Full opinion text
MEMORANDUM AND ORDER SEYBERT, District Judge. Petitioner Michael Quartararo petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to set aside his conviction for the 1979 murder of thirteen year-old John Pius. The initial charges alleged that Petitioner, along with his older brother Peter Quartararo, Thomas Ryan, and Robert Brensic, murdered Pius by shoving rocks down Pius’ throat, ultimately suffocating him. After a careful and exhaustive review of the extensive record in this matter, the Court concludes that Michael Quartara-ro’s petition must be granted. FACTUAL BACKGROUND PRIOR PROCEEDINGS Following a jury trial with his brother Peter that drew considerable public attention, Michael Quartararo was first convicted of Pius’ murder in 1981. On June 9, 1981, Petitioner was sentenced as a juvenile to an indeterminate term of incarceration of nine years to life. Petitioner appealed his conviction to the Appellate Division, Second Department, which affirmed the conviction. People v. Quartararo, 113 A.D.2d 845, 493 N.Y.S.2d 511 (2d Dep’t 1985). Leave to appeal to the New York Court of Appeals was denied. People v. Quartararo, 66 N.Y.2d 1042, 499 N.Y.S.2d 1040, 489 N.E.2d 1312 (1985). In 1988, United States District Judge Edward R. Korman granted Petitioner’s application for a writ of habeas corpus on the ground of ineffective assistance of counsel. Quartararo v. Fogg, 679 F.Supp. 212 (E.D.N.Y.), aff'd, 849 F.2d 1467 (2d Cir.1988). Specifically, Judge Korman found that Petitioner’s counsel was constitutionally deficient because he failed to object to highly prejudicial and inadmissible evidence, failed to object to a “grossly improper and inflammatory” prosecutorial summation, failed to make an opening statement, and made his own “incompetent summation.” Id at 248. This decision was heightened by the judge’s determination that the evidence against Petitioner, apart from the inadmissible evidence to which his counsel did not object, was “exceedingly weak.” Id. at 249. However, in a footnote, the judge rejected Petitioner’s claim of insufficient evidence under the governing test set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979). See id. at 214 n. 3. Despite such “exceedingly weak” evidence, Petitioner was retried in 1990, and again was convicted of second degree murder. On May 30, 1990, Petitioner again was sentenced to an indeterminate term of incarceration of nine years to life, with a recommendation from the sentencing judge that parole not be considered until fifteen years had been served. Petitioner received credit for time served following the first conviction. The Appellate Division affirmed the conviction. People v. Quartararo, 200 A.D.2d 160, 612 N.Y.S.2d 635 (2d Dep’t 1994). Leave to appeal to the New York State Court of Appeals was denied on November 1, 1994. People v. Quartararo, 84 N.Y.2d 939, 621 N.Y.S.2d 536, 645 N.E.2d 1236 (1994). This pro se petition for habeas corpus followed on December 8, 1994. The conviction of Peter Quartararo, who was tried jointly with Michael in 1981, also was affirmed and leave to appeal was denied. Judge Korman, however, granted Peter’s petition for a writ of habeas corpus on the ground that his confession was involuntary. Quartararo v. Mantello, 715 F.Supp. 449, 466 (E.D.N.Y.), aff'd, 888 F.2d 126 (2d Cir.1989). Following the issuance of the writ, Peter Quartararo was not retried because there was insufficient evidence linking him to the murder. Robert Brensic was convicted following a jury trial in 1983. His conviction was affirmed by the Second Department in 1986. People v. Brensic, 119 A.D.2d 281, 506 N.Y.S.2d 570 (2d Dep’t 1986). Nevertheless, the conviction was overturned by the New York Court of Appeals on the ground that Peter Quartararo’s confession was improperly admitted into evidence against Brensic. See People v. Brensic, 70 N.Y.2d 9, 517 N.Y.S.2d 120, 509 N.E.2d 1226 (1987). On remand, Brensic’s request for a change of venue was granted, but he pled guilty to manslaughter in the second degree prior to trial. According to the papers submitted with this petition, Brensic is now out on parole. The last co-defendant, Thomas Ryan, was tried and convicted in 1983. His conviction was affirmed on appeal. People v. Ryan, 121 A.D.2d 34, 509 N.Y.S.2d 545 (2d Dep’t 1986). However, following the determination that Peter Quartararo’s confession was unreliable, the Appellate Division on rehearing overturned Ryan’s conviction. People v. Ryan, 134 A.D.2d 300, 520 N.Y.S.2d 528 (2d Dep’t 1987). Following a mistrial in his second trial, Ryan subsequently was retried a third time in Suffolk County, after his motion to change venue was denied. People v. Ryan, 151 A.D.2d 528, 542 N.Y.S.2d 665 (2d Dep’t 1989). He was convicted of second degree murder on May 20, 1990. Because Ryan was an adult at the time of the murder, he was sentenced to twenty-five years to life. Ryan’s leave to appeal to the Court of Appeals was denied on August 21,1995. People v. Ryan, 86 N.Y.2d 801, 632 N.Y.S.2d 515, 656 N.E.2d 614 (1995). Ryan’s petition for a writ of habeas corpus is presently pending before this Court. THE EVIDENCE INTRODUCED AT TRIAL At Petitioner’s second trial, the prosecution advanced the theory that Pius had witnessed the four co-defendants steal a motor-less minibike, and out of fear that Pius would report them to the police, the four killed Pius by beating him and shoving stones down his throat, subsequently burying his body in the woods behind the Dogwood Elementary School. T. 1145-56. A. The Murder and Investigation At about 8:15 p.m. on April 20, 1979, John Pius, Jr. asked his father for permission to ride his bicycle up to the Dogwood Elementary School. T. 75-76. His father told him to come back in about fifteen minutes. T. 76 Pius was last seen at about 8:25 p.m., as he was bicycling out of the driveway of his home. T. 461-62. There was no evidence of the route Pius traveled to the Dogwood Elementary School, but it usually took approximately five minutes to bicycle the quarter of a mile from the Pius home to the school. T. 402, 405. When Pius had not returned home by 9:30 p.m., his father went to look for him at the school grounds. T. 76,128. He continued to search for his son on and off throughout the night, calling out his name. T. 128. On two occasions, Eddie Pembroke, Pius’ friend and neighbor, accompanied Mr. Pius. T. 78, 411-14, 437. The next morning, Mr. Pius was informed that his son’s wallet had been found in the playground of the Dogwood Elementary School. T. 80. Mr. Pius went to the school with some family members. T. 81. His niece spotted Pius’ bicycle partially buried under leaves at the bottom of the hill. T. 81. Mr. Pius stood it up against a tree. T. 81-82. At about 1:30 p.m., Pius’ body was discovered buried beneath leaves, branches and logs. T. 83-84,488, 496. Six rocks were lodged in Pius’ throat. T. 342. His body had multiple contusions and lacerations from being dragged across the ground. T. 336-38, 346. The primary causes of death were traumatic asphyxia and compression of the chest and neck. T. 346. The only fingerprint on Pius’ bicycle was his own. T. 378. There was no hair or fiber evidence recovered. T. 396. A diamond, “Puma”-type tread sneaker print was found on Pius’ face. T. 297, 300. Additionally, there were six footprints found within the path along which the