Full opinion text
REVISED MEMORANDUM AND ORDER TRAGER, District Judge. Petitioner Sami Leka is currently in the custody of New York State prison officials pursuant to a 1990 conviction on second degree murder and weapons charges. Asserting actual innocence, Leka petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that the police investigation and state court proceedings leading to his conviction violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. First, Leka argues that he was convicted partly as a result of imper-missibly suggestive police identification procedures. Second, he alleges that the prosecution suppressed material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Lastly, petitioner alleges that he was denied his Sixth Amendment right to the effective assistance of trial counsel. Background (1) On the evening of February 12, 1988, at approximately 6:00 p.m., Rahman Ferati was shot eight times in the legs, chest, hand, and back as he stood in front of 1954 Ocean Avenue, between Avenues N and 0, in Brooklyn, New York. Although an ambulance reached the scene within ten minutes of the shooting, efforts to save Ferati were unsuccessful, and he was pronounced dead at Coney Island Hospital at 6:43 p.m. Officers of the New York Police Department responded to the scene and, as part of their investigation, identified witnesses to the shooting. The witnesses included two passers-by, Elfren Torres (“Torres”) and his then-girlfriend (now-wife) Carolyn Módica Torres (“Módica”). Torres told Sergeant Thomas Mahony that he had seen two men and a light-colored car. Mó-dica told Sergeant Mahony that she had seen someone in a car prior to the shooting and would be able to recognize him if she saw him again. Módica then gave the officer their names and address, and the couple returned to their nearby home. That evening, Módica and Torres discussed what they had seen with one another. Around midnight, two detectives came to the Torres’ home and asked them to come to the 70th Precinct station. Torres and Módica asked whether they could come in the morning, but when they were told that the matter was urgent, agreed to accompany the detectives. Once at the precinct house, the police separated Módica and Torres. Módica provided detectives with a description and a drawing of the man she had seen in the light-colored car, and gave a tape-recorded statement to an assistant district attorney. At around 4:45 a.m., Detective Pedro Vergara showed Módica two photo arrays. Each array consisted of six photographs arranged in two horizontal rows of three photographs each. The first array included a photograph of Zeni Cira, a man who would later be tried along with petitioner for the murder of Ferati and acquitted, but who, after his acquittal, would confess to the murder. Each of the men included in the first array, including Zeni Cira, was pictured without a mustache. Módica did not identify anyone from that photo array. The second photo array included a photograph of Leka,. and each of the men in the second array, including Leka, was pictured wearing a mustache. From this array, Módica identified Leka as the man she had seen in a car at the crime scene. Módica remarked to the detective that petitioner had appeared fifteen pounds heavier at the scene, but explained that petitioner had been wearing a bulky black leather jacket that made him appear bigger. At about 1:30 a.m., Torres gave a statement to a Detective Lee (first name unknown). Torres explained that he and Mó-dica had walked by a light-colored car and, after passing it, heard two shots. Torres turned and saw a hand holding a gun extended out of the passenger-side window of the car. Torres ducked down but quickly looked up again and saw a man outside the car shooting in a downward direction at a man in the street. At some point thereafter, Torres and Módica ran into a building. Torres stated that he did not see the car leave. Torres described the man he had seen shooting as five feet, nine inches tall, medium build, in his late twenties or early thirties, dark hair, mustached, wearing a dark leather coat, and firing a black revolver with a brown handle. At 5:10 a.m., Detective Vergara showed Torres the same two photo arrays that had been shown to Módica. Torres did not select anyone out of the first photo array but selected petitioner from the second photo array. The police then drove Módi-ca and Torres home. The police apparently had Leka’s photograph due to a 1977 arrest, but it is not clear why his picture was included in an array shown to Torres and Módica so soon after the crime. At trial, Detective Ver-gara testified that he was aware that the victim and the alleged perpetrators were Albanians, but he did not know how petitioner’s name became involved in the investigation; nor was Detective Vergara aware of petitioner’s name until he was handed the photo array at the precinct house. In any event, the police followed up on the identification of petitioner by Torres and Módica. Detective Vergara and Detective James Sanseverino went to petitioner’s apartment around 6:15 a.m. on February 13th. A woman answered the door and told the police that petitioner was not there. Detective