Knight v. Walsh (524 F. Supp. 2d 255, 2007)

DECISION AND ORDER

WILLIAM M. SKRETNY, District Judge.

1. Petitioner commenced this action pro se on October 29, 2003, requesting habeas corpus relief under 28 U.S.C. § 2254. (Docket No. 1.)

2. The Court referred this matter to the Honorable Leslie G. Foschio, United States Magistrate Judge, to issue a Report and Recommendation for the consideration of the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B).

3. In a 77-page Report and Recommendation dated September 26, 2007, Judge Foschio recommended that Knight’s habeas Petition be dismissed. (Docket No. 11.)

4. On October 29, 2007, Petitioner filed a 71-page Objection to Judge Foschio’s Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Local Rule 72.3(a)(3). (Docket No. 14.) Several weeks later, on November 21, 2007, Petitioner sought leave to amend his objections, claiming that paragraph “I” had been inadvertently omitted. (Docket No. 17.) Petitioner submitted his proposed amended Objection to the Report and Recommendation, numbering 73 pages, which has already been filed. (Docket No. 16.) Having compared the initial Objections and the proposed amendment, the Court grants Petitioner’s request.

5. The Court has thoroughly reviewed this case de novo and has considered Judge Foschio’s Report and Recommendation, Petitioner’s Amended Objections thereto, and the applicable law. Upon due consideration, this Court will accept Judge Foschio’s recommendation and deny the Petition for a writ of habeas corpus.

6. In addition, because the issues raised here are not the type of issues that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, the Court concludes that petitioner has failed to make a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), and accordingly the Court denies a certificate of appealability.

The Court also hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

Petitioner must file any notice of appeal with the Clerk’s Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

IT HEREBY IS ORDERED, that Petitioner’s Request for Leave to Amend his Objections (Docket No. 16) is GRANTED.

FURTHER, that this Court accepts Judge Foschio’s September 26, 2007 Report and Recommendation (Docket No. 11) in its entirety, including the authorities cited and the reasons given therein, and Willis Knight’s Petition for a Writ of Ha-beas Corpus (Docket No. 1) under 28 U.S.C. § 2254 is DENIED.

FURTHER, that a certificate of appeal-ability is DENIED.

FURTHER, that leave to appeal as a poor person is DENIED.

FURTHER, that the Clerk of this Court is directed to take the necessary steps to close this case.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

Petitioner Willis Knight, acting pro se, commenced this action on October 29, 2003, requesting habeas corpus relief under 28 U.S.C. § 2254. On November 3, 2006, Honorable William M. Skretny referred the matter to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), for report and recommendation.

BACKGROUND

On October 29, 2003, Petitioner Willis Knight (“Petitioner” or “Knight”), proceeding pro se, filed a Petition (Doc. No. 1) (“Petition”), commencing this action seeking habeas relief, challenging Petitioner’s conviction on June 8, 1995 for the kidnapping, rape and murder of an 18-year old woman in Rochester, New York. Petitioner asserts 20 grounds for relief, arguing that his conviction and sentence are unconstitutional based on (1) unlawful arrest, Petition ¶ 12(A); (2) impermissibly suggestive identification procedures, Petition ¶ 12(B); (3) denial of right to conflict-free counsel, Petition ¶ 12(C); (4) an improperly impaneled trial jury, Petition ¶ 12(D); (5) use of inadmissible tape recordings and transcripts, Petition ¶ 12(E); (6) improper use of voice identification testimony, Petition ¶ 12(F); (7) introduction of impermissible DNA evidence at trial, Petition ¶ 12(G); (8) prosecutorial misconduct, Petition ¶ 12(H); (9) use of an “annotated” verdict sheet, Petition ¶ 12(1); (10) trial court judge’s failure to recuse himself after the case was remanded for a reconstruction hearing regarding use of the annotated verdict sheet, Petition ¶ 12(J); (11) conflict of interest between the trial court judge and Petitioner, Petition ¶ 12(K); (12) withholding of exculpatory evidence by the prosecution, Petition ¶ 12(L); (13) ineffective assistance of appellate counsel, Petition ¶ 12(M); (14) the appellate court’s failure to consider all supporting papers when ruling on Petitioner’s motion for a writ of error coram nobis, Petition ¶ 12(N); (15) the jury’s consideration of improper evidence during deliberations, Petition ¶ 12(0); (16) inadmissible fingerprint evidence, Petition ¶ 12(P); (17) failure to preserve evidence, Petition ¶ 12(Q); (18) insufficient evidence to support the verdict, Petition ¶ 12(R); (19) the imposition of consecutive sentences, resulting in an excessive sentence, Petition ¶ 12(S); and (20) ineffective assistance of trial counsel, Petition ¶ 12(T).

On February 6, 2004, Respondent filed a Response (Doc. No. 7) (“Response”) opposing the Petition, attached to which are the first of two volumes of exhibits, A through V (“Vol. I, Response Exh(s). _”). Also submitted was a second volume of exhibits, A through X (“Vol. II, Response Exh(s). _”). The Response Exhibits are comprised of state court records pertaining to Petitioner’s conviction, appeal of the conviction to the New York Supreme Court, Appellate Division, Fourth Department (“Appellate Division”), and motion for a writ of error coram nobis. On February 9, 2004, Respondent submitted five additional volumes of transcripts of Petitioner’s state court proceedings including, inter alia, arraignment, other pretrial proceedings, Petitioner’s jury trial, and a reconstruction hearing. References to “SR Vol(s). _, at_” are to the particular page numbers and volumes of the five volumes of state records filed'in this action.

On July 27, 2006, Petitioner filed a Traverse and Memorandum of Law (Doc. No. 9) (“Memorandum”) in further support of the Petition. Attached to Petitioner’s Memorandum are Exhibits A through E (“Petitioner’s Exh(s). _”). Oral argument was deemed unnecessary.

Based on the following, the Petition should be DISMISSED.

