Velazquez v. Poole (614 F. Supp. 2d 284, 2007)

DECISION and ORDER

VITALIANO, District Judge.

Jose Velazquez petitions for a writ of habeas corpus. By order dated July 30, 2004, District Judge Nina Gershon referred his pro se petition to Magistrate Judge Cheryl L. Poliak for a Report and Recommendation. Petitioner’s current attorney of record was appointed to represent him on July 13, 2005. The docket was transferred to this Court on March 29, 2006. On May 11, 2007, Magistrate Judge Poliak issued her report and recommended that the petition be denied. For the reasons that follow, this Court adopts Magistrate Poliak’s Report and Recommendation as the opinion of the Court.

BACKGROUND

Petitioner was imprisoned upon his conviction for events that took place on December 6 and 31, 1997. On the 6th, an assailant forced Jennifer Justiniano, a then 15-year-old girl, into his van at gunpoint and sexually assaulted her. On the 31st, an assailant pulled his van alongside Zahira Hussein, also a teenaged girl at the time, and attempted to force her into his van at gunpoint. Ms. Hussein was able to flee. After these attacks, both Ms. Justiniano and Ms. Hussein were independently shown photo arrays consisting of 12 photos. Both identified Jose Velazquez as the assailant and also identified his van as the vehicle used in the attacks. Petitioner was arrested, and both Ms. Justiniano and Ms. Hussein with defense counsel present separately identified him in a line-up as the assailant.

Velazquez was charged with sodomy in the first degree, attempted rape in the first degree, sexual abuse in the first degree, unlawful imprisonment in the first degree, endangering the welfare of a child, and two counts of menacing in the second degree. At trial, the prosecutor presented, inter alia, the out-of-court line-up identifications by both victims and serological evidence developed from evidence recovered from the first victim and from petitioner’s van. Additionally, both Ms. Justiniano and Ms. Hussein again identified Velazquez as the assailant and identified his vehicle as the assailant’s van. Ms. Justiniano also described the interior of the van and several objects found in the van.

Petitioner was convicted by a jury of these crimes on May 16, 2000. He was sentenced on June 5, 2000 to concurrent terms of imprisonment of 22 years on the charge of sodomy in the first degree, seven years on the charge of sexual abuse in the first degree, one and one-third to four years on the charge of unlawful imprisonment in the first degree, and one year on each of the two counts of menacing in the second degree, and one year on the charge of endangering the welfare of a child. Petitioner appealed the convictions through counsel and also interposed a pro se appellate brief arguing additional points. On November 18, 2002, the Appellate Division, Second Department affirmed petitioner’s convictions, and, with regard to the photo arrays, the state appellate court found that

[t]he hearing court properly denied that branch of the defendant’s motion which was to suppress identification testimony. One of the photographic arrays presented to the complaining witnesses was apparently lost sometime after trial, and the photographs of the lineup furnished to the appellant’s counsel were of poor quality. These facts do not give rise to the inference that the photographic array and lineup were suggestive, since the hearing court had the opportunity to view the original photographs and determined that they were not unduly suggestive.

People v. Velazquez, 299 A.D.2d 500, 500-01, 749 N.Y.S.2d 740 (2d Dep’t 2002). Petitioner’s counsel moved to reargue the appeal, which was denied. Petitioner then sought leave to appeal to the New York Court of Appeals, which on February 3, 2003 was also denied. See People v. Velazquez, 99 N.Y.2d 620, 787 N.E.2d 1178, 757 N.Y.S.2d 832 (2003). Similarly, petitioner’s pro se motion to the trial court to vacate his conviction was denied. Petitioner then sought appellate review of the trial court’s post-verdict decision, which was denied by the Appellate Division on February 28, 2003. Petitioner brought this petition for a writ of habeas corpus on January 29, 2004. Of particular relevance, Velazquez asserted the claims of suggestive photo arrays and prosecutorial misconduct, among the several raised in his petition, throughout the state trial and appellate proceedings.

DISCUSSION

A. The Standard of Review of a Magistrate Judge’s Report and Recommendation

Section 636(b)(1), Title 28 United States Code provides for “a de novo determination of those portions of the report or specified proposed findings or recommendations [of a Magistrate Judge] to which objection is made” and a review for clear error of those portions to which no objection has been raised. In so doing, the district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). See also Fed.R.Civ.Pro. 72(b). Counsel for petitioner requested a 45-day extension of the time to object to the Report and Recommendation, which Magistrate Judge Poliak granted on May 22, 2007. As of the date of this Decision and Order, petitioner’s counsel has neither moved to be relieved nor made any further submission. As a result, no objection within the meaning of 28 U.S.C. § 636(b)(1) has been filed with respect to the findings and the recommendation of Magistrate Judge Poliak that the petition be dismissed. The standard of review is, therefore, that of clear error.

After a thorough, independent review of the record, this Court finds Magistrate Judge Poliak’s Report and Recommendation to be comprehensive, well-reasoned, and without clear error. The Report and Recommendation denying the petition for a writ of habeas corpus is, accordingly, adopted in its entirety as the opinion of the Court.

B. Petitioner’s Letter

Velazquez did, however, address a letter to this Court and to Magistrate Judge Poliak asking for reconsideration of portions of the Report and Recommendation. The letter was filed July 5, 2007, within the extended time period to object. This Court rejected the letter initially and refused to consider it because petitioner was (and continues to be) represented by counsel. When, however, petitioner’s time to object expired without any submission by his counsel, in an abundance of caution, the Court decided that it would review the contentions set forth in petitioner’s letter nonetheless.