Sanseverino spoke to petitioner later that same day when petitioner voluntarily came to the precinct. Petitioner explained that he had been home when the detectives had come to his apartment, but that he had been asleep. He also told Detective Sanseverino that around 6:30 p.m. or 7:00 p.m. of the preceding evening he had gone out with his sister-in-law Naze Alijaj to rent a videotape and that he had bought snacks while his sister-in-law rented the videotape. Petitioner could not remember the name of the movie. In addition, petitioner claimed that he had borrowed his brother’s Cáma-ro and had driven around Manhattan for three hours between 11:00 p.m. on the 12th and 2:00 a.m. on the 13th. On March 8, 1988, the police again brought Torres and Módica to the 70th Precinct house and had them separately view a line up which included petitioner. Again, both Módica and Torres independently identified petitioner as the man they had seen on the night of the shooting. Following the identification, petitioner was arrested. The final important pre-trial event for purposes of this petition was a Wade hearing held on February 20th and 21th, 1990, before Justice Philip E. Lagaña of the New York Supreme Court, Kings County. The prosecution called three witnesses, Módica, Torres and Detective Vergara, to rebut charges that the police engaged in suggestive conduct that resulted in Módica and Torres’ identifications of petitioner. The defense called no witnesses of its own, but it did assemble an in-court line up consisting of petitioner, Zeni Cira’s brother Luftim (who would testify at trial that he and another brother, Osman, murdered Ferati in self-defense), and six other Albanians, including relatives of both Zeni Cira and petitioner. The prosecutor asked Módica and Torres each to identify the individual they had seen at the crime scene from the line up assembled by the defense, and without hesitation both selected the petitioner. Petitioner’s trial counsel, Joseph Benfante, cross-examined the three witnesses extensively in an unsuccessful effort to show that the police had engaged in some form of misconduct or had pressured Torres and Módica to identify petitioner. At the close of the Wade hearing, the state trial court denied a motion by petitioner to adjourn the trial until all the police officers who had assembled the photo arrays or who had been in contact with either Módica or Torres could be identified, subpoenaed, and examined by the defense. The court did, however, state that it would re-open the hearing if petitioner could find any police officer whose testimony was helpful in his attack on the pre-trial identifications. The court also rejected a defense motion to hold a hearing on whether Módica and Torres had a reliable independent source for their line up identifications. The defense predicated this latter motion on the ground that the photo array was inherently suggestive because the five other pictures in the array were allegedly of Hispanic men, while petitioner was an Eastern European. There was (and is), however, no evidence in the record regarding the actual ethnicities of the photo array fill-ins. (2) Petitioner’s trial began with jury selection on February 26, 1990. The prosecution’s case detailed the intra- and inter-family feud which allegedly provided the motive for the shooting. The victim, Rah-man Ferati, was related to the Ciras through the marriage of his son Veli to Zeni Cira’s sister Lydia, and through the marriage of his daughter Julie to Zeni Cira’s brother Luftim. After Veli’s death in an automobile accident in 1978, Ferati took custody of Veli and Lydia’s children. In 1986, Ferati moved from New York to Houston, Texas, taking the grandchildren with him. In 1987, during a period in which Ferati was incarcerated, the Cira family regained custody of the children and brought them back to Brooklyn. Losing custody of his grandchildren angered Ferati greatly. Around New Year’s, 1988, Ferati returned to New York and took up residence -with his daughter Julie, her husband, Luftim Cira, and their children. Soon thereafter, tension developed between Ferati and his son-in-law. On February 11, 1988, matters came to a head when Ferati forced his daughter and her children to leave their home and held them against their will in his brother Sali’s apartment at 1947 Ocean Avenue. Ferati supposedly took this action as a quid pro quo against the Ciras for taking Velis children. The very next day, Rahman Ferati was shot to death across the street from Sali’s apartment. Petitioner was nominally an ally of the Ciras in their feud with the Feratis because his sister was married to his co-defendant, Zeni Cira. No additional explanation was offered as to what motive petitioner had to murder Fer-ati. The prosecution’s direct case against petitioner consisted almost entirely of the eyewitness identification testimony of Torres and Módica. Torres testified to essentially the same account of the shooting that he had given to Detective Lee on the night of the shooting, and he also made an in-court identification of the petitioner. Módica testified that around 6:00 p.m. on February 12, 1988, she and Torres had been walking along