FACTS

Petitioner, Willis Knight (“Knight”), was arrested on May 13, 1994 in connection with the November 13, 1993 abduction, rape and murder of 18-year old college student Jennifer Koon (“the victim”), in Rochester, New York. The trial testimony established that at 11:30 a.m. on Saturday, November 13, 1993, the victim left her part-time job and drove to Pittsford Plaza in Pittsford, New York, a suburb of Rochester, where the victim purchased bagels and used an automatic teller machine (“ATM”), before returning to her vehicle intending to return to her college dorm. Trial Transcript (“Tr.”) at 933-36, 945-54, 1315-20. Instead, the victim was abducted by at least two men who drove the victim in her vehicle to Rochester, beating the victim during the drive. There were several witnesses to the beating who attempted to obtain aid for the victim by summoning the police. The witnesses reportedly observed the victim’s vehicle traveling along Rochester streets, while a struggle ensued between the driver and the victim who was sitting in the front passenger seat. Tr. at 964-73, 977-84, 997-98, 1012-1025, 1068-75, 1101-08. During the ride, another male passenger sat in the vehicle’s rear passenger seat. Tr. at 966-68, 978-86, 2199. At one point, the victim was observed hanging out the door of the moving vehicle as she tried to escape before the driver pulled the victim back into the vehicle, slamming the door on the victim’s arms, and subsequently smashing the victim’s head against the front passenger window so hard as to shatter the glass. Tr. at 964-73, 977-84, 997-98,1012-25,1068-75,1101-08.

While being brutally beaten, the victim managed to dial 911 from a cell phone installed in the vehicle. Tr. at 907, 1479, 1503-06, 1511-23. The call was received on November 13, 1993, at the 911 emergency call center at 1:13 p.m. by telecom-municator Kimberly Bell (“Bell”), who was able to determine only that the call had been placed by a cell phone for which the location could not be determined. Tr. at 1479-80. According to Bell, the caller was “in trouble, someone that was hurt.” Tr. at 1480. Bell described hearing a car radio or music, and a door or seatbelt chime with “lots of rustling noises.” Id. Bell was never able to speak with the caller, but she kept the phone line open while she informed her supervisor about the call. Id. All communication transmissions to the 911 emergency call center were recorded to a “master tape.” Tr. at 1481. The line was left open for 15 minutes. Tr. at 1481, 1485.

Despite the victim’s emergency 911 call, the police did not reach the victim in time to save her." The victim’s body, slumped in the front passenger seat with her head hanging out the shattered passenger window, was found by Rochester Police at approximately 1:25 p.m. on Orpheum Alley in Rochester. Vol. II, Response Exh. B. An autopsy revealed the victim had been raped, suffered blunt force trauma injuries to her face and arms, multiple bodily abrasions and contusions, and was shot three times with a rifle, including shots to the middle of her forehead, the back of her head, and in her left upper back. Tr. at 1351-54, 1356-73, 1377-78. The victim’s feet were dirty and bloodstained and traces of brick residue and soil and plant debris found on her clothing, including her panties, indicated the victim had been removed from the vehicle, raped on the ground, and then placed back inside the vehicle. Tr. at 1170, 1354, 1545, 1550-53, 2481-83.

Voices on the 911 emergency call tape were later identified as belonging to the victim, Petitioner, and Petitioner’s stepbrother, Reginald McGriff (“McGriff”). Tr. at 2202-04. One witness, Katrina Williams (“Williams”), identified McGriff, with whom Williams had been acquainted for four or five years prior to November 13, 1993, as the passenger in the vehicle’s back seat who handed a rifle to the driver before exiting the car. Tr. at 980-82. After exiting the vehicle, Williams greeted McGriff, asking “hey Reggie, what’s going on? Are you in trouble? Something is not right,” to which McGriff responded, “no, I am all right.” Tr. at 982-84.

Upon investigating the murder, investigators from the Physical Crimes Unit originated a surveillance detail to gather information regarding McGriff. Vol. II, Response Exh. B. Observed with McGriff were Damian Smith (“Damian Smith”), Christopher Knight, a/k/a Christopher Cooper, and Eugene Knight, a/k/a Eugene French. Vol. II, Response Exh. B. Christopher and Eugene Knight and McGriff are Petitioner’s half-brothers. Id.

On November 13, 1993, Robert Geer (“Geer”) contacted the Rochester Police regarding the murder. Vol. I, Response Exh. D at 27. On November 14, 1993, Investigator Campione met with Geer and obtained a statement regarding Geer’s observations of the incident prior to the victim’s murder. Id.

On November 14, 1993, McGriff was brought to the Rochester Police Department for questioning about the murder. Vol. II, Response Exhs. A at 3 and B. McGriff, who was not arrested at that time, stated that at the time of the crime, McGriff had been a passenger in the victim’s vehicle driven by an individual known to McGriff only as “Dee” or “D,” that the victim was seated in the front passenger seat, and that another black male passenger, unknown to McGriff, was seated in the rear seat. Id. McGriff, who was not arrested at that time, was informed he was free to leave when the interrogation ended. Vol. II, Response Exh. B.

Later in the investigation, on April 12, 1994, Petitioner’s half-brother, Eugene French (“French”), contacted the Physical Crimes Unit of the Rochester Police Department and offered to provide information concerning the victim’s murder, in exchange for police assistance in obtaining the dismissal of unrelated charges then pending against French. Officers from the Physical Crimes Unit, including Sergeant Merklinger (“Sgt. Merklinger”) and Investigator Terrance Sheridan (“Inv. Sheridan”) met with French who described a conversation between French and another brother, Christopher Cooper (“Cooper”) in which Cooper informed French that Cooper had recognized Petitioner’s voice on a tape of a 911 emergency call originating from the victim’s vehicle just prior to her murder. According to Sgt. Merklinger, the 911 tape had been played for Cooper, who declined to cooperate with the investigation. Sgt. Merklinger and Inv. Sheridan spoke with French again on April 27, 1994, when French stated that another brother, McGriff, told French that he was with Petitioner in the victim’s vehicle on November 13, 1993, and that Petitioner later admitted to McGriff having killed the victim.

On May 12, 1994, McGriff was arrested on drug charges unrelated to the victim’s abduction, rape and murder, and was transported to the Rochester Public Safety Building where McGriff was initially interrogated by Investigators Sheridan, Coleman (“Inv. Coleman”), Campione (“Inv. Campione”), and Schultz (“Inv. Schultz”), during which McGriff maintained that Petitioner was not involved in the victim’s homicide, but that a person named “D” from New York City had committed the murder. McGriff was later interrogated by Investigators Evelyn Beaudrault (“Inv. Beaudrault”) and Vito D’Ambrosia (“Inv. D’Ambrosia”), and initially continued to deny that Petitioner was involved in the victim’s murder. As the interrogation continued, however, McGriff acknowledged that Petitioner, rather than “D” had committed the murder. McGriff explained that on November 13, 1993, McGriff, while inside Petitioner’s residence, peered out a window and observed Petitioner seated behind the steering wheel of the victim’s vehicle, in which the victim was seated in the front passenger seat. At Petitioner’s urging, McGriff retrieved Petitioner’s .22 caliber rifle from inside the home, and brought it outside to the victim’s car which McGriff then entered, sitting in the back seat. Petitioner then drove off in the vehicle, urging McGriff to shoot the victim. When McGriff refused, Petitioner grabbed the rifle from McGriff, and McGriff exited the vehicle. McGriff stated that when he encountered Petitioner later that same day, Petitioner admitted having killed the victim by shooting her in the head. McGriff s statement was reduced to a written statement which McGriff signed and McGriff then submitted to a polygraph test. When the results of the polygraph test indicated that McGriff s recollection of the subject events was not entirely accurate, McGriffs statement was amended. In both the first and second statements, McGriff identified Petitioner as the victim’s killer.