Critically, even were the Court to treat Velazquez’s letter as a proper objection, which it does not, the result — namely the denial of the petition — would remain the same. If petitioner’s objection was proper, the Court’s review of the claims in petitioner’s letter must then be in accord with the de novo standard, which, of course, under 28 U.S.C. § 636(b)(1) does not require a de novo hearing. See United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). But, it does require that the district court not rely exclusively on the report and recommendation of the magistrate judge; the district court must conduct a review of the evidence itself and “arrive at its own, independent conclusion about those portions of the magistrate’s report to which objection is made.” Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). The final determination thus rests with the district judge. See Raddatz, 447 U.S. at 676, 680-81, 100 S.Ct. at 2413, 2415, 65 L.Ed.2d 424. Moreover, mindful of petitioner’s pro se status for purposes of this analysis as it accords de novo review, the Court will read his objection letter liberally and interpret it as raising the strongest arguments it suggests. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007); Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001).

First, Velazquez purports to present new information that was not available to Magistrate Judge Poliak in support of his petition, that is, a New York Times article entitled “Man Jailed 2 Years Sues Over Queens Prosecutions”, referring to criminal convictions secured in Queens County that were overturned on account of prosecutorial misconduct. Petitioner uses this article to bolster the argument he had made before Magistrate Judge Poliak: (1) that the photo arrays were suggestive, (2) that the prosecutor suborned perjury, and (3) that evidence was tampered with before and during his trial. Essentially, petitioner claims the newspaper article supports his claim because “[tjhe evidence in this case [described in the article] deals with a photo array just like the one in my case where information was withheld.” Yet, other than the general nature of the claimed misconduct and the fact that both cases were prosecuted by the Office of the District Attorney of Queens County, Velazquez offers not a scintilla of evidence that would connect his case or claim to the case or claims referenced in the article. Both the article and the case it references are totally devoid of any relevance or probative value. In short, petitioner offers no new admissible evidence for the Court’s consideration. Consequently, all that remains for review, and solely on the record below, are Magistrate Judge Poliak’s findings that the photo arrays were not unconstitutionally suggestive and that petitioner had failed to show that the prosecutor suborned perjury or tampered with the evidence.

C. The Antiterrorism and Effective Death Penalty Act of 1996

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, governs this petition. AEDPA provides, in relevant part, that a prisoner must file a federal habeas corpus petition challenging a state court judgment of conviction within one year of the date the judgment becomes final. See 28 U.S.C. § 2244(d)(1)(A). Even without the additional 90 days afforded for a writ of certiorari, the petition here was timely. Further, it is also clear from the record that petitioner presented the primary claims that are the subject of his letter in state court on direct appeal and/or on a motion to vacate his sentence. Velazquez, thus, exhausted his state remedies. See Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982). As such, under AEDPA, this Court is empowered to grant a petition for a writ of habeas corpus but only if the Court finds that the state court adjudication of these claims

(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).

D. The Photo Arrays

Velazquez has consistently argued in this proceeding that the photo arrays were unconstitutionally suggestive. Specifically, petitioner contends that, although he is Hispanic, three of the men in the photo array in which his photograph appeared were not Hispanic and only two of the men in the arrays matched the description given by the two victims. Not surprisingly, respondent argues that the photo arrays were not at all suggestive and that petitioner has failed to meet the threshold showing necessary for relief under 28 U.S.C. § 2254(d)(1).

The admission at trial of identification testimony derived from an impermissibly suggestive photo array may violate a criminal defendant’s rights to due process. See United States v. Thai, 29 F.3d 785, 807 (2d Cir.1994). On the other hand, however, even an identification premised on a suggestive photo array may be admissible if the “witness’s in-court identification of the defendant has reliability independent of the unduly suggestive identification procedures.” See Raheem v. Kelly, 257 F.3d 122, 134 (2d Cir.2001). The common root, though, is the suggestiveness of a photo array, which presents a mixed question of law and fact. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982); Sanford v. Burge, 334 F.Supp.2d 289, 301 (E.D.N.Y.2004); Huber v. Schriver, 140 F.Supp.2d 265, 277 (E.D.N.Y.2001). The determination on de novo review here regarding a holding in state court that a photo array was not unconstitutionally suggestive is governed by the AEDPA standard of review set forth in 28 U.S.C. § 2254(d)(1). See Alvarez v. Keane, 92 F.Supp.2d 137, 152 (E.D.N.Y.2000).

The potential for harm spawns the standard of review — “a pretrial photographic identification procedure used by law enforcement officials violates due process if the procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See Jarrett v. Headley, 802 F.2d 34, 40-41 (2d Cir.1986) (internal quotation omitted). Case law has developed no requirement, however, that photos in an array present only individuals who match petitioner’s appearance in every detail. Differences among the physical characteristics of individuals in a photo array are constitutionally permissible, provided that they are not significant enough to suggest the defendant was the culprit. See United States v. Bautista, 23 F.3d 726, 731 (2d Cir.1994); United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir.1990) (“The array must not be so limited that the defendant is the only one to match the witness’s description of the perpetrator.”); Jarrett, 802 F.2d 34 at 40-41; United States v. Washington, 2006 WL 3359060, *1 (E.D.N.Y.2006); United States v. Valdez, 1993 WL 14650, *3 (S.D.N.Y.1993) (finding photo array not suggestive where individuals ranged from “medium skin tone to dark skin tone” and “four or five of the other individuals have comparable skin col- or”). Based on the exhibits Velazquez attached to his petition and supported by the state court record, the description the first victim gave to police was that of a “male Hispanic, approx 5'8", Husky build, Mid 30’s, Black Hair med length afro type, Dark Brown eyes, narrow face and mustache”. Conforming to the artist’s sketch that description generated, the police put out an alert for a “Male, Hispanic, 30’s, 5'08", 180 Lbs., Black Hair, Brown Eyes.” The second victim described the assailant as “male Hispanic with little or no accent, in his 30’s with brown, wavy hair, and a possible mustache.” Upon independent, de novo review of the record before the Magistrate Judge, including the black-and-white photocopy of the extant photo array, in the record before the Magistrate Judge, the Court finds that the array shows men of similar age, complexion, facial hair, eye color and hair color and style as described to the police by the first victim after the first attack.. See United States v. Levy, 2005 WL 2179650, *2 (E.D.N.Y.2005) (relying on black-and-white photocopies of photo array and not original). Petitioner, the Court therefore finds, has failed to rebut the presumption of the correctness attaching to the hearing court’s factual finding of general physical similarity among all individuals shown in the photo arrays by clear and convincing evidence. Further, as to the conclusion of law that the pre-trial and subsequent in-court identifications of Velazquez were not tainted because the photo arrays were not unconstitutionally suggestive, the Court also finds on de novo review the trial court’s denial of petitioner’s motion to suppress and the Appellate Division’s affirmance of it were neither contrary to, nor, alternatively, involved an unreasonable application of clearly established federal law. Finally, because this Court does not find the photo arrays to be impermissibly suggestive when judged by clearly established federal law as discussed by the Supreme Court, it need not reach the second saving ground, that is, whether, even if the arrays were impermissibly suggestive, that there were also present independent indicia of reliability. Magistrate Judge Poliak’s Report and Recommendation that petitioner’s challenge on this point fails must be sustained.

