Mohsin v. Ebert (626 F. Supp. 2d 280, 2009)

MEMORANDUM & ORDER

DEARIE, Chief Judge.

Mohammed Mohsin petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the petition to Magistrate Judge James Orenstein for a Report and Recommendation in accordance with 28 U.S.C. § 636(b).

In his comprehensive, fifty-five page Report and Recommendation dated March 17, 2009, Magistrate Orenstein recommends that petitioner’s application be denied. By Order dated March 27, 2009, the Court granted petitioner’s motion for an extension of time to file his objections to the Report and Recommendation, which he timely filed in a statement dated May 4, 2009. The Objections expressly “address! jonly certain aspects of the Report” but also incorporate in their entirety each of the arguments advanced in the 89-page brief submitted in support of the petition.

Accordingly, the Court has reviewed the matter de novo. Having studied the parties’ submissions along with the trial transcript and the lengthy post-trial state court record, the Court now adopts the Report and Recommendation in its entirety and without qualification. A copy of the Report and Recommendation is annexed hereto as an addendum to this Memorandum and Order.

DISCUSSION

The thoroughness of Judge Orenstein’s Report and Recommendation obviates the need to restate the factual background, or to engage in the needless formality of summarizing each of petitioner’s six claims along with each capsule of Judge Orenstein’s analysis in order to lodge the Court’s piecemeal agreement. Still, because petitioner persists, in his Objections to the Report, in asserting that he is innocent of the crimes of which he was convicted, the Court explains here the features of the record and the Report that weigh most heavily and convincingly against the granting of habeas relief.

In his Objections, as in each of the state court proceedings occurring after his trial, petitioner relies principally on the victim’s post-trial recantation of her trial testimony, along with several other -witness statements and expert opinions also obtained after the trial. So equipped, petitioner seeks to cast himself as the victim of a criminal justice system stubbornly deaf to his plea of innocence. He writes:

It was not until March 1996 that Ms. Sufian implication petitioner in the September 13, 1995 fire. At trial she was the only witness linking him to it. Almost immediately after the trial she recanted her trial testimony. At petitioner’s sentencing, she begged the court to release him. Moreover, for the next 12 years through two motions to vacate, Ms. Sufian has steadfastly maintained that petitioner had nothing to do with the fire and that she herself intentionally set it. Her assertions have been corroborated by others and by scientific evidence presented to the state courts in the motions to vacate. Yet to date no court has even ordered an evidentiary hearing to afford petitioner a reasonable opportunity to prove both his innocence and Ms. Sufian’s perjury. (Obj. 4, emphasis added).

There is a fatal shortcoming, however, in petitioner’s breathless plea. He was afforded precisely the opportunity he now claims had been withheld from him. That opportunity, of course, came in the form of his criminal trial, and the record shows that petitioner made abundant use of that opportunity by having vigorously challenged Sufian on several fronts. It is, in the end, immaterial that the jury did not learn of Sufian’s recantations: contrary to petitioner’s characterization of them, Sufi-an’s recantations (along with the body of other post-trial statements purporting to corroborate them) are not of the “smoking gun” or “newly discovered” variety. Rather, the entire post-trial narrative reads as a more elaborate, more polished, and more strategically drafted version of the principal factual contentions and legal theories asserted at trial.

For example, although petitioner did not testify, his “version” of events was put before the jury through the testimony of Fire Marshal Roger Eckert and New York City Police Detective Miriam Piretti. Both testified that, shortly after the fire, petitioner stated that he had just left the apartment for work when, realizing he had forgotten his beeper, he returned, heard his girlfriend crying for help, summoned the landlord, and then broke down the apartment door and rescued her. T. 740, 853.

Similarly, cross-examination of Sufian exposed the same principal factual grounds for not crediting her testimony that now fuel petitioner’s several perjury-based habeas claims. Among other things, the jury learned that Sufian had not implicated petitioner until six months after the fire and that she had initially told investigators that the fire resulted from an accident in the kitchen. The jury also learned of the turbulent amorous relationship between petitioner and Sufian, and heard both sides seek to explain actions of Sufian and petitioner as the result of that turbulence. Thus, the jury learned that Sufian had previously faked a suicide attempt in order to secure petitioner’s sympathy and that she blamed the fire on him only after he rebuffed her when she tried to visit him at work. Indeed, the jury heard counsel expressly argue petitioner’s “version” of what really happened, namely, that Sufian, suffering from what counsel described as a kind of “fatal attraction” to petitioner, set herself on fire because she could not accept petitioner’s decision to leave her. Finally, the jury learned that Sufian had lied in a variety of other contexts, including that she sued the landlord for negligence in order to support her initial false claim that an explosion on the kitchen stove caused the fire, and that she misrepresented her age and marital status in a Family Court petition for support from petitioner.

The fact that the jury nonetheless elected to credit Sufian’s account of how petitioner set her on fire — riveting even on the cold transcript — is all but dispositive for habeas purposes. As Judge Orenstein’s summary of habeas principles on this point succinctly and accurately explains, petitioner’s burden is heavy: to obtain relief here, he must show that the jury’s decision to credit Sufian is “an unreasonable determination of the facts in light of the evidence presented” within the meaning of 28 U.S.C. § 2254(d), and must likewise overcome the statutory presumption of correctness that attaches to state court factual findings by presenting “clear and convincing evidence” to the contrary within the meaning of 28 U.S.C. § 2254(e)(1). See Report at 302. Petitioner could not possibly meet this burden by relying solely on the contents of his trial record: the jury that witnessed Sufian’s demeanor and was offered many reasons not to believe her nonetheless chose to credit her compelling account. That finding is virtually inviolate.

