that he made regarding the incident.
See
Garcia Aff., Pet.’s Supp. Mem., Ex. 8 [hereinafter Garcia Aff.] On the contrary, Garcia expressly stated that he “had not made any notes of this incident” and that after identifying himself to a uniformed officer, turning over the victim’s revolver, and speaking to a lieutenant from the 70th Precinct at the crime scene, his “involvement was limited.”
Id.
¶¶ 12-13.
In a similar vein is an affidavit submitted by petitioner’s counsel which recounts an interview that Garcia gave for a CBS news program.
See
Mary E. Mullins Aff., Pet’s Supp. Mem.', Ex. 6. According to the affidavit, Garcia told the reporter that “he was interviewed by the police officers who investigated the incident [perhaps referring to the officers to whom he spoke at the crime scene], and that he was informed by the Assistant District Attorney who was prosecuting Mr. Leka that he did not need to testify at the trial.”
Id.
¶ 6. The affidavit does not indicate that the assistant district attorney or the police officers recorded any statement that he gave them.
See id. passim.
Accordingly, I concluded (and continue to conclude) that there was no documentary evidence relating to Garcia with respect to which the prosecution failed to exercise its disclosure obligations under
Brady .
In light of the absence of such documentary evidence, this court assumed in the Revised Memorandum and Order that petitioner’s argument was that the prosecution should have at least identified Garcia as a witness who might have exculpatory or material impeachment evidence. Or, as petitioner’s counsel now puts it, the prosecution should have at least given “some cryptic notice to the defense that Garcia was a person that the defense should speak with.” Pet.’s Letter Br. 2. There is no evidence that the prosecutor did not comply with this limited disclosure duty in the absence of pertinent documentary evidence. During the
Wade
hearing, the prosecutor apparently revealed that Garcia was an eyewitness to the shooting, but that he could not identify the shooter.
See
Transcript of Wade Hearing held Feb. 20-21, 1990, at 197. There is no evidence on record that the prosecutor or any police investigators on the case knew any additional details about Garcia’s account, nor has petitioner produced any such evidence.
4
Perhaps, what is decisive here is
*299
that neither Garcia’s affidavit nor the Mullins’ affidavit makes any claim that Garcia told the assistant district attorney or police investigators about either of the two aspects of his account that petitioner now claims were so material, viz., that Garcia never saw anyone get out of the car during either of the two times he looked out his window,
5
and that Garcia heard shots before looking out his window and seeing the car “stop” in a diagonal position in front of the victim.
See
Garcia Aff. ¶¶ 4-6; Mullins Aff. ¶ 6. Thus, one can only find that the prosecutor made as full a disclosure as was possible with respect to Garcia. As noted in the Revised Memorandum and Order, petitioner’s failure to make use of this disclosure cannot ground a claim that the prosecution suppressed Garcia’s evidence.
B. Materiality
In his letter brief, petitioner largely restates previous arguments regarding the materiality of Garcia’s account that were fully addressed in the Revised Memorandum and Order. Petitioner does, however, raise two new arguments, each of which is considered in turn below.
First, petitioner now argues that Garcia’s affidavit statement that he did not see anyone get out of the car while he was watching was not merely cumulative of Sali Ferati’s testimony because Salí Ferati had “substantial credibility problems.” Pet.’s Letter Br. 3. Petitioner bases his predicate assertion that Sali Ferati had credibility problems on the fact that the jury acquitted Zeni Cira. From Zeni’s acquittal, petitioner infers that the jury rejected that Sali Ferati’s testimony regarding Rahman Ferati’s dying declaration. Petitioner then implictly suggests that the jury may have found Sali Ferati’s testimony that no one got out the car incredible as well.
While the first inference regarding the jury’s assessment of Sali Ferati’s dying declaration testimony is a fair one, the second is not. Presumably, the perceived credibility problem would be that the prosecution witness Sali Ferati was biased against Zeni Cira, and perhaps against Leka as well. To the extent that Sali Ferati’s testimony that no one got out of the car favored Leka by impeaching the account given by another prosecution witness, Elfren Torres (“Torres”), his testimony on that point would actually be high

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2370380. Public record. Not legal advice.