E. Prosecutorial Misconduct — Suborning Perjury and Evidence Tampering

Petitioner also generally reasserts the argument he addressed to the Magistrate Judge that the prosecutor had suborned perjury and tampered with evidence both before and at his trial. Specifically, Velazquez argues in his petition that the prosecutor suborned perjury in connection with the grand jury testimony of Ms. Justiniano by coaching her to change her testimony to meet the statutory elements of sodomy and by failing to present her prior statement, which petitioner alleges, was inconsistent with regard to whether or not penetration had occurred. Additionally, Velazquez claims that the prosecutor suborned perjury during the trial by eliciting testimony from Ms. Justiniano that penetration had occurred, knowing that such testimony was inconsistent with her prior statements to the doctor and to the police.

Petitioner is correct, of course, that a conviction obtained at trial through testimony the prosecutor knows to be false violates a defendant’s constitutional rights. To prove that his conviction was obtained through false testimony, though, petitioner must show that false testimony was introduced, that the prosecution knew or should have known that the testimony was false, that the falsity went uncorrected, and that there was a reasonable likelihood the false testimony could have affected the judgment of the jury. See Shih Wei Su v. Filion, 335 F.3d 119, 127 (2d Cir.2003). All that separates petitioner’s claim from success is proof.

First off, the Court notes that the prosecution has no obligation to provide exculpatory evidence to a grand jury, United States v. Regan, 103 F.3d 1072, 1081 (2d Cir.1997); United States v. Morrison, 2006 WL 2482092, *10 (E.D.N.Y.2006), and, accordingly, even if Ms. Justiniano had made prior inconsistent statements, the prosecutor was under no obligation to advise the grand jury either that she had made them or had recanted them. Second, Ms. Justiniano’s prior statements were known to the defense, and, indeed, defense counsel used those statements to cross-examine Ms. Justiniano on the stand at trial. Any prior'statement to the extent it is inconsistent, goes to the weight to be accorded a witness’ testimony by the finder of fact. See Bradley v. West, 2005 WL 3276386, *14 (E.D.N.Y.2005) (a “witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake or faulty memory.”) (internal quotation omitted). The existence of a prior inconsistent statement disclosed to the defense does not, however, render the subsequent testimony inadmissible, nor does it support the charge of subornation of perjury, nor does it raise an issue of constitutional dimension. Bluntly, Velazquez has failed to establish even the first prong of the test in Su, that is, that false testimony was introduced through Ms. Justiniano.

The same is true for petitioner’s next contention — raised for the first time on federal habeas review — that the prosecutor suborned perjury by allowing a detective other than the one who showed the photo arrays to the victims to testify at the suppression hearing. This Court, however, cannot grant a writ where the petitioner has failed to exhaust the remedies available in the state courts, thereby depriving the state courts of an opportunity to consider and potentially correct the allegations of legal error. See 28 U.S.C.A. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-1204, 71 L.Ed.2d 379 (1982). As such, petitioner’s claim that the prosecutor suborned perjury by allowing a detective to offer false testimony at the suppression hearing is not properly before the Court. Even were the Court to consider the claim, moreover, it is clearly baseless. Petitioner relies on an internal police report which simply notes that another detective showed the arrays to the victims. Petitioner makes no allegation that the report was not disclosed to him before trial or was unavailable to be used to impeach the testifying detective if his counsel chose to do so. Further, assuming such a report generated in a collateral investigation had not been produced to Velazquez before trial, there is no basis to conclude that it would have changed the outcome of the trial. Lastly, the presence of an inconsistent record entry in a collateral report does not establish that the contrary testimony of the detective at the suppression hearing or trial was false or that the prosecutor knew it to be false.

Petitioner’s final contentions deal with the DNA evidence. Primarily, Velazquez argues that the prosecutor knowingly allowed erroneous expert testimony to stand uncorrected at trial and thereby suborned perjury. The prosecutor’s DNA and forensic serology expert testified regarding the probability that the sample found in the first victim’s underwear belonged to the petitioner. Petitioner argues that the expert’s testimony improperly presented to the jury the probability rates for Caucasians — one in 28 — and not for Puerto Ricans — one in 66 — as he stated in his expert report. (Petitioner self-identifies as Puerto Rican.) The trial transcript reveals that the expert testified the “most conservative figure” generated from his statistical analysis “translates to about one in 28 individuals having that particular profile.” In other words, the expert used the broadest range and included the most people in generating the probability rate. To the extent the testimony differed from the report, the Court is constrained to point out that the testimony was actually in Velazquez’s favor: the probability rate testified to by the expert meant that more men could have provided the sample and, therefore, created a larger pool of potential suspects. There was no harm and no constitutional error. Velazquez fares no better on this allegation that the physical evidence, for example, garments recovered from the first victim or from petitioner’s van, was tampered with by the prosecutor. Petitioner neither raised this argument on direct appeal, nor in his motion to vacate his conviction. The claim, therefore, has not been exhausted and is not properly before this Court. See 28 U.S.C. § 2254(b)(1)(A). And, in any event, other than his bald assertion of evidence tampering, Velazquez points to no proof supporting it. No issues of constitutional dimension are presented on this score either.