Petitioner also fails to rebut the presumption of factual correctness, or to establish the unreasonableness of the jury’s verdict and ensuing appellate affirmance, by relying on the post-trial recantations. First, as already stated, the recantations do not offer substantively new “evidence” but merely attempt to trigger a post-hoc, re-assessment of Sufian’s credibility. Second, the state court that presided over petitioner’s trial has reviewed those recantations and refused to credit them. See 330 Motion, Memorandum Decision at 2, 3 (recantation “inherently unreliable”); First 440 Motion, Memorandum Decision at 11 (recantation inherently suspect; Sufian’s various accounts internally inconsistent). Of course petitioner’s second 440 motion then sought to challenge those credibility findings by submitting still later-generated witness statements and expert affidavits purporting to corroborate the recantations. But nothing in those papers reveals those new statements to have been unavailable to petitioner at the time of his trial or, for that matter, at the time he made his 330 Motion or his First 440 Motion. More fundamentally, the succession of motions reveals petitioner’s boundless capacity to generate, after each defeat, a next and more strategically crafted round of documents. It is for this very reason, as Judge Orenstein soundly concluded, that recantations such as Sufian’s have long been viewed with the “utmost suspicion.”

In short, particularly because of petitioner’s zealous claim of innocence, it bears remarking that the denial of habeas relief here rests not on unduly formalistic adherence to rules and presumptions but, to the contrary, illustrates a paradigmatic alignment among habeas burdens of proof, the federalism values they promote, and the underlying factual reality of the case. New York courts have three times elected to credit Sufian in the face of colorable claims to the contrary; more precisely, they have twice expressly chosen not to believe her post-trial change of heart. Such a multi-tiered credibility — based factual finding is, for all intents and purposes, unalterable on habeas. See 28 U.S.C. § 2254(d)(2), (e)(1). At the same time, the Court’s close review of the record convinces it that even if there were authority to do so, there is no compelling reason to disturb those findings. To reiterate, it is immaterial that the jury did not learn of Sufian’s recantations because the entire post-conviction theory constructed atop those recantations is the same theory that was presented to the jury, and because the factual matters bearing on Sufian’s motives for implicating or not implicating petitioner (the high and low points of their relationship) were also presented to the jury. In short, nothing has been overlooked and no injustice has occurred. Habeas exists to provide relief when a conviction has been obtained in violation of the Constitution, not to provide a forum for retrying cases.

CONCLUSION

The Report and Recommendation of Magistrate Orenstein is hereby adopted in its entirety and without qualification, petitioner’s application for a writ of habeas corpus is denied, and the petition is dismissed. Because petitioner has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2254(c)(2), a certificate of appealability shall not issue. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. The Clerk of the Court is directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

JAMES ORENSTEIN, United States Magistrate Judge:

Petitioner Mohammed Mohsin (“Mohsin”) seeks a writ of habeas corpus. He is currently in the custody of New York State as a result of his conviction of attempted murder in the second degree and assault in the first degree. The charges arose from an allegation that Mohsin doused the victim of the offenses with gasoline in the apartment that they sometimes shared, set her on fire, and locked the apartment door behind him as he left her to burn. In the decade since his indictment, Mohsin has engaged in extensive litigation — much of it relying on the victim’s own many differing accounts of the events at issue — predicated on the theory that the victim was injured in a fire she herself started rather than by his own deliberate crime. In the instant petition, Mohsin argues that the evidence at his trial was insufficient to support a conviction, that the trial court improperly admitted certain expert evidence, that the prosecutor deprived him of a fair trial by knowingly introducing perjured testimony and by suppressing evidence that would ostensibly have revealed that perjury and exonerated him, and that he was deprived of the effective assistance of counsel both at trial and on direct appeal of his conviction. The Honorable Raymond J. Dearie, Chief United States District Judge, has referred the matter to me for report and recommendation. I now make my report and, for the reasons stated below, respectfully recommend that the court deny Mohsin’s petition.

I. Background

A. Mohsin’s Relationship With The Victim

Mohsin was involved in a relationship with Syeida Sufian (“Sufian”) that began in 1991, when Sufian was sixteen years old. The two were married in a religious ceremony on February 14, 1992' — a fact that they planned to keep secret until Sufian’s eighteenth birthday — but never entered into a civil marriage. While Sufian was still a minor, Mohsin rented a small apartment in the basement of the home of Mohindranauth Seerattan (“Seerattan”). Of relevance to the events at issue in this case is the fact that the apartment included a kitchen with functioning stove, as well as the fact that the apartment door was equipped with both a chain lock (that could be secured only from the inside) and a key-operated lock. Mohsin initially lived in the apartment with Sufian, but after a time ceased doing so and instead visited Sufian there on occasion. DE 8, Transcript of Jury Trial (“TT”) 516-22, 529, 729, 957, 991-95, 997,1000-01,1037,1045-47.

B. The Fire And The Subsequent Investigation

On September 13, 1995, Sufian suffered extensive burns in a fire at the apartment. Soon after the fire began, Seerattan — the landlord who lived above the apartment— heard Mohsin screaming from the driveway. Seerattan told his wife to call 911 and went to investigate. When he arrived at the apartment, he saw two male strangers, neither of whom was Mohsin and whom he described as Puerto Rican, carrying Sufian from the apartment. He assisted them, blackening his clothes in the process, while his son extinguished the fire. TT 502-07, 544, 561, 600.

By the time the emergency personnel arrived at Sufian’s apartment, the fire had been extinguished, but smoke continued to spill from the entrance to the apartment, and the apartment itself was black with soot. TT 474; 637-38. The apartment was filled with dark, sooty smoke, and rugs and debris continued to smolder on the ground near the entrance. TT 639, 643. The fire had occurred immediately behind the front door, next to the kitchen cabinets; contrary to Sufian’s subsequent statements to investigators that the fire had begun while she was cooking, the stove sustained no damage. TT 639, 641-42; 647. A yellow container three-quarters full with what appeared to be gasoline was found on a dresser on the left-hand side of the apartment’s entrance, and a strong smell of gasoline was present in the air. TT 640; 670; 734. Investigators later confirmed the presence of gasoline in both the yellow container and a sample of the fire debris removed from inside the front door of the apartment. TT 820. The fire was deemed to be of a suspicious nature, and a fire marshal was summoned. TT 670. The fire marshal determined that the smoke damage was consistent with a fire involving a flammable liquid. TT 728-29.

By the time the fire marshal arrived, Sufian was outside the apartment, seated at a picnic table. She had suffered burns covering some 35 percent of her body, mostly on her right side. An ambulance later transported her to the Cornell Medical Center, where she remained for five weeks. TT 471-72, 638, 669, 1186, 1203-04,1214.

