Full opinion text
CORRECTED MEMORANDUM & ORDER KORMAN, Chief Judge. In the early morning hours of February 26, 1988, a young and newly appointed New York City Police Officer, Edward Byrne, sitting in his patrol car outside the home of a witness he was assigned to protect, was shot five times in the head from a distance of two feet. Officer Byrne died instantly. The killing was apparently meant to send a message to law enforcement authorities from Howard “Pappy” Mason, one of two Queens drug lords who were incarcerated at the time. Petitioner, Philip Copeland, was convicted by a jury sitting in New York State Supreme Court of carrying out this crime along with his co-defendants Todd Scott, David McClary, and Scott Cobb. Howard “Pappy” Mason was convicted here for his role in the offense. See United States v. Nichols, 56 F.3d 403 (2d Cir.1995). The testimony adduced at trial established that Officer Byrne’s execution-style murder was planned by petitioner and his co-conspirators on February 25, 1988, in the home of Roger Philips, defendant Todd Scott’s uncle. Two witnesses to that meeting testified that Todd Scott informed Cobb and Copeland that “the boss” had put out an order to kill a cop, for which the participants would earn $8,000. Cobb and Copeland nodded in response. Scott relayed this information from David McClary, who received the actual order from Pappy Mason. Petitioner stated that Mason was “pissed off’ and wanted to see on television that a cop got “iced.” Petitioner, Scott and Cobb drew straws to determine who would perform the actual shooting, after which petitioner indicated that Cobb was to get the guns from another gang member and also provide the car. Rachel Moore, an eyewitness to the shooting, testified that she saw petitioner and defendants McClary and Scott in an old yellow car. She was familiar with petitioner for several years and was also able to identify the car she saw as a 1979 Dodge Diplomat with Alabama license plates that was recovered by police. Petitioner’s fingerprints were recovered from a piece of paper inside the car used by the killers. Moore, who was standing approximately three houses from Officer Byrne’s patrol car at the time of the murder, clearly identified the same yellow car which Scott Cobb was driving. According to Moore, Scott got out of the car and approached the passenger side of the patrol car, while McClary and petitioner walked up to the driver’s side. The three men reached into their pockets, pointed guns at the officer and started shooting. Another eyewitness to the shooting was a man named Arjune, the witness Officer Byrne was assigned to protect. He testified that at approximately 3:30 a.m. on February 26, 1988, he was awakened by five gunshots coming from the front of his house. Arjune looked out the window and saw a “beat up” car, with the right rear hubcap missing, moving slowly down the block with Scott Cobb driving. He also noticed Todd Scott near the driver’s side of the patrol car, another black male standing in the street, and a fourth person getting inside the car with Cobb. Scott had something in his hand, which he stuffed into his jacket pocket. All of the men jumped in the car and drove away. In his defense, petitioner asserted that he spent the night of Officer Byrne’s murder at the Kennedy Hotel with a woman named Audette Wills. Wills testified that she was picked up by petitioner and checked into the hotel at around 10:30 p.m. on February 25. They went to the Flagship Diner to place a takeout order and then returned to the hotel room at approximately 1:00 a.m. Wills testified that she was with petitioner the entire night and only fell asleep from 4:00 a.m. until approximately 7:00 a.m. the following morning. In a previous statement to the police, however, Wills testified that she had fallen asleep at 2:00 a.m., leaving petitioner ample time to reach the crime scene (only 1 mile from the hotel) before Officer Byrne’s shooting at 3:30 a.m. Petitioner was convicted on May 16, 1989, of Murder in the Second Degree (N.Y. Penal Law 126.25[1]) and Criminal Possession of a Weapon in the Second Degree (NY. Penal Law 265.03). He was sentenced to twenty-five years to life imprisonment on the murder count and five to fifteen years’ imprisonment on the weapon count. On appeal, petitioner raised four claims. He argued that (1) the evidence was insufficient to prove beyond a reasonable doubt that he had killed Officer Byrne; (2) the trial judge improperly forced petitioner to remain in the courtroom during portions of the trial; (3) the trial court incorrectly determined that he had failed to make out a prima facie case of discrimination on the part of the prosecutor during voir dire; and (4) the prosecutor deprived petitioner of a fair trial by making inflammatory arguments in both his opening and closing statements. In his Appellate Division brief, petitioner also adopted the claims of his co-defendants, Todd Scott and David McClary. Additional issues raised through these co-defendants include allegations that (1) the conduct of defense counsel for Scott Cobb and Todd Scott biased the trial judge against petitioner; (2) the trial court improperly marshaled the evidence in its charge to the jury; (3) the trial judge failed to excuse several prospective jurors for cause; and (4) the trial judge made disparaging remarks to the defense attorneys in the presence of the jury. Petitioner subsequently filed a pro se supplemental brief to the Appellate Division raising several additional claims. He argued (1) that the trial judge’s evidentiary rulings, particularly the exclusion of expert testimony on the long term effects of crack use on a person’s ability to recall, had deprived him of a fair trial; (2) that he was denied his right to be tried only upon the indictment of the Grand Jury; (3) that the trial court had erred by permitting the prosecution to elicit evidence of petitioner’s involvement in certain uncharged crimes for the purpose of establishing motive for the killing of Officer Byrne; and (4) that the prosecutor failed to disclose in a timely manner information regarding several prosecution witnesses, in violation of New York Criminal Procedure Law Section 240.45 and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). The judgment of conviction was unanimously affirmed. People v. Copeland, 197 A.D.2d 629, 602 N.Y.S.2d 683 (2d Dep’t. 1993). The Appellate Division held that the prosecutor had not impermissibly used race as a criterion in jury selection, and that the evidence adduced at trial was legally sufficient to establish petitioner’s guilt beyond a reasonable doubt. The Appellate Division specifically found that the testimony presented by several of defendant’s alibi witnesses were not improperly discredited by the trier of fact. It also found that petitioner’s remaining contentions, including those raised in his pro se supplemental brief, were either unpre-served for appellate review or without merit. Petitioner sought leave to appeal his conviction to the New York Court of Appeals. The leave letter, written