CONCLUSION

The Court, for the reasons stated above, determines that the Report and Recommendation of Magistrate Judge Poliak is adopted as the opinion of the Court. Accordingly, the writ of habeas corpus sought by petitioner Jose Velazquez is denied, and his petition is dismissed. The Clerk of the Court is directed to close this matter.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920, 8 L.Ed.2d 21 (1962).

SO ORDERED.

REPORT AND RECOMMENDATION

CHERYL L. POLLAK, United States Magistrate Judge.

On January 29, 2004, petitioner Jose Velazquez, proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that: (1) the prosecutor’s summation was improper; (2) certain evidence elicited by the prosecutor was inadmissible and unconstitutionally prejudicial; (3) the photo array and line-up identifications were impermissibly suggestive; (4) the prosecutor’s loss of one of the photo arrays and the poor quality of the photocopy of the line-up photograph deprived petitioner of his state law right to appellate review; (5) the indictment was insufficient and he was denied due process of law during the grand jury proceedings; (6) the prosecutor acted improperly during the grand jury process; (7) the prosecutor withheld exculpatory evidence and elicited perjured testimony during trial; (8) petitioner was illegally arrested; (9) he received ineffective assistance of counsel; and (10) various other claims not discussed in detail.

The petition has been referred to the undersigned to prepare a Report and Recommendation.

FACTUAL BACKGROUND

On December 6, 1997, petitioner, an off-duty New York City Police Officer, allegedly forced Jennifer Justiniano, a fifteen year old girl, into his van at gun-point and drove her to Forest Park. (Tarbutton Aff. ¶¶ 4, 5). Petitioner then ordered the victim to t he rear of the van where he sexually assaulted her. (Id. ¶ 5). Afterward, he drove out of Forest Park and ordered the victim out of the van. (Id. ¶ 6). The victim’s mother subsequently took her to the hospital, where a rape kit was prepared. (Id.)

Several weeks later, on December 31, 1997, petitioner allegedly pulled his van up alongside another teenage girl, Zahira Hussein, pointed a silver gun at her, and demanded that she get into his van. (Id. ¶ 7). Ms. Hussein fled before she could be forced into the van. (Id.)

Both girls were subsequently shown a photo array consisting of a total of twelve photographs. (Id. ¶ 8). They each identified the petitioner, and also identified his van as the vehicle used in the crimes. (Id.) Following petitioner’s arrest, both girls positively identified petitioner in a line-up, which was conducted in the presence of petitioner’s counsel. (Id.)

Petitioner was subsequently charged with Sodomy in the First Degree, in violation of Penal Law § 130.50[1]; Attempted Rape in the First Degree, in violation of Penal Law § 110/130.35[1]; Sexual Abuse in the First Degree, in violation of Penal Law § 130.65[1]; Unlawful Imprisonment in the First Degree, in violation of Penal Law § 135.10; Endangering the Welfare of a Child, in violation of Penal Law § 260.10[1]; and two counts of Menacing in the Second Degree, in violation of Penal Law § 120.14[1], (Tarbutton Aff. ¶ 9).

Prior to trial, petitioner filed a motion to suppress the line-up identifications on the ground that they were unduly suggestive and tainted by the earlier, allegedly suggestive, photo array procedure. (Id. ¶ 10). On January 6, 1999, the Supreme Court, Queens County, held a suppression hearing, and ultimately denied petitioner’s motion to suppress. (Id.)

Petitioner proceeded to a jury trial before the Honorable Richard L. Buchter. (Id. ¶ 11). The evidence presented at trial included the out-of-court line-up identifications made by both victims and certain serological evidence developed from semen recovered from Jennifer Justiniano and from a T-shirt recovered from petitioner’s van. (Id. ¶¶ 11, 12). The two victims also made in-court identifications of petitioner, identified his van, and the first victim described the interior of the van and identified several objects found in the van. (Id. ¶ 11).

On May 16, 2000, the jury convicted petitioner of Sodomy in the First Degree, Attempted Rape in the First Degree, Sexual Abuse in the First Degree, Unlawful Imprisonment in the First Degree, Endangering the Welfare of a Child, and two counts of Menacing in the Second Degree. (Id. ¶ 15). Petitioner was sentenced on June 5, 2000, receiving determinate prison terms of twenty-two years on the sodomy count, ten years on the attempted rape count, and seven years on the sexual abuse count. (Id. ¶ 16). Petitioner also received an indeterminate term of one and one-third to four years on the unlawful imprisonment count, and definite terms of one year each for the two menacing counts and for the endangerment count. (Id.) Under the sentence imposed by the court, all terms were to run concurrently. (Id.)

In November 2001, petitioner, through counsel, filed a brief in support of his appeal to the Appellate Division, Second Department, asserting two claims. (Id. ¶ 17). He first claimed that he was denied a fair trial because the prosecutor elicited testimony regarding Ms. Justiniano’s emotional state after the incident and because the prosecutor made certain improper comments made during the summation. (Id. ¶ 17(a)). Petitioner’s second claim was that the line-up identification should have been suppressed because the District Attorney’s Office lost one of the arrays, provided appellate counsel with an indiscernible photocopy of the photograph of the line-up, and because the line-up was impermissibly suggestive. (Id. ¶ 17(b)).

While the appeal was still pending, petitioner filed a pro se supplemental brief raising several additional claims, including claims that: (1) the indictment failed to provide fair notice of the charged crimes; (2) there was insufficient evidence to support the indictment; (3) the grand jury process was impaired because petitioner was not given the opportunity to testify and because the prosecutor failed to present certain exculpatory evidence to the grand jury; and (4) the charges should have been severed because they involved different victims on different days. (Id. ¶ 18).