body had been dragged. T. 288, 304. None of the prints at the scene or on Pius’ face matched any of the sneakers and shoes taken from the four defendants. T. 301-02. The only match was with Eddie Pembroke’s sneakers. T. 299-300. The police did not take sneakers from the initial suspects — John Sparling, Michael O’Neil and Raymond St. Dennis — or from any .other potential suspects (except the four defendants) to compare with the impressions obtained from footprints at the scene and on Pius’ face. T. 207, 301-02, 666-67. According to Dr. Carlos Tejo, the Medical Examiner, the death occurred in a twelve-hour period from 3:45 p.m. on April 20th to 3:45 a.m. on April 21st. T. 345. Thus, according to the forensic evidence, Pius could have been killed as late as seven hours after he was last seen alive at 8:25 p.m., riding from his home. T. 345-46, 353. To support its theory that Pius was murdered at approximately 8:35 p.m., the prose-ration elicited the testimony of John Bailey, whose residence was adjacent to the school. Bailey was then fourteen years old. T. 519, 529. The prosecution also introduced a stipulation as to the testimony of an elderly woman, Mrs. Calia, who had been babysitting at the Bailey residence on the evening of April 20, 1979. T. 611. Beginning about 8:15 p.m., both Bailey and Calia heard the Bailey’s dog, which was outside in the backyard, barking intermittently for fifteen to twenty minutes. T. 523-25, 611-12. Mrs. Calia also heard commotion and voices, but did not recognize them and could not distinguish the words. T. 610-12. The two never investigated to determine why the dog was barking. T. 531. The prosecution argued that evidence of the dog barking from about 8:15 p.m. through 8:35 p.m. proved that the death occurred during that time period, the commotion surrounding the beating and killing of Pius being the reason the dog was barking. T. 523-24, 610-12,1155-56. John Sparling, then seventeen years old, testified that at about 7:50 p.m., he and his two friends had walked from the Smithtown beer distributor along a path that led to the Dogwood Elementary School, arriving there at about 8:15 to 8:20 p.m. T. 582-84. Earlier, while at the beer distributor, the three had met up with the defendants, who were in a yellow car driven by Thomas Ryan, in which Robert Brensic, Michael Quartararo, and Peter Quartararo were passengers. T. 536-38. Sparling and his friends sold them a six-pack of beer. T. 537. Sparling noticed a water bong in the car, but no one was smoking pot at that time. T. 539-40. The two groups parted, but Sparling saw the same yellow car again at about 8:15 or 8:20 p.m. at the Dogwood Elementary School. T. 546. Robert Brensic was on a minibike and was holding on to the driver’s side of the car. T. 546. Sparling did not see who else, if anyone, was in the car. T. 608-09. The car left the school property, proceeded down Dogwood Drive, and turned right onto Rice Lane. T. 547. Sparling testified that he never saw Pius that night. T. 591-92. The investigation into Pius’ death came to focus on the four defendants after Sparling told Detective Thomas Gill, who was investigating the homicide, that he had seen Bren-sic and a yellow car up at the elementary school on the night of April 20,1979. R. 643. Detective Gill testified that after interviewing Sparling, he met with Michael Quartararo, Peter Quartararo, Thomas Ryan and Robert Brensic on April 25, 1979. T. .643. When Detective Gill asked them where they had been on the night of April 20, they said they had been at the High School East watching a baseball game. T. 645-47. However, Gill stated that although all four of the boys were present, Brensic did most of the talking. T. 651. Gill further testified that upon investigation, he determined that there were no lights or facilities for a night game at the high school. T. 648. Gill obtained this information from the school principal, but he could not recall the principal’s name. T. 658. Gill also checked with security people. T. 658-59. B. Petitioner’s Statements at the Fourth Precinct. On April 28, 1979, at about 1:00 p.m., Thomas Ryan and Peter Quartararo were taken into custody. T. 737, 739. Detectives LaValle and Fountain took Ryan to the Homicide Squad office, while Detective Jensen took Peter Quartararo to the Fourth Precinct Juvenile Service Unit. T. 739. Detectives Palumbo and Leonard joined Jensen with Peter at the Fourth Precinct. T. 739-JO. After the three detectives consulted with each other, Palumbo and Leonard questioned Peter Quartararo. T. 760. Jensen then returned to the Homicide Squad Office, where Ryan was detained, and directed two detectives to find Robert Brensic, who was brought to the Homicide Squad Office at about 3:45 p.m. T. 740. Later that same day, April 28, Petitioner arrived at the Fourth Precinct with his mother at about 8:30 p.m. T. 742. Jensen left Petitioner with three detectives and a police officer while he went to review the case with an Assistant District Attorney, the Lieutenant and Detectivé Reck. T. 742-43. Detective Palumbo, the principal interrogator, testified that when Peter, Michael and Mrs. Quartararo were all in one room, he administered all of them their Miranda warnings. T. 767. After both Peter and Michael agreed to answer questions without the presence of a lawyer, Michael was taken out of the room. T. 767. After a period of time, Michael was brought back into the room with Peter, his mother, and Detective Palumbo. T. 767. At this juncture, the testimony of Detective Pa-lumbo was elicited by the prosecutor as follows: Q. Sometime after he [Michael] was taken out of the room, did you bring him back into the room? A. Yes, I did. Q. After he was brought back in to the room, did you then say something to him? Just yes or no. Did you say something to him? A. Yes, I did. Q. As a result of what you said to him, did Michael Quartararo say something? A. Yes, he did. Q. What did he say? A. “I don’t know what you’re talking about.” Q. After he said that, was something else said to him in the room. Yes or no. A. Yes, there was. Q. And as a result of what was said to him, did he then say something? A. Yes, he did. Q. What did he say? A. He said, “All I did was drive around with them that night drinking beer.” Q. After that was something else again said to him? Just yes or no. A. Yes, sir. Q. And after that was said to him, did he say something else in response to that? A. Yes he did. Q. What did he say? A. He said, “You cops don’t have anything on me. All I did was drive around with them drinking beer and I helped them steal the minibike.” He said, “The only thing you got me for is stealing a minibike, not killing John Pius.” T. 767-68. Detective Palumbo then testified that following this exchange, Mrs. Quartara-ro asked that Mr. Quartararo be contacted to come to the precinct. T. 769. Despite this testimony by Palumbo, that he had said “something” to the Petitioner three different times, the testimony was, in fact, not truthful. Detective Palumbo was forced to testify in such a contrived manner because the prosecution was unable to elicit the fact or details of Peter’s confession, since it previously had been determined unreliable by the New York Court of Appeals. Additionally, the confession was ruled involuntary by another judge of this Court. Judge Thomas V. Mallon, who presided at Petitioner’s