by petitioner’s attorney, read as follows: Pursuant to section 460.20 of the Criminal Procedure Law, the above named Defendant-Appellant requests permission to appeal to the Court of Appeals from an order of the Appellate Division, Second Department, which affirmed his conviction To facilitate review on appeal, the litigants’ briefs and the court’s order are enclosed herein. Once a Judge has been assigned to this application, please send me his name. Thank you. (Letter from Steven Feldman to Donald Sheraw, dated October 25, 1993). No additional correspondence was sent by petitioner to the Court of Appeals. Judge George Bundy Smith denied petitioner’s leave application, see People v. Copeland, 82 N.Y.2d 848, 606 N.Y.S.2d 600, 627 N.E.2d 522 (1998), and petitioner did not seek a writ of certiorari from the United States Supreme Court. More than three years later, in an affidavit dated March 19, 1997, petitioner moved in the Appellate Division, Second Department, for copies of the hearing and trial transcripts in his ease, to file a motion for a writ of coram nobis. See People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987). Petitioner’s motion was denied on April 24, 1997. No coram nobis petition was ever filed. On or about April 22, 1997, petitioner filed this petition for a writ of habeas corpus. The petition raises four claims: (1) that the proof at trial was legally insufficient to support his conviction; (2) that the prosecutor’s inflammatory arguments in his opening and closing statements deprived petitioner of a fair trial; (3) that the prosecutor discriminated against African-Americans in jury selection; and (4) that the trial court improperly forced him to remain in the courtroom during portions of the trial. Petitioner also adopted the arguments presented by his co-defendants Todd Scott and David McClary in their respective Appellate Division briefs. Respondent moved to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1) and Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997). Judge Raggi dismissed the petition on this ground on March 24, 1998. The Court of Appeals for the Second Circuit subsequently granted a certificate of appealability, vacated the dismissal in light of the decision in Ross v. Artuz, 150 F.3d 97 (2d Cir.1998), and remanded for a determination whether the petition was timely filed on or before April 24, 1997. See Copeland v. Walker, No. 98-2405 (2d Cir. Nov. 16, 1999). Prior to the Court of Appeals’ decision, Judge Raggi granted petitioner’s motion for reconsideration. The petition was held to have been timely filed and the respondent was directed to file a return. See Copeland v. Walker, No. 97-CV-2082 (RR) (July 29, 1999). While I conclude ultimately that petitioner’s application for leave to appeal to the New York Court of Appeals was insufficient to preserve for habeas corpus review any of the issues raised in the assorted briefs that petitioner filed there, I first address the merits of each of those claims. DISCUSSION I. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, habeas relief may not be granted with respect to a claim that was adjudicated on the merits in state court proceedings unless the adjudication resulted in a decision that was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “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) (1994). Moreover, a state court determination of a factual issue is presumed to be correct, id. § 2254(e)(1), and is unreasonable only where the petitioner meets the burden of “rebutting the presumption of correctness by clear and convincing evidence.” Id. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court interpreted § 2254(d)(1) as giving independent meanings to the “contrary to” and “unreasonable application” clauses. Id. at 404, 120 S.Ct. 1495. A state court decision is “contrary to” clearly established federal law as determined by the Supreme Court “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Id. at 413, 120 S.Ct. 1495. A state court decision involves an “unreasonable application” of Supreme Court precedent if it “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the particular facts of [a] prisoner’s case.” Id; accord Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). In examining the state court’s application of federal law, the appropriate inquiry is whether the decision was objectively reasonable, not whether it was incorrect or erroneous. Williams, 529 U.S. at 410, 120 S.Ct. 1495. However, while “[s]ome increment of incorrectness beyond error is requiredf,] ... [that] increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Francis v. Stone, 221 F.3d 100, 111 (2d Cir.2000)(internal citations omitted). Under this analysis, the state court’s determination of factual issues are presumed to be correct. See 28 U.S.C. § 2254(e)(1). Finally, it is the obligation of the petitioner to have developed the factual record sufficiently to support his claim. 28 U.S.C. § 2254(e)(2) provides in pertinent part: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. II. LEGAL SUFFICIENCY OF THE EVIDENCE ADDUCED AT TRIAL Petitioner contends that the evidence presented at trial was legally insufficient to sustain his conviction. The Supreme Court has held that a state criminal conviction must be upheld if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the AEDPA, a writ of habeas corpus may be issued for evidentiary insufficiency only if the state court unreasonably applied the Jackson standard. In other words, the habeas court does not conduct its own Jackson review de novo, but merely analyzes “whether the state court provided fair process and engaged in reasoned, good-faith decision-making when applying Jackson’s ‘no rational trier of fact’ test.” Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir.), vacated and remanded on other grounds, 522 U.S. 801, 118 S.Ct. 37, 139 L.Ed.2d 6 (1997); see also Redd v. Quinones, 1998 WL 702334, *4-5 (S.D.N.Y. Oct.7, 1998) (“Under the [AED-PA], this Court may not grant the instant [habeas] petition unless we find that the state court unreasonably applied the principles underlying the Jackson standard when reviewing petitioner’s claim.”); Fernandez v. Dufrain, 11 E.Supp.2d 407, 417-18 (S.D.N.Y.1998); Mobley v. Stinson, 1997 WL 80587, *2 (S.D.N.Y. Feb.26, 1997). The Appellate Division reasonably and carefully applied the Jackson standard when determining that the trial evidence was sufficient to sustain petitioner’s conviction by relying on People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 (1983), which incorporates the Jackson standard. Applying this correct standard of review, the Appellate Division reasonably concluded that the evidence at trial, viewed in the light most favorable to the prosecution, was sufficient to sustain a conviction beyond a reasonable doubt. See People v. Copeland, 197 A.D.2d 629, 602 N.Y.S.2d 683 (1993). In any event, petitioner’s claim fails under the traditional analysis as well since the record does not support a finding that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. A federal habeas petitioner “bears a very heavy burden” when challenging the legal sufficiency of a state criminal conviction. Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 840 (2d Cir.1997). All inferences from the evidence must be drawn in favor of the prosecution and the jury’s assessment of the credibility of witnesses may not be second-guessed. See Bossett v. Walker, 41 F.3d 825, 830 (2d Cir.1994). Thus, under this “rigorous standard” a “ ‘federal habeas court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’ ” Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.1994) (quoting Jackson, 443 U.S. at 326, 99 S.Ct. 2781). Petitioner and his co-defendants were jointly charged under New York law with Murder in the Second Degree, on a theory of intentional murder. New York law provides that a person is guilty of intentional murder in the Second Degree when, “[w]ith the intent to cause the death of another person, he causes the death of such person.” New York Penal Law § 125.25(1). New York law further provides that an individual may be held criminally liable as an accomplice to an offense committed by another when, “acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” New York Penal Law § 20.00. Intent may be proven by circumstantial evidence including the defendant’s conduct and the surrounding circumstances of the crime. See People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845 (1992); People v. Woodbourne, 237 A.D.2d 547, 656 N.Y.S.2d 891 (2d Dep’t.1997). Considered in the light most favorable to the prosecution, both the direct and circumstantial evidence presented at trial was sufficient for a rational jury to conclude that petitioner, acting in concert with Todd Scott, David McClary, and Scott Cobb, intentionally killed Officer Byrne. The most compelling evidence against petitioner was provided by Rachel Moore, who testified that at around 3:30 a.m. on February 26,1988, she saw petitioner (who she had known for several years), along with co-defendants Scott, and McClary, approach Officer Byrne’s patrol car on 107th Avenue near Inwood Street in Queens County (T. 985, 1164, 1167, 1283). Moore, who stood just three houses away from where the patrol car was parked (T. 1164), observed that all three defendants had guns in their hands (T. 1212-13). According to Moore, Todd Scott walked over to the passenger side of the patrol car, while petitioner stood behind David McClary, who positioned himself near the glass window on the driver’s side of the car (T. 1164, 1169, 1208-09,1217, 1240, 1307,1313, 1341). Moments later, Moore heard gun shots and crawled under a parked car (T. 1164, 1213, 1342). Moore also testified that she had seen Scott Cobb driving a yellow car down 107th Avenue just moments before the shooting. Moore observed Cobb furtively stick his head out of the car and look backwards and then forwards (T. 1164). Rachel Moore’s recollection of the crime was corroborated by the testimony of Mr. Arjune, the witness Officer Byrne was protecting at the time of the attack (T. 137). Mr. Arjune saw four African-American males, two of whom he was able to identify as Scott Cobb and Todd Scott, leave the crime scene just after five shots were fired (T. 1832). Arjune testified that he was awakened by gunfire from in front of his house. Through his bedroom window, he observed Scott Cobb drive a beat-up car with the right hubcap missing — the same car identified by Moore (T. 1833-34, 1164). The car moved slowly from behind the patrol car that was parked outside Ar-june’s house (T. 1833-35, 1858). Arjune identified Todd Scott, who was standing right by the driver’s side of the patrol car and who pushed his head into the window of the patrol car to look inside (T. 1834, 1850-51). After peering into the patrol car for about seven seconds, Scott got into the passenger side of the vehicle driven by Scott Cobb (T. 1836, 1857-58). The light inside the car was on and Arjune saw another black man sitting in the back seat (T. 1860). Arjune also saw a fourth person in the middle of the intersection of 107th Avenue and Inwood Street, who hustled into the car driven by Cobb before Scott entered it (T. 1864). After all four men were aboard, the car turned onto Inwood Street and drove off (T.1987-88). Petitioner’s role in the planning of this execution-style murder was firmly established through the testimony of Darrell Newby and Martin Howell, who were both members of the drug gang known as the “Beebos,” to which petitioner also belonged (T. 362-63, 527-28, 746, 754). Howell and Newby testified that on February 25, 1988, the night before Officer Byrne was killed, they attended a meeting in an apartment along with petitioner, Todd Scott, and Scott Cobb (T. 369, 370-71, 379). Prior to petitioner’s arrival, Howell heard Scott announce that “the boss had put out an order to hit a cop” (T. 532, 589-90, 591, 593). Scott assured that anyone who participated would receive $8,000 in return and would not get caught because “the guy sleeps on the job and it would be easy” (T. 532, 593). Upon petitioner’s arrival at the apartment, Newby (petitioner’s cousin), overheard Todd Scott tell petitioner and Cobb “that we have to kill a police officer regarding a witness” (T. 372, 481-82). Newby then observed both petitioner and Cobb nod their heads “[u]p and down” in response to Scott’s remark (T. 374, 460, 464). Howell also overheard petitioner ask Scott if he had the “jammies,” or guns (T. 602, 664, 717, 727). Scott replied that he was going to get the “artillery” from “Ninja” (T. 603). Howell then heard petitioner say to Cobb, “We’re going to use your car” (T. 537, 603). Petitioner’s complicity in the conspiracy to murder Officer Byrne is further evidenced by statements made both before the planning session and after the killing. Howell testified that earlier on February 25, petitioner declared to him that “the Boss [Pappy Mason] was very pissed off and he wanted to see it on TV while he was on Riker’s Island that a cop got iced” (T. 763-64, 770). In addition, the morning following the shooting Scott Cobb confessed to Newby that “We killed the cop” (T. 508, 521). That same day, Cobb told Howell, in petitioner’s presence, how two cars had been used in the “hit”—one car was “dumped” while the other was used to take the participants to a party in Manhattan after the killing (T. 576, 740-41). Howell also heard petitioner tell Cobb that he did not want to hear anymore about “the situation” (T. 577, 665, 743). On the Monday following the crime, Newby also overheard Scott Cobb confess to a third person that he had pulled up behind the police officer’s car and shot him (T. 508-09). Finally, on the Saturday following the shooting when some money was missing from the profits of drug sales, petitioner warned Howell and others that “if you all want to end up like that MF-ing cop, then that money better turn up” (T. 764-65). In addition to this testimonial evidence, the prosecution also presented physical evidence linking petitioner to the crime. Specifically, petitioner’s fingerprint was found on an Econo-Lodge