The Appellate Division issued its decision on November 18, 2002, affirming petitioner’s conviction and specifically ruling that petitioner’s motion to suppress the identification testimony was properly denied. People v. Velazquez, 299 A.D.2d 500, 749 N.Y.S.2d 740 (2d Dep’t 2002). As to petitioner’s other claims, including those raised in his pro se supplemental brief, the Appellate Division found them to be “without merit.” Id.

Petitioner’s counsel thereafter filed a motion to reargue the appeal, contending that the loss of one of the photo arrays and the original line-up photographs prejudiced petitioner’s right to appeal his conviction. (Tarbutton Aff. ¶ 20). According to the respondent, the Second Department denied petitioner’s motion to reargue the appeal. (Id. ¶ 21).

On January 13, 2003, while the motion for reargument was pending, petitioner sought leave to appeal to the New York State Court of Appeals. (Id. ¶22). In that application, petitioner sought leave to appeal his claim that the identification procedure was suggestive; that the loss of the photo array and line-up photographs prejudiced his right to appeal; and that the prosecutor committed misconduct in vouching for a witness’ credibility. (Id.) Petitioner also sought leave to appeal from the Appellate Division’s determination of the various claims raised in petitioner’s pro se supplemental brief. (Id.) Leave to appeal was denied on February 3, 2003. See People v. Velazquez, 99 N.Y.2d 620, 787 N.E.2d 1178, 757 N.Y.S.2d 832 (2003).

Petitioner also filed a motion in Supreme Court, Queens County, seeking to vacate his conviction pursuant to Section 440.10 of New York’s Criminal Procedure Law. (Tarbutton Aff. ¶ 25). In that motion, which was filed pro se on July 25, 2002 while his direct appeal was pending before the Appellate Division, petitioner raised several claims. He argued that: (1) the prosecutor had concealed exculpatory information from the grand jury and participated in the presentation of perjurious testimony; (2) the photo array was suggestive; (3) the police lacked probable cause to arrest; and (4) he received ineffective assistance of counsel. (Id.) On December 3, 2002, petitioner’s post-judgment motion was denied by the State Supreme Court. (Id. ¶ 26). The State Supreme Court found that since the claims relating to the photo array and the prosecutor’s conduct before the grand jury were amenable to direct review by the Appellate Division, and had in fact been ruled on while the post-judgment motion was pending, the Supreme Court had no authority to consider these claims. (See Decision of Dec. 3, 2002 at 2). Similarly, the Supreme Court held that the third claim, based on an alleged lack of probable cause to arrest, was also subject to direct review. Therefore, the court held that petitioner’s unjustifiable failure to raise that argument on direct appeal similarly barred its collateral review. (Id.) Finally, with respect to petitioner’s claim of ineffective assistance of counsel, the court found no evidentiary support for petitioner’s claim that his attorney erred by failing to call alibi witnesses or by failing to disclose certain exculpatory material to petitioner. (Id.) In denying petitioner’s claim of ineffective assistance of counsel, the court cited N.Y.Crim. Proc. Law § 440.30(4)(b), which authorizes denial of a motion to vacate judgment without a hearing if the defendant fails to submit a sworn statement attesting to facts essential to sustain his claims. (Id. at 2-3). The court further noted, however, that even if petitioner’s claims were assumed to be true, he had nonetheless failed to establish that these decisions by counsel were an unreasonable exercise of professional judgment. (Id. at 3).

Petitioner then sought leave to appeal from the denial of his post-judgment motion. (Tarbutton Aff. ¶ 31). Included among the exhibits that petitioner submitted to the Appellate Division in support of his application for leave to appeal were letters from petitioner’s step-daughter and wife, each of whom claimed to have been with petitioner at the time that one or the other attacks occurred. (Id. ¶¶ 31-33). Petitioner’s wife’s letter further asserted that certain items that the first victim had claimed were in the van at the time of the assault did not belong to petitioner, and were instead planted in his van by the police. (Id. ¶ 34). She also claimed that several police officers knew that her husband’s van was broken down in a precinct parking lot at the time of the crime, but that these unnamed officers were unwilling to testify due to intimidation from the Internal Affairs Bureau. (Id.) Finally, she provided an explanation for her husband’s semen, which was discovered on the t-shirt recovered from petitioner’s van. (Id. ¶ 35).

Petitioner’s application for leave to appeal from the Supreme Court’s decision on his post-judgment motion to vacate was denied on February 28, 2003 by the Appellate Division, Second Department. (Petr.’s Mem., Ex. P). Thereafter, on April 7, 2003, the Court of Appeals dismissed his subsequently filed leave application on the grounds that, under New York law, there is no appeal from an order of the Appellate Division denying discretionary review. (Tarbutton Aff. ¶ 36).

In his current petition for habeas review, petitioner raises many of the same arguments raised in the state court proceedings, but has also added certain new claims.

DISCUSSION

A. Timeliness of Petition

The petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the United States Code) which provides that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation, absent certain exceptions which do not apply to this case, runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is deemed final for AEDPA purposes when the defendant’s time to seek certiorari before the United States Supreme Court has expired. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.2001). Moreover, any “time during which a properly filed application for State post-conviction or other collateral review ... is pending” is excluded from the calculation of the statute of limitations period. 28 U.S.C. § 2244(d)(2).

Petitioner’s direct appeal to the Appellate Division was denied on November 18, 2002, see People v. Velazquez, 299 A.D.2d 500, 749 N.Y.S.2d 740, and his application for leave to appeal to the Court of Appeals was denied on February 3, 2003. People v. Velazquez, 99 N.Y.2d 620, 787 N.E.2d 1178, 757 N.Y.S.2d 832. Under Rule 13 of the Rules of the Supreme Court of the United States, petitioner’s conviction became final 90 days after the Court of Appeals issued its decision denying leave to appeal. Even without any qualified applications for state post-conviction review, petitioner’s statute of limitations would have expired on May 4, 2004. Since his petition was filed on January 29, 2004, he was clearly within the one-year statute of limitations set by AEDPA, and his petition is timely before this Court.