trial, stated on the record that he was very uncomfortable with this testimony, because it was so carefully tailored to maneuver around the impermissible confession. See discussion at T. 699-730. The prosecutor explained to the trial judge that although the statements attributed to Petitioner were made by him, in the presence of and in response to a confession by his brother Peter, no reference would be made either to the substance of this confession or the fact that it was made. The prosecutor pointed out to the judge the actual nature of the conversation and events in a lengthy discussion held outside the presence of the jury. The prosecutor reviewed the detective’s proposed testimony as follows: [J]ust so you know, what happens is Michael is taken out of the room. Peter then is told, “Tell your mother what you just told us.” And he proceeds to tell his mother about the killing of John Pius. Michael is then brought back in. And Palumbo then asks Michael to tell what happened the night of the 20th. And he [Michael] says things to the extent of, “I don’t know what my brother is talking about. I have nothing to do with it.” Peter then says to him, “Michael, I just told him everything. Tell the truth. I already told them that we killed John Pius,” or words to that effect. His [Michael’s] response is then to Palumbo, “I don’t know what my brother is talking about. I drank beer with those guys. I rode around in the ear with them. We stole a minibike. I don’t know what my brother is talking about past that though.” Again, words to that effect. Again Peter says, “Michael, please. I told them everything. I told them that we killed John,” whatever. At which time Michael says to Palumbo, “Hey, I don’t know what he’s talking about. All you cops got me for is stealing a mínibike. I had nothing to do with killing Pius.” T. 701-02. The prosecutor then asked the court to direct him how to handle Peter’s statements to Michael, because Michael’s statements were, in fact, made in response to what Peter said. T. 702. The judge responded: Believe me, you’re asking for guidance from the Court. I can’t give you any guidance. I’m — this is not a play. We’re not directing a play or anything else here. And I’m not going to direct how the testimony comes in. But in some shape, manner or form, if you’re going to try to get these statements of Michael’s in, they may have to come in a vacuum. They may very well have to come in in a vacuum. T. 703-04. The discussion continued. The judge offered a solution by asking the prosecutor, in reference to Peter’s statements, “Couldn’t you have it look like Palumbo saying it?” T. 711. The prosecutor responded, “But he didn’t. The answer would be no. The truth is, T didn’t say something.’ Was something said then to Michael? How about that. Was something said to Michael?’ ” T. 711-12. Petitioner’s trial counsel responded, “Who said it? The snowman? It’s obvious Peter said it.” T. 712. The prosecutor argued that it would not be so obvious, but expressed frustration that the facts were being changed in an attempt to overcome the taint of Peter’s confession. The prosecutor protested, “Let’s make a whole different scenario how this happened. And they’ll have something that totally didn’t happen at all____ There comes a time when facts, things that actually happened that we cannot avoid — we can redact. Certain limits. But we cannot change facts. So to say, ‘Detective Palumbo, did you then say something?’ His answer would be, ‘No, I didn’t.’ ” T. 712. The judge suggested that a curative instruction to the jury might lessen any fears that the jurors would speculate about the conversation, and that he could instruct them not to consider anything against Petitioner other than his own words. T. 715-17. Judge Mallon recognized that the entire conversation was problematic, as was the wrangling to avoid trial error. The judge stated at one point, “We asked for a jury of 12 people to sit here and listen to the evidence and make a decision based on the evidence. We’re changing the evidence. And I feel quite — rather uncomfortable being a party to that.” T. 717. Defense counsel continued to suggest that a redaction, which would avoid any reference to Peter, would be appropriate. T. 717. The discussion continued for several more pages of the transcript. The trial judge stated that he was “not going to orchestrate the testimony of the witness. That’s for damn sure.” T. 722. The court also recognized that “Here you have a witness [Palumbo] who is sworn to tell the truth, is going to be testifying to what is not the truth. It didn’t happen.” T. 726. As the testimony began to take shape, the court mentioned to the prosecutor that “You’re going to have to lead him. You’re going to have to testify. There is no question about it.” T. 729. In sum, therefore, Palumbo’s testimony did not occur in the manner in which he testified. The detective was not the person who said “something” to Petitioner. The “something” that was said to Petitioner was said to him by Peter. In turn, the statements made by Petitioner were made in response to Peter’s confession. Thus, although Palumbo testified that he himself had said “something” to the Petitioner to elicit these statements, this testimony factually was untrue. Nevertheless, the day following the events at the Fourth Precinct, on April 29,1979, the police went to the Quartararo residence and collected both brothers’ shoes and a minibike frame that had been stolen from Philip Pfis-ter’s yard. T. 747-49, 751, 754. The police also took sneakers belonging to the two brothers from their school gym lockers. T. 752. At the same time, rumors of the involvement of the Quartararo brothers and others began circulating in the community. T. 788, 906. The murder was a common topic of conversation among residents of Smithtown. T. 847, 864, 868, 888. The only other evidence offered against Petitioner consisted of two statements he made to friends, the first in July or August of 1979, and the second made in September 1979. It is necessary to examine each of these conversations in detail as reported. C. Conversation at St. James Railroad Station As to the first incident, the jury heard testimony from five of Petitioner’s friends who were drinking beer with him one evening in the summer of 1979 behind the feed store near the St. James Railroad Station. Each of the five boys — James Burke, John McCort, Danny Culotta, Michael Burke and David O’Brien — testified as to their version of the statements Petitioner made. None of the youths could remember exactly when the conversation occurred, or how long the conversation lasted. However, the testimony of each was comparatively similar to that of the others. T. 774-826 (J. Burke); 841-877 (McCort); 878-897 (Culotta); 897-912 (M.Burke); 915-933 (O’Brien). 