Full opinion text
ORDER KAPLAN, District Judge. Petitioner was convicted in 1992 in the Supreme Court of the State of New York of three counts of attempted murder in the second degree and one count of criminal possession of a dangerous weapon in the first degree and sentenced to consecutive terms of 8-1/3 to 25 years for each attempted murder count and 3 to 9 years for the weapons count. He has unsuccessfully exhausted his appellate remedies in the state system and been unsuccessful as well with state post-conviction applications and now seeks habeas in this Court. His petition, exclusive of voluminous exhibits, is 74 pages in length. He asserts two grounds for relief: (1) the state court deprived petitioner of due process and equal protection by denying his post-conviction application under Crim. Proc. L. § 440.10, and (2) he allegedly received the ineffective assistance of appellate counsel in the state system. The latter argument, however, effectively incorporates virtually all of the many contentions petitioner and his counsel made in all of the prior state proceedings on the theory that those which appellate counsel raised were not raised adequately and that the failure to raise the others was deficient performance. In a thorough 59-page report, Magistrate Judge Peck has recommended the denial of the petition. Franza has filed lengthy objections, largely reiterating his previous arguments. Only two points warrant any comment by the undersigned. First, it appears that one of petitioner’s many ineffective assistance arguments is that his appellate counsel did not argue adequately the alleged insufficiency of the evidence to support the conviction. Magistrate Judge Peck disagreed with the contention, but then went on to say, in the alternative, that “[e]ven if Franza’s appellate counsel should have made a ‘better’ sufficiency of the evidence argument ..., Franza can show no prejudice because the evidence was constitutionally sufficient.” (R & R at 18) With respect, it is at least arguable that the proper measure of prejudice for purposes of an ineffective assistance of appellate counsel contention is not whether the evidence was sufficient to sustain a conviction, but whether a constitutionally sufficient performance probably would have led to a different result. See Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whatever the precise standard, however, petitioner has failed to satisfy either prong of the Strickland test. Second, petitioner argues that his confrontation rights were violated because a pretrial suppression hearing was reopened on February 13, 1992 and concluded in his absence. Magistrate Judge Peck concluded that the record shows that petitioner in fact was present, largely on the basis of the presumption of regularity that attaches to New York criminal proceedings. (R & R at 37-39) It seems to the undersigned, however, that the record is not quite so clear. On January 21, 1992, the trial court conducted a hearing on petitioner’s motions to suppress his statements to the police, papers seized from his person incident to arrest, and items seized pursuant to federal search warrants. (Pet. Ex. 33, at 4) It subsequently issued an opinion denying the motions. (Id.) Jury selection began on February 10, 1992. (Id. Ex. 38) On February 13, 1992, during the voir dire, petitioner’s counsel moved to reopen the hearing to resume cross-examination of one of the detectives after being supplied with new Rosario material. (Id. Ex. 37, at 111) The transcript of the reopened hearing appears as Exhibit 37 to the petition and consists of pages 110 through 133 of the minutes for that date. The balance of the transcript for that day has not been supplied to the Court. The respondent’s memorandum in this Court states that petitioner was present, but cites only to Exhibit 37 in support of that assertion. (Resp.Mem.24) Exhibit 37, the excerpt from the February 13, 1992 minutes before the Court, in fact does not reflect, one way or the other, whether petitioner was present, although of course his counsel was present and concluded the cross-examination of the detective. The Court therefore has reviewed the People’s brief to the Appellate Division in hope of greater enlightenment. But the People there first stated that “pages 110-111 plainly note show [sic ] that defendant was present for the reopened hearing,” which is manifestly incorrect. They went on to buttress that assertion by stating that “when the jury panel entered [presumably after the conclusion of the reopened hearing], the court introduced defendant,” thereby demonstrating that he was present. For the latter point they cite pages 137 and 138 of the minutes for February 13. Unfortunately, neither party has made those pages of the transcript part of the record. Accordingly, the Court assumes, without deciding, that petitioner was not present during the reopened cross-examination of Detective Georgio by petitioner’s counsel, which covered 23 pages of transcript on February 13, 1992. This assumption is far from sufficient to justify disturbing petitioner’s convictions, however. . In order to prevail on his contention that petitioner’s appellate counsel performed in a constitutionally deficient manner, petitioner has the burden of rebutting the “strong presumption that counsel’s conduct came within the wide range of reasonable professional assistance ...” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. If, as the People’s Appellate Division brief stated, pages 137-38 of the transcript show that petitioner in fact was present, appellate counsel obviously is not to be faulted for not advancing the argument because the argument would have been doomed to failure. But the same is true even if the record simply was inconclusive. There would have been no evidentiary basis for asserting that petitioner’s confrontation rights had been violated because the record failed to support the claim. Moreover, even if the record conclusively had established petitioner’s absence during the brief reopened portion of the hearing, counsel would have been justified in declining to assert the claim because the argument for reversal based on this absence would have been weak. While an accused has a constitutional right to be present “at every stage of his trial,” and while courts typically have taken a broad view in determining whether particular aspects of a criminal prosecution are parts of the “trial” for this purpose, violations of that right will not lead to reversal if the error was harmless beyond a reasonable doubt. E.g., United States v. Toliver, 541 F.2d 958 (2d Cir.1976); Ware v. United States, 376 F.2d 717 (7th Cir. 1967). Here, the portion of the proceeding