Ocean Avenue in the direction of Avenue N when she noticed two men sitting in a light-colored car that was double-parked in front of a psychoanalyst’s office at 1954 Ocean Avenue. As Módica passed the car, it seemed to her that the man in the passenger seat was looking toward her and whispering something to his companion about her. Módica, whose nose was bandaged due plastic surgery she had just had a week earlier, believed the two men were mocking her, and she therefore stared back as she walked past the car. Módica testified that, in all, she stared at the man in the passenger seat for “[mjaybe about four seconds, five seconds.” Although Módica testified that she was not able to see the driver’s face, she was able to describe the passenger: He had like a medium olive complexion, but it didn’t have any sort of a yellowish cast to it or anything. And he had very dark brown or black hair. And it was like that D.A. disco type of style that he had. And he had on a black leather jacket. And it had padding, you know, like one of those bulky business black leather jackets. Módica added that the man in the passenger seat had a full, thick mustache. Módi-ca then identified the petitioner as the man she had seen in the passenger seat of the light-colored car. Módica concluded her account of the shooting by testifying that, after she and Torres passed the car, they continued walking for what she estimated to be “about five car lengths” when she heard gunshots. Módica then ducked down behind a parked car and some garbage cans until the shooting stopped and Torres told her that the car was leaving. In its case against petitioner’s co-defendant, Zeni Cira, the prosecution introduced into evidence a dying declaration Rahman Ferati made to his brother Sali. In response to Sali asking who had shot him, Rahman replied, “Zeni, Zeni, Zeni,” while moving his hand in a manner that Sali believed was meant to indicate Zeni Cira was driving the car. Rahman Ferati was apparently unable to recognize anyone else in the car, although the Ferati family had known petitioner for many years. The prosecution also introduced ballistics evidence showing that a gun recovered from a sewer located near petitioner’s apartment was the gun that had fired the bullets that had killed Rahman Ferati. In addition, Assistant Medical Examiner Dr. Marie Macajoux, who performed Fera-ti’s autopsy, testified that some of the bullet wounds were consistent with the victim lying on his back, and someone standing four to six feet away, shooting downward. Neither petitioner nor his co-defendant testified at trial. Instead, petitioner’s defense consisted of attacks on Torres and Modica’s identifications, buttressed by meteorological evidence which suggested the lighting conditions at the crime scene were poor and by witnesses who testified that petitioner had never worn a mustache or at least had not worn a mustache since 1978. Petitioner also presented an alternate account of the murder, namely that Luftim Cira shot Ferati in self-defense while attempting to get his family back from Fera-ti. Luftim Cira testified that he had seen his brother, Osman, by chance and had Osman drive him to Sali Ferati’s apartment. As they drove up, they spotted Rahman Ferati on the side of the street. When, on Luftim’s instruction, Osman stopped the car beside Rahman, Rahman allegedly began cursing Luftim and pulled out a gun. Luftim drew his own weapon and exchanged fire with Ferati through the passenger side window of the car. Luftim testified that he never left the car and that, after the shooting, he and Osman sped away. Subsequently, Luftim and Osman split up, and Luftim proceeded on foot. While walking towards his older sister’s house, he threw his gun in the sewer where detectives later recovered it. In support of the self-defense aspect of Luftim’s account, various defense witnesses testified that Rahman Ferati was known to be a violent and dangerous man who regularly carried a gun. The final component of petitioner’s trial defense consisted of calling petitioner’s friend and two neighbors/in-laws to testify that petitioner was essentially incapacitated by arthritis at the time of the murder. Petitioner also introduced medical records from Coney Island Hospital, which indicated that Leka had visited its outpatient clinic on February 2nd and February 10th of 1988, complaining of swollen fingers and pain in the back, shoulder, and left knee. The records further showed that Leka had reported a six- to seven-year history of arthritis. Through this evidence, petitioner sought to create the inference that he was physically incapable of committing the murder. On rebuttal, Detective Vergara was asked to indicate on a map the relative locations of the murder scene, 1954 Ocean Avenue, the sewer where the murder weapon was found, 1657 Ocean Parkway, and Leka’s apartment, 209 Avenue P. The prosecution apparently sought to suggest that, since the sewer was only about one block away from Leka’s apartment, it was more likely that Leka had dropped the gun there than had Luftim Cira. Based on his review of police log books, Detective Vergara also testified that no police officers or detectives visited Leka’s