At 9:30 a.m. on May 13, 1994, Petitioner was riding in a vehicle driven by another brother of Petitioner, Christopher Knight (“Christopher Knight”), when the vehicle was stopped on North Street, in Rochester, by several Rochester Police Officers, including Sergeant Gerbino (“Sgt. Gerbi-no”), and Officer Robert Peterson (“Officer Peterson”). Officer Peterson informed Christopher Knight and Petitioner the stop was to check the vehicle’s registration to determine whether it had been stolen. At the officers’ request, Petitioner exited the vehicle,.and was then arrested, handcuffed and transported to the Public Safety Building for requesting regarding the victim’s murder. It is undisputed that no warrant had issued for Petitioner’s arrest.

Upon arriving at the Public Safety Building, Petitioner was interrogated by Investigators Campione and Sheridan. Inv. Sheridan read Petitioner his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) “(Miranda warning” or “Miranda rights”). Petitioner, upon acknowledging he understood his Miranda rights, agreed to answer questions, but stated he would refuse to answer any questions he did not wish to answer. Petitioner was then interrogated from 10:40 a.m. to 10:10 p.m. on May 13, 1994, with breaks to use the bathroom and refreshments. Throughout the interrogation, Petitioner refused the officers’ requests to submit to a polygraph test and continued to deny any knowledge of the victim or involvement in her murder. At the end of the interrogation, Sgt. Merk-linger advised Petitioner that he was being arrested for the victim’s murder.

On May 13, 1994, Damian Smith was taken from his school and questioned by police regarding the incident. Yol. II, Response Exh. B; Tr. at 2211-13. The audiotape of the 911 emergency call was played for Damian Smith who identified two male voices heard on the tape as belonging to Petitioner and McGriff. Vol. II, Response Exh. B; Tr. at 2203-04, 2213. Smith also stated that in November 1993, after hearing rumors that McGriff was involved in the murder, Smith asked McGriff if the rumors were true, and McGriff admitted being in the victim’s vehicle while Petitioner was driving, but that he, McGriff, had exited the vehicle prior to the murder. Id. McGriff also instructed that if Smith were interrogated about the murder, Smith should state that he heard someone named “Dee” committed the murder. Id. Smith identified Petitioner as the victim’s killer, and submitted to the taking of pubic and head hair samples and a voice exemplar.

On May 16, 1994, Inv. Campione met with Geer, an eyewitness who had initially contacted the police on November 13,1993, for the purpose of showing Geer a photo array consisting of six colored photographs of black males, including a photograph of Petitioner taken at the time of Petitioner’s arrest. Vol. I, Response Exh. D at 27. When asked if he could identify any of the men depicted in the photo array as the one Geer observed assaulting the victim on November 13, 1993, Geer pointed to Petitioner’s photo, but stated he recalled the attacker as having longer hair and no facial hair compared to Petitioner’s appearance at the time of his arrest six months later. Id. at 27-28. Geer also denied having seen or heard any of the numerous media reports regarding the murder. Id. at 27.

Later that same day, Sgt. Merklinger and Lieutenant Tom Jones (“Lt. Jones”) met with Michael Smith (“Michael Smith”), another eyewitness, from whom a supporting deposition was then obtained. Vol. I, Response Exh. D at 28. Upon being shown the same photo array previously shown to Geer, Michael Smith pointed to Petitioner’s photo as depicting the driver of the victim’s vehicle, although, like Geer, acknowledged that Petitioner did not have facial hair on November 13, 1993, and that Petitioner’s hair in the photo was different. Id. at 28-29. Michael Smith further stated he recognized Petitioner from observing Petitioner on prior occasions drinking beer in the neighborhood. Id. at 29.

On May 20, 1994, a Monroe County grand jury returned indictment No. 94/356, charging Petitioner with one count of Intentional Murder, in violation of New York Penal Law (“N.Y. Penal Law”) § 125.25[1], based on the shooting death of the victim, and one count of Felony Murder, in violation of N.Y. Penal Law § 125.25[3], based on the fact that the victim’s murder occurred during her abduction. Vol. I, Response Exh. D. At his arraignment on the charges before New York Supreme Court Justice Francis A. Affronti (“Justice Affronti”), on May 24, 1994, Petitioner, represented by assigned counsel Assistant Monroe County Public Defender Jeffrey A. Jacobs (“Jacobs”), entered pleas of not guilty to both counts. May 24, 1994, Arraignment Tr. at 1-3. Petitioner’s request to be released on his own recognizance was denied, and bail was set in the amount of $ 150,000. Id. at 15.

Prior to trial, Petitioner filed an omnibus motion seeking, inter alia, suppression of testimony regarding any statements Petitioner made to law enforcement officers as not voluntarily made and obtained as a result of an arrest made without probable cause, suppression of identification testimony by witnesses, and suppression of tangible evidence seized pursuant to a search warrant. Vol. I, Exh. D. Following oral argument on the omnibus motion on August 9, 1994, a suppression hearing (“suppression hearing”) pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), was ordered and held on September 19, 20, and 22, Suppression Tr. 1, October 6, 1994, Suppression Tr. 2, and October 7, 1994. Suppression Tr. 3. Testifying at the suppression hearing on the prosecution’s behalf were Inv. Beaudrault, Suppression Tr. 1 at 16-77, Officer Peterson, id. at 79-99, Sgt. Merklinger, id. at 100-242, Inv. Campione, id. at 243-327, Inv. Montalvo, id. at 328-42, and Inv. Sheridan, id. at 348-400; Suppression Tr. 2 at 4-56. Testifying for Petitioner were Inv. D’Ambrosia, Suppression Tr. 2 at 57-69, Inv. Schultz, id. at 70-84, and Inv. Siersma, Suppression Tr. 3 at 3-8.