from which the petitioner claims to have been absent was very brief. His attorney was present. Review of the record reveals the commission of no legal error during petitioner’s absence and no reason to suppose that petitioner’s presence would have altered the result of the suppression hearing, much less the case. Accordingly, this Court is satisfied that any error in proceeding in petitioner’s absence, if that actually occurred, was harmless beyond a reasonable doubt. His appellate counsel therefore would have been entirely justified in not raising the issue. In any case, there was no prejudice. In these circumstances, there is no need to consider whether the failure of petitioner’s counsel to object to proceeding with the reopened hearing in petitioner’s absence, if absent he was, could waive petitioner’s right to be present. With the foregoing qualifications, the petition is denied substantially for the reasons set forth in Magistrate Judge Peck’s report and recommendation. As petitioner has presented no substantial constitutional question, a certificate of appealability is denied, and the Court certifies that any appeal from this order would not be taken in good faith for purposes of 28 U.S.C. § 1915. SO ORDERED. REPORT AND RECOMMENDATION PECK, United States Magistrate Judge. Petitioner Dominic Franza was convicted of three counts of second degree attempted murder and one count of weapon’s possession in connection with the attempted murders of Franza’s estranged wife, Myra Franza, and her family. Franza’s present habeas petition alleges that he was denied effective assistance of appellate counsel, and that the state courts’ denial of his CPL § 440.10 post-conviction motion violated his rights to due process and equal protection. For the reasons set forth below, I recommend that Franza’s petition be denied on the merits. FACTS The Trial Evidence At 7:15 P.M. on July 17, 1990, an unidentified man pretended to deliver roses to Myra Franza, Franza’s estranged wife, at her mother, Josephine Mendez’s apartment. (Trial Transcript [“Tr.”] 224, 265-70, 272, 281-82, 284-85, 313.) When Mendez opened the apartment door, the man followed Mendez into the apartment, stabbed her and shot her five times (once in the face), and shot Myra Franza once in the face. (Tr. 224-29, 248, 313, 315, 323-24.) The man fled, leaving behind the roses and the note attached to the flower box, which handwriting analysis showed had been written by Franza. (Tr. 159, 228, 282, 668, 1200-11, 1442-43.) Myra Franza told the police that Franza sent the man to kill her because she left him. (Tr. 147-48,150,158, 314-15.) On August 11, 1990, a pipe bomb was left outside the apartment of Myra Fran-za’s brother, Nelson DaCosta, at 644 West 185th Street. (Tr. 666-68, 731, 773-74, 785, 788-89.) On February 6,1991, two letters arrived at Mendez’s apartment, one addressed to Myra Franza e/o Mendez and one to her brother DaCosta c/o Mendez, threatening to kill Myra Franza, her parents, her brother, and her grandmother in Puerto Rico. (Tr. 237-43, 274-77; Franza Pet. Exs. 5(40)-(41): Letters to Myra Franza and DaCosta.) Each envelope bore a twenty-five cent stamp and two three-cent stamps (postage rates having just gone up from 29(t to 31<c)- (Tr. 819-20,1266; Fran-za Pet. Ex. 5(42): Envelope addressed to DaCosta.) The typed letters were purportedly from a “Julio Ortiz,” but the handwritten envelopes bore “strong similarities” to Franza’s handwriting. (Tr. 239, 243, 1304-06, 1427-29, 1446, 1450-53.) On February 8, 1991, Federal Express delivered a pipe bomb to Mendez’s sister in Puerto Rico, intended for Myra Fran-za’s grandmother, from “Julio Ortiz” of “U.S.A. Electronics.” (Tr. 763-70, 890-91.) On February 11, 1991, the police arrested Franza for the attempted murders of Myra Franza and Mendez. (Tr. 730, 788, 814-15.) When Franza was arrested he had on him Myra Franza’s grandmother’s address in Puerto Rico. (Tr. 622-24, 732-33, 842.) Franza furnished handwriting exemplars which, according to the police handwriting expert, established that Fran-za wrote the note accompanying the flowers delivered to Myra Franza when she and Mendez were shot, as well as the Federal Express airbill listing the sender of the Puerto Rico pipe bomb as “Julio Ortiz” of “U.S.A. Electronics,” and the money order used to pay for shipping the pipe bomb to Puerto Rico. (Tr. 890-93, 1199-236, 1346-48, 1376-77, 1421-24, 1441-47.) On February 12 and 14, 1991, the authorities obtained search warrants for Franza’s apartment. (Tr. 777-79, 810, 812-13, 821, 847-48, 868-69, 873-77.) The police recovered: a green marker (Tr. 812, 813, 815, 827-28, 858, 867, 927-28) and black electrical tape (Tr. 811, 813, 816, 828, 858, 866-67, 880, 927, 993, 1000), consistent with the ink and tape used on the Puerto Rico pipe bomb (Tr. 927, 975-78, 1000-06, 1011-21); smokeless gunpowder (Tr. 811— 13, 815, 834-35, 858, 865, 927); a sheet of three-cent stamps (Tr. 778, 810, 813, 822-23, 828-29, 855-56, 858, 927) which matched the stamps on the threatening letters (Tr. 819-20, 822-23, 837, 1264-302, 1429-40); a list of books on explosive devices (Tr. 852-55); handwritten and typewritten papers (Tr. 812, 816, 850-51, 858, 862, 864, 881-83, 927), including a piece of paper with the name “Julio Ortiz” written on it along with the town in which Myra Franza’s grandmother lived and her telephone number (Tr. 858-60, 937-38); indented writing on a piece of paper with DaCosta’s name, address, height, weight, wife’s name, cross streets and the words “shoot” and “Julio Ortiz” on it (Tr. 1237-53, 1257-63); a business card from U.S.A. Electronics (Tr. 862-63); and firecrackers that were similar to firecrackers used as a fuse in the DaCosta pipe bomb (Tr. 875-81, 941, 982-85, 995-1000). The jury convicted Franza of attempted murder of Myra Franza, Mendez and Da-Costa, and of criminal possession of a weapon. (Tr.1994-98.) See People v. Franza, 239 A.D.2d 201, 201, 658 N.Y.S.2d 4, 5 (1st Dep’t 1997). On April 8,1992, the trial judge sentenced Franza to consecutive terms of 8-1/3 to 25 years for each attempted murder count, and 3 to 9 years for the weapons count. (Pet-¶¶ 3-4.) See People v. Franza, 239 A.D.2d at 201, 658 N.Y.S.2d at 5. Franza’s CPL § 440.10 Motion to Set Aside the Verdict On June 17, 1993, Franza filed a pro se motion with the trial judge to vacate the judgment pursuant to CPL § 440.10. (Franza Pet. Ex. 6: Franza 6/17/93 Pro Se 440.10 Mot.) Franza argued that: (1) the court did not have jurisdiction; (2) “[t]he judgment was procured by Fraud on the part of the Prosecutor”; (3) fabricated evidence was introduced at trial; (4) the evidence was procured “in violation of the Defendant’s rights under the [New