B. Exhaustion of Petitioner’s Claims

1) Standards — Exhaustion

Before considering the merits of petitioner’s claims, this Court must first determine if petitioner has exhausted all available state remedies and whether federal habeas review is permissible. The State argues that petitioner has failed to exhaust certain claims, either by failing entirely to raise them before the state courts or by failing to present them to the state courts in terms of federal constitutional violations, and is thus procedurally barred from pursuing those claims in this federal petition.

A petition for a writ of habeas corpus may not be granted unless all available state court remedies have been exhausted. See 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir.1994), cert. denied, 515 U.S. 1118, 115 S.Ct. 2269, 132 L.Ed.2d 275 (1995). This rule is based on principles of comity between state and federal courts, and requires that the state be given “the first opportunity to address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991): accord Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. 509. “To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims ‘to the highest court of the pertinent state.’ ” Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994) (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990)), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995). “ ‘In order to have fairly presented his federal claim to the state courtsf,] the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court.’ ” Harmon v. People, No. 97 CV 2539, 1999 WL 458171, at *2 (E.D.N.Y. June 25, 1999) (quoting Daye v. Attorney Gen. of State of New York, 696 F.2d 186, 191 (2d Cir.1982) (en banc)).

Petitioner satisfies the exhaustion requirement if he has presented his claim to the appropriate state courts in accordance with state procedural requirements, and has thereby “afford[ed] the state courts a meaningful opportunity to consider [the] allegations of legal error.” Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (internal citation omitted). Although some courts have insisted upon citation in the state pleadings to a specific clause of the Federal Constitution that is alleged to have been violated, courts in this Circuit have held that a claim may be “fairly presented] to the state courts ... without citing chapter and verse of the Constitution” if there is “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis [in factually similar circumstances], (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of New York, 696 F.2d at 194; accord DiSimone v. Phillips, 461 F.3d 181 (2d Cir.2006) (internal citations omitted); Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir.1997) (holding that “[c]it[ation to] a specific constitutional provision or rel[iance] on federal constitutional precedents alerts state courts of the nature of the claim”); Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir.1993) (holding that petitioner had fully presented her claim to the state court where, “[although she did not cite specific constitutional provisions in her [state court] brief[,] ... she explicitly asserted her constitutional right to present a defense ... [and] cited a leading Supreme Court case in this area”), cert. denied, 510 U.S. 1120, 114 S.Ct. 1073, 127 L.Ed.2d 391 (1994).

The legal claims raised in the state courts must also be the “substantial equivalent” of the claims raised in the federal petition. See Picard v. Connor, 404 U.S. at 278, 92 S.Ct. 509; accord Waterhouse v. Rodriguez, 848 F.2d 375, 381 (2d Cir.1988) (noting that “[t]he legal theory relied upon in the federal court need not ... be identical to the legal theory presented to the state courts, provided that the essential factual allegations and the ultimate constitutional question raised in the federal petition were presented to the state courts”). Once a federal claim has been properly presented to the state courts, the claim is considered exhausted even if the state court did not address the claim on the merits and instead rejected it on a state procedural ground, or did not rule on the claim on either substantive or procedural grounds, but nonetheless had a fair opportunity to address the claim. See, e.g., Coleman v. Thompson, 501 U.S. at 731-32, 111 S.Ct. 2546; Castille v. Peoples, 489 U.S. 346, 350-51, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989).

When analyzing whether a claim has been exhausted, the court “refers only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). If an avenue in the state courts is currently available, the federal court generally abstains from habeas review; “[c]onversely, of course, if no state procedure is available for raising any claims at the time a state prisoner applies for federal relief, the exhaustion requirement is satisfied.” O’Sullivan v. Boerckel, 526 U.S. 838, 851-52, 119 S.Ct. 1728, 144 L.Ed.2d 1 (Stevens, J., dissenting) (setting forth a general description of the differences between the doctrines of exhaustion and procedural default, with which the majority expressly noted agreement).

2) Standards — Procedural Default

As a separate and distinct issue, the Court must also address the problem of waiver or procedural default. See Engle v. Isaac, 456 U.S. at 125 n. 28, 102 S.Ct. 1558; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). “[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989): see also Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991). Where a state procedural bar exists, the petitioner no longer has any “ ‘remedies available in the courts of the State’ ” within the meaning of Section 2254(b). See Grey v. Hoke, 933 F.2d at 120 (quoting 28 U.S.C. § 2254(b)). It is well established that a state procedur al rule barring direct review suffices to bar federal habeas review absent a showing of cause and prejudice. Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. 2546; see also Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir.1995) (holding that a state procedural default provides an adequate basis for denying review of a prisoner’s habeas petition unless the petitioner can show “ ‘cause for the default and prejudice resulting therefrom’ ”) (quoting Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir.1991)); Booker v. Ricks, No. 02 CV 6456, 2006 WL 2239243, at *8 (E.D.N.Y. Aug. 4, 2006). Therefore, the Court must inquire as to whether the petitioner has any remedies remaining in the state court to warrant a stay or dismissal of the petition without prejudice in order to allow exhaustion of the claims that petitioner has not adequately raised in prior proceedings.