In a Decision and Order dated December 22, 1994 (“December 22, 1994 Decision and Order”) (Vol. I, Response Exh. D), Justice Affronti found the identification of Petitioner by two witnesses, Geer and Michael Smith, to be admissible at trial. December 22,1994 Decision and Order at 10-13. Both Geer and Smith had identified Petitioner as the driver of the victim’s vehicle on November 13, 1993, upon observing separate photo arrays. Id. Justice Affronti further found probable cause existed for Petitioner’s warrantless arrest on May 13, 1994, such that there was no basis to suppress statements Petitioner made following his arrest, pursuant to Dunaway, supra. Id. at 13-18. Petitioner’s motion to suppress statements made following his arrest as not voluntarily given was denied. Id. at 18-19. Petitioner’s motion was also denied insofar as Petitioner challenged the photo arrays shown to Geer and Smith as impermissibly suggestive, and tainted as a result of pretrial media coverage. Id. at 19-22..

On December 23, 1994, a second indictment was returned against Petitioner, No. 94/883, charging Petitioner with one count of Rape in the First Degree in violation of N.Y. Penal Law § 130.35(1). Vol. I, Response Exh. D; January 5, 1995 Arraignment Tr. at 2. Petitioner was arraigned on the charge on January 5, 1995, before Justice Affronti, and pleaded not guilty. Id. at 3. Justice Affronti consolidated the two indictments, Nos. 94/365 and 94/883, for trial. January 17, 1995, Decision and Order, Yol. I, Response Exh. D.

A jury trial on the three charges commenced on March 27, 1995, and concluded on April 20, 1995. Justice Affronti presided over the trial, at which Jacobs represented Petitioner and Assistant Monroe County District Attorney Richard A. Keenan was the prosecutor. Testimony was presented by five witnesses, including Luz Sierra (“Sierra”), Katrina Williams (‘Williams”), Alethea Sutton (“Sutton”), Michael Smith, and Geer, who witnessed the assault of the victim while being driven through the streets of Rochester just prior to her death. Tr. at 964-77 (Sierra), 977-95 (Williams), 995-1012 (Sutton), 1012-65 (Michael Smith), and 1101-35 (Geer). All five witnesses testified to observing a maroon vehicle, matching the description of the victim’s vehicle, being driven along Rochester streets near Orpheum Alley with a white, female passenger, who appeared to be hurt, struggling -with the driver and hanging out the open front passenger door. All five witnesses also observed other occupants of the vehicle, a black male driver and a black male back seat, driver’s side passenger. The driver was driving with one hand, while holding the female by the back of her shirt, while the back seat passenger just sat. The eyewitnesses all reported hearing loud voices coming from the vehicle indicating the vehicle’s occupants were arguing. At one point, the vehicle stopped, the back seat passenger exited through the rear driver’s side door, and the vehicle then resumed driving.

One witness, Williams, testified she recognized McGriff as the back seat passenger because she had been acquainted with McGriff for four or five years. Tr. at 980. Williams also saw McGriff, while seated in the vehicle’s rear seat, hand a rifle to the driver. Id. at 981-83. Michael Smith testified he chased the vehicle on foot and got “a good look” at the driver’s face three times upon approaching the vehicle as it slowed to turn corners, and identified Petitioner as the driver. Id. at 1016-18. Geer testified that he chased the vehicle on foot and, when the vehicle stopped at a stop sign, got “a good look at the driver’s face” from less than 10 feet away, and identified Petitioner as the driver. Tr. at 1106-08.

A sixth witness, Dr. Robert Charles Thomson (“Dr. Thomson”), testified that while driving along a city street in Rochester, he observed the victim’s vehicle being driven erratically, almost causing an accident. Tr. at 1067-85. Dr. Thomson observed only one occupant in the vehicle, a black male driver, but also observed the window on the front passenger door shatter and fall out. Id. A seventh witness, Obry Evans (“Evans”), observed the victim’s car being driven into Orpheum Alley and a single black male exiting the vehicle from the front driver’s side, carrying a white plastic bag. Tr. at 1085-1100.

The location of fingerprint evidence presented at the trial indicated Petitioner had been in the driver’s seat of the victim’s vehicle and DNA evidence presented at trial indicated Petitioner had raped the victim. Tr. at 2429, 1707-19, 2007-25. Prior to trial, the prosecutor and defense counsel stipulated that the female voice heard on an audiotape of the 911 emergency call belonged to the victim. Tr. at 2503. Damian Smith testified that Petitioner’s and McGriffs voices were also heard on the audiotape. Tr. at 2202-04. Smith also testified that shortly after the murder, Petitioner painted his own vehicle, changing its color from white to gray. Tr. at 2201-02.

Testifying at trial on Petitioner’s behalf were several of Petitioner’s relatives, including his son Rodney Knight, and Petitioner’s common law wife, Cathy Watson. The defense witnesses all consistently testified that on November 13, 1993, Petitioner was at home between noon and 1:00 p.m., that Petitioner’s vehicle was in the driveway with a flat tire, and that Petitioner’s voice was not heard on the 911 emergency call audiotape. Tr. 2530-34, 2547-49, 2561-64, 2572-73, 2576-79.

Following the trial, Petitioner was convicted on all three counts. On June 8, 1995, Petitioner was sentenced to concurrent terms of 25 years to life on each of the two murder convictions, and to a consecutive term of 12/& to 25 years on the rape conviction.

On June 9, 1995, Petitioner, through his trial counsel Jacobs, appealed his conviction to New York Supreme Court, Appellate Division, Fourth Department (“Appellate Division”). Vol. I, Response Exh. A.

While Petitioner’s appeal was pending before the Appellate Division, on October 8, 1996, Petitioner filed his first motion seeking relief pursuant to New York Criminal Procedure Law (“N.Y.Crim.Proc. Law”) § 440.10 (“McKinney 2005”) (“§ 440.10”) (“First § 440 Motion”). Vol. II, Response Exh. A. Specifically, Petitioner sought to vacate the conviction based on ineffective assistance of trial counsel, given that Jacobs (1) failed to move for a change of venue despite heavy local media coverage of the case; (2) did not properly prepare for pretrial suppression hearings; (3) failed to obtain certain material evidence prior to trial; (4) coerced Petitioner into waiving his right to a hearing pursuant to People v. Castro, 143 Misc.2d 276, 540 N.Y.S.2d 143 (S.Ct., Bronx Co.1989) (requiring pretrial hearing be held to determine admissibility of new scientific evidence); (5) neglected to call an expert to challenge the DNA evidence, or to take steps to safeguard against the tampering of certain evidence; (6) failed to conduct any investigation designed to elicit exculpatory evidence; (7) neglected to formulate a defense strategy to challenge certain evidence, including DNA evidence and a tape recording; (8) failed to object, during the trial, to the prosecutor’s prejudicial actions, remarks and statements; and (9) neglected to prepare known defense and alibi witnesses for trial.