York and federal] Constitution[s];” (5) “[¡Improper and prejudicial conduct not appearing in the record occurred during trial [which] ... required a reversal of the judgment;” (6) “[n]ew [e]videnee has been discovered;” and (7) “[t]he judgment was obtained in violation of a right of the Defendant under the [state and federal] Constitution[s].” (Franza Pet. Ex. 6: Franza 6/17/93 Pro Se 440.10 Mot. at 1-2.) On October 19, 1993, the trial judge denied Franza’s CPL § 440.10 motion, holding: [Franza] has appealed his conviction to the Appellate Division, First Department where it is pending. [Franza] now moves pursuant to C.P.L. § 440.10 to set aside this judgment, making a litany of claims which more or less track the statutory language. This motion is made pro se, yet I have assigned [Franza’s] appellate counsel to assist him with this [CPL § ] 440.10 motion. The People oppose both a hearing and the ultimate relief defendant seeks. This Court is wholly familiar with the trial and the evidence presented, as well as the comportment of counsel on both sides of the aisle. [Franza’s] claims for a hearing or a new trial are based largely on completely unsubstantiated charges of fraud and collusion leveled against the D.A. and defense counsel, alleging fabricated, altered and withheld evidence resulting in his conviction. Attendant to this are claims of ineffective assistance of counsel. In addition, defendant asserts through a byzantine re-analysis of the People’s evidence at trial that he could not logically be guilty. [Franza’s] motion is denied in all respects. Firstly, C.P.L. [§ ] 440.10(2)(b) mandates denial when, “The judgment is, at the time of the motion, appealable or pending an appeal, and sufficient facts appear on the record ... to permit adequate review thereof upon such appeal ... [.]” As [Franza’s] case is on direct appeal and no grounds exist to necessitate a hearing to enlarge the record, the motion is denied. The Court also notes that a review of the record at trial indicates that all of [Franza’s] specified claims are without merit. [Franza’s] claims of a conspiracy between counsel to convict him are nothing but self-serving, wishful thinking. In fact, both the Prosecutor and defense counsel did exemplary work at trial. Finally, the evidence of defendant’s guilt was overwhelming. Motion is denied in all respects. (Franza Pet. Ex. 18: Justice Paul Bookson 10/19/93 Decision.) On December 16, 1993, the First Department granted Franza leave to appeal from the trial court’s denial of his CPL § 440.10 motion, and consolidated Franza’s CPL § 440.10 appeal with his direct appeal. (State App. Ex. B: 12/16/93 1st Dep’t Certificate Granting Leave to Appeal.) Franza’s Direct Appeal On June 10, 1996, Franza appealed to the First Department, represented by new counsel, Perry Reich. (Franza Pet. Ex. 3: Franza 1st Dep’t Br.) Reich argued on Franza’s behalf that: (1) the circumstantial evidence was insufficient to support the verdict (id. at 20-23); (2) there was no probable cause to issue the search warrants for Franza’s apartment and so Fran-za’s suppression motion should have been granted (id. at 24-26); (3) erroneous evi-dentiary rulings deprived Franza of a fair trial (id. at 27-37); (4) the trial court incorrectly charged the jury on the circumstantial evidence standard (id. at 38-40); and (5) consecutive sentences were inappropriate (id. at 41-42). Franza submitted a pro se supplemental brief to the First Department, arguing that the trial court erred by denying his CPL § 440.10 motion. (Franza Pet. Ex. 2: Franza Pro Se 1st Dep’t Br. at 37-59.) On May 13, 1997, the First Department affirmed Franza’s conviction, holding: The circumstantial evidence of guilt, including several highly incriminating items of handwriting evidence, was legally sufficient, and the verdict was not against the weight of the evidence. Defendant’s contention that there was no probable cause for the issuance of a search warrant for his apartment is Without merit, since, under the circumstances, it was reasonable to conclude that the items used to make the pipe-bomb would be found in his residence. The court’s charge on the circumstantial evidence conveyed the appropriate standards. We perceive no abuse of discretion in sentencing. We have considered defendant’s remaining contentions, including those addressed to the denial of his motion to vacate judgment, and find them to be without merit. People v. Franza, 239 A.D.2d 201, 202, 658 N.Y.S.2d 4, 5 (1st Dep’t 1997) (citations omitted). On June 6, 1997, Franza pro se sought leave to appeal. (Franza Pet. Ex. 26: Franza 6/6/97 Letter-Brief to Chief Judge Kaye.) On August 25, 1997, the Court of Appeals denied leave to appeal. (State App. Ex. E: Cert. Denying Leave to Appeal.) See People v. Franza, 90 N.Y.2d 904, 663 N.Y.S.2d 516, 686 N.E.2d 228 (1997). Franza’s State Petition for a Writ of Error Coram Nobis On November 10, 1997, Franza petitioned the First Department for a writ of error eoram nobis, alleging that he was denied effective assistance of appellate counsel. (Franza Pet. Exs. 27-28: Franza Coram Nobis Aff. & Br.) In an affidavit and a brief totaling 224 pages, Franza argued that appellate counsel failed to provide effective assistance on numerous grounds: (1) appellate counsel’s argument that the circumstantial evidence was insufficient to support the verdict was “merely 90 typed lines and 3-1/2 pages long,” fails to cite the relevant facts or “a single [fjederal ease”, and was ineffective as evidenced by the First Department’s opinion affirming Franza’s conviction without addressing this issue (Franza Pet. Ex. 27: Coram Nobis Aff. ¶¶ 23-39; Franza Pet. Ex. 28: Coram Nobis Br. at pp. 48-53); (2) appellate counsel’s argument that there was no probable cause to issue the search warrant was only “66 typed lines and 2 % pages long” and did not mention key facts (Coram Nobis Aff. ¶¶ 40-47; Co-ram Nobis Br. at pp. 54-56); (3) appellate counsel’s argument that erroneous eviden-tiary rulings deprived Franza of a fair trial was only “268 lines and 11 pages long,” fails to recite the relevant facts, and the First Department found it to be without merit (Coram Nobis Aff. ¶¶ 48-54; Coram Nobis Br. at pp. 56-57); (4) appellate counsel’s argument that the circumstantial evidence charge was flawed was only “120 lines and 3 pages,” cites only state law, did not adequately cite to the record, and failed to address the issue that “the Court entirely failed in its entire charge to convey ... that any circumstantial evidence fact not so proved must be disregarded” (Coram Nobis Aff. ¶¶ 56-61; Coram Nobis Br. at pp. 57-59); (5) appellate counsel failed to argue that the trial court erroneously