1. Testimony of James Burke James Burke, then fourteen years old, and at the time of trial a Suffolk County police officer, testified that the conversation occurred between 7:00 and 8:00 p.m., in late July or early August 1979. T. 776-77. Following a conversation about the funeral mass for John Pius, James Burke testified as follows: Q. After the discussion of the funeral mass took place, was Michael Quartar-aro asked a question? A. Yes, he was, sir. Q. What was he asked? A. Danny Culotta asked him who killed Pius. Q. And how did he respond? A. He said, “Ask Brensic.” Q. Was he then asked another question? A. Yes, he was. Q. By Michael Quartararo? [sic] A. Yes, he was. Q. What was he asked? A. Danny Culotta asked him, “How could you kill someone for just stealing a minibike?” Q. And how did he respond to that, Michael Quartararo? A. Michael Quartararo said, “If you were drunk and stoned, and you didn’t want to get caught, you would do the same thing.” Q. After he made that statement, did Michael Quartararo say anything else in your presence that you recall? A. From my recollection, I recall that Michael had realized what he had said— Mr. Cohen: Objection, your Honor. Q. Not what he realized. Just tell us what he said. The Court: Sustained. A. Mike said Pius seen them steal the bike, the minibike. And he didn’t touch the kid. All he did was put the bike against the tree. T. 780-81. James Burke also testified that he had not been drinking, but that Petitioner and Culotta were drinking. T. 791, 793. He could not recall if McCort, O’Brien, or his brother Michael Burke were drinking. T. 793-94. He testified that he was present at the railroad station for approximately thirty to sixty minutes that evening. T. 793. 2. Testimony of John McCort John McCort was fifteen years old in 1979. T. 842. He testified that the conversation at the railroad station took place in late July or early August, at around 7:30 or 8:00 p.m. T. 844, 850. McCort testified that he, Culotta, Michael Burke, and Michael Quartararo had been drinking beer. T. 850-51. He also testified that he was there for a couple of hours. T. 850. McCort’s testimony was elicited as follows: Q. And at some point during the conversation was Michael Quartararo asked a question? A. Yes. Q. Do you remember what the question was? A. No, I don’t. Q. Do you remember what Michael Quar-tararo said in response to a question being asked of him? A. Yes. Q. What did he say? A. He said he felt sorry for what had ■ happened. He also mentioned putting John’s bike against the tree while those guys beat him up. Q. Did he indicate to you where this took place? A. Saint — Dogwood Elementary School. Q. Did he indicate who he was with? A. No. Q. Meaning the other guys, who the other guys were? A. No, he didn’t. Q. Do you remember him answering a question as to why it had taken place? A. Yes. Q. What did he say? A. “If you were drunk enough and didn’t want to get caught, you’d do the same thing.” T. 844-45. On cross-examination, McCort added more detail to his testimony: Q. Now, you said that during this conversation Michael said that he put a bicycle up against a tree; is that correct? A. Yes. Q. And he said that’s all he did; isn’t that correct? A. Yes. Q. And he said he had no involvement in doing anything else at all, isn’t that correct? A. (No response) Q. I don’t mean those words, but the substance? A. Yes. T. 864. On re-direct, McCort was asked by the prosecutor, “While he was telling you about putting the bike up against the tree, what else was he saying?” McCort responded: “He said those guys were beating him up.” T. 875. 3. Testimony of Danny Culotta Danny Culotta testified that the conversation at the railroad station took place sometime in July, August, or September of 1979. T. 885. Culotta was fourteen years old at the time. T. 879. Culotta did not recall how long he was there that night, but estimated he was there from two to three hours to all night long. T. 880, 886-87. He also testified that he and Michael Quartararo were drinking beer, but did not recall if anyone else was drinking. T. 887-88. The relevant part of Culotta’s testimony was as follows: Q. Now, after, or during that conversation I should say, did there come a time where you asked Michael Quar-tararo a question? A. Yes. Q. What did you ask him? A. I asked him how he could kill a kid like that, shoving rocks down his throat. Q. And what did he say to you? A. He said, “If you were drunk and stoned and he saw you stealing a minibike, you would do the same thing.” Q. Did Michael Quartararo indicate anything else? Did he say anything else to you and the others about the murder of John Pius that night? A. He said that John Pius saw him putting the minibike in the back of Tommy Ryan’s car. T. 881. However, on cross-examination, Cu-lotta phrased his question to Petitioner differently than he did on direct examination. Culotta testified: A. I remember asking Michael, “How do you kill a kid like that by shoving rocks down his throat?” And his reply, what he said. Q. His reply? A. Yeah. Q. You don’t remember that the words you just used were the exact words that you used during this conversation, do you? A. No, they were exact, I’d say. Q. You remember that? A. Yes. T. 889. Later in his testimony, still on cross-examination, Culotta testified as follows: Q, And when the conversation took place, this conversation about the death of ■ John Pius, you didn’t have any particular reaction to what Michael told you, did you? A. No, I did not. Q. You didn’t hear it with your ears as a confession, did you? A. I didn’t take it as a confession, no. I did not. Q. And do you remember Michael saying at any point, “Ask Brensic”? A. I don’t recall that, no. Q. Okay. And do you remember Michael saying at any point that he put a bicycle against a tree? A. Yes. I do remember that. Q. You do? A. Yes. He said he didn’t do nothing but put a bicycle up against the tree. Put the bicycle up against the tree. Q. He also told you he had nothing to do with the Pius murder; isn’t that correct? A. He said he didn’t do anything; That’s all he did, was put the bike up against the tree. T. 890-93. 4. Testimony of Michael Burke - Michael Burke testified that the conversation occurred in late July or early August, between 7:00 and 8:00 p.m. T. 903-04, 900. He was thirteen years old at the time of the conversation. T. 899. Michael Burke stated that the group was at the train station that night for two to three hours, and that they regularly hung out there five out of seven nights a week. T. 903, 900. Michael Burke testified that he drank two or three beers that night, and that Petitioner and Culotta also were drinking. T. 900, 902. He was unable to recall who else was drinking. T. 902. Michael Burke’s testimony was as follows: Q. Did there come a time, after arriving at the area of the St. James Railroad Station that night, that a conversation took place about the death of John Pius? A. Yes, there did. Q. And during that conversation did there come a point when Michael Quartararo was asked a question? A. Yes. Q. Do you remember what the question was? A. Yes, I do. Q. What was the question? A. Danny had asked him, “How could you kill someone for just stealing a minibike?” Q. And do you remember what Michael Quartararo said? A. Yes. He said, “If you were drunk and stoned and you didn’t want to get caught, you would have probably done the same thing.” Q. Did he indicate anything else about the murder of John Pius? A. Yes. Well, he talked a little bit after that. He said that he had seen John Pius in the Dogwood area that night when they had possession of the minibike. Q. Did he indicate who they were, who he was with? A. Yes, he was with his brother Peter, Robert Brensic and Thomas Ryan. T. 900-01. 