apartment building on the night of February 12th and that two sets of detectives left the precinct house at 3:10 a.m. and 4:10 a.m. on February 18th, respectively, to obtain a photograph of Leka. This testimony contradicted testimony given by Leka’s two neighbors/in-laws that the police had come to their apartment at 9:30 p.m. on the 12th and showed them a picture of Leka with a mustache. Finally, Detective Sanseverino recounted the alibi petitioner had given to the police, viz., that he had been out renting a movie and buying snacks at the time of the murder, which contradicted the testimony of the neighbors and friend that petitioner was too sick on the day of the murder to leave the house or get out of bed. (3) On the morning of March 26, 1990, the jury was charged. After several read-backs of the transcript, supplemental instructions, and a deadlock at one point as to both defendants, the jury returned with a unanimous verdict on the evening of March 28, 1990, finding petitioner guilty of Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. The jury acquitted Zeni Cira on all charges. (4) After the verdict, petitioner retained new counsel and began a series of state court proceedings aimed at overturning the jury’s verdict. Less than eight weeks after the verdict, on May 18,1990, petitioner filed a motion under N.Y. C.P.L. § 380.30 for an order setting aside the verdict due to newly discovered evidence and ineffective assistance of counsel. The newly discovered evidence consisted mainly of Zeni Cira’s videotaped confession that he shot Rahman Ferati and that his brother Luftim drove the car. Petitioner alleged ineffective assistance of counsel due to a conflict of interest stemming from Zeni Cira’s payment of petitioner’s legal fees. On May 31, 1990, the state trial court denied petitioner’s motion without a hearing and sentenced Leka to concurrent, indeterminate terms of imprisonment of twenty years to life on his conviction for Murder in the Second Degree, five to fifteen years on his conviction for Criminal Possession of a Weapon in the Second Degree, and two and one-third to seven years on his conviction for Criminal Possession of a Weapon in the Third Degree. On June 18, 1990, petitioner filed a notice of appeal from the denial of the § 330.30 motion. Leka subsequently appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department (the “Appellate Division”). On February 8, 1991, petitioner moved the trial court for an order vacating the judgment of conviction under N.Y. C.P.L. § 440.10. Petition repeated the same claims he advanced in his § 330.30 motion, but he submitted additional newly discovered evidence, including the evidence at the heart of the petition now before this court — affidavits in which Torres recants, and both he and Módica cast doubt on, their trial testimony. In his affidavit, Torres claimed that he was pressured to identify petitioner as the shooter and that detectives led him to believe that petitioner was in fact the shooter. See Elfren Torres Aff. of 1/2/91, ¶ 5, Pet.’s Mem., Ex. 7 [hereinafter Torres 1991 Aff.]. Torres recanted his trial testimony, alleging that he had only seen shots fired from the car and that the only person he had seen outside the car was Rahman Ferati. See id. ¶ 6. In contrast, Módica did not actually recant her identification of petitioner. In her affidavit, Módica stated that, based on information supplied to her by petitioner’s then-counsel Stephen G. Murphy, it was “possible” that the double-parked car she had seen drove off after she passed by: 3. ... Mr. Murphy explained to me that the car I saw (in which I identified MR. LEKA as a passenger) had already pulled out and that the car the murderer was in was seen pulling up double parked and shooting by a bus driver. 4. This makes me feel that it is possible that it was a different light/white car I saw with a passenger who looked like SAMI LEKA by coincidence. That there is a realistic possibility that as we walked by, the car I saw pulled away, and another similar car pulled in. Carolyn Módica Torres Aff. ¶¶ 3M=, Pet.’s Mem., Ex. 8 [hereinafter Módica Aff.]. In a handwritten addendum to the affidavit, Módica clarified that her “recantation” was predicated on Murphy’s factual representations and indicated that she nonetheless continued to believe that the man she had seen resembled Leka: In conclusion after obtaining the other information given to me by Mr. Murphy & [Murphy’s investigator] and after my discussion of the events on the day in question, I cannot honestly say I am positive that Mr. Leka was the man in the car I passed — Its [sic] possible to have been someone who had his style of hair (DA) and coloring with brown eyes. Id. ¶ 7. With his § 440.10 motion, petitioner also presented affidavits from three other witnesses to the murder, as well as grand jury testimony from one of those witnesses and a police interview report from another. This evidence, he argued, showed that no one got out of the car during the shooting. Although this evidence would not directly exculpate petitioner, since none of these three witnesses could conclusively state that petitioner was not in the car or at the scene, petitioner argued that it impeached Torres’ testimony and cast doubt upon the time line, position of the car, and sequence of events to which Torres and Módica testified. In a written opinion, the state trial court concluded that the evidence offered by petitioner did not meet the state law criteria for granting a new trial and denied petitioner’s motion to set aside the judgment. See People v. Leka, Indict. 