rejected Franza’s CPL § 440.10 motion (Coram Nobis Aff. ¶¶ 62-63; Coram Nobis Br. at pp. 59-60, 117-27); (6) appellate counsel failed to argue that the state did not prove intent, motive or guilt beyond a reasonable doubt and omitted certain relevant facts from his analysis (Co-ram Nobis Aff. ¶¶ 31-33, 66-172, 295-307; Coram Nobis Br. at pp. 61-86,127-30); (7) appellate counsel failed to argue that the trial court improperly read back portions of the handwriting expert’s testimony to the jury and gave the jury an improper exhibit (Coram Nobis Aff. ¶¶ 173-91; Co-ram Nobis Br. at pp. 86-91); (8) appellate counsel failed to argue that a secret pretrial hearing was held outside of Franza’s presence (Coram Nobis Aff. ¶¶ 192-204; Coram Nobis Br. at pp. 91-94); (9) appellate counsel failed to argue that trial counsel was ineffective for not objecting to the prosecutor’s allegedly improper summation (Coram Nobis Aff. ¶¶ 205-51; Coram No-bis Br. at pp. 94-116); and (10) appellate counsel failed to argue that trial counsel was ineffective for not seeking to submit a first degree assault charge to the jury (Coram Nobis Aff. ¶¶ 309-18; Coram No-bis Br. at pp. 130-32). The First Department summarily denied Franza’s coram nobis petition on June 11, 1998. (Franza Pet. Ex. 42: 1st Dep’t 6/11/98 Opinion.) Franza’s Federal Habeas Petition Franza’s instant federal habeas petition raises the same claims and rationale that he presented in his CPL § 440.10 appeal and coram nobis petition to the First Department: (1) he was denied effective assistance of appellate counsel (Pet-¶ 12(B); Franza Br. at 86-95; Franza Traverse Br. at 15-16), and (2) the trial court’s denial of his CPL § 440.10 motion violated his due process and equal protection rights (Pet. ¶ 12(A); Franza Br. at 73-86; Franza Traverse Br. at 1-15). The underpinning of Franza’s claims is that he “was framed,” there was a conspiracy between the prosecutor and defense counsel to use false evidence, and the “Trial Court was clearly biased against [Franza], working for the State.” (See Franza 2/12/99 Reply Aff. ¶¶ 3, 4, 7, 9,13,15.) ANALYSIS I. FRANZA’S APPELLATE COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND V. WASHINGTON TEST A. The Strickland v. Washington Standard The Supreme Court has announced a two-part test to determine if counsel’s assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. This performance is to be judged by an objective standard of reasonableness. Id., 466 U.S. at 688, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. 466 U.S. at 689, 104 S.Ct. at 2065; accord, e.g., Torres v. Irvin, 33 F.Supp.2d 257, 277 (S.D.N.Y.1998) (Cote, D.J. & Peck, M.J.). Second, the defendant must show prejudice from counsel’s performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The “question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” Id., 466 U.S. at 695, 104 S.Ct. at 2068-69. Put another way, the “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id., 466 U.S. at 695-96, 104 S.Ct. at 2069 (emphasis added); see also, e.g., DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83, 136 L.Ed.2d 40 (1996); Torres v. Irvin, 33 F.Supp.2d at 277. The Supreme Court has counseled that these principles “do not establish mechanical rules.” Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one .... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id., 466 U.S. at 697, 104 S.Ct. at 2069; accord, e.g., Torres v. Irvin, 33 F.Supp.2d at 277. In addition, the Supreme Court also has counseled that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066; see also, e.g., Engle v. Isaac, 456 U.S. 107,134,102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982) (“We have long recognized ... that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.”); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998) (“In reviewing Strickland claims, courts are instructed to ‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ and that counsel’s conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to ‘second-guess reasonable professional judgments and impose on ... counsel a duty to raise very “colorable” claim’ on appeal.”) (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court “may not use hindsight to second-guess [counsel’s] strategy choices.”), cert. denied, 513 U.S. 820, 115 S.Ct. 81,130 L.Ed.2d 35 (1994). The Strickland test applies to appellate as well as trial counsel. See, e.g., Mayo v. Henderson, 13 F.3d at 533; Torres v. Irvin, 33 F.Supp.2d at 277; Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N.Y. Sept.19, 1997); Ehinger v. Miller, 942 F.Supp. 925, 932 (S.D.N.Y.1996) (Mukasey, D.J. & Peck, M.J.); Benn v. Stinson, 917 F.Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. & Peck, M.J.). Appellate counsel is not required to raise every colorable claim urged by the client, but is entitled to focus on key issues while winnowing out weaker arguments. E.g., Jones v. Barnes, 463 U.S. 745, 751-53,103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983); Jackson v. Leonardo, 162 F.3d at 85; Mayo v. Henderson, 13 F.3d at 533; Torres v. Irvin, 33 F.Supp.2d at 278; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F.Supp.' at 932; Benn v. Stinson, 917 F.Supp. at 206. Further, reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. E.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert, denied, 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984); Torres v. Irvin, 33 F.Supp.2d at 278; Ehinger v. Miller, 942 F.Supp. at 932; Benn v. Stinson, 917 F.Supp. at 206. Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel “omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85; Torres v. Irvin, 33 F.Supp.2d at 278; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F.Supp. at 932; Benn v. Stinson, 917 F.Supp. at 206. B. Application of the Strickland Standard to Franza’s Ineffective Assistance of Appellate Counsel Claims Franza uses his habeas petition to recount all of the arguments he made in his prior state court motions, but Franza does not clearly articulate the grounds for his current ineffective assistance of appellate counsel claim in either his petition or supporting brief. Since the Court must liberally construe pro se petitions, the Court assumes that Franza argues in his current habeas petition the same laundry list of ineffective assistance of appellate counsel claims that he raised in his coram nobis petition, summarized at pages 7-9 above. As a preliminary matter, Franza points to the First Department’s rejection of several of appellate counsel’s arguments as proof that counsel was ineffective. (E.g., Franza Pet. Ex. 27: Coram Nobis Aff. ¶¶ 20, 53; Franza Pet. Ex. 28: Coram Nobis Br. at p. 57.) That argument is