On December 11,1996, Petitioner’s First § 440 Motion was denied by Justice Af-fronti. Vol. II, Response Exh. E. Specifically, Justice Affronti found § 440.10(2)(b) mandated denial of Petitioner’s First § 440 Motion grounds 1, 3, 4, 5, 7 and 8 because the issues raised in each ground of the First § 440 Motion could have been presented on Petitioner’s direct appeal to the Appellate Division, but were not. Id. Justice Affronti further found that even if there were any truth to the facts alleged in support of the First § 440 Motion grounds 2, 6 and 9, such would not entitle Petitioner to the requested relief. Id. On December 27, 1996, Petitioner appealed Justice Affronti’s denial of the First § 440 Motion to the Appellate Division. Vol. II, Response Exh. G. Petitioner’s application for leave to appeal to the Appellate Division, Fourth Department was initially denied on March 26, 1997 and, upon reconsideration, on October 18,1999. Id.

On June 10, 1998, Petitioner moved to disqualify Jacobs as his appellate counsel for his pending appeal to the Appellate Division, based on a conflict of interest because Petitioner desired to raise ineffective assistance of trial counsel as a ground for the pending appeal. Vol. I, Response Exh. B. The motion was initially denied on August 28, 1998, but then granted on March 1, 1999, when Garry Stephen Han-lon, Esq. was appointed to represent Petitioner on his appeal to the Appellate Division. Id.

On July 7, 2000, the Appellate Division remitted Petitioner’s conviction to Supreme Court for further proceedings to determine whether defense counsel had approved the annotated verdict sheet used at Petitioner’s trial. People v. Knight, 274 A.D.2d 957, 710 N.Y.S.2d 827, and 274 A.D.2d 957, 711 N.Y.S.2d 811 (App. Div. 4th Dep’t 2000). Following a reconstruction hearing, Justice Affronti determined that Petitioner, through his trial attorney, had consented to use of the annotated verdict sheet. People v. Knight, 280 A.D.2d 937, 721 N.Y.S.2d 166, 170 (App. Div. 4th Dep’t 2001). Following the court’s consideration of the result of the reconstruction hearing, the Appellate Division affirmed all three of Petitioner’s convictions. People v. Knight, 280 A.D.2d 941, 719 N.Y.S.2d 917, and 280 A.D.2d 937, 721 N.Y.S.2d 166 (App.Div. 4th Dep’t 2001) (“Knight I”). Leave to appeal to the New York Court of Appeals (“Court of Appeals”) was denied on June 29, 2001. People v. Knight, 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121 (2001).

On August 16, 2001, Petitioner filed his second motion seeking post-conviction relief pursuant to § 440.10 (“Second § 440 Motion”). Vol. II, Response Exh. H. Specifically, Petitioner sought to vacate his convictions, asserting as grounds for relief (1) a conflict of interest within the trial court when Justice Affronti failed to re-cuse himself despite the fact that, during the trial, Justice Affronti’s wife appeared in the courtroom in the company of the victim’s family, and prosecution witness Damian Smith was observed in the courthouse cafeteria with the victim’s family; and (2) denial of due process based on the prosecution’s withholding of exculpatory evidence. On November 14, 2001, Petitioner’s Second § 440 Motion was denied by Justice Affronti, Vol. II, Response Exh. J, based on the reasons set forth in the opposing Affirmation of Assistant Monroe County District Attorney Stephen K. Lind-ley (“Lindley”), dated October 31, 2001 (“Lindley Affirmation”). Vol. II, Response Exh. I. In his affirmation, Lindley argued that Petitioner had defaulted on the Second § 440 Motion’s first ground for relief alleging failure to recuse based on conflicts of interest given that such ground could have been raised in the First § 440 Motion and Petitioner never preserved the objection for the record, such that the claim is now proeedurally barred pursuant to § 440.10(3)(e) and § 440.30(2), and, in any event, Petitioner had failed to either specify the statutory basis for such claim or make any factual assertions as to how Justice Affronti’s alleged failure to recuse himself resulted in any prejudice to Petitioner. Lindley Affirmation ¶¶ 3-17. As to Petitioner’s Second § 440 Motion’s second ground for relief claiming denial of due process because exculpatory evidence had been withheld from Petitioner, Lindley maintained that Petitioner’s factual assertions and legal conclusions were incorrect because Petitioner was aware the subject evidence, i.e., a videotape of the WHEC-TV broadcast news interview in which McGriff and Damian Smith recanted earlier statements provided to the police inculpating Petitioner in the murder, existed and had, in fact, seen the allegedly withheld evidence, that Petitioner’s due process claim could have been raised in Petitioner’s First § 440 Motion, and as such is now procedurally barred. Id. ¶¶ 18-28.

On December 4, 2001, Petitioner appealed the denial of his Second § 440 Motion to the Appellate Division. Yol. II, Response Exh. K. Petitioner’s application for leave to appeal to the Appellate Division was denied on October 3, 2002. Vol. II, Response Exh. Q.

On October 30, 2002, Petitioner moved for a writ of error coram nobis (“coram nobis motion”) before the Appellate Division based on ineffective assistance of appellate counsel. Vol. II, Response Exh. R. Asserted as grounds for the writ were that appellate counsel, Hanlon, filed an inadequate brief on Petitioner’s direct appeal, advancing only weak arguments and failing to address several meritorious arguments including (1) Petitioner’s conviction on two counts of murder stemming from the same incident violated the merger doctrine ;(2) pursuant to the merger doctrine and N.Y. Penal Law § 70.25(2), the sentence imposed for the rape conviction should run concurrent with the two sentences imposed for the two murder convictions; (3) the trial prosecutor’s failure to present any evidence that the victim was kidnapped required dismissal of the second count of the first indictment, No. 94/356, charging Petitioner with felony murder; and (4) appellate counsel made erroneous statements in the brief undermining Petitioner’s alibi. The coram nobis motion was denied by the Appellate Division on February 7, 2003. People v. Knight, 302 A.D.2d 1020, 753 N.Y.S.2d 417 (App.Div. 4th Dep’t.2003); Vol. II, Response Exh. V. On March 14, 2003, Petitioner moved to reargue the co-ram nobis motion, Vol. II, Response Exh. W, and that request was denied by the Appellate Division on May 2, 2003. Id. Leave to appeal to the Court of Appeals, filed February 19, 2003, was denied on April 22, 2003. People v. Knight, 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294 (2003); Vol. II, Response Exh. X. This habeas action followed.