While Sufian was still outside the apartment, Mohsin arrived in the backyard. TT 474-75. According to a police officer, he appeared “normal” when he arrived at the scene, and had no soot or dirt on his clothing. TT 479. His appearance when he later arrived at the hospital was similarly unremarkable, although he had burns on his fingers, as well as singed hair and eyebrows. TT 1119-20.

Fire Marshal Eugene Dyckman (“Dyckman”) interviewed both Sufian and Mohsin at the hospital. Although her injuries and her limited command of English made their communication difficult, Sufian told Dyckman that Mohsin had not caused her injuries. She stated that she was injured while making coffee on the stove, and she denied any knowledge of a container of gasoline found in the apartment. TT 698-99, 704. Sufian similarly told Fire Marshal Roger Eckert (“Eckert”) that the fire was an accident. TT 743. Eckert ultimately closed his investigation without determining a definitive cause of the fire. TT 777.

Dyckman transported Mohsin from the hospital to the 103rd Precinct, where he was interviewed by Eckert and Lt. Miriam Piretti (“Piretti”). TT 700, 739^0. Mohsin told Eckert and Piretti that on the morning of the fire, he left for work but realized he forgot his beeper and returned to the apartment to retrieve it. He said that he heard Sufian screaming and attempted to enter the apartment but found it locked. Mohsin went on to say that he then kicked in the door, dislodging the chain lock from its connection in the process, and pulled Sufian from the apartment. TT 740, 853.

Piretti later made several attempts to contact Sufian through Mohsin. On October 24, 1995, Mohsin agreed that he would have Sufian contact her. TT 866. On November 15, Piretti again spoke to Mohsin, who said he did not know where Sufian was or where she could be contacted. When Piretti pressed Mohsin for further information, he said that he would be taking Sufian to the doctor soon and would have her telephone Piretti. On November 17, Sufian contacted Piretti and they arranged to meet at the precinct. Mohsin escorted Sufian to the precinct, and was reluctant to allow Sufian to speak to Piretti alone, but ultimately acceded to Piretti’s insistence on a private interview. Apparently, Sufian adhered to her earlier statements; Piretti informed her that she would close the case, but gave Sufian her card and told her to call if she needed anything. Over three months later, on February 29, 1996, Sufian arrived at the 103rd precinct looking for Piretti. Mohsin was arrested soon after. TT 868-75.

C. The Trial

Mohsin was charged with one count of attempted murder in the second degree and two counts of assault in the first degree. Two attorneys represented Mohsin at his trial in May 1999 (as well as in pretrial proceedings and all other proceedings through sentencing): Stephen J. Singer (“Singer”) and Kenneth J. Schreiber (“Schreiber”). The trial ended on May 13, 1999, when the jury found Mohsin guilty on all three counts. TT 1505.

In presenting its case, the prosecution relied heavily on circumstantial evidence about the origin of the fire, some of which is described above. It also presented expert testimony relevant to the issues now before the court. One expert was Dr. Roger Yurt (“Yurt”), the director of the Cornell Medical Center’s burn unit (the largest burn unit in the country, see TT 1187), who opined on the causation of Sufiaris burn injuries. In testimony that Mohsin now claims should not have been admitted, Yurt opined that the nature and location of Sufiaris extensive burns was consistent with the proposition that Mohsin had attacked her with a flammable liquid and set her on fire and inconsistent with the proposition that the fire was accidental. In particular, he explained how Sufiaris injuries — primarily on one side of her body; more severe in the upper body and on one arm apparently raised in self-defense; and more concentrated at the neck area, where the collar of her dress would have absorbed more of the flammable liquid that Mohsin allegedly poured on her — were more consistent with an intentional attack using accelerant than with the description of the events Sufian initially provided to investigators. See TT 1211-13,1218-19,1246.

Another expert, former fire marshal Eugene West (“West”) likewise bolstered the prosecution’s theory of the case in several respects. He testified that a person who has been in close proximity to the ignition of some form of vapor would show effects consistent with Mohsin’s condition in the aftermath of the fire: singed hair and eyebrows but no additional damage to the surrounding tissue and clothing. See TT 1270 (West’s testimony); TT 1119-20 (eyewitness description of Mohsin’s condition). West also testified that a gasoline fire in a small space similar to Sufiaris apartment would cause a great deal of soot and heavy black smoke, which would have rushed out the door in a “flue effect” as soon as the door was opened from the outside, covering the person opening the door with soot. TT 1272-74. The latter testimony, combined with observations that Mohsin had no soot on his clothes when emergency personnel arrived at the scene of the Are, TT 479, east doubt on Mohsin’s assertion that he had rescued Sufian from the burning apartment. Finally, West also testified that Sufiaris burns were consistent with a pour-type pattern caused by gasoline that, once ignited, ran down her arms as it burned and that they were inconsistent with a fire that had started at her feet. TT 1276-78.

In addition to its circumstantial evidence, the prosecution also introduced direct proof of Mohsin’s guilt in the form of Sufiaris first-hand account of the events at issue. In contrast to her initial statements to investigators, Sufian’s trial testimony did not tend to exonerate Mohsin; to the contrary, she provided a chilling first-hand account of how he set her on fire and left her in the burning apartment. Specifically, she testified that on the day of the fire, she and Mohsin were together in the apartment and continuing an argument that had begun the previous evening concerning their relationship and whether they would ever enter into a civil marriage. Sufian testified that as the argument wore on, Mohsin left the kitchen area, where Sufian was washing some utensils, and went into the bathroom. Through an interpreter, Sufian told the jury what happened next:

[T]hen he came in front of me and then threw ... petrol on me. I had just turned slightly and had raised my hands and said: What are you doing? And at that time he said: See how I’m going to kill you. And soon after he put a light[ed] match on me and he went out of the door and locked the door. And at that time there was so much fire in the room. I started shouting and I was shouting for help. And there was so much fire around me. (Brief pause.) And at that time I had a feeling I’m going to die now.

TT 956-57.