5. Testimony of David O’Brien David O’Brien, then fifteen years old, also was present at the St. James Railroad Station that night. T. 916. Unlike the others, O’Brien did not live in the area; he lived in Connecticut and was visiting his friend John McCort. T. 916-18. O’Brien testified that the conversation occurred between 7:00 and 8:00 p.m., in late July or early August. T. 917, 919. He recalled that the group was there for two to three hours. T. 927. His testimony was as follows: Q. At some point while you were there that night, did there come a time when a conversation began about the death of a boy by the name of Johnny Pius? A. Yes, there was. Q. And at some point after the conversation began, did there come a time when Michael Quartararo said something about the death of Johnny Pius? A. Yes, he did. Q. Can you tell us what you recall Michael Quartararo saying? A. He said that they were stealing a minibike. And that this boy John had seen them stealing the minibike. And that they were going to — that he was going to call the police. Then they chased after him and caught up to him. And they had stepped on him, beat him up, punched him and kicked him. Q. Did they — I’m sorry. Go ahead. A. And then he said that he took the bike and put it some place. Q. Do you recall anything else that Michael Quartararo said? A. (No response) Q. About what had happened to Johnny Pius? A. No, sir. I can’t recall. Q. Now, you mentioned, in fact you used the word they. Did he ever tell you, or anybody else at that time, who they were? A. No, sir. Q. Never mentioned any other names? A. No. T. 919-21. O’Brien also testified that several of the group were drinking, and that he didn’t recall if there was anyone who was not drinking. T. 924. He had a couple of beers. T. 924. He testified that he believed that Petitioner, James Burke, Michael Burke and Culotta were drinking. T. 925. None of the five boys reported these statements to them parents or the police. T. 799, 853-54, 890, 907. James Burke and John McCort testified as to having felt “shocked” by Petitioner’s statements. T. 796-97, 854. Michael Burke reported being “surprised” by the conversation. T. 905. However, Michael Burke continued to hang out with Petitioner after the conversation. T. 912. D. Conversation at St. James Elementary School The second set of statements by Petitioner occurred in September of 1979. At that time, Petitioner was present in the field of the St. James Elementary School with James Burke, McCort and Culotta. All three testified regarding this conversation. James Burke testified that the conversation took place ifi late September, but could not remember exactly where the conversation occurred. T. 782. When asked, James Burke testified that “[t]he conversation, what I remember of the conversation, is Michael said that the Homicide detectives had shown him photos of Pius. And that his face, his nose was smashed off and that he was covered with leaves. In addition, Mike had said that — I asked him, I said, ‘Well, are you in anymore trouble with this Pius case?’ And he said, ‘The pigs fucked it up and too much time had passed.’ ” T. 782. John McCort recalled that Petitioner was asked “[something pertaining to, What’s happening to you?,’ as far as, What’s going on with you?”’ T. 846. McCort testified that Petitioner responded: “He said that the cops had fucked up and that he probably would get off.” T. 846. Dan Culotta testified in a similar vein. Culotta stated that “[s]omebody asked Michael, ‘Are you still in trouble with the police?’ And he said, ‘No. It’s too late. The cops fucked it up. The pigs fucked it up. They’ll never catch us.’ ” T. 881-82. E. The Defense Case On behalf of the defense, Debra Dietrich, a former girlfriend of Petitioner’s brother Philip, and a babysitter for his other brother Thomas, testified that she was babysitting Thomas on the night of April 20, 1979. T. 1031-32. She testified that Peter, Michael, Brensic and Ryan came into the Quartararo home between 8:30 and 8:35 p.m. that night. T. 1034-35. She remembered the time because she had just taken some brownies out of the oven that were cooling. T. 1035. Dietrich admitted that in her original police statement, she said that the boys had returned at 8:45 p.m. T. 1049. She did not see any dirt on their clothes when they returned. T. 1037. DISCUSSION At the time this petition was filed pro se, Michael Quartararo raised six grounds for relief. Upon appointment of counsel and the determination that some of the grounds were either unexhausted or proeedurally barred, the petition was amended to set forth three constitutional challenges to Petitioner’s conviction. First, Petitioner alleges that his Sixth Amendment Confrontation Clause rights were violated when the prosecution introduced certain, references to Peter Quar-tararo’s confession, which even in their redacted form implied to jurors that Peter had confessed. Second, Petitioner alleges that the evidence introduced at trial was constitutionally insufficient to support his conviction for intentional murder. Third, Petitioner asserts that he was denied a fair trial because his motion for a change of venue was denied and the jury could not have been impartial because of the extensive pretrial publicity in Suffolk County preceding this case. Petitioner also claims that one juror in particular was actually biased against him prior to being seated on the jury. The Court will address each of these arguments in turn. I. CONFRONTATION CLAUSE CLAIM The Sixth Amendment guarantees a defendant’s right to cross-examine witnesses. Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In particular, Bruton held that in a joint trial, the confession of one co-defendant — which implicates both defendants — may not be introduced despite the court’s limiting instruction that the confession be considered only against the confessing defendant. Id. at 128, 88 S.Ct. 1620. The Bruton rule was limited somewhat in Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), where the Supreme Court held that the Sixth Amendment is not violated where the nontestifying co-defendant’s confession is admitted with a limiting instruction, if the confession is redacted to eliminate both the defendant’s name and any reference to his or her existence. Id. The present situation is, of course, considerably different than those of Bruton and Richardson. Petitioner’s first claim for relief is that the Confrontation Clause of the Sixth Amendment was violated when the prosecution improperly made reference to Peter Quartara-ro’s involuntary and unreliable confession during the examination of Detective Palum-bo. Petitioner’s Memorandum of Law (“Pet. Mem.”), at 63. As reproduced above, the prosecutor elicited from Detective Palumbo that, after Peter had been at the precinct for over six hours, the detective said “something” to the Petitioner while Peter and his mother were still present. Petitioner then responded, “I don’t know what you’re talking about.” T. 767. Palumbo testified that he again said “something” to Petitioner, to which Petitioner responded, “All I did was drive around with them that night drinking beer.” T. 767. After that, Palumbo testified that he said “something else” to Petitioner, after which Petitioner stated, “You cops don’t have anything on me. All I did was drive around with them drinking beer and I helped them steal the minibike.” Petitioner allegedly continued, “The only thing you got me for is stealing a minibike, not killing John Pius.” T. 