scratch pad, which was recovered from the yellow car used by the perpetrators (T. 942, 1490, 1732). Based on this evidence, a rational juror could certainly conclude that petitioner was guilty of intentional murder. Petitioner argues that the prosecution’s case was undermined by the testimony of his three alibi witnesses. However, two of these witnesses were not true alibi witnesses as they could not account for petitioner’s whereabouts at the time of Officer Byrne’s death (T.2030, 2033, 2035, 2065, 2071). The final alibi witness was petitioner’s girlfriend, Audette Wills (T.2075). A jury is clearly entitled to reject uncorroborated testimony from such an interested witness. In addition, Ms. Wills’ testimony was inconsistent with earlier statements she gave the police. Although she testified at trial that she was with petitioner at a hotel the night of the shooting and had only been asleep from 4:00 a.m. to 6:45 a.m., Ms. Wills stated in her original police interview with Detective David Dallanegra that she was asleep between the hours of 2:00 a.m. and 7:00 a.m., making it impossible for her to verify petitioner’s whereabouts at the time of the murder (T. 3475). Finally, petitioner attacks the credibility of the prosecution’s witnesses, most notably Rachel Moore, Darryl Newby and Martin Howell. This argument is unavailing. Even on direct appeal, credibility determinations are exclusively the domain of the trier of fact. See Hoffa v. United States, 385 U.S. 293, 311-12, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (“The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.”); United States v. Weinstein, 452 F.2d 704, 713-14 (2d Cir.1971) (“when testimony is once before the jury, the weight and credibility of every portion of it is for them, and not for the Court to determine”) (citations omitted). They cannot be revisited by federal courts in a habeas corpus proceeding. See Marshall v. Lonberger, 459 U.S. 422, 432-36, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). In sum, I cannot conclude that the Appellate Division unreasonably applied the Jackson standard, nor was the evidence insufficient for a rational jury to convict petitioner of murder in the second degree. Accordingly, the petition for a writ of ha-beas corpus on this ground must be denied. Ill THE PROSECUTOR’S USE OF PEREMPTORY CHALLENGES TO EXCLUDE AFRICAN-AMERICANS FROM THE JURY VENIRE Petitioner contests the use of peremptory challenges by the prosecutor. While the racially discriminatory use of peremptory challenges does violate the Equal Protection Clause right of an excluded juror, it does not violate the rights of petitioner. See Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (“Our holding [in Batson] ensures that states do not discriminate against citizens who are summoned to sit in judgment against a member of their own race and strengthens public confidence in the administration of justice.”). By the time a case reaches its appellate stage, it is too late to rectify the injury to the challenged jurors. Moreover, in a state like New York where there is no suggestion of hostility to Batson or reluctance to enforce it, see Rice v. Kuhlmann, 212 F.Supp.2d 47, 51 (E.D.N.Y.2002), its arguable whether an occasional unreme-died error should be subject to habeas corpus review. Id. Indeed, Judge Newman has argued persuasively that, even on direct appeal, “in those rare cases where the corrective action required to be taken by Batson during jury selection is not taken, the incremental benefit of enforcing Batson by reversing convictions obtained with fairly representative juries was not warranted.” United States v. Alvarado, 923 F.2d 253, 254 (2d Cir.1991)(internal citation omitted); see also Rice v. Kuhlmann, 212 F.Supp.2d at 51. Nevertheless, the Second Circuit has held, over the dissent of Chief Judge Walker, that this claim may be asserted as a basis for habeas corpus relief. See Galarza v. Keane, 252 F.3d 630, 644 (2d Cir.2001) (Walker, C. J., dissenting). A. Clearly Established Law: Batson v. Kentucky The clearly established Supreme Court precedent applicable in this case is Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1985), in which the Court set forth a three-part test that trial courts are to employ in evaluating allegations of race-based exercise of peremptory challenges. Under Batson, a trial court must first determine whether the party challenging the peremptory strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. See Hernandez v. New York, 500 U.S. 352, 356, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000). Such a prima facie case may be established by showing a pattern of challenges against minority prospective jurors. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Once a prima facie case is established, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror. Id.; Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859. This explanation need not be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Finally, the court must evaluate whether the moving party has carried his burden of proving that the strike was motivated by purposeful discrimination. Id. at 98, 106 S.Ct. 1712. This analysis “largely will turn on evaluation of the credibility” and the demeanor of the attorney offering the race-neutral explanation for the strike. Id. 500 U.S. at 365, 111 S.Ct. 1859 (quoting Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712). Since “[t]he credibility of an attorney offering a race-neutral explanation is at the very heart of [the] analysis,” Barnes v. Anderson, 202 F.3d 150, 157 (2d Cir. 1999), the reviewing court “ordinarily should give [the trial court’s] findings great deference.” Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712; see also Hernandez, 500 U.S. at 364, 111 S.Ct. 1859. B. Standard of Review As articulated by the Second Circuit, “ ‘the threshold decision concerning the existence of a prima facie case of discriminatory use of peremptory challenges involves both issues of fact and an issue of law.’ ” Overton, 295 F.3d at 276 (quoting United States v. Alvarado, 891 F.2d 439, 443 (2d Cir.1989), vacated on other grounds, 497 U.S. 543, 110 S.Ct. 2995, 111 L.Ed.2d 439 (1990) (“Alvarado /”)). Once the fact-finding has been performed, “the judge must then determine, as a matter of law, whether these underlying facts suffice to establish a prima facie case.” Alvarado I, 891 F.2d at 443. On habeas review, such mixed questions of law and fact translate to “mixed constitutional questions (i.e., application of constitutional law to fact).” Williams v. Taylor, 529 U.S. 362, 400, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Con-nor, J., concurring). “Under the AEDPA, they are subject to the standard set forth in 28 U.S.C. § 2254(d)(1), which requires the habeas court to determine whether the state court’s decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Overton, 295 F.3d at 277 (quoting 28 U.S.C. § 2254(d)(1)). Because the trial judge in this case determined that the petitioner had not made out a prima facie case, he did not reach the second and third steps of the Batson analysis. Thus, my inquiry is limited to whether the trial judge’s threshold determination was contrary to or an unreasonable application of Supreme Court precedent. C. The Merits of Petitioner’s Batson Challenge The voir dire in this case proceeded in multiple rounds, each of which involved a separate panel of prospective jurors. The record made by the trial judge at the end of each round of the voir dire provides some information on the exercise of challenges against blacks by the prosecution and petitioner. Nevertheless, in some rounds, the record does not reflect the racial background of each individual excused juror. On the first panel, the prosecution challenged one black and the defendant challenged one black (V.670). On the second panel, the prosecution again challenged one black and the defendant challenged one black (V.738). On the third panel, the prosecution challenged two blacks and the defense challenged two blacks (one peremptory; one challenge for cause) (V.1276-80). On the fourth panel, the prosecution challenged three blacks, prompting defense counsel to note this for the record, but accepted one juror who by appearance looked black (V.1387-89). On the fifth panel, the prosecutor challenged two blacks but accepted one black juror (V.1497-98). On the sixth and final panel of jury selection, after the prosecutor had challenged an additional black juror, the defense counsel raised a Batson challenge, requesting that the prosecution be ordered to provide race-neutral reasons for the strikes. The trial judge denied this request, finding that there was no evidence of racial discrimination in the prosecutor’s exercise of peremptory challenges (V.2272-73). After the prosecution challenged another black juror during the selection for alternates, the defense renewed its Batson challenge. Once again, the trial judge denied petitioner’s request, stating that, “there is no systematic exclusion of black jurors by the D.A. because of race.” (V.2280-81). Subsequently, after the trial judge indicated that there were no more prospective jurors available to seat a full complement of alternates, the prosecution agreed to rescind its earlier peremptory challenge against the black juror who had been challenged in the sixth round. Both parties accepted her as the fourth alternate, resulting in a total of two black alternates (V.2282-83). On direct appeal, the Appellate Division ruled that “during the jury selection process, the defendants failed to articulate and develop all the grounds, both factual and legal, supporting their claim. Their perfunctory statement that 10 excluded prospective jurors were black did not establish the existence of facts and other relevant circumstances sufficient to raise an inference that the prosecutor had used his peremptory challenges to exclude individuals because of their race.” People v. Copeland, 197 A.D.2d 629, 630, 602 N.Y.S.2d 683 (2d Dep’t.1993). There is an insufficient basis for concluding that this decision was “contrary to” clearly established Supreme Court precedent. Both the trial judge and the Appellate Division correctly identified the correct governing law with respect to petitioner’s Batson claim, and did not, on a question of law, reach a conclusion opposite to that of the Supreme Court. Nor was their determination an unreasonable application of Supreme Court precedent. While statistics alone may be sufficient to establish a prima facie case of discrimination in “appropriate circumstances,” petitioner bears “the burden of articulating and developing the factual and legal grounds supporting his Batson challenge before the trial court.” Overton, 295 F.3d at 278-280. This was simply not done in the instant case. While it is possible to piece together information through inference and careful review of the voir dire transcript, petitioner did no more than cite the number of challenges against blacks. As in Overton, petitioner did not address or call to the attention of the trial judge crucial information surrounding the statistics, such as the total racial makeup of the venire, the number of minorities who actually sat on the jury, and the number of minorities who were not challenged by the prosecutor. See United States v. Williamson, 53 F.3d 1500 (10th Cir.1995) (presence of minorities on jury as finally sworn was relevant to prima facie case determination); Deputy v. Taylor, 19 F.3d 1485, 1492-93 (3d Cir.1994) (number of minorities in the venire as a whole was relevant to prima facie case). Nor did petitioner argue that the prosecutor had no reason for any of the peremptory challenges other than race. My review of the record here indicates that the prosecutor had twenty challenges available to him and an additional two challenges with respect to the selection of alternates. Of these twenty challenges, he used a total of nineteen, ten of which were used to exclude black jurors from the veni-re from which the twelve jurors were empaneled. Subsequently, as noted above, he withdrew his objection to one of those jurors and agreed to her sitting as an alternate. The issue of whether the relevant ratio should be ten of nineteen or ten of twenty is a close one on the record here. Ordinarily, the appropriate ratio would be based on the actual number of perempto-ries exercised. On the other hand, if the prosecutor waived peremptory challenges that could have been used to challenge prospective black jurors, it would arguably not be unreasonable to view such non-exercised challenges in determining the appropriate ratio. Even on this undeveloped record, it appears that the prosecution had opportunities to excuse black ve-nire members on all of the first three panels but declined to do so (these jurors were either challenged by the defense or seated) (V.670, 738, 1486). In addition, the petitioner did not specify a particular ratio of challenges in his Appellate Division brief—he merely stated that the prosecutor had used ten peremptories against blacks. (Def.App. Br. at 51). Consistent with the manner in which it was argued by petitioner, the Appellate Division did not articulate what ratio had been considered in deciding the case. Copeland, 197 A.D.2d at 630, 602 N.Y.S.2d 683. In any event, the difference between nine of eighteen and nine of twenty is not significant. In the absence of any supporting evidence to give meaning to the statistics, the mere fact that the prosecutor used ten of twenty peremptories to excuse black jurors from the venire of which the twelve jurors were chosen is not sufficient to establish an inference of discrimination. See Overton, 295 F.3d at 279-80 (because petitioner failed to fully develop the facts before the trial judge, “[w]e cannot say, on this record, that the trial judge’s refusal to implement Batson’s process for testing each questioned challenge midway in the process was an unreasonable application of the Batson requirements”). . Indeed, because petitioner failed to develop the record in support of his claim, the Overton Court determined that no prima facie case was established