Sufian was unable to recall what happened next, or how she escaped the apartment, other than that an unidentified person carried her. TT 964-65. She also identified the yellow container that the prosecution had introduced in evidence as the object Mohsin had been holding when he splashed her with gasoline. She testified that she had seen it in the bathroom apartment early in the morning of the day of the fire; she had tried to question Mohsin about it, but he dismissed her questions. TT 969.

In describing the immediate- aftermath of the fire, Sufian testified that, once Mohsin returned to the scene, he told her to let him do the talking, not to tell the police that he had caused her injuries, and that if she complied, he would “do everything [he had] always told [her].” TT 966. Mohsin instructed Sufian to tell anyone who inquired that the fire was an accident and that the oven had caught fire while she was cooking — a direction with which she initially complied. TT 968. Likewise, while she was recuperating in the hospital, Mohsin repeated his promises to enter into a legal marriage with her and to rent a new apartment in which they would live together as a couple. During Sufian’s hospital stay, her visitors included Mohsin, his friends, and his family. TT 974-75.

Sufian further testified that during the investigation of the fire, Mohsin told her that the police were seeking to question and arrest her. He told her , to contact Detective Piretti, but to do so from a public telephone so that the police could not discover her address. When Mohsin finally took Sufian to see Piretti, he again instructed Sufian on what to say about the cause of the fire. Mohsin told Sufian that if she did not do as he said, she would be arrested or deported and would not receive proper medical care. Mohsin instructed Sufian to tell Piretti that her landlord had given her paint to paint the apartment and that, in trying to remove paint from her hands with turpentine, some of the turpentine had remained on her hands, and that the turpentine caught fire when she turned on the oven. Sufian obeyed and gave Piretti the story that Mohsin had concocted. TT 978-81.

In describing the period following her release from the hospital, Sufian testified that Mohsin first took her to stay with his aunt for a week, then moved her to a “very dirty” room in an apartment he had rented. TT 977. After about a month, Mohsin stopped visiting Sufian, and she came to believe he had left New York for Atlanta. In February 1996, Mohsin twice called Sufian and asked her to come to his office; on each occasion, when Sufian appeared at his office she was confronted by the police, who informed Sufian that a complaint had been made about her and asked her to leave. Soon after these incidents, Sufian returned to the 103rd Precinct and told Piretti “the truth” about the fire, implicating Mohsin. TT 984-90.

D. Post-Trial State Court Proceedings

Prior to sentencing, while still represented by Singer, Mohsin filed the 330 Motion on June 16, 1999. In it, he claimed that Sufian had recanted her testimony in a statement to a cleric named Moulana Beg (“Beg”). See 330 Motion, Counsel Aff. at 2; 330 Motion, Beg Aff. ¶ 2. The court denied the motion in a memorandum decision dated August 24, 1999. Two days later, on August 26, 1999, the court sentenced Mohsin to indeterminate prison terms of, respectively, six-to-eighteen years on the attempted murder charge and three-to-nine years on each assault charge, with all three terms to run concurrently. DE 8, Transcript of Sentence 24.

Mohsin filed a direct appeal of his conviction and sought relief on four grounds. His counsel on direct appeal was Richard E. Mischel (“Mischel”). In addition to arguing that the evidence was legally insufficient to establish his guilt, Mohsin asserted that the trial court committed error by admitting certain expert testimony, abused its discretion in denying the 330 Motion without a hearing, and imposed an excessive sentence. See Petition at 3; Direct Appeal, Memo, at 22. The appellate court rejected all four claims. People v. Mohsin, 302 A.D.2d 609, 755 N.Y.S.2d 625, 625 (2003). Specifically, it held that Mohsin had not preserved his insufficiency claim for appellate review, but the evidence was “[i]n any event” legally sufficient to establish his guilt beyond a reasonable doubt. Id. at 625. The appellate court rejected all of Mohsin’s other claims on the merits. Id. at 625-26. The New York Court of Appeals denied Mohsin leave to appeal on July 17, 2003. People v. Mohsin, 100 N.Y.2d 585, 764 N.Y.S.2d 395, 796 N.E.2d 487 (2003) (unpublished table decision).

In addition to seeking relief on direct appeal of his conviction, Mohsin made three attempts to secure collateral review in the state courts: the First 440 Motion, for which attorney Singer again represented him; the Comm Nobis Motion, which Mohsin filed without counsel following the conclusion of his direct appeal; and then the Second 440 Motion, for which he engaged attorney Robert E. Boyle (“Boyle”).

In his First 440 Motion, filed on March 9, 2000, Mohsin raised several claims. First, he asserted that new sworn statements by Sufian and two of her acquaintances would have convinced the jury to render a verdict in his favor. First 440 Motion, Counsel Aff. at 5, 8-9 & Exs. B-D. He further argued that new evidence consisting of tape-recorded statements by Seerattan and his son undermined the prosecution’s theory by showing that the chain lock on the apartment’s door was in working condition at the time of the fire (which Mohsin contends would have supported his version of the events in dispute), and that the prosecutor improperly sponsored the admission of false testimony about the lock. First 440 Motion, Counsel Aff. at 9-10, 13. Finally, Mohsin argued that the prosecution had failed to turn over to the defense certain photographs that Piretti took during her investigation, in violation of its disclosure obligation under New York’s “Rosario ” rule. Id. at 14; see N.Y.Crim. Pro. Law § 240.45(a) (requiring prosecution to disclose to the defense prior statements by persons whom the prosecutor plans to call as witnesses at trial); People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). The court denied the motion, and then, after hearing further argument, denied Mohsin’s application for reconsideration. The appellate court denied Mohsin leave to appeal.

On September 1, 2004, several months after his conviction was affirmed on direct appeal, Mohsin, representing himself, filed the Coram Nobis Motion. He argued that he had been denied the effective assistance of appellate counsel because Mischel had failed to raise a claim of prosecutorial misconduct as part of the direct appeal. Co-ram Nobis Motion, Memo, at 31-34. The court denied the motion on March 21, 2005. People v. Mohsin, 16 A.D.3d 599, 790 N.Y.S.2d 881 (2005). The Court of Appeals denied Mohsin’s request for leave to appeal on August 8, 2005. People v. Mohsin, 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160 (2005) (unpublished table decision). Mohsin moved for reconsideration of that denial, and the Court of Appeals denied that request on November 21, 2005. People v. Mohsin, 5 N.Y.3d 884, 808 N.Y.S.2d 586, 842 N.E.2d 484 (2005) (unpublished table decision).