C. Stay and Abeyance

Prior to the enactment of AEDPA, a federal court was not to consider the merits of a state prisoner’s petitioner for a writ of habeas corpus until all state remedies had been exhausted. 28 U.S.C. § 2254(b), amended by Pub.L. No. 104-132, 110 Stat. 1214. Although the statute did not explicitly address “mixed” petitions, the Supreme Court in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), held that where a habeas corpus petition contains both exhausted claims and unexhausted claims, the federal court must dismiss the entire petition, not just the individual exhausted claims, pending exhaustion of all claims or deletion of the unexhausted claims from the habeas petition. Id. at 520-22, 102 S.Ct. 1198; see also Rhines v. Weber, 544 U.S. 269, 273-74, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (discussing pre-AEDPA procedure for “mixed” petitions). The Court in Rose v. Lundy explained that the doctrine of complete exhaustion was “designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” 455 U.S. at 518, 102 S.Ct. 1198. Indeed, prior to AEDPA’s passage, the Second Circuit made clear that “[pjassing on the merits of claims in a habeas petition containing unexhausted claims runs counter to Rose v. Lundy.’’ Levine v. Commissioner of Corr. Servs., 44 F.3d at 125.

With the enactment of AEDPA, however, the “landscape for federal habeas corpus petitions” was “dramatically altered.” Rhines v. Weber, 544 U.S. at 274, 125 S.Ct. 1528. The exhaustion provisions of the statute were amended to provide that “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Thus, with the passage of AEDPA, the court is now given discretion to deny unexhausted claims on the merits, although it is not required to do so. See 28 U.S.C. § 2254(b)(2), as amended. AEDPA also imposed a one-year statute of limitations on the filing of federal habeas petitions, making it possible for petitioners who file mixed petitions to “forever los[e] their opportunity for any federal review of their unexhausted claims” if the federal court dismisses their petitions after the statute of limitations expires, Rhines v. Weber, 544 U.S. at 274-75, 125 S.Ct. 1528. Athough Section 2244(d)(2) mandates that the limitations period is tolled during the pendency of applications for state postconviction or collateral review, it is not tolled by the filing of a habeas petition. Id.

Thus, following the enactment of AED-PA, courts considering a petition with both exhausted and unexhausted claims have: (1) stayed the mixed petition, see Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.) (citing Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)), cert. denied, 534 U.S. 1015, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001); (2) dismissed the mixed petition, see id. (citing Graham v. Johnson, 168 F.3d 762, 778 (5th Cir.1999)); or (3) dismissed only the unexhausted claims and stayed the remaining claims. See id. (citing Calderon v. United States Dist. Court, 134 F.3d 981, 986-88 (9th Cir.1998)). Having considered all three approaches, the Second Circuit in Zarvela v. Artuz concluded that a court “should exercise discretion either to [dismiss the unexhausted claims and] stay further proceedings on the remaining [exhausted] portion of the petition or to dismiss the petition in its entirety.” Id. The Zarvela court concluded that staying an action would be “the only appropriate course” if “outright dismissal ‘could jeopardize the timeliness of a collateral attack.’ ” Id. (internal citations omitted).

Concerned that granting a stay could allow a petitioner “an undue amount of time to pursue state court remedies,” the Second Circuit instructed that if a court elects to stay a mixed petition, the court “should explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed.” Id. at 380-81. The Zarvela court instructed that if the petitioner fails to comply with either deadline, the court may vacate the stay nunc pro tunc as of the date the court entered the stay, and may dismiss the petition “unless the time the petitioner has taken to initiate exhaustion in the state courts and to return to federal court after exhaustion has not consumed more than the portion of the one-year limitations period that remained when the habeas petition was initially filed.” Id.

Addressing the same issue in Rhines v. Weber, the Supreme Court noted that the procedure of “[s]tay and abeyance, if employed too frequently, has the potential to undermine the[] twin purposes” of AEDPA. 544 U.S. at 277, 125 S.Ct. 1528. A the Supreme Court detailed:

[s]taying a federal habeas petition frustrates AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court prior to filing his federal petition.

Id. As a consequence, the Supreme Court held that “stay and abeyance should be available only in limited circumstances.” Id. If the “court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court,” then the court may grant a stay. Id. However, if the “unexhausted claims are plainly meritless,” “the district court would abuse its discretion if it were to grant him a stay,” even if the petitioner had established good cause for his failure to exhaust. Id.

D. Merits — Standards under AEDPA

Under 28 U.S.C. § 2254, as amended by AEDPA, the authority of federal courts to grant writs of habeas corpus on the merits of claims filed by state prisoners is limited to instances in which it can be shown that the adjudication of a claim on the merits in state court (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,” 28 U.S.C. § 2254(d)(1); 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)(2).

In Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. 1495, the Supreme Court indicated that the “contrary to” and “unreasonable application” clauses of Section 2254(d)(1) have independent meanings. Id. Under the first prong, a state court decision is considered to be “contrary to” clearly established federal law where the state court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or where the state court “confronts a set of facts that are materially indistinguishable” from those considered by the Supreme Court, but “nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 405-06, 120 S.Ct. 1495; accord Overton v. Newton, 295 F.3d at 275; Jones v. Stinson, 229 F.3d 112, 119 (2d Cir.2000). The precedent providing guidance in this analysis are “ ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.’ ” Overton v. Newton, 295 F.3d at 275-76 (quoting Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. 1495).

Under the “unreasonable application” prong of Section 2254(d)(1), a state court decision will be set aside if it involves an “unreasonable application” of the correct governing legal rule to the particular facts of the case, see Williams v. Taylor, 529 U.S. at 407, 409, 120 S.Ct. 1495; Overton v. Newton, 295 F.3d at 275, or if the decision “refuses to extend a legal principle that the Supreme Court has clearly established to a new situation in which it should govern.” Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir.2006) (citing Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir.2002)). In conducting this analysis, the appropriate inquiry is whether the decision was objectively unreasonable, not merely whether it was incorrect or erroneous. Williams v. Taylor, 529 U.S. at 409-11, 120 S.Ct. 1495. However, while “[s]ome increment of incorrectness beyond error is required[,] ... [that] increment need not be great; otherwise, habeas relief would be limited to state court decisions ‘so far off the mark as to suggest judicial incompetence.' ” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal citation omitted); accord Durant v. Strack, 151 F.Supp.2d 226, 234 (E.D.N.Y.2001). In Overton, the Second Circuit, in interpreting Williams, reaffirmed its view that “the standard to be applied ‘falls somewhere between merely erroneous and unreasonable to all reasonable jurists.' ” 295 F.3d at 277 (quoting Jones v. Stinson, 229 F.3d at 119). The Second Circuit also acknowledged that “there has been considerable uncertainty as to how broadly or narrowly lower courts should construe principles defined by the Supreme Court in order to determine whether state courts have applied them reasonably.” Id.