frivolous. Even a Clarence Darrow or Arthur Liman lost cases. In every case, no matter how good the lawyers, one side prevails and one side loses, but that is no evidence that the losing lawyer was ineffective. The First Department’s rejection of Franza’s appeal is not evidence that his appellate counsel was ineffective. See, e.g., Torres v. Irvin, 33 F.Supp.2d 257, 279 (S.D.N.Y.1998) (Cote, D.J. '& Peck, M.J.) (“Appellate counsel’s lack of success on appeal provides no reason to second-guess his judgment in raising these issues.”); Cruz v. Artuz, No. CV 96-5209, 1997 WL 269591 at *4 (E.D.N.Y. April 21, 1997) (“lack of success on appeal is not a basis to impugn appellate counsel’s reasonable choices or performance”), aff'd, 133 E-3d 906 (2d Cir.1997); Vasquez v. United States, 96 Civ. 2104,1996 WL 694489 at *7 (S.D.N.Y. Dee.3, 1996) (“[th]e fact that [counsel’s] argument was not accepted by the Court does not reflect poor advocacy or a performance falling below an objective standard of reasonableness”); Ehinger v. Miller, 942 F.Supp. 925, 933 (S.D.N.Y. 1996) (Mukasey, D.J. & Peck, M.J.); Bern v. Stinson, 917 F.Supp. 202, 207 (S.D.N.Y. 1995) (Stein, D.J. & Peck, M.J.) (“[d]efense counsel’s lack of success on appeal provides no reason to second-guess his judgment in raising these issues”); Salerno v. United States, 870 F.Supp. 549, 553 (S.D.N.Y.1994) (“the fact that [counsel] was not successful with respect to every argument he made, without more, is hardly sufficient to support a claim of ineffective assistance of counsel”); Curzi v. United States, 773 F.Supp. 535, 542 (E.D.N.Y. 1991) (“the lack of success of a chosen strategy should not cause a court to second-guess an attorney’s reasonable judgments”), ajfd, 973 F.2d 107 (2d Cir.1992), cert, denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). 1. Appellate Counsel’s Sufficiency and Weight of the Evidence Argument Franza alleges that counsel’s sufficiency and weight of the evidence argument was too short and failed to cite to the relevant facts' and federal case law, and that the First Department’s rejection of counsel’s argument establishes that it was ineffective. (Franza Pet. Ex. 27: Coram Nobis Aff. ¶¶ 23-39; Franza Pet. Ex. 28: Coram Nobis Br. at 48-53.) Franza also contends that counsel failed to argue that the state did not prove intent, motive or guilt beyond a reasonable doubt. (Coram Nobis Aff. ¶¶ 31-33, 66-172, 295-307; Coram No-bis Br. at pp. 61-86,127-30.) Appellate counsel also made the reasonable strategic decision to challenge the sufficiency of the government’s evidence under the more lenient state law “weight of the evidence” standard, rather than arguing under the more stringent federal constitutional standard that the evidence was not legally sufficient to support a finding of guilt beyond a reasonable doubt. Appellate counsel aptly recited the relevant facts and case law, emphasizing that only the handwriting expert’s opinion connected Franza to the attempted murder of Myra Franza and Mendez. (Franza Pet. Ex. 3: Franza 1st Dep’t Br. at 21.) He also argued that there was no evidence Franza had the finances to hire a killer; just because Franza was a gun buff and had gunpowder in his apartment was meaningless since that powder did not match the powder in either pipe bomb; Franza had no motive to kill his estranged wife because he had a girlfriend; and Da-Costa used drugs and had enemies who could have committed the attempted murders. (Id. at 21-23.) These arguments, which utilized the same strategy that trial counsel had employed (see, e.g., Tr. 318-19, 1763-76, 1773, 1779-81, 1792-94, 1800-11), hardly bespeak professional incompetence. contrary to Franza’s assertions, counsel did argue that the state’s proof of motive was discredited by Fran-za’s subsequent romance with another woman. (Franza Pet. Ex. 3: Franza 1st Dep’t Br. at 22.) In addition, counsel argued that it was “just as likely that someone desiring to even the score with Nelson DaCosta, defendant’s brother-in-law, was at the center of these crimes,” and referred to the evidence that supported this theory. (Id. at 22-23.) Counsel’s decision to concentrate on the two arguments he thought most persuasive — insufficiency of the evidence and lack of motive — and not to discuss intent, was purely strategic. Further, if the evidence was sufficient to link Franza to having sent a hit man to shoot his estranged wife and her mother and sent a pipe-bomb to her brother, it would have been a herculean task for counsel to show that Franza did not have the mens rea (intent) necessary for attempted murder. Franza also contends that appellate counsel failed to argue that although Myra Franza claimed he threatened to kill her, she returned home to him shortly thereafter (Franza Pet. Ex. 27: Coram Nobis Aff. ¶ 32; Franza Pet. Ex. 28: Co-ram Nobis Br. at 51), but does not explain why that should have been argued to the First Department. Franza also claims that appellate counsel should have “state[d] the substance of [Franza’s] threats” to Myra Franza, ie., “that he would kill her ... [v]ery importantly, revealing the fact Mrs. Franza nor anyone ever claimed [Franza] said he would send others, during the threats.” (Coram No-bis Aff. ¶ 32; Coram Nobis Br. at 51.) It is not surprising to the Court that effective counsel, as a matter of strategy, would chose not to highlight evidence of Franza’s threats to his wife. Franza’s argument, before a jury or even appeals court, would involve a very risky strategy, and appellate counsel was not ineffective for choosing not to adopt that strategy. See, e.g., United States v. Morales, 1 F.Supp.2d 389, 393 (S.D.N.Y.1998) (“[t]he decision' of experienced defense counsel not to call unwilling witnesses in a risky effort to collaterally challenge the credibility of one of the Government’s witnesses is a matter of trial tactics that will not support a claim of ineffective assistance of counsel absent far more extreme circumstances”); Nieves v. Kelly, 990 F.Supp. 255, 265-66 (S.D.N.Y.1997) (Cote, D.J. & Peck, M.J.) (counsel’s decision not employ risky alibi defense that prisoner could not have committed the robbery because he committed another robbery 10 minutes earlier did not constitute ineffective assistance); Tusa v. Jones, No. 93-CV-3862, 1996 WL 1088208 at *4 (E.D.N.Y. Sept.3, 1996) (counsel was not ineffective in refusing to call alibi witnesses whom the attorney had reason to believe would commit perjury or be unbelievable); Ireland. v. People of State of New York, 91 Civ. 5641, 1994 WL 649157 at *4 (S.D.N.Y. Nov.16, 1994) (counsel’s decision not to pursue “a defense based on an alleged police vendetta” was not ineffective because “[a]n attack on