DISCUSSION

1. Standard of Review

In reviewing a state prisoner’s petition pursuant to 28 U.S.C. § 2254, a district court makes an independent determination as to whether the petitioner is in custody in violation of his rights under the Constitution or any laws or treaties of the United States. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), reh’g denied, 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991). A state petitioner’s federal habeas corpus petition may be dismissed if the petitioner has not exhausted available state remedies as to any of his federal claims, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), although under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court is permitted to deny a state prisoner’s habeas corpus petition on the merits even though the prisoner has not exhausted available state remedies. 28 U.S.C. § 2254(b)(2).

In reviewing habeas petitions, federal courts do not function as appellate courts to review matters within the jurisdiction of the state, or to review specific rulings and decisions of state trial and appellate courts not involving federal constitutional issues; rather, the court determines whether the proceedings in the state court amount to a violation of federal constitutional rights. Coleman, 501 U.S. at 729, 111 S.Ct. 2546. Federal review of a state court conviction is limited to errors of federal constitutional magnitude which denied a criminal defendant the right to a fundamentally fair trial. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Pursuant to 28 U.S.C. § 2254(e), formerly 28 U.S.C. § 2254(d), the state court’s determination as to evidentiary matters is presumed to be correct unless the federal habeas court concludes that the relevant state court determination is not fairly supported by the record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Otherwise, the burden rests on the petitioner to establish, by clear and convincing evidence, that the factual determination is erroneous. 28 U.S.C. § 2254(e)(1). Further, § 2254(e) applies, by its terms, “to factual determinations made by state courts, whether the court be a trial court or an appellate court.” Sumner, 449 U.S. at 547, 101 S.Ct. 764.

A state prisoner applying for a writ of habeas corpus under 28 U.S.C. § 2254 is not entitled to an evidentiary hearing by the federal court, but the granting of a hearing is within the discretion of the federal district court. Pagan v. Keane, 984 F.2d 61, 63 (2d Cir.1993); Keeney v. Tamayo-Reyes, 504 U.S. 1, 4-5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). The state court’s determination is, however, presumed to be correct unless the federal habeas court concludes that the relevant state court determination is not fairly supported by the record. Sumner, 449 U.S. at 539, 546-47, 101 S.Ct. 764. Absent these factors, the burden rests on the petitioner to establish, by clear and convincing evidence, that the factual determination is erroneous. Id.

In the instant case, the court is in possession of the complete state record, including the motion, hearings and trial transcripts as well as the briefs filed in connection with Petitioner’s direct appeal to the Appellate Division and his motions for post conviction relief, including pursuant to N.Y.Crim. Proc. Law § 440.10, and writ of error coram nobis. Petitioner has not requested that the court conduct an evidentiary hearing prior to resolving his claims for relief and has not challenged the record below as inaccurate. Accordingly, the court in its discretion finds an eviden-tiary hearing unnecessary.

Pursuant to 28 U.S.C. § 2254, as amended by AEDPA, a federal court must give substantial deference to a state court determination that has “adjudicated [the federal constitutional claim] on the merits.” 28 U.S.C. § 2254(d) (italics added); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir.2001). Specifically, AEDPA requires that where a state court has adjudicated the merits of a petitioner’s federal claim, habe-as corpus relief may not be granted unless the state court’s adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (“§ 2254(d)”).

In Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court interpreted the phrases, as used in § 2254(d), “contrary to” and “an unreasonable application of clearly established Federal law.” According to the Court, a state court decision is “contrary to clearly established Federal law,” 28 U.S.C. § 2254(d)(1), “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.” Williams, 529 U.S. at 418, 120 S.Ct. 1495. A state court decision involves “an unreasonable application” of Supreme Court caselaw if it “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a] prisoner’s case.” Id. Both AEDPA, and its predecessor statute, recognize that a presumption of correctness shall apply to state court findings of fact. Whitaker v. Meachum, 128 F.3d 714, 715 n. 1 (2d Cir.1997). AEDPA also requires a petitioner to rebut that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir.2002). A presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir.2001); Whitaker, 123 F.3d at 715 n. 1.

A federal habeas court must apply the § 2254(d) deferential review standard where the state court has “adjudicated [the federal claim] on the merits.” 28 U.S.C. § 2254(d). If the claims have not been adjudicated on the merits, the federal court applies the pre-AEDPA de novo review standard, even where the petition was filed after the effective date of the statute. See Sellan, 261 F.3d at 314; Boyette v. Lefevre, 246 F.3d 76, 89, 91 (2d Cir.2001).

In Sellan, the Second Circuit held that a federal claim is adjudicated on the merits when the state court “(1) disposes of the claim ‘on the merits,’ and (2) reduces its disposition to judgment.” Sellan, 261 F.3d at 312. In other words, in order to invoke the deferential review standards of § 2254(d)(1), “the state court need only dispose of the [petitioner's federal claims on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.” Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir.2001), citing Sellan, 261 F.3d at 312. If there is no indication that the federal claim has been decided solely on state procedural grounds, the federal claim will be considered to have been adjudicated on the merits. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002). Put another way, the failure to state specific reasons for a state court adjudication on federal claims raised on appeal does not avoid a finding that the state court determination was on the merits of each federal ground presented to the appellate court for purposes of applying AEDPA’s deferential standards. See, e.g., Brown, 283 F.3d at 498 (“[b]ecause there is no basis either in the history of the case or the opinion of the Appellate Division for believing that [petitioner’s] Sixth Amendment claim was denied on procedural or any other nonsub-stantive grounds, we find that his claim was ‘adjudicated] on the merits’ by the state court, and therefore review his Sixth Amendment claim under the more deferential standard set forth in § 2254.”) (citing Sellan, 261 F.3d at 314).