even though the prosecution used 70% of its challenges (7 of 10) against blacks. Id. The Second Circuit’s decision in United States v. Alvarado, 923 F.2d 253 (2d Cir.1991) (“Alvarado II”), is not to the contrary. In Alvarado II, the court held that a prima facie case of discrimination was established by the petitioner’s claim that the prosecution had employed more than 50% of its challenges towards excluding minorities from the jury (50% in the selection of the sitting jurors and 57% in the selection of the sitting jurors and alternates). Id. at 255-56. Writing for the majority in Alvarado II, Judge Newman explicitly noted that the significance of pure statistical inferences depends on having a fully developed record to make sense of the statistics: “Whether this rate creates a statistical disparity would require knowing the minority percentage of the venire; for example, if the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities.” Id. at 255. Judge Newman also held that “[ojnly a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.” Id. As in Alvarado II, the record in this case does not reflect the percentage of minorities on the venire itself (though it is possible here to glean at least some relevant information from the voir dire transcript). As a proxy for this factual element, Alvarado II substituted the less accurate measure of the total minority population of the Eastern District of New York, from which the venire was drawn. Comparing this figure (29%) with the statistical rate of the prosecution’s peremptory challenges against minority jurors (57%), the court found that “a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson.” Id. at 256. Using the minority population of the county from which the jury was drawn as a proxy for the actual percentage of minorities on the jury venire is not an appropriate measure in a habeas corpus proceeding. First, when dealing with such a small system of numbers, the statistical significance of even a single change can be substantial. Thus, if the venire included even a few more minority jurors than the demographics of Queens County might predict, it could alter the statistical significance of the percentages. Indeed, in this case, although the African-American population in Queens County at the time petitioner’s jury was drawn was approximately 22% (see Bureau of the Census, Census of Population and Housing, 1990 Summary Tape File 1), this statistic is not an accurate reflection of petitioner’s actual jury venire. While the total number of blacks in the venire is not clear from the record, a careful examination of the transcript reveals that, at the very least, 16 of the 56 prospective jurors were black — or, 29% of the venire. Moreover, second-guessing a trial judge’s decision based on the actual makeup of the jury venire by substituting artificial and possibly inaccurate statistics is contrary to the very nature of habeas review, a system that is supposed to be limited in scope and highly deferential to state court decisions. In addition, statistical comparisons of peremptory strike patterns are relevant only to the extent that they suggest an inference of discriminatory intent. For this reason, at least one court has explicitly held that “only the racial composition of the universe in which the prosecutor was operating is relevant.” United States v. Esparsen, 930 F.2d 1461, 1467-68 & n. 5 (10th Cir.1991) (statistics of race of jurors struck by prosecutor are not enough to establish prima facie case and “take[ ] on meaning only in the context of other information such as the racial composition of the venire, the race of others struck by the prosecution, or the voir dire answers of those who were struck compared to the answers of those who were not struck”). Finally, the employment of this proxy is inconsistent with 28 U.S.C. § 2254(e)(2), which requires the petitioner to fully develop the record in the state court proceedings. In any event, the Second Circuit’s finding in Alvarado II does not bind my decision here. Alvarado II was a direct appeal from a conviction in the Eastern District of New York. However, the standard of review on a habeas petition is far more deferential with respect to mixed questions of law and fact than an appellate court on direct review. A state court’s decision may be overturned only if the court “unreasonably” applied Supreme Court precedent. Even if the Second Circuit may have found a Batson violation on these facts on direct appeal, there is considerable disagreement among the circuits concerning this issue. Many federal appellate courts have determined that facts similar to this case do not raise a prima facie inference of discrimination under Batson. See e.g., Jefferson v. United States, 631 A.2d 13 (D.C.App. 1993) (Prosecutor’s use of nine of ten peremptory strikes to remove black prospective jurors from venire did not make pri-ma facie showing of race discrimination in violation of Batson, absent evidence of percentage of blacks actually called forward to be accepted or challenged); Brewer v. Marshall, 119 F.3d 993 (1st Cir.1997) (in the absence of any additional evidence supporting an inference of discrimination, the prosecutor's use of four of nine challenges to exclude four of six black jurors did not constitute a prima facie case for discrimination); United States v. Malindez, 962 F.2d 332, 333 n. 2 (4th Cir.1992) (“The fact that 50 percent (four out of eight) of the Government’s peremptory challenges were exercised against black veniremen, standing alone, is insufficient to establish a prima facie case of purposeful discrimination.”); United States v. Temple, 890 F.2d 1043, 1045-46 (8th Cir.1989) (“Without more, [petitioner’s] reliance on the fact that the government used two of its seven peremptory challenges to exclude two of the four potential black jurors is insufficient to establish the requisite prima facie showing under Batson.”). Indeed, several courts have held that statistics alone are never sufficient to raise a prima facie inference of discrimination. United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir. 1990) (evidence that prosecutor used six of seven peremptory challenges to exclude black venire members from jury was insufficient to establish prima facie case of purposeful discrimination because “numbers alone are not sufficient to establish or negate a prima facie case.”); United States v. Grandison, 885 F.2d 143, 148 (4th Cir.1989) (noting that “statistical comparisons are ... a poor way to resolve a Batson challenge” and holding that evidence of prosecutor’s use of six out of nine peremptory challenges against minorities did not constitute a prima facie case). Moreover, although the record here was not developed by the petitioner during the state court proceedings, the facts that are reflected in the record support the trial judge’s determination. Although it is not possible to ascertain with certainty the racial background of all of the individual jurors due to the petitioner’s lack of diligence, the voir dire questioning suggests race-neutral reasons