police motives is generally a risky defense strategy”). Even if Franza’s appellate counsel should have made a “better” sufficiency of the evidence argument, however, Franza can show no prejudice, because the evidence was constitutionally sufficient. “[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)). However, “a properly instructed jury may occasionally convict even when it can be said that no rational. trier of fact could find guilt beyond a reasonable doubt .... ” Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92; accord, e.g., Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov.19, 1998) (Preska, D.J. & Peck, M.J.); Fernandez v. Dufrain, 11 F.Supp.2d 407, 416 (S.D.NY.1998) (Kaplan, D.J. & Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at * 4 (S.D.N.Y April 20, 1998) (Baer, D.J. & Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F.Supp. 801, 805 (S.D.N.Y.1997) (Sprizzo, D.J. & Peck, M.J.); Ehinger v. Miller, 942 F.Supp. 925, 935 (S.D.N.Y.1996) (Mukasey, D.J. & Peck, M.J.); Vera v. Hanslmaier, 928 F.Supp. 278, 284 (S.D.N.Y.1996) (Jones, D.J. & Peck, M.J.). Petitioner Franza bears a “very heavy burden”: [T]he standard for appellate review of an insufficiency claim placed a “very heavy burden” on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor. United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983); accord, e.g., United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) (“[Defendant who makes a sufficiency challenge bears a heavy burden.”), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864, 128 L.Ed.2d 211 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir.1993) (burden on defendant is “ ‘very heavy’ ” and all inferences must be drawn in the government’s favor); Carromero v. Strack, 1998 WL 849321 at *4; Fernandez v. Dufrain, 11 F.Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F.Supp. at 806; Ehinger v. Miller, 942 F.Supp. at 935; Vera v. Hanslmaier, 928 F.Supp. at 284. “[T]his inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (quotations & citations omitted); accord, e.g, Mallette v. Scully, 752 F.2d 26, 31 (2d Cir.1984); Williams v. Bennett, 1998 WL 236222 at *4; Robinson v. Warden, 984 F.Supp. at 806; Ehinger v. Miller, 942 F.Supp. at 935; Vera v. Hanslmaier, 928 F.Supp. at 284. Franza relies on the concession by the police handwriting expert that there is a “margin of error” in handwriting analysis. (E.g., Coram Nobis Aff. ¶ 68.) The detective nevertheless testified unequivocally that the handwriting on the note attached to the flower box was Franza’s writing. (Tr. 1199-212, 1442-43.) A reasonable jury could believe such testimony and find it sufficient to connect Franza to the shooting of his wife and her mother. See, e.g., People v. Davis, 49 N.Y.2d 910, 913, 428 N.Y.S.2d 195, 197, 405 N.E.2d 677 (1980) (evidence was sufficient to convict defendant of falsifying business records and grand larceny where prosecution showed, inter alia, that “the number of the supposedly missing [vehicle] stickers appeared in [defendant’s] handwriting”); People v. Becker, 189 A.D.2d 881, 882-83, 592 N.Y.S.2d 764, 765 (2d Dep’t) (promotion of gambling and possession of gambling records proved beyond a reasonable doubt where prosecution introduced circumstantial evidence, including gambling records in the defendant’s handwriting), appeal denied, 81 N.Y.2d 837, 595 N.Y.S.2d 736, 611 N.E.2d 775 (1993); see also, e.g., Maldonado v. Scully, 86 F.3d 32, 36 (2d Cir.1996) (rejecting petitioner’s § 2254 claim that his conviction was invalid because no direct evidence established that he was an accessory to second degree murder, because “[vjiewed in its totality, the circumstantial evidence” was sufficient for a jury to find him guilty and “[gjuilt may ... be proved entirely by circumstantial evidence ... and a lack of direct evidence does not preclude a conviction on circumstantial evidence”); Bossett v. Walker, 41 F.3d 825, 830 (2d Cir.1994) (rejecting petitioners’ § 2254 claim that the evidence was insufficient since no physical evidence tied them to the murder, because “ ‘a conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness’ credibility ”), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995); Panaro v. Kelly, 32 F.Supp.2d 105, 109 (W.D.N.Y.1998) (circumstantial evidence was sufficient to establish that petitioner was guilty of murder in the second degree beyond a reasonable doubt); Fernandez v. Dufrain, 11 F.Supp.2d 407, 417-18 (S.D.N.Y.1998) (Kaplan,. D.J. & Peck, M.J.) (“the circumstantial evidence was sufficient for a jury to properly conclude that [petitioner] intended to kill [the deceased]”). More generally, the “jury is exclusively responsible for determining a witness’ credibility.” United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989)); accord, e.g., Fernandez v. Dufrain, 11 F.Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F.Supp. at 806; Ehinger v. Miller, 942 F.Supp. at 935; Vera v. Hanslmaier, 928 F.Supp. at 284. The role of this Court is clear: “ ‘[flederal habeas courts are not free to reassess the fact specific credibility judgments, by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.’” Vera v. Hanslmaier, 928 F.Supp. at 284 (quoting Anderson v. Senkowski No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y.1992), affd, 992 F.2d 320 (2d Cir.1993)); accord, e.g., Fernandez v. Dufrain, 11 F.Supp.2d at 417; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F.Supp. at 806; Ehinger v. Miller, 942 F.Supp. at 935; see also, e.g., United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir.1971) (where inconsistency in testimony was minor and “all that was involved was faulty memory on a comparatively insignificant point,” inconsistency was a jury question that does not create a “reasonable doubt as to defendant’s guilt as a matter of law.”), cert. denied, 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed.2d 675 (1972); Fagon v. Bara, 717 F.Supp. 976, 979 (E.D.N.Y.1989) (habeas court “is not free to make credibility judgments about the testimony presented at petitioner’s trial or to weigh conflicting testimony.”). ■ Here, as in prior cases, “the jury’s decision was largely a matter of choosing whether to believe [Franza’s] version of the events [as presented largely through counsel’s summation and questions to other witnesses, since Franza did not testify] or to believe the version offered by the State. The jury chose to believe the State’s witnesses, despite the inconsistencies in the evidence.... We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence.” Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir.1981); accord, e.g., Williams v. Bennet, 1998 WL' 236222 at *5; Robinson v. Warden, 984 F.Supp. at 806-07; Ehinger v. Miller, 942 F.Supp. at 935; Vera v. Hanslmaier, 928 F.Supp. at 284. The jury here obviously resolved the conflicting versions of events and disbelieved the defense’s version. 2. Appellate Counsel’s Argument That There Was No Probable Cause to Issue the Search Warrant Franza alleges that counsel’s argument that there was no probable cause to issue the search warrant was only “66 typed lines and 2]6 pages long” and did not mention key facts. (Franza Pet. Ex. 27: Co-ram Nobis Aff. ¶¶ 40-47; Franza Pet. Ex. 28: Coram Nobis Br. at pp. 54-56.) Appellate counsel argued that there were no facts before the Magistrate Judge showing that evidence of the purported criminal activity would be found at Franza’s residence. (Franza Pet. Ex. 3: Franza 1st Dep’t Br. at pp. 24-26.) Although counsel might have included a few more specifics, such appellate advocacy does not approach what is necessary for an ineffective assistance of counsel claim to prevail. See, e.g., Singletary v. Smith, No. 96-CV-643, 1997 WL 134552 at *2 (N.D.N.Y. March 21, 1997) (Pooler, D.J.) (rejecting petitioner’s claim that defense counsel made motion to suppress too late, failed to allege an absence of probable cause and failed to litigate the motion aggressively, because the record showed that more aggressive litigation would not have changed the outcome since the trial court would not have invalidated the warrant); Nelson v. Smith, 618 F.Supp. 1186, 1192-93 (S.D.N.Y.1985) (counsel was not ineffective for not challenging a search warrant’s validity). 3. Appellate Counsel’s Argument That Erroneous Evidentiary Rulings Deprived Franza of a Fair Trial Franza claims that counsel’s argument that erroneous evidentiary rulings deprived Franza of a fair trial was only “268 lines and 11 pages long,” failed to recite the relevant facts, did not discuss why the rulings were prejudicial, and the First Department found it to be without merit. (Franza Pet. Ex. 27: Coram Nobis Aff. ¶¶ 48-54; Franza Pet. Ex. 28: Coram Nobis Br. at pp. 56-57). Franza’s objection here boils down to his view that this section in counsel’s brief “was not worthy of inclusion.” (Coram Nobis Aff. ¶ 54; accord, Coram Nobis Br. at 57.) Even if that were true, inclusion of a weaker argument leads to a finding of ineffective assistance only if appellate counsel “omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994); see also cases cited at page 13 above. Franza has not shown that his appellate counsel omitted any significant appeal issues. (See Points I.B.5-9 below.) Moreover, the Court cannot say that counsel’s evidentiary arguments all were weak. For example, appellate counsel argued that the trial court erred in allowing the police and Myra Franza to testify that she wrote “sent” and “husband” in answer to police questions at the scene of her shooting, i.e., her opinion that her husband sent the shooter. (Franza Pet. Ex. 3: Franza 1st Dep’t Br. at 27-29.) Appellate counsel’s argument that this was classic hearsay and prejudicial opinion testimony, while not ultimately persuasive to the First Department, was coherently and powerfully argued. 4. Appellate Counsel’s Argument That the Circumstantial Evidence Charge Was Flawed Franza alleges that counsel’s argument that the circumstantial evidence charge was flawed was only “120 lines and 3 pages,” cited only state law, did not adequately cite to the record, and failed to address “the exclusion concept ..., in that, any circumstantial evidence fact not so proved must be disregarded.” (Franza Pet. Ex. 27: Coram Nobis Aff. ¶¶ 55-61; Franza Pet. Ex. 28: Coram Nobis Br. at pp. 57-59.) Appellate counsel argued that the trial judge’s circumstantial evidence charge was unclear and therefore a reversal was warranted under New York law. (Franza Pet. Ex. 3: Franza 1st Dep’t Br. at pp. 38-40.) The New York Court of Appeals has held that a circumstantial evidence charge must contain two elements: (1) that the guilt should flow naturally from the proved facts and (2) that the facts proved must exclude any reasonable hypothesis of innocence: “ ‘The oft-stated rule with respect to convictions based exclusively upon circumstantial evidence is that for guilt to be proven beyond a reasonable doubt the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude ‘to a moral certainty’ every reasonable hypothesis of innocence.’ ” People v. Ford, 66 N.Y.2d 428, 441, 497 N.Y.S.2d 637, 644, 488 N.E.2d 458 (1985) (quoting People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 856, 324 N.E.2d 334 (1974)). The First Department has suggested that a circumstantial evidence charge include: First, the charge should include a statement that the People have to prove beyond a reasonable doubt ‘circumstantial facts,’ which do not, in and of themselves, establish guilt. The circumstantial facts have to be established by direct evidence. [2] Second, the circumstantial facts must justify the conclusion of guilt beyond a reasonable doubt. [3] Third, the inference of guilt “must flow naturally, reasonably and logically from the facts proved and must be consistent with all such facts proved.” [4] Fourth, the “circumstantial facts proved must-all be consistent with guilt and inconsistent with innocence.” [5] Fifth, the “circumstantial facts proved must exclude to a moral certainty every hypothesis but guilt.” People v. Rawlins, 166 A.D.2d 64, 68-69, 569 N.Y.S.2d 635, 638 (1st Dep’t 1991) (quoting 1 Committee on Criminal Jury Instructions of the State of New York, Crim. Jury Instructions (N.Y.) § 9.05). In this case, the trial judge included in the jury charge that: “[Cjircumstantial evidence is evidence of facts which are inferred or deduced from the direct evidence .... Circumstantial evidence is the inference which can reasonably be drawn from direct evidence.... In a trial, where circumstantial evidence is presented, the jury must ... apply the usual tests of credibility to determine whether a witness has told the truth about what the witness saw, felt or heard. If the jury accepts those facts as true, then it must use its powers of reasoning and logic to determine whether those facts support he inference beyond a reasonable doubt.” (Tr.1919-20.) “[F]or [circumstantial] evidence to be valid the inference or conclusion to be drawn from it must flow naturally from and be consistent with the proving facts and must point to the guilt of the defendant.” (Tr. 1921.) “In order for you to convict the defendant in this case it must appear that the inference of guilt is the only one which can be fairly and reasonably drawn from the facts and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis but guilt. If this is the case, then you must draw the inference