Under AEDPA, a state court’s determination of a factual issue is “presumed to be correct,” 28 U.S.C. § 2254(e)(1); Overton v. Newton, 295 F.3d at 275, and the petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Moreover, “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing 28 U.S.C. § 2254(d)(2)) (emphasis added).

E. Application

Having reviewed each of the petitioner’s claims, the Court finds that his petition for a writ of habeas corpus should be denied in its entirety.

1) Prosecutor’s Summation

In his Memorandum of Law, petitioner first addresses the claim of prosecutorial misconduct based on allegedly inflammatory comments made by the prosecutor during summation. These claims relating to the prosecutor’s summation were raised before the Appellate Division on direct appeal, and were similarly raised in the application for leave to appeal filed with the Court of Appeals. (See Def.’s Br. at 23-28; Def.’s Appl. at 5). Thus, these claims have been fully exhausted and the Court may consider whether they merit habeas relief. 28 U.S.C. § 2254(b)(1)).

Specifically, petitioner argues that he was denied his right to due process when the prosecutor was allowed to elicit testimony from three witnesses about Ms. Justiniano’s emotional state after the incident, and was thereafter permitted in summation to interject the integrity of the prosecutor’s office to bolster the prosecutor’s case. (Petr.’s Mem. at 3-5). Petitioner alleges that, in summation, the prosecutor “appeal[ed] to the jury’s sympathy, vouch[ed] for Justiniano’s credibility and argu[ed] that ... the [petitioner] was ‘prowling’ for additional victims” when he was pulled over by the police. (Id. at 3). The petitioner further alleges that he was denied due process when the prosecutor “suggested that [petitioner] habitually used the van for the purpose of sexual assaults” by referring to a t-shirt with semen on it that was found in the petitioner’s van. (See id. at 4). Petitioner appears to be arguing that these comments deprived him of his “right to a fair and objective evaluation of the evidence.” (See id. at 3).

To obtain relief based on a claim of prosecutorial misconduct, the habeas petitioner must demonstrate that the alleged misconduct “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); see also Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir.1998) (noting that in order to grant relief, the habeas court must “find that the prosecutor’s comments constituted more than mere trial error, and were instead so egregious as to violate the defendant’s due process rights”). Indeed, the Supreme Court has made it clear that a prosecutor’s comments in summation must be more than “ ‘undesirable or even universally condemned.’ ” Darden v. Wainwright, 477 U.S. at 180-81, 106 S.Ct. 2464 (internal citations omitted). In determining whether the alleged prosecutorial misconduct amounted to “prejudicial error,” courts must review the conduct in the context of the entire trial. Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir.1991). The court should examine not only “the severity of the misconduct,” but also “the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.” United States v. Friedman, 909 F.2d 705, 709 (2d Cir.1990) (internal citations omitted). Only if the misconduct deprived the defendant of a fair trial does the misconduct violate the defendant’s due process rights. Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.) (internal citations omitted), cert. denied, 502 U.S. 852, 112 S.Ct. 158, 116 L.Ed.2d 123 (1991).

“Attorney statements vouching for the credibility of witnesses are generally improper because they ‘imply the existence of extraneous proof.’ ” United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) (internal citations omitted). In assessing petitioner’s claim that the prosecutor impermissibly “vouch[ed]” for the credibility of Ms. Justiniano’s testimony, a review of the record demonstrates that on various occasions, the prosecutor told the jury that Ms. Justiniano was “careful,” that the jury “can rely on her,” or that the jury can “rely on what Jennifer Justiniano said.” (Tr. at 1191-92, 1198-99, 1213). Read in context, it appears that the prosecutor was not personally vouching for the witness, but rather arguing to the jury that they should credit the witness’s testimony for the reasons provided by the prosecutor. The prosecutor told the jury that in evaluating the victim’s credibility, they should consider the detailed description that the witness gave not only of petitioner (id. at 1222), but also of the interior of the petitioner’s van. (Id. at 1203-04). The prosecutor referred to the victim’s demeanor while she was testifying (id. at 1200-01), and reminded the jury that the victim had a number of opportunities to view petitioner. (Id. at 1192-95, 1202-03,1206). Thus, “[bjecause the prosecutor did not ‘imply the existence of extraneous proof[,]’ we cannot say that [her] statements were an improper vouching for the credibility of [the witness].” United States v. Perez, 144 F.3d at 210.

The phrasing of several of the prosecutor’s arguments concerning the victim’s credibility indicate even more clearly that the prosecutor was not personally vouching for the victim’s testimony. See Sales v. Harris, 675 F.2d 532, 541 (2d Cir.) (highlighting a difference between personally vouching for the credibility of a witness and arguing that a witness is credible), cert. denied, 459 U.S. 876, 103 S.Ct. 170, 74 L.Ed.2d 140 (1982). By way of example, after one of petitioner’s objections, the prosecutor stated: “Your common sense, after listening to Jennifer Justiniano’s testimony, leads you to the conclusion that when she points to the defendant and says it’s him, she is correct.” (Tr. at 1192). She further stated: “That’s logical and reasonable and that tells you that Jennifer Justiniano is careful and you can rely on her.” (Id. at 1199).

Moreover, the prosecutor’s arguments may be seen as a direct response to petitioner’s counsel’s argument that the victim’s testimony was vague and lacking in detail. (See id. at 1180-81). Petitioner’s trial counsel also argued that the witness w