In the instant case, the record establishes that the Appellate Division decided all of Petitioner’s present claims which Petitioner presented to it on the merits when it unanimously affirmed his conviction. Knight, 721 N.Y.S.2d at 168-70. Although the Appellate Division’s decisions do not state all of its reasons for its decisions rejecting Petitioner’s appeals, there is also no indication that the claims raised on Petitioner’s direct appeal, § 440 Motions and coram nobis motion were decided by the appellate court only on state procedural grounds. See Brown, 283 F.3d at 498.

2. Timeliness of Petition

Review of federal habeas corpus petitions filed by state prisoners on or after April 24,1996, is governed by the AEDPA, which provides a one-year statute of limitations for the filing of habeas petitions. 28 U.S.C. § 2244(d)(1). The limitations period, where petitioner is in custody pursuant to the judgment of a state court, runs from the latest of four dates. 28 U.S.C. § 2244(d)(1) (A-D). The one-year period of limitations is tolled for periods of time during which a properly filed application for state post-conviction relief is pending, although the limitations period is not tolled during the pendency of a petition for certiorari to the Supreme Court seeking review of the denial of state postconviction relief. 28 U.S.C. § 2244(d)(2); Lawrence v. Florida, — U.S. -, 127 S.Ct. 1079, 1082-83, 166 L.Ed.2d 924 (2007); Bennett v. Artuz, 199 F.3d 116, 118-19 (2d Cir.1999).

In the instant case, the applicable date is “the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review.” 28 U.S.C. § 2244(d) (1)(A). Specifically, Petitioner’s conviction became final on September 27, 2001, 90 days after the New York Court of Appeals denied Petitioner’s request for leave to appeal on June 29, 2001, during which Petitioner could have sought further direct review by filing a petition for a writ of certiorari with the United States Supreme Court. Lawrence, 127 S.Ct. at 1083. Accordingly, to be timely, Petitioner’s habeas petition generally would have had to have been filed by September 27, 2002. The pendency of Petitioner’s Second § 440 Motion and co-ram nobis motion on September 27, 2001, however, tolled the running of the one year limitations period. 28 U.S.C. § 2244(d)(2); Bennett, 199 F.3d at 118-19. Because leave to appeal the coram nobis motion was denied by the Court of Appeals on April 22, 2003, the Petition, filed October 29, 2003, was filed within AEDPA’s one-year filing period, and thus is timely.

3. Exhaustion and Procedural Bar

Federal habeas review can be foreclosed either by a failure to exhaust all available state court remedies, or by a federal or state procedural bar to the assertion of a federal question. A brief overview of how a federal habeas claim may be foreclosed under each situation is provided.

A state procedural bar can bar subsequent federal habeas review of a federal question. Garvey v. Duncan, 485 F.3d 709, 713-20 (2d Cir.2007) Where “ ‘the decision of a state court rests on a state law ground that is independent of the federal question and adequate to support the judgment,’ ” federal courts generally will not consider a federal constitutional issue raised in a habeas petition. Garvey, 485 F.3d at 713 (quoting Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)). This rule foreclosing federal review applies regardless of whether the independent state law ground is substantive or procedural and whether the case is in federal court on direct review or from state court upon a habeas petition, and provided the asserted state law ground is “ ‘firmly established and regularly followed by the state.’” Id. (quoting and citing Lee, 534 U.S. at 376, 122 S.Ct. 877). Nevertheless, such “firmly established and regularly followed” state rules will not foreclose review of a federal claim if the application of the rule in a particular case is “exorbitant,” based on consideration of three factors which, although not a test for adequacy, are guides for evaluating “ ‘the state interest in a procedural rule against the circumstances of a particular case.’ ” Id. (quoting and citing Lee, 534 U.S. at 381-85, 122 S.Ct. 877). These three factors include

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court’s decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had “substantially complied” with the rule given “the realities of trial,” and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Id. (quoting Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.2003)).

Because a general non-specific objection fails to alert the trial court to the exact legal nature of the defendant’s position, it is insufficient to preserve the issue for further review. Garvey, 485 F.3d at 714-15 (“New York’s highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error.”). Further, New York Crim. Proc. Law § 470.05(2) (McKinney’s 1994), provides that, “[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.”

Generally, no federal habeas review is available for any claim that has been procedurally defaulted in state court as, before a federal court may review a state prisoner’s habeas petition, the prisoner must exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1)(A); see Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citing cases). “The exhaustion requirement is not satisfied unless the federal claim has been ‘fairly presented’ to the state courts.” Rosa v. McCray, 396 F.3d 210, 217 (2d Cir.), cert. denied, 546 U.S. 889, 126 S.Ct. 215, 163 L.Ed.2d 201 (2005). “A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.” Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir.2003) (citing Ramirez v. Attorney Gen. of N.Y., 280 F.3d 87, 94 (2d Cir.2001)). The Second Circuit has recognized that “ ‘a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution’ so long as he relies ‘on pertinent federal cases employing [the relevant] constitutional analysis’ or alleges ‘a pattern of facts’ that clearly implicates a specific constitutional provision.” Cotto, 331 F.3d at 237 (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir.1982)).

Based on the record, the court finds that Petitioner fairly presented some of his present claims to the Court of Appeals for purposes of satisfying the exhaustion requirement, including his 1st, 2nd, 3rd, 4th, 5th, part of the 6th, 7th, 9th, 10th, 12th, 13th, 14th, 15th, 17th, 18th, 19th and 20th claims for relief, but not part of his 6th, or his 8th, 11th, and 16th claims for relief. Morgan v. Bennett, 204 F.3d 360, 370 (2d Cir.2000) (asking court to “consider and review all issues outlined in defendant-appellant’s brief and pro se supplemental brief’ was sufficient to alert the Court of Appeals that review was being sought on all claims raised in pro se brief); see Davis v. Strack, 270 F.3d 111, 122 (2d Cir.2001) (same); cf. Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir.2000) (arguing one claim in letter seeking leave to appeal to Court of Appeals while attaching appellate division briefs, without explicitly alerting Court of Appeals to each claim raised, does not fairly present such claims to state’s highest court for purposes of habeas exhaustion requirement). The claims presented to the Court of Appeals are considered exhausted and there is no procedural bar precluding federal habeas review of the merits of the exhausted claims. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. As this matter is before the undersigned for a report and recommendation, however, the court considers the merits of the unex-hausted claims in the event the district judge disagrees with the initial recommendation that such claims are unexhausted.