for many of the prosecution’s peremptory challenges. See United States v. Ferguson, 23 F.3d 135, 141 (6th Cir.1994) (possible explanations for challenges may be taken into account in ruling on existence of a prima facie case). For instance, many of the jurors in question lived in and around the area where the crime was planned and committed (V.262, 1049-51, 1055, 1071, 1100, 1339, 1430, 1436, 1458). Except for a few jurors with positive law-enforcement sentiments, the prosecution systematically eliminated all jurors with a connection to the area (V.83, 263, 342-44, 635-36, 996, 1049, 1055, 1071, 1096, 1100, 1161, 1259, 1436). Nearly all of eliminated jurors that can be verified as black lived in or near the area of the crime: Mannyofe (V.263); Moore (V.996, 1055); Leach (V.1049); Middlebrooks (V.1071); Chesson (V.1096); Sullivan (V.1339); Blair (V.1436); Raymond (V.1458). These jurors lived in the same neighborhood as the drug organization that orchestrated Officer Byrne’s murder and could reasonably have feared reprisal, especially since petitioner’s homicide was itself retaliatory in nature. Indeed, at least two of the prospective jurors explicitly voiced their concerns over safety and possible reprisal (V.342, 635,1276-78). The record also suggests other plausible, race-neutral reasons for the exercise of peremptory challenges. Prospective juror Paul Raymond had previously been arrested, fought with the officers during his arrest, and stated only that he hoped he could put aside this negative experience in evaluating police officer testimony. This juror also had a “close” cousin who had previously been convicted of multiple murders. See United States v. Lampkins, 47 F.3d 175 (7th Cir.1995) (fact that prospective juror had relatives convicted of a crime justified peremptory challenge despite allegation of purposeful discrimination). Indeed, although the trial judge denied the prosecutor’s challenge for cause against Raymond, he noted that it would be a “peremptory challenge with good reason” (V.1497). Prospective juror Marion Johnson was inattentive during voir dire, as she entirely failed to respond to the court’s question concerning which members of the panel had previously served as jurors, even though she later admitted that she had served before (V.603). See United States v. Rudas, 905 F.2d 38 (2d Cir.1990) (inattentiveness of juror justified challenge against member of cognizable group); United States v. Sherrills, 929 F.2d 393 (8th Cir.1991) (same). Similarly, prospective juror Annexi had difficulty understanding the court’s questioning even though the court asked the same questions of almost all prospective jurors without any miscommunications (V.1180-82), and prospective juror Chesson did not seem to understand initially that the question of guilt or innocence was to be decided by the jury (V.1382). See United States v. Williams, 936 F.2d 1243, 1246 (11th Cir.1991) (juror’s apparent inability to follow or understand questions directed to her during voir dire justified prosecutor’s peremptory challenge). Prospective juror Leach volunteered that she would put herself in the place of petitioner when considering the case, making her a less than ideal prosecution witness (V.1281). Prospective juror Mannyofe did volunteer work, which, like certain occupations in social work or counseling, might make him “a more suitable target” for a peremptory challenge than those who did not volunteer. See United States v. Alvarado, 951 F.2d 22, 25 (2d Cir.1991) (accepting prosecution’s race-neutral reason for striking juror that her occupation as a social worker made her a less desirable juror). Prospective jurors Handelman and Blair were legal secretaries who may have claimed greater knowledge of the legal system than other members of the jury (V.691-92, 1436-37). See United States v. Johnson, 941 F.2d 1102 (10th Cir.1991) (prospective juror’s occupation as legal secretary for housing attorney justified peremptory challenge despite allegation of racial motivation). And prospective juror Middle-brooks had a son who was nineteen years old, approximately the same age as petitioner when he committed this crime (V.1071-72). See United States v. Byse, 28 F.3d 1165 (11th Cir.1994) (fact that prospective juror had son of similar age to petitioner justified peremptory challenge against minority). All of these facts, which were clearly before the trial judge, counsel against any inference of discrimination based solely on the statistics petitioner offers. In addition, at least two blacks, who were so identified by the prosecutor and judge, sat as jurors, and another two as alternates (V.1388-89, 1497, 2280). The defendant himself peremptorily challenged an additional three prospective black jurors who otherwise would have sat on the jury (V.670, 738, 1280), and challenged another for cause (V.1276). In addition, at several points during the voir dire, the prosecution had opportunities to challenge black venire members but declined to do so. The record reveals that during the first, second, third and fourth rounds, the prosecution declined to strike black jurors although it had several challenges available for this purpose (V.670, 738, 1280, 1486). Thus, if not for his own actions, petitioner could have seated a jury of twelve that was composed of at least five blacks (not counting the challenge for cause), a composition slightly greater than the actual representative population of Queens County. All of these facts counsel against any inference of discrimination based solely on the statistics petitioner offered in support of his Batson challenge at trial. Finally, a thorough review of the entire three-week long voir dire reveals a complete lack of even one racially-charged comment or question by the prosecutors. See Batson, 476 U.S. at 96-97, 106 S.Ct. 1712 (questions by prosecutors during voir dire may establish or contribute to prima facie case). Moreover, petitioner’s counsel waited until nearly the entire three weeks of voir dire were concluded before raising a Batson claim, and did not ask for race neutral reasons until after the judge had already excused the challenged nine jurors from the first five panels. Even then, he relied solely on the number of challenges without any effort to place on the record other facts relevant to the issue of a prima facie case. Indeed, cases like these always raise concerns that defense counsel may simply have been trying to do the minimum necessary to preserve an issue for an appeal based on an error, if error it was, that did not have any affect on the verdict or deprive the defendant, as opposed to the challenged juror, of the right to the equal protection of the law. See Allen v. Hardy, 478 U.S. at 259, 106 S.Ct. 2878. This is another reason to hold petitioner strictly to his burden of articulating and developing the factual and legal grounds of his Batson challenge. See Brown v. Kuhlmann, 142 F.3d 529, 541-42 (2d Cir.1998). On this record, it is not possible to conclude that the determinations of the trial judge and the Appellate Division were unreasonable