Mohsin filed his Second 440 Motion on September 12, 2005 (during the pendency of his request to reconsider the denial of leave to appeal the denial of the Coram Nobis Motion). Represented by a new attorney who had participated in neither the trial nor the direct appeal (and who now represents Mohsin in the instant proceedings), Mohsin claimed that he was denied the effective assistance of trial counsel because his attorney had failed to call exculpatory witnesses, failed to call expert witnesses, and failed to make use of all available impeachment evidence. He further asserted that his trial counsel had provided deficient advice regarding a motion for mistrial and had denied Mohsin his right to testify as part of his defense. Second 440 Motion, Counsel Aff. ¶¶ 1-2. While the motion was pending, Mohsin’s new counsel filed a supplemental document arguing' that the prosecution had suppressed material exculpatory evidence by failing to disclose the recording of a 911 call. Second 440 Motion, Counsel Supp. Aff. (Mar. 27, 2006).

The court denied the motion without explicitly addressing the latter due process argument on April 6, 2006. Second 440 Motion, Memorandum Decision. Over two months later, on June 7, 2006, Mohsin sought leave to appeal the denial, and later (in response to the prosecution’s argument that the request was untimely) asked that the appeal be deemed timely even though the usual filing deadline had already passed. On August 9, 2006, the appellate court denied leave to appeal without specifying whether its decision was based on the merits of the issues Mohsin sought to litigate or instead on the untimeliness of his request. Mohsin filed the instant petition on June 30, 2006 — after the denial of the Second 440 Motion but before he filed his application for leave to appeal the court’s denial of that motion.

II. Discussion

A. Procedural Issues

1. Timeliness

Mohsin’s habeas petition was timely filed. After the Court of Appeals denied Mohsin’s application for review of the affirmance of his conviction on July 17, 2003, he had 90 days to seek a writ of certiorari from the United States Supreme Court. He did not do so, and his conviction accordingly became final on October 15, 2003. 28 U.S.C. § 2244(d)(1)(A); see Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.2001). Although a habeas petition must generally be filed within one year of a final conviction, post-conviction collateral proceedings toll the statute of limitations. 28 U.S.C. 2244(d)(2). Mohsin filed his Co-ram Nobis Motion on September 1, 2004, tolling the statute of limitations 321 days after his conviction became final. The court denied the Coram Nobis Motion on March 21, 2005. Under earlier case law, that event would have ended the tolling period for purposes of the one-year statute of limitations, on the ground that the denial of such a motion is not appealable. See, e.g., Hizbullahankhamon v. Walker, 255 F.3d 65, 70-71 (2d Cir.2001) (citing cases). However, a change in New York law permitted Mohsin to seek leave to appeal the denial of his Coram Nobis Motion. See N.Y.Crim. Pro. Law 450.90(1) (2002). As a result, the denial of the Coram Nobis Motion became final no earlier than August 8, 2005, when the Court of Appeals denied Mohsin leave to appeal. Mohsin filed the Second 440 Motion 35 days later, on September 12, 2005, and he filed the instant petition on June 30, 2006, while the latter motion was still pending. Accordingly, leaving aside tolling periods, Mohsin filed the instant petition no more than 356 days after his conviction became final. It is therefore timely.

2. Exhaustion

As a state prisoner seeking federal habeas relief pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, Mohsin must show that he properly presented both the factual and legal premises of his claims to the state court. Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc); 28 U.S.C. § 2254(b)(1), (c). Mohsin raised all of the grounds on which he now seeks relief in either his direct appeal or in one of his post-conviction collateral motions.

In considering whether a petitioner has satisfied the exhaustion requirement, the court must determine not only whether the petitioner raised a given claim to the state court for review, but also whether he fairly presented it as a matter of federal constitutional law. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court”). Before a federal court may grant habeas relief on an issue, the state courts must be given an opportunity to examine and, if necessary, remedy the alleged violation of the petitioner’s federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.2003). A claim is not fairly presented if the reviewing state court must read beyond a petition or a brief that does not alert it to the federal claim at issue in order to find material that does so. Baldwin, 541 U.S. at 32, 124 S.Ct. 1347. Moreover, the petitioner must have presented to the state court essentially the same legal doctrine that he argues in his petition to the federal court. Brooks v. McGinnis, 104 Fed.Appx. 761, 762 (2d Cir.2004) (citing Daye, 696 F.2d at 191-92).

A petitioner can satisfy this latter aspect of the exhaustion requirement in a number of ways, including the citation of “pertinent federal cases employing constitutional analysis” or “state cases employing constitutional analysis in like fact situations,” by asserting a claim “in terms so particular as to call to mind a specific right protected by the Constitution,” or by alleging “a pattern of facts that is-well within the mainstream of constitutional litigation.” Id. at 762-63 (citing Daye, 696 F.2d at 194). For the most part, Mohsin has satisfied this requirement, because most of the claims he now raises were previously presented to the state courts in a way that fairly invoked his federal rights. There is one issue that Mohsin did not raise as a matter of federal constitutional law: the admission of Yurt’s expert testimony. As discussed below, I conclude that Mohsin’s current claim that the admission of the testimony denied him his federal constitutional right to due process has never been fairly presented to any state court, and is therefore proeedurally barred.