767-68. The backroom details concerning the detective’s testimony are reproduced in the Factual Background, supra. With the understanding that the challenged testimony was redacted, if not changed, in order to avoid reference to Peter Quartararo’s statements, which implicated Petitioner, the Court proceeds to the analysis of the claim. Petitioner first asserts that, aside from the prejudicial nature of the testimony, the mere introduction and use of the detective’s side of this discussion was impermissible because the statements were implied hearsay and were not admissible as “background” information. Pet. Mem., at 70. Respondent contends that it was necessary to introduce the dialogue between Petitioner and the detective in order “to complete the narrative of an incident and to avoid speculation by the jury or to permit the jury to understand a sequence of events or to provide a context for the occurrence of an act.” Respondent’s Memorandum of Law (“Resp.Mem.”), at 24 (emphasis in original). The rules governing the introduction and use of statements made outside the confines of a courtroom are well-established but often difficult to apply. It is well-known that “[hjearsay is a statement of someone, who is not testifying under oath and subject to cross-examination at trial, which is offered in evidence to prove the truth of the matter asserted in the statement.” 4 Louis R. Frumer & Eliot L. Biskind, Bender’s New York Evidence, § 15.01 (1998). Respondent argues both that the statements made by Detective Palumbo were not hearsay, and that the statements were admissible as necessary background. See Respondent’s Supplemental Memorandum of Law (“Resp.Supp.”), at 23; Resp. Mem., at 24. Petitioner is correct in asserting that there is no “background” exception to the rule against hearsay. United States v. Pedroza, 750 F.2d 187, 200 (2d Cir.1984). However, statements that would be hearsay if introduced to prove the truth of the matter asserted may be admissible for other purposes, if the jury is provided a limiting instruction. See, e.g., People v. Jimenez, 246 A.D.2d 333, 667 N.Y.S.2d 362, 363 (1st Dep’t 1998) (out-of-court statements, with limiting instructions, properly admitted as background material to assist jury in understanding events leading to defendant’s arrest); People v. Strong, 234 A.D.2d 990, 651 N.Y.S.2d 823, 824 (4th Dep’t 1996) (out-of-court statements admissible, with limiting instructions, to complete the narrative of the episode). Use of so-called “background” hearsay is further limited by the requirement that “such out-of-court statements [may] be admitted only if they address a disputed fact.” Watson v. Scully, No. 89 Civ. 7840, 1994 WL 177286, at *9 (S.D.N.Y. May 4, 1994) (Ward, J.) (citing People v. Casanova, 160 A.D.2d 394, 554 N.Y.S.2d 21, 22 (1st Dep’t 1990) and People v. Hernandez, 139 A.D.2d 472, 527 N.Y.S.2d 404, 407 (1st Dep’t 1988)). A similar rule has been recognized by the Second Circuit. “When statements by an out-of-court declarant are admitted as background, they are properly so admitted not as proof of the truth of the matters asserted but rather to show the circumstances surrounding the events, providing explanation for such matters with the understanding or intent with which certain acts were performed.” Pedroza, 750 F.2d at 200. Evaluating this rule in United States v. Harwood, 998 F.2d 91 (2d Cir.1993), the court of appeals held that, because the reason why the police had approached the defendant was not in dispute, the offered “background” testimony was therefore irrelevant, and thus inadmissible as hearsay. Harwood, 998 F.2d at 99. Moreover, where there is no purpose for the background testimony except for its truth, the evidence is inadmissible as hearsay. Pedroza, 750 F.2d at 200. In any event, “[t]he greater the likelihood of prejudice resulting from the jury’s misuse of the statement, the greater the justification needed to introduce tbe ‘background’ evidence for its non-hearsay purpose.” United States v. Reyes, 18 F.3d 65, 70 (2d Cir.1994). In other words, testimony that permissibly is offered to provide the jury with needed explanation or context is admissible; however, when there is no legitimate need for such background, or when the proposed testimony is highly prejudicial, or subject to misuse by the jury, the testimony is not admissible because it is, in reality, being offered to prove the truth of the matters asserted. While it may appear that this is a very fine line, the analysis really requires nothing more than traditional hearsay analysis: if offered as truth of the matter asserted, without an exception, it is inadmissible; but if offered as background, and the material is neither highly prejudicial or subject to misuse by the jury, the testimony should be admitted. Cf. Fed.R.Evid. 403. Petitioner points out that the context and sequence of the conversation between he and Detective Palumbo were not needed to explain the actions or investigation of the police because, prior to Palumbo’s testimony, the jury already knew why the police were questioning him on April 28. More particularly, John Sparling already had testified that he had told the police on April 24 that on the night of Pius’ death, he had seen Brensic and the yellow car at the Dogwood Elementary School. T. 546. Thus, Petitioner contends, the jury already had information that John Sparling had implicated Petitioner in Pius’ death. Therefore, the jury already had a basis for understanding why the police were questioning him. Cf. Harwood, 998 F.2d at 99 (rejecting offered “background” testimony where there was no dispute regarding the reason the police had approached the defendant). In sum, Petitioner argues that there was no purpose for the introduction of this background testimony except for the truth of the matters asserted therein. Pedroza, 750 F.2d at 200. Respondent’s argument that the detective’s side of the conversation was necessary to provide a proper context for the jury is not persuasive given its admission that “the police already knew from Sparling that Bren-sic, Ryan and the Quartararo brothers were together on the evening of the murder.” Resp. Supp., at 21. The key information was what Petitioner said — not the detective. Respondent nevertheless argues that the dialogue, offered in redacted form through the prosecutor and Palumbo, was offered merely as “background” in order “to complete the narrative of an incident and to avoid speculation by the jury or to permit the jury to understand a sequence of events____” Resp. Mem., at 24 (emphasis in original). In the circumstances here, none of these proffered reasons is proper. First, it was not necessary to introduce the fact that the detective said “something” to the Petitioner to complete the narrative of an incident and to avoid speculation by the jury. Through Sparling’s testimony, the jury already knew why the police were questioning Petitioner. In fact, the introduction of the testimony in this form was more likely to lead to jury speculation regarding just what the “something” was that Detective Palumbo said to Petitioner to get him to respond the way he did. Such potential juror misuse is the precise reason for excluding “background” evidence. See Reyes, 18 F.3d at 70. For the same reasons, the detective’s statements were not necessary “background” that the jury needed to