or a misapplication of Supreme Court precedent. While another court considering the issue de novo might find a prima facie Batson violation based on the statistical disparity in petitioner’s case, even if it erred, the state court did not go beyond the “increment of incorrectness” necessary to constitute an “objectively unreasonable” application of Batson, Francis v. Stone, 221 F.3d at 111, when it concluded, on the basis of a record undeveloped by petitioner, that the number of peremptory challenges without more was not “sufficient to raise an inference that the prosecutor had used his peremptory challenges to exclude individuals because of their race.” See Overton, 295 F.3d at 279-80. My colleague Judge Sterling Johnson came to a similar conclusion with respect to petitioner’s co-defendant, Todd Scott, whose habeas petition was based on the same selection process and jury venire at issue here. See Scott v. Senkowski, 2002 WL 31051592, *3 (E.D.N.Y. Aug.15, 2002). TV. THE TRIAL JUDGE’S FAILURE TO EXCUSE POTENTIAL JURORS FOR CAUSE Relying on his co-defendant Todd Scott’s Appellate Division brief, petitioner claims that the trial court should have excused for cause four prospective jurors, Katerina Vancek, Willimena Smith, Rose Saldinger, and Eileen O’Connor, due to their alleged partiality. Petitioner’s claim is without merit because the issue was not preserved for appeal with respect to two of the jurors, and the remaining jurors did not sit on the jury that convicted petitioner. A Independent and Adequate State Ground A federal court will not review a question of federal law decided by a state court “if the decision of that court rests on a state ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 728, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (“It is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts.”). If a state court declined to address a prisoner’s federal claims because the prisoner failed to meet a state procedural requirement, these claims are consequently barred from federal habeas review. See Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546; Engle v. Isaac, 456 U.S. 107, 124-25, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (a petitioner who failed to properly preserve a claim for state appellate review is proeedurally barred from obtaining federal habeas review of the claim if the state appellate court invoked a state procedural bar as the basis for rejecting the claim). Todd Scott, upon whose brief petitioner relies to support his claim, did not challenge either prospective juror Katerina Vancek or prospective juror Willimena Smith for cause during voir dire. There is ample evidence that the New York Appellate Division declined to review petitioner’s contention as unpreserved under a state-law procedural bar on this ground. Although the Appellate Division did not expressly address petitioner’s challenge-for-cause claim, (it dismissed all of petitioner’s unreferenced claims as either unpreserved for appellate review or without merit), People v. Copeland, 197 A.D.2d 629, 602 N.Y.S.2d 683 (2d Dep’t.1993), failure of the state court to make an express reference to the procedural bar will not foreclose a federal court’s reliance on the procedural bar to reject the claim See, e.g. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Rather, the habeas court should determine whether there is “good reason to question whether there is an independent and adequate state ground” for the state’s rejection of the claim. Coleman, 501 U.S. at 739, 111 S.Ct. 2546. While the Appellate Division did not specifically address this argument in the context of petitioner’s appeal, the same court ruled on co-defendant Scott’s appeal and expressly held “[t]his issue is unpre-served for appellate review at least with respect to two of the prospective jurors whom the defendant now claims the court erroneously failed to dismiss, since at the voir dire, the defendant’s counsel failed to challenge them for cause.” People v. Scott, 197 A.D.2d 644, 645, 602 N.Y.S.2d 681 (2d Dep’t.1993). Relying on this decision, Judge Johnson rejected Scott’s petition for a writ of habeas corpus because the “Appellate Division’s judgment rests on an independent and adequate state procedural ground.” Scott v. Senkowski, 2002 WL 31051592, *3 (E.D.N.Y. Aug.15, 2002). As petitioner relied entirely on co-defendant Scott’s argument of this issue (his brief merely states that it adopts the issues raised by his co-defendants), it is reasonable to conclude that the Appellate Division’s summary rejection of petitioner’s claim was similarly based on this procedural bar. Indeed, the court in Scott referenced petitioner’s similar appeal in the same paragraph it discussed the challenge-for-cause claim. Scott, 197 A.D.2d at 645, 602 N.Y.S.2d 681. Moreover, the state vigorously opposed Scott’s appeal of the challenges-for-cause on the ground that the issue was unpreserved. This is a principal factor in a habeas court’s evaluation of the basis for an appellate court’s decision. See, e.g., Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir.1981) (citing County Court of Ulster County v. Allen, 442 U.S. 140, 147-54, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)). Thus, to the extent petitioner’s claim is proeedurally barred, he is precluded from receiving habeas review. There is, however, one relevant distinction in petitioner’s case that must be addressed. Unlike prospective juror Katherina Vancek who was never challenged for cause by any defense counsel (V.736-737), prospective juror Willimina Smith was challenged for cause by petitioner’s attorney (V.1278-1279). The Appellate Division rejected co-defendant Scott’s claim as unpreserved because the defendants’ challenges were exercised independently and Scott himself did not challenge Ms. Smith. Scott, 197 A.D.2d at 645, 602 N.Y.S.2d 681. Thus, I must consider whether petitioner’s claim should also be barred by the Appellate Division’s ruling because petitioner raised this issue only by adopting co-defendant Scott’s procedurally deficient appellate brief. Petitioner did not raise- this claim specifically or independently. He did not set forth the basis for this claim either before the Appellate Division or in his habeas petition; indeed, his briefs do not even identify this ground by name. Petitioner merely appended a catch-all phrase to the back page of his Appellate Division brief incorporating by reference every argument made by all of his co-defendants. This method of articulating a ground for appellate or habeas relief is unacceptable. For a claim to be exhausted the state court must be fairly apprised that petitioner is raising a federal constitutional claim, as well as the factual and legal premises underlying the claim. See Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir.1989); Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc). When an appellant fails to set forth his grounds for an appeal with any particularity, the court does not have “ ‘a duty to look for a needle in a paper haystack.’ ” Grey v. Hoke, 933 F.2d 117, 12