3. Independent And Adequate State Grounds

In addition to showing that he fairly raised all of his federal claims in the state courts, a state prisoner seeking habeas relief must also show that he has been denied relief on the merits of those federal claims. This court lacks jurisdiction to review a state court decision that “rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Degrijze v. Artuz, 134 Fed.Appx. 460, 461 (2d Cir.2005). An independent and adequate state ground is one that would support the judgment on its own, even if the state court’s ruling on the federal claim is found to have been contrary to federal law. A common example is a state procedural rule rendering the claim forfeited under state law. See Coleman, 501 U.S. at 730, 111 S.Ct. 2546; Wainwright v. Sykes, 433 U.S. 72, 81-82, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); County Court of Ulster County v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

In determining whether Mohsin has cleared this procedural hurdle, this court must “presume that there is no independent and adequate state ground for a state court decision” — and that it may therefore be subjected to collateral review here^ — “when the decision ‘fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.’ ” Coleman, 501 U.S. at 735, 111 S.Ct. 2546 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). But if the opinion contains “a clear and express statement of reliance on a state procedural bar,” this court may not presume that the state court decision rested on the merits of the federal claim. Jimenez v. Walker, 458 F.3d 130, 145 (2d Cir.2006). Of the six grounds on which Mohsin now seeks habeas relief, five meet this procedural requirement. However, as discussed below, the first ground on which Mohsin seeks relief — that the evidence at trial was not legally sufficient to sustain his conviction — ■ does not, because the state appellate court explicitly rejected the claim on the basis of Mohsin’s failure to preserve it for review. See Mohsin, 755 N.Y.S.2d at 625.

4. The Standard of Review

With respect to each of the federal constitutional claims that Mohsin has properly presented (involving, respectively, prosecutorial misconduct and the denial of the effective assistance of counsel) the state court decisions at issue rejected Mohsin’s position on the merits.. As a result, this court may grant relief as to any such issue only if the relevant state court decision “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); see Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Jimenez, 458 F.3d at 146. A state court decision is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decided a ease differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A state court has “unreasonably applie[d]” Supreme Court precedent if, despite properly identifying the relevant Supreme Court holding, the state court unreasonably applies that rule to the facts of the case. Id. at 407-08, 120 S.Ct. 1495. The touchstone for the latter inquiry is objective reasonableness; habeas relief is unavailable unless the trial court’s decision was “so plainly unconstitutional that it was objectively unreasonable for the Appellate Division to conclude otherwise.” Jimenez, 458 F.3d at 147 (citing Williams, 529 U.S. at 409-10, 412, 120 5.Ct. 1495).

B. Sufficiency Of The Evidence

1. The Claim Is Procedurally Barred

The first ground on which Mohsin seeks relief is a claim that the prosecution’s evidence at his trial was not legally sufficient to sustain his conviction. When he made the same claim on direct appeal of his conviction, the court explicitly ruled that it was not preserved for review. Mohsin, 755 N.Y.S.2d at 625. In doing so, the court relied exclusively on state law requiring an a defendant to move for dismissal at trial in order to preserve an insufficiency claim for appellate review. Id. (citing People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 (1995)). To be sure, the state court also briefly addressed the merits of Mohsin’s insufficiency claim by writing that “[i]n any event, viewing the evidence in the light most favorable to the prosecution ... we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt.” Id. (citing People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 (1983)). In such circumstances, where a court discusses both state procedural and federal substantive grounds for its decision, there may exist some ambiguity as to whether the court intended to waive the state procedural ground and decide the claim on the merits. Harris, 489 U.S. at 261-62, 109 S.Ct. 1038.

In seeking to resolve such ambiguity, this court must “presume that there is no independent and adequate state ground for a state court decision” — and that it may therefore be subjected to federal collateral review — “when the decision ‘fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.’ ” Coleman, 501 U.S. at 735, 111 S.Ct. 2546 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). But if the opinion contains “a clear and express statement of reliance on a state procedural bar,” this court may not presume that the state court decision rested on the merits of the federal claim. Jimenez, 458 F.3d at 145.

The state court opinion in this case does contain such a clear indication: “The defendant’s contention that the evidence was legally insufficient to establish his guilt ... is unpreserved for appellate review.” Mohsin, 755 N.Y.S.2d at 625. Moreover, the court’s use of the introductory clause “[i]n any event” before making its summary observation that the evidence “was legally sufficient” indicates that the point was not necessary to its ruling. Reading the decision in context, it is impossible to avoid the conclusion that the state court’s rejection of Mohsin’s claim “fairly appears to rest” primarily on state procedural law and not on federal law. See Coleman, 501 U.S. at 735, 111 S.Ct. 2546 (quoting Long, 463 U.S. at 1040-41, 103 S.Ct. 3469); see Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996); cf. Ryan v. Miller, 303 F.3d 231, 245-46 (2d Cir.2002) (finding claim adjudicated on the merits when state court held “[t]he defendant’s remaining contentions are either unpreserved for appellate review or without merit”).

Mohsin can overcome the procedural bar to consideration of his insufficiency claim if he can demonstrate both “cause” for his default and actual prejudice flowing from the substantive violation of federal law that he alleges; alternatively, the court can also consider the claim on its merits if the failure to do so will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 485-86, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Mohsin has presented no argument as to why either exception to the usual procedural requirements applies here, and I can see none that he may have overlooked.

First, Mohsin cannot show cause for the failure to preserve the claim. While a defendant can establish such “cause” by demonstrating that his trial counsel was ineffective, Murray, 477 U.S. at 488-89, 106 S.Ct. 2639, the record here provides no basis on which to conclude that Mohsin’s trial counsel failed to preserve an insufficiency claim due to some error — and Mohsin does not argue to the contrary despite finding fault with many other aspects of his trial counsel’s performance. Nor can Mohsin show any prejudice arising from the application of normal procedural default rules to this case, as he is unable to show that his substantive claim has merit for the reasons discussed below. Second, for similar reasons, Mohsin cannot demonstrate that a fundamental miscarriage of justice will result if the court does not review the merits of his insufficiency claim. Because an explanation of the latter conclusion inevitably requires a consideration of the substance of that claim, I now proceed to a brief discussion of its merits.

2. The Claim Lacks Merit

To prevail on his claim that the evidence was insufficient to support his conviction, Mohsin would have to demonstrate that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found each element of the charged offenses to have been proved beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There can be no reasonable argument that the prosecution failed to present evidence that could support a finding in its favor on each essential element of each charged offense; Sufian’s testimony plainly sufficed in that regard, see, e.g., TT 956-57 (describing how Mohsin stated his intent to kill Sufian before setting her on fire and locking her in the apartment), and her testimony was amply corroborated by circumstantial proof. Instead, Mohsin apparently relies on a theory that Sufian’s testimony was incredible as a matter of law — or at least he did so when he actually submitted argument on the point in litigating the direct appeal of his conviction. See Direct Appeal, Memo, at 25-26. Such a theory is patently insufficient, and calls upon the court to usurp the jury’s fact-finding role. See, e.g., DeChirico v. Walker, 558 F.Supp.2d 355, 370 (E.D.N.Y.2008) (rejecting similar claim and citing cases). I therefore respectfully recommend that the court reject Mohsin’s first claim.