understand the sequence of events involved. The concept is not difficult: Sparling told the police that he saw Petitioner in the area of Dogwood Elementary School the night of the murder, and then the police sought to question Petitioner. Finally, the detective’s side of the conversation, which actually was Peter’s, was not necessary to provide a context for the occurrence of an act. The only context the jury needed already had been provided. In sum, there was no permissible reason for the admission of the fact that the detective said “something” to the Petitioner. This “something,” further discussed below, would only add to the prosecution’s case if it were introduced as truth of the “something” asserted, a reason which converts the testimony to hearsay, and plainly is impermissible. As such, the testimony of Detective Palumbo, that he said “something” to the Petitioner, was inadmissible hearsay, and should have been excluded. See also United States v. Check, 582 F.2d 668, 681 (2d Cir.1978) (holding that “a witness’s prior statements offered to prove the truth of the matters asserted therein are not immunized from the proscriptive effect of the hearsay rule.... even if they could be regarded as being a literal recitation of [the witness’s] own prior out-of-court statements.”). Of course, the fact that hearsay im-permissibly was introduced does not mean that a constitutional violation occurred, nor does it mean that the error was not harmless. The fact that the testimony was admitted, however, makes the question whether Petitioner’s Confrontation Clause rights were violated by such introduction even more serious. Reaching the substance of Petitioner’s claims, Petitioner argues that the detective’s use of the term “something” only could have referred to Peter’s inadmissible confession, and the use of the word “something” was prejudicial to his defense. Pet. Mem., at 63, 66-70. Petitioner further argues that the statements he made to Palumbo could have been elicited without introducing the entire conversation with the detective, in the context of the detective’s prior interrogation of Peter. Id., at 71-72. Petitioner relies primarily on the Second Circuit’s decision in Mason v. Scully, 16 F.3d 38 (2d Cir.1994), to show that the admission of police testimony, implying that a nom> testifying witness had implicated the defendant, violates the Confrontation Clause. In Mason, the prosecutor questioned a police officer about a conversation the officer had with a non-testifying co-defendant who previously had pled guilty to the robbery charge of which both he and defendant were accused. 16 F.3d at 39-40. The prosecutor said to the testifying officer, “[A]fter this conversation with George Rivera [the co-defendant], were you looking for somebody?” Id. at 40. The officer replied, “Yes, I was.” Id. The prosecutor followed up, “And, who were you looking for?” Id. The police officer replied, “Terrance Mason [the defendant].” Id. In discussing defendant Mason’s Confrontation Clause rights, the court of appeals found that “the statement need not have accused the defendant explicitly” in order to infringe on the defendant’s confrontation rights. Id. at 42-43. Instead, the defendant’s rights could be implicated by “an accusation that is only implicit.” Id. at 43. Additionally, the court of appeals cited with approval the decision of the New York Appellate Division in People v. Tufano, 69 A.D.2d 826, 415 N.Y.S.2d 42 (2d Dep’t 1979). In Tufano, the Second Department held that it was “ ‘obviously improper’ to create in jurors’ minds the impression that a code-fendant’s unreported statement led to the defendant’s arrest.” Mason, 16 F.3d at 43 (quoting Tufano, 415 N.Y.S.2d at 43). In Tufano, the court held that the defendant’s right to confrontation was violated when the prosecutor introduced testimony of a conversation between a police officer and a non-testifying co-defendant in order to show “that it was Terenzi’s statement that led them to arrest Tufano.” Tufano, 415 N.Y.S.2d at 43. Petitioner’s case, however, slightly differs from both Mason and Tufano. In both of the aforementioned cases, the statements of non-testifying co-defendants led to the defendants’ respective arrests. The effect of the challenged statements, namely the subsequent arrests of Mason and Tufano, implied to the jury that the out-of-court statements by the co-defendants clearly implicated the defendants, leading to a violation of the defendants’ right to confrontation because the declarants did not testify. In Petitioner’s case, however, the alleged confrontation problem is much less defined. Unlike the implications formed in Mason and Tufano, where the out-of-court statements led directly to the defendants’ arrests, here the “something” of which the detective testified did not lead directly to Petitioner’s arrest. Instead, Palumbo’s side of the conversation essentially led Petitioner to admit to stealing the mini-bike and drinking beer, but deny involvement in Pius’ murder. The central problem with Petitioner’s argument is that the word “something,” even in the context in which it was used here, is too vague to act as an implicit accusation by Peter, made via Palumbo, that Petitioner was involved in the murder. The testimony , of Palumbo indicated that the jury knew that Peter had been taken to the Fourth Precinct around 1:30 p.m. by Detective Jensen. T. 739. The jury knew that Detective Palumbo’s first meeting with Peter Quartararo occurred at around 2:30 p.m. T. 760. The jury also knew that efforts were being made to bring Petitioner to the precinct. T. 741. The jury further knew that sometime after 2:30 p.m., Jensen had directed that Brensic be brought in, and that Brensic arrived around 3:45 p.m. T. 739-40. The jury knew that Petitioner arrived at the precinct with his mother at around 8:30 p.m. T. 742. The jury knew that Petitioner had been administered Miranda warnings in the presence of his mother and Peter. T. 765-67. The jury knew that Petitioner then was removed from the room for a period of time, leaving behind the detective, Peter Quartararo, and Mrs. Quartararo. T.767. The jury knew that Michael later was brought back into the room. T. 767. It was at this juncture that Palumbo allegedly said “something” to the Petitioner three different times, thus eliciting Petitioner’s statements. T. 767-68. The jury also knew that the subject of the “something” said to the Petitioner was the Pius murder. T. 771. Nevertheless, the jury would have had to engage in a lengthy reasoning process in order to conclude that the “something” that was said to Petitioner was the fact that Peter had confessed to the crime and had implicated Petitioner. The jury would have had to string together all of this testimony, conclude that Palumbo was merely acting as a conduit for Peter, and that the “something” was an accusation of Petitioner. This type of inferential reasoning is not the sort of direct and immediate confrontation that exists in any of the cases Petitioner cites in support of his position. The line of reasoning from “something” to an incriminating statement made by somebody who did not even testify is far too long and far too speculative to support the conclusion that Petitioner would like to reach. In further support of his claim, Petitioner points out that the jury later became aware that “something” occurred on April 28, 1979 which eliminated other suspects in the Pius murder. T. 994. Additionally, Petitioner argues that the prosecutor further highlighted that the “something” was Peter’s confession when in summation he stated that he had been “unable to discuss some of the police investigation in this case.” T. 1164. However, these statements, made days after Palum-bo’s testimony, were unlikely to increase the likelihood that the jury would conclude that the “something” about which Palumbo had testified was Peter’s confession implicating Petitioner. The jury still would have had to engage in a thoughtful and deliberate process in order to get to this conclusion. Such deliberation is not similar to the type of facially incriminating statements that previously have been held to violate the Confrontation Clause. The Supreme Court recently addressed the extent to which a Bruton violation occurs when a co-defendant’s statement is redacted by replacing the “defendant’s name with an obvious indication of deletion, such as a blank space, the word ‘deleted,’ or a similar symbol.” Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 1155, 140 L.Ed.2d 294 (1998). The Court held that redactions of this sort fall within Bruton's protections, and therefore violate the Confrontation Clause. Id. Despite its expansion of Confrontation Clause rights, however, Gray does not support Petitioner’s position. Though some analogies can be made, none are persuasive because of the unique situation presented here. First, Gray involved a joint trial; here there was no joint trial. Second, Gray involved the introduction of the co-defendant’s confession; here, the confession was absolutely barred from admission, despite the prosecutor’s multiple attempts to get the fact or details of the confession admitted. In fact, unlike in Gray, here the confession could not be used against anyone. These distinct facts — there was no joint trial and no introduction of a redacted confession' — militate in favor of a finding that no Confrontation Clause violation occurred. One particular passage from Gray is exceptionally instructive, offering a Sixth Amendment principle that cannot be overlooked. In the context of the facts presented to it, the Gray Court held that [t]he inferences at issue here involve statements that, despite redaction, obviously refer to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, ... facially incriminates the codefendant. Like the confession in Bruton itself, the accusation that the redacted confession makes is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Gray, 523 U.S. at -, 118 S.Ct. at 1157 (internal quotations and brackets omitted). The situation presented here does not come close to paralleling that in Gray. The inferences here do not obviously refer to someone and do not involve inferences that a jury would make immediately. Instead, the jury would have had to go through a rather complex reasoning process to arrive — if ever — -at the conclusion that the “something” was Peter’s confession implicating Petitioner. While it is only natural that the jury would speculate as to what the “something” was being substituted for, Palumbo’s testimony did not facially incriminate Petitioner. Even if the jury eventually arrived at this conclusion that Petitioner claims is so obwous, it is not so vivid that it would have been difficult to thrust out of mind. In sum, although Palumbo’s testimony was not admissible as “background” testimony, the error in admitting the testimony did not rise to the level of a constitutional violation. For this reason, the Court need not conduct an inquiry into the harmfulness of this evi-dentiary error. See Einaugler v. Supreme Court of State of New York, 109 F.3d 836, 842 (2d Cir.1997) (“We may only overturn a state conviction when that conviction was obtained in violation of a federal constitutional right.”). Thus, the Petitioner’s Avrit must be denied on this claim. II. SUFFICIENCY OF THE EVIDENCE CLAIM Petitioner’s second claim is that he was deprived of due process of law based on the prosecution’s failure to prove through legally significant ewdence every element of the offense beyond a reasonable doubt. Specifically, Petitioner alleges that the prosecution failed to prove that Petitioner actually took part in the murder and that he intended to murder John Pius. In support of this argument, Petitioner points out that the prosecution’s case was based entirely on circumstantial evidence, including ambiguous statements by teenagers who had been drinking; that there was no physical evidence linking him to the crime; and there was inadequate police investigation of the case. A. Legal Standard Habeas relief based on sufficiency of the eAndence should be granted only if the court concludes that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be weighed in the light most favorable to the prosecution and all permissible inferences must be drawn in the prosecution’s favor. Id. at 326, 99 S.Ct. 2781. “This means that we must credit every inference that could have been drawn in the State’s favor, ... whether the evidence being reAdewed is direct or circumstantial.” Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.1988). The court must apply relevant state law to determine if “a rational juror could have found the element of intent satisfied.” Mallette v. Scully, 752 F.2d 26, 31-32 (2d Cir.1984). However, it is not necessary to decide “whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (emphasis in original). Rather, “[t]he task is to ascertain whether the record evidence on which the trier of fact relied was of sufficient quality to support the verdict.” Mallette, 752 F.2d at 31 (citing Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)). A federal court’s scope of review is “the narrow one of due process, and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court.” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (citation omitted). Having set such a high bar for habeas relief on an insufficiency claim, the Jackson Court nevertheless warned against deferring to convictions that were supported only by a “mere modicum” of evidence. Jackson, 443 U.S. at 320, 99 S.Ct. 2781. As part of its sufficiency review, this Court must consider “whether, as a matter of federal law, there was sufficient evidence for a jury to find that the prosecution proved the substantive elements of the crime as defined by state law.” Einaugler, 109 F.3d at 839. The Second Circuit also has emphasized that where a fact to be proved is also an element of the offense — here, intent ..., which is usually established only by inference — it is not enough that the inferences in the government’s favor are permissible. We must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt. United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.1995) (citing United States v. Soto, 47 F.3d 546, 549 (2d Cir.1995); United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir.1994)). It is true that a petitioner challenging the sufficiency of the evidence bears a “very heavy burden.” United States v. Carson, 702 F.2d 351, 361 (2d Cir.1983). The burden is very heavy because of the special concerns of federal-state comity and finality arising when “a state prisoner invokes the jurisdiction of a federal court to redress an alleged constitutional violation.” Jackson, 443