4. Merits of Claims

As stated, Petitioner has asserted 20 grounds for habeas relief challenging his conviction and sentence as unconstitutional based on (1) unlawful arrest, Petition ¶ 12(A); (2) impermissibly suggestive identification procedures, Petition ¶ 12(B); (3) denial of right to conflict-free counsel, Petition ¶ 12(C); (4) an improperly impaneled trial jury, Petition ¶ 12(D); (5) use of inadmissible tape recordings and transcripts, Petition ¶ 12(E); (6) improper use of voice identification testimony, Petition ¶ 12(F); (7) introduction of impermissible DNA evidence at trial, Petition ¶ 12(G); (8) prosecutorial misconduct, Petition ¶ 12(H); (9) use of an “annotated” verdict sheet, Petition ¶ 12(1); (10) trial court judge’s failure to recuse himself after the case was remanded for a reconstruction hearing regarding use of the annotated verdict sheet, Petition ¶ 12(J); (11) conflict of interest between the trial court judge and the prosecutor, Petition ¶ 12(K); (12) withholding of exculpatory evidence by the prosecutor, Petition ¶ 12(L); (13) ineffective assistance of appellate counsel, Petition ¶ 12(M); (14) the appellate court’s failure to consider all supporting papers when ruling on Petitioner’s motion for a writ of error coram nobis, Petition ¶ 12(N); (15) the jury’s consideration of improper evidence during deliberations, Petition ¶ 12(0); (16) inadmissible fingerprint evidence, Petition ¶ 12(P); (17) failure to preserve evidence, Petition ¶ 12(Q); (18) insufficient evidence to support the verdict, Petition ¶ 12(R); (19) the imposition of consecutive sentences, resulting in an excessive sentence, Petition ¶ 12(S); and (20) ineffective assistance of trial counsel, Petition ¶ 12(T). The court addresses the merits of each ground in turn.

A. Unlawful Arrest

Petitioner asserts that his arrest on was not based on probable cause and, thus, was unlawful. Petition ¶ 12(A). According to Petitioner, the stop of Christopher Knight’s vehicle, in which Petitioner was a passenger, on May 13, 1994, under the stated suspicion that the vehicle was stolen, was mere pretext to effect Petitioner’s warrantless arrest and subsequent interrogation without probable cause. Id. Petitioner particularly maintains that despite the prosecution’s claims that Petitioner was arrested based on statements made by McGriff and French, neither McGriff nor French testified before the Grand Jury, and both McGriff and French had contacted WHEC-TV, a local television news station, which arranged for McGriff and French to be interviewed by the station’s news reporter Janet Lomax (“Lomax”). During the interview on May 20, 1994, both McGriff and French denied that Petitioner was involved with the crime, stating that they had been coerced by detectives into signing the earlier statements inculpating Petitioner. Memorandum at 3. Although Jacobs, Petitioner’s assigned attorney, spoke with both McGriff and French prior to the suppression hearing, neither was called to testify at the hearing. Id. at 5. At the start of the suppression hearing, Jacobs failed to inform the court of the alleged conflict of interest, i.e., that other public defenders from Jacobs’s office, including the supervising attorney, were member of the same neighborhood anti-crime program of which the victim’s father was the chair, and when Petitioner mentioned the supposed conflict and requested an adjournment, Justice Affronti denied the request. Id. at 5-6. Respondent argues in opposition that because Petitioner already received a full and fair opportunity to litigate Petitioner’s claim of an unconstitutional arrest in state court, this court is precluded from considering the claim. Response at 2.

It is settled that Fourth Amendment claims on unconstitutional search and seizure are not subject to federal habeas review “where the state has provided an opportunity for full and fair litigation of [the] claim.” Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In reaching that conclusion, the Supreme Court noted that “in the case of a typical Fourth Amendment claim, asserted on collateral attack, a convicted defendant is usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration.” Stone, 428 U.S. at 491 n. 31, 96 S.Ct. 3037. Further, a finding that a claim is precluded from federal habeas review under Stone, is a “permanent and incurable” bar, representing final federal adjudication on the merits of the claim. Graham v. Costello, 299 F.3d 129, 134 (2d Cir.2002). Accord Villanueva v. United States, 346 F.3d 55, 60-61 (2d Cir.2003).

The record in the instant case establishes that the trial court conducted a five-day pretrial hearing at which the constitutionality of Petitioner’s seizure and arrest, including probable cause to sustain the arrest, was discussed pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Suppression Tr. 1, Tr. 2 and Tr. 3, SR Vol. 1. Petitioner attended the hearing and presented witnesses on his behalf. Suppression Tr. 2 at 57-84, and Tr. 3 at 3-7, SR Vol. 1. Following the suppression hearing, Justice Af-fronti issued a lengthy decision finding probable cause existed for Petitioner’s warrantless arrest on May 13, 1994 and, therefore, no violation of Dunaway, supra. December 22, 1994 Decision and Order, Vol. I, Response Exh. D at 13-125, 30-35. It thus cannot be disputed that Petitioner had a “full and fair” opportunity to litigate whether his seizure and arrest occurred within the confines of the Fourth Amendment.

As such, this ground of the Petition is without merit.

B. Suggestive Identification Procedures

Petitioner maintains the procedures by which he was identified by eyewitnesses Michael Smith and Robert Geer were im-permissibly suggestive identification procedures. Petition ¶ 12(B). Specifically, Petitioner asserts that on May 13, 1994, after being arrested and taken to the Rochester Police Department for interrogation, the Rochester Police conducted a press conference, following which Petitioner was escorted out of the building en route to the Monroe County Sheriffs Office building to be booked on the charges. Id.; Memorandum at 8-9. The walk was captured on film by media members, and Petitioner’s image was broadcast on local news channels and also appeared in the local papers both on May 13, 1994 and for several days thereafter. Id. According to Petitioner, because the photo array displayed to Michael Smith and Robert Geer was compiled after intense news coverage of Petitioner’s arrest, the identifications by both Michael Smith and Robert Geer were tainted. Petitioner ¶ 12(B); Memorandum at 9-10. Petitioner further maintains that the photo array was impermissibly suggestive, independent of the media coverage insofar as the photograph of Petitioner in the array depicts Petitioner with a large gold earring in his left ear, which was also seen on the media broadcasts of Petitioner, a larger head than the other individuals, more facial hair, and that a shadow on the photograph “makes petitioner appear to have nappy hair, which had previously been described by Michael Smith.” Petition ¶ 12(B); Memorandum at 10-13. Respondent asserts in opposition that despite Petiti