C. The Admission Of Expert Testimony

1. The Claim Is Procedurally Barred

Mohsin’s second claim for habeas relief is that he was denied due process of law when the trial court erroneously admitted Yurt’s expert testimony. The only argument Mohsin has submitted in support of this claim is the assertion that Yurt was “unqualified to offer opinion evidence concerning the cause of [Sufian’s] injuries [and the] fire since he was a plastic surgeon not an expert in fires.” DE 1 at 9.

Mohsin did not fairly present this due process theory to the state courts in framing his objection to the admission of Yurt’s testimony. Although Mohsin noted, in the section heading to the relevant section and at the conclusion of that section in his appellate brief, that the admission of the testimony violated his “right to a fair trial,” he argued the point exclusively with reference to state law and did not present any arguments that his constitutional rights were violated. See Direct Appeal, Memo, at 32-43. All of the cases that Mohsin cited in his appellate brief were New York state court decisions construing state law. See id. at 38-41. The term “right to a fair trial” is not so particular to as to call to mind a specific right protected by the Constitution. Daye, 696 F.2d at 193 (2d Cir.1982) (“Obviously not every event in a criminal proceeding that might be described as ‘unfair’ would be a violation of the defendant’s rights under the Constitution.”). Nor is this an instance where the factual allegations supporting the claim are “well within the mainstream of due process adjudication,” or where the courts of a state have previously treated a given fact pattern as appropriate for constitutional analysis. Id. at 193-94 (citing Johnson v. Metz, 609 F.2d 1052, 1057 (2d Cir.1979)). Accordingly, I respectfully recommend that the court find this claim to be procedurally barred.

2. The Claim Lacks Merit

Even if the court considers the merits of Mohsin’s evidentiary claim, it should decline to order any relief. This court “has a limited role to play, on habeas review, in assessing the merit of state evidentiary rulings, and may issue the writ only where the petitioner can show that erroneous rulings were of a constitutional magnitude.” Harry-Santiago v. Bennet, 2001 WL 527474, at *1 (S.D.N.Y. May 16, 2001); see Underwood v. Kelly, 692 F.Supp. 146, 151 (E.D.N.Y.1988), aff'd, 875 F.2d 857 (2d Cir.1989). To prevail on this claim, Mohsin must show not only that the trial court erred in admitting Yurt’s expert testimony, but also that the improper admission was “so prejudicial as to constitute fundamental unfairness” — meaning that the evidence was so material as to provide the basis for conviction or to remove a reasonable doubt that would have existed in the record without it. Cunningham v. Bennett, 2005 WL 1162475, at *5 (E.D.N.Y. May 16, 2005) (citation omitted). Mohsin can satisfy neither of those requirements.

First, the trial court did not err in admitting Yurt’s testimony. At the time of the trial Yurt was the director of the Cornell Medical Center’s Burn Unit, the largest burn unit in the country. TT 1187. The court considering Mohsin’s direct appeal concluded that Yurt was “unquestionably ... qualified to give this testimony based on his cumulative and lengthy experience in treating burn patients.” Mohsin, 755 N.Y.S.2d at 626. Mohsin provides no basis for disagreeing with that conclusion, and given the evidence that Yurt’s testimony was based on extensive experience in treating burn victims who had disclosed the nature of the fires in which they were injured, see TT 1230-32, it appears to be correct.

Second, while Yurt’s testimony was unquestionably material, Mohsin cannot demonstrate that any error in admitting it was so prejudicial as to deny him a fair trial. In addition to Yurt’s testimony regarding the cause of Sufian’s burns, the prosecution adduced testimony from several witnesses tending to show that the fire at issue was caused by the ignition of a flammable liquid. See, e.g., TT 670; 728; 820. Moreover, former fire marshal West similarly opined — in testimony that Mohsin does not now challenge — that Sufian’s injuries were consistent with having had gasoline poured on her. TT 1278. Accordingly, Mohsin cannot show that Yurt’s testimony provided the basis for his conviction or that its omission would have created a reasonable doubt. I therefore respectfully recommend that the court reject this claim.

D. Allegations Of Witness Perjury And Suppression Of Exculpatory Evidence

In his third claim, Mohsin asserts that he was denied due process because he was convicted on the basis of perjured testimony that the prosecutor knew to be false. In support of the claim, Mohsin points to multiple post-trial statements in which Sufian exonerated him- — -including one in which she claimed that the trial prosecutor threatened her with deportation if she exculpated Mohsin at trial — as well as a tape recording that Mohsin describes as an admission by Seerattan that he lied in his trial testimony. DE 1 at 12. In a related separate claim (the sixth in his petition), Mohsin claims that the prosecution improperly suppressed a recording of a 911 call that Mohsin asserts “contradicted material portions of [Seerattan’s] trial testimony.” Id. at 16. Mohsin address both claims of prosecutorial misconduct under a single point-heading in his brief in support of the instant petition, see Habeas Memo, at 72-88, and I will do likewise here.

1. Sufian’s Testimony

A prosecutor’s knowing use of perjured testimony to secure a conviction violates the defendant’s constitutional right to due process of law. Hysler v. Florida, 315 U.S. 411, 413, 62 S.Ct. 688, 86 L.Ed. 932 (1942). If Mohsin can demonstrate that the prosecutor knew or should have known that Sufian’s testimony was perjured, he would need to show only a “reasonable likelihood that the false testimony could have affected the judgment of the jury.” Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir.2003) (internal quotation omitted). On the other hand, if the prosecutor did not have reason to believe that Sufian’s testimony was false, the court could grant Mohsin relief only if it concluded that Sufi-an’s testimony was material and if it firmly believed that it is unlikely Mohsin would have been convicted in the absence of the perjury. United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991); see Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir.2003).