of guilt. On the other hand, if an inference of non guilt can also reasonably be drawn after consideration of all credible evidence in the case, then you must draw the inference of non-guilt.” (Tr.1921.) Furthermore, the trial court emphatically charged that “each element of any of the crimes submitted to you ... must be proved to your satisfaction beyond a reasonable doubt,” that the defendant “is presumed to be not guilty” “until his guilt is proved beyond a reasonable doubt,” and that “[t]his burden of proving to your satisfaction guilt of the defendant beyond a reasonable doubt remains upon the prosecution throughout the trial.” (Tr.1924-25.) Considered as a whole, the- trial judge’s jury charge incorporated all five elements of the First Department’s (and PJI’s) recommended circumstantial evidence charge. Therefore, no matter what appellate counsel argued, he would not have ultimately prevailed before the First Department. Franza’s specific argument that counsel was ineffective for failing to argue that the trial judge omitted from this charge the “exclusion concept” is also unavailing. The New York Court of Appeals requires that a circumstantial evidence charge include the “exclusion concept,” often stated as: “the facts proved must exclude ‘to a moral certainty’ every reasonable hypothesis of innocence.’” People v. Ford, 66 N.Y.2d at 441, 497 N.Y.S.2d at 644, 488 N.E.2d 458; accord, e.g., People v. Benzinger, 36 N.Y.2d at 32, 364 N.Y.S.2d at 856, 324 N.E.2d 334; 1 Committee on Criminal Jury Instructions of the State of New York, Grim. Jury Instructions (N.Y.) § 9.05 (1991). The New York Court of Appeals has held, however, that this precise language need not be quoted verbatim, only that the charge clearly convey the exclusion concept. Thus, in People v. Morris, 86 N.Y.2d 877, 372 N.Y.S.2d 210, 334 N.E.2d 10 (1975), the Court of Appeals upheld a charge which did not include the “moral certainty language”; rather, the charge explained the exclusionary rule as follows: “ ‘it must appear that the inference drawn is the only one that can fairly and reasonably be drawn from the facts [and] that any other explanation is fairly and reasonably excluded. If the facts proved permit you to draw (two) inference(s), one of which permits a claim of innocence and the other a finding of guilt, you by law are required to draw the inference which supports the claim of innocence.’ ” People v. Morris, 36 N.Y.2d at 879 & n., 372 N.Y.S.2d at 211 & n., 334 N.E.2d 10; see also, e.g., People v. Ford, 66 N.Y.2d at 442, 497 N.Y.S.2d at 644, 488 N.E.2d 458 (citing approvingly the circumstantial evidence charge in Morris); People v. Gonzalez, 54 N.Y.2d 729, 730, 442 N.Y.S.2d 980, 981, 426 N.E.2d 474 (1981) (“With respect to the defendant’s contention as to the circumstantial evidence charge, it is noted that although the charge as given did not include the words ‘exclude to a moral certainty’ as requested by the defendant it did nevertheless, in substance, adequately inform the jury as to the burden of proof in a circumstantial evidence case,” citing Morris.). In this case, while the trial court did not include the “moral certainty language,” like in People v. Morris, the trial court clearly explained the exclusionary concept including the core concepts that inference from circumstantial evidence must flow naturally from the facts and exclude any hypothesis of innocence: “[F]or [circumstantial] evidence to be valid the inference or conclusion to be drawn from it must flow naturally from and be consistent with the proving facts and must point to the guilt of the defendant .... In order for you to convict the defendant in this case it must appear that the inference of guilt is the only one which can be fairly and reasonably drawn from the facts and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis but guilt.” (Tr.1921, emphasis added.) This language sufficiently explained the exclusionary rule to the jury. See, e.g., People v. Ford, 66 N.Y.2d at 442, 497 N.Y.S.2d at 644, 488 N.E.2d 458; People v. Gonzalez, 54 N.Y.2d at 730, 442 N.Y.S.2d at 981, 426 N.E.2d 474; People v. Morris, 36 N.Y.2d at 879 & n., 372 N.Y.S.2d at 211 & n., 334 N.E.2d 10. As for Franza’s argument that appellate counsel failed to cite federal cases, as Judge Weinstein explained in Grey v. Henderson, 788 F.Supp. 683 (E.D.N.Y. 1991), aff'd, 956 F.2d 1161 (2d Cir.1992), failure to cite federal cases does not constitute ineffective assistance: S.Ct. 2497, 53 L.Ed.2d 594, reh’g denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977). In Wainwright, the Supreme Court ruled that when defense counsel failure to object results in a procedural bar, the default can be remedied by showing cause for the default and actual prejudice. Thus if cause and actual prejudice are established, the fact that counsel erred at trial would not prevent the procedurally barred issue from being heard. Accordingly, if an issue goes to the heart of a constitutional right, appellate counsel’s failure to cite a federal case for a particular proposition would not prevent a federal court from reviewing such an issue in a petition seeking a writ of habeas corpus. [Petitioner’s] contention that counsel’s failure to cite federal cases in his [state] appellate brief is also without merit. [Petitioner] contends that without citing to federal case law, his counsel was constitutionally deficient. [Petitioner] alleges that such a failure to cite federal cases would prevent his claims from being brought in a petition for habeas corpus before a federal court. A similar type of argument was raised in Wainwright v. Sykes, 433 U.S. 72, 97 Moreover, failure to cite federal case law would not prevent a state court from deciding an issue based on federal law. In United States ex rel. Patterson v. Neal, 678 F.Supp. 749 (N.D.Ill.1988), the government alleged that petitioner’s ineffective assistance of counsel claim should be barred from review because it was not properly raised on appeal. The court rejected this contention and noted that a party is not required to rely on federal cases to alert a state court to constitutional issues. Id. at 753. Rather, [a] state court has not had a fair opportunity to consider alleged constitutional violations only if the arguments presented to it do not (a) rely on pertinent federal cases employing constitutional analysis; (b) rel[y] on state cases employing constitutional analysis in like fact situations; (c) assert[ ] the claim in terms so particular as to call to mind a specific right protected by the Constitution ... [or] alleg[e] a pattern of facts that is well within the mainstream of constitutional litigation. Patterson, 678 F.Supp. at 753, (quoting United Stat