Under either theory, of course, Mohsin must establish that Sufian’s trial testimony was perjurious; if he cannot do so, he cannot establish a due process violation. Palaguachi v. Keane, 58 Fed.Appx. 862, 864 (2d Cir.2003) (citing Sanders v. Sullivan, 863 F.2d 218, 222 (2d Cir.1988)). In seeking to satisfy this requirement, Mohsin relies entirely upon Sufian’s own efforts to recant her trial testimony — either in affidavits or in statements reported by others. Such recantation is viewed with the “utmost suspicion[.]” Sanders, 863 F.2d at 225 (2d Cir.1988). In order to determine whether her recantation is credible, the court must “weigh all the evidence of perjury before it, including but not limited to the recantation.” Ortega, 333 F.3d at 107.

Moreover, in considering Mohsin’s argument, the court is not writing on a blank slate. The state courts have repeatedly considered the proposition that Sufian’s recantation of her trial testimony should result in a new trial. Even before he was sentenced, as part of his 330 Motion, Mohsin procured Sufian’s recantation to Beg and proffered it in support of a motion for a new trial. It was in the latter proceeding that Mohsin asserted that the prosecutor coerced Sufian into giving false inculpating testimony. See 330 Motion, Counsel Aff. at 4, ¶ 5. The trial court declined to rely on Sufian’s recantation and denied the motion without an evidentiary hearing; its decision in that regard was affirmed on appeal. See 330 Motion, Memorandum Decision at 2-3; People v. Mohsin, 302 A.D.2d 609, 755 N.Y.S.2d 625, 625 (2003). Later, in his First 440 Motion, Mohsin again claimed that Sufian had recanted and that he was therefore entitled to relief. In support of the latter motion, Mohsin submitted an affidavit from Sufian herself, in which she exonerated Mohsin, as well as affidavits from additional witnesses that tended to support certain details of the recantation. The court again denied the motion, holding that the recantation was inherently suspect, and it adhered to that conclusion on reconsideration. See First 440 Motion, Memorandum decision at 11; First 440 Motion, Reconsideration, Memorandum decision at 2. Those decisions were likewise affirmed when the appellate court rejected Mohsin’s request for leave to appeal. Decision and Order dated October 11, 2000.

The state courts having twice rejected Mohsin’s claims based on their assessment of the factual record, Mohsin bears a heavy burden in seeking collateral relief in this court. Specifically, he must show that the earlier denials of his motions rested 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). Moreover, the decision that Sufian’s recantation was itself false is “presumed to be correct” and Mohsin bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The case law of this circuit has not determined whether a habeas petitioner seeking relief from a state court decision that rested on a finding of fact must satisfy both of those statutory provisions — demonstrating both that the state court’s factual determination was unreasonable in light of the evidence presented and that the evidence submitted in support of the habeas petition clearly and convincingly rebuts the presumption of correctness that would otherwise attach to the state court’s factual determination— or only one of them. See Green v. Travis, 414 F.3d 288, 298 n. 6 (2d Cir.2005) (citing Channer v. Brooks, 320 F.3d 188, 194 (2d Cir.2003) (per curiam)). I recommend that the court should assume without deciding that either showing would suffice, as I conclude that Mohsin cannot in any event satisfy either standard. See id. Specifically, Mohsin cannot show either that the state courts’ determinations were unreasonable or that the additional evidence on which he now relies is sufficient to rebut the presumption that the state courts were correct to find Sufian’s recantations incredible.

In considering whether Mohsin has met his burden in establishing his claim regarding Sufian’s testimony, it is useful to bear in mind the evolution of her statements over time and the state of that development at the point each previous fact-finder has rendered a judgment. Briefly stated, each fact-finder has chosen to rely on Sufian’s trial testimony as accurate — and to reject Mohsin’s argument that it was false — despite knowing that Sufian had provided inconsistent accounts at other times.

Specifically, when the trial jury found Mohsin guilty, it knew that Sufian had initially absolved Mohsin of responsibility in repeated statements to investigators, and had only later changed her story and inculpated Mohsin — first in a revised statement to investigators, and then in her testimony at trial. The jury also heard that Sufian initially told investigators that the fire had been an accident that began while she was cooking, and that she had no knowledge about the gasoline container found in her apartment. See TT 699, 743. It nevertheless chose to believe Sufian’s trial testimony. The jury’s decision was amply supported by other evidence, including the lack of damage to the kitchen stove and the nature of her injuries.

When the trial court, prior to sentencing, rejected Mohsin’s 330 Motion, it had before it not only the trial record, but also Beg’s affidavit reporting that Sufian had recanted. The latter affidavit makes clear that whatever else can be said about the evolution of Sufian’s account over the years, her decision to implicate Mohsin with what she has at some times characterized as false testimony is not attributable to the trial prosecutor: Beg wrote that Sufian told him “that she lied in Court because [Mohsin] called the police on her [when she tried to see him at his office after being released from the hospital] and she was both angry and insulted, and was also pressured to take revenge on him by her family members[.]” 330 Motion, Beg Aff. ¶ 5. According to Beg, Sufian described the fire as an accident, and not the result of an intentional assault by Mohsin. Id. The court declined to rely on the recantation, as “inherently unreliable and insufficient alone to require setting aside a conviction” particularly in light of the fact that “the issue of ‘inconsistent stories’ given by [Sufian] was resolved by the jury at trial.” 330 Motion, Memorandum Decision at 2, 3 (citing cases). Mohsin challenged that ruling on direct appeal, and his challenge was rejected at each level of review. Mohsin, 755 N.Y.S.2d at 625-26; leave to appeal denied, 100 N.Y.2d at 585, 764 N.Y.S.2d 395, 796 N.E.2d 487. The trial court’s determination in that regard, and the decision by each higher court to uphold it, was eminently reasonable in light of the evidence. Moreover, far from rebutting the presumption of correctness, Mohsin’s later submissions have only served to bolster it. For example, Beg’s report that Sufian told him the fire was an accident is directly at odds with Mohsin’s later submission of an affidavit in which Sufian swore that she intentionally set the fire to harm herself. Compare 330 Motion, Beg Aff. ¶ 5 with Second 440