2520/1988 (N.Y. Sup.Ct., Kings County, Dec. 6, 1991) (corrected order denying § 440.10 motion at 8) [hereinafter Section 440.10 Opinion], On November 6, 1991, petitioner requested leave to appeal the denial of his § 440.10 motion and to consolidate that appeal with his direct appeal and his appeal from the trial court’s denial of his § 330.30 motion. On February 18, 1992, the Appellate Division granted petitioner’s motion and consolidated all three appeals. Petitioner, represented by yet another lawyer, raised three claims on the consolidated appeal. First, he argued that the verdict was against the weight of the evidence. See Pet.’s App. Mem. at 30-36. Second, the trial court erred in denying petitioner’s pre-trial motion to suppress the identification testimony because the photo array shown to Torres and Módica on the morning after the shooting was impermissibly suggestive. See id. at ST-42. Lastly, petitioner challenged the denial without a hearing of his § 330.30 and § 440.10 motions, essentially repeating the arguments he had made to the trial court. See id. at 43-79. On November 28, 1994, a unanimous panel of the Appellate Division affirmed petitioner’s conviction. See People v. Leka, 209 A.D.2d 723, 619 N.Y.S.2d 144 (2d Dep’t 1994) (per curiam). The Appellate Division concluded that the photo array was not suggestive because all the subjects were sufficiently similar in appearance to petitioner. The Appellate Division further held that the trial court had properly denied Leka’s post-trial motions. On March 14, 1995, the New York Court of Appeals denied petitioner leave to appeal. See People v. Leka, 85 N.Y.2d 911, 627 N.Y.S.2d 334, 650 N.E.2d 1336 (1995). (5) On April 21, 1997, petitioner, acting pro se, filed this petition for a writ of habeas corpus. The State of New York moved to dismiss the petition on the grounds that it fell outside the one-year statute of limitations prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1) (Supp.1999) (“AEDPA”). This court denied the motion. See Leka v. Portuondo, No. CV-97-2061 (DGT) (E.D.N.Y. Sept. 26, 1997) (order denying motion to dismiss). On February 6,1998, the petitioner’s motion for appointment of counsel was granted, but the court was notified shortly thereafter that the firm of McDermott, Will & Emery would represent petitioner. Discussion Petitioner raises three claims in support of this petition. First, he attacks the police identification procedures as impermis-sibly suggestive. Second, he alleges that the prosecution concealed and/or delayed disclosure of Brady material. Finally, petitioner argues that he received ineffective assistance of counsel at trial. (1) Petitioner’s claim that the police used impermissibly suggestive identification procedures raises two distinct issues: first, whether the composition of the photo array was inherently suggestive, and, second, whether police pressured Torres to pick Leka from the photo array. As discussed below, petitioner cannot be granted a writ with respect to either theory of tainted identification. a. The Photo Array Petitioner argues that the photo array that included petitioner’s photograph was inherently suggestive because he was the only Albanian pictured in the array, while the rest of the photographs were of Hispanics. Petitioner further contends that Módica and Torres’s subsequent in-person identifications of the petitioner at the precinct house line up, at the Wade hearing, and at trial, were all irreparably tainted by the suggestive photo array, and should have been excluded from evidence. Whether a pre-trial identification procedure, such as a photo array, is so suggestive that it denies a defendant due process is a mixed question of law and fact. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam). Because petitioner’s argument was fairly presented to the state courts and adjudicated on the merits, both by the trial court, see W. 205, 210-11, and by the Appellate Division, see Leka, 209 A.D.2d at 724, 619 N.Y.S.2d at 145-46, the state courts’ rejection of petitioner’s claim can be overturned on federal habeas review only if the 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) (Supp. 1999). The Supreme Court has established a two-part inquiry for evaluating in-court identification testimony based on pre-trial identification procedures. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The inquiry “ré-quires [1] a determination of whether the identification process was impermissibly suggestive, and if so, [2] whether it was so suggestive as to raise a ‘very substantial likelihood of irreparable misidentification.’ ” Id. at 196, 93 S.Ct. at 380 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)); accord Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977). In light of the Appellate Division’s opinion and the evidence on the record, the state court’s decision was not contrary to, nor did it involve an unreasonable application of, federal law as determined in the Neil decision. The Appellate Division treated petitioner’s claim at length, offering the following explanation for its ultimate rejection of the claim: The hearing court properly declined to suppress the proposed identification testimony of the eyewitnesses. Contrary to the defendant’s claim, the photographic array was not suggestive and did not draw the viewer’s attention to the defendant’s photograph. Even if the other men depicted in the photographic array were of Hispanic origin, they were similar in appearance to the defendant, who is Albanian, insofar as each had dark hair and eyes, a mustache, some facial hair on their chins, and a prominent nose. Further, all but one of the men in the photographic array had a dark skin tone similar to the defendant’s skin tone. As conceded by the defendant, there is no requirement that a defendant be surrounded by individuals nearly identical in appearance during identification procedures. Leka, 209 A.D.2d at 724, 619 N.Y.S.2d at 145-46 (citations omitted). Examination of the photo array that included petitioner’s photograph, as well as the relevant case law, reveals that the Appellate Division’s decision was entirely reasonable. While there is no evidence in the record regarding the actual ethnicities of the fill-ins, at least one of the fill-ins, viz., number three, could clearly pass for an Eastern European, and another of the fill-ins, viz., number one, looks as though he could be of European descent. In any case, whatever the racial or ethnic backgrounds of the other subjects in the photo array, they are indeed not so dissimilar from petitioner so as to impermissibly suggest that he was the perpetrator. Moreover, other courts applying the Neil standard have agreed that due process does not require line up or photo array fill-ins to share the defendant’s exact characteristics, ethnic or otherwise. Finally, although the Appellate Division did not allude to the point in its opinion, to the extent petitioner argues that Torres and Módica picked Leka simply because his photograph was the only picture of an Eastern European man with which they were presented, his claim is severely undercut by the fact that each of the witnesses saw two photo arrays, and each failed to pick anyone out of the first array, which included several persons of Eastern European descent — albeit without mustaches, among them petitioner’s Albanian co-defendant, Zeni Cira, who later confessed to the murder. See T. 506-508 (Módi-ca); W. 72-76 (Torres). Petitioner attempts to shore up his tainted identification claim with respect to Torres through additional allegations— which, as discussed below, were expressly rejected by the state trial court' — that the police pressured him to choose Leka. Módica, however, even in her “recanting”' post-trial affidavit makes no such allegations that police misconduct influenced her choice of petitioner. Thus, distilled to its essence, petitioner’s claim with respect to Modica’s identification is that she picked Leka solely because his photograph was the only one that she saw of a non-Hispanic with a mustache. At trial, however, Módica disagreed when petitioner’s trial counsel suggested that all of the other men pictured in the Leka photo array were Hispanic. In response to questioning intended to elicit such testimony, Módica stated only that she believed the three fill-ins on the bottom row of the photo array “look[ed] Spanish.” T. 517. Furthermore, when asked whether numbers one and three also looked “Spanish,” Módica testified: “I can’t guess by looking at them.” T. 518. Notably, trial counsel also asked Torres whether he and Módica had discussed “the fact that you saw a photographic array that had five Hispanies and one Caucasian-looking person,” and Torres answered, “No.” T. 725-26. Thus, considering the record as a whole, there does not appear to be any evidence that would support petitioner’s theory that the photo array was inherently suggestive. Because the Appellate Division reasonably found the photo array was not imper-missibly suggestive, there was no need for it to proceed to the second stage of the Neil inquiry, viz., whether the in-court identifications were independently reliable. The state appeals court decision rejecting petitioner’s claim, therefore, was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law. Accordingly, no writ can be granted with respect to Leka’s claim that the composition of the photo array was inherently suggestive. b. Post-Trial Recantations Petitioner bases a second attack on the photo array and subsequent identifications on Torres’ 1991 affidavit, as well as a new, more elaborate affidavit prepared for this petition, Elfren Torres Aff. of 4/10/98, Pet’s Supp. Mem., Ex. 3 [hereinafter Torres 1998 Aff.], in which Torres alleges — in direct contradiction of his Wade hearing and trial testimony — that the police coerced him to pick Leka from the photo array. i. Exhaustion On behalf of respondent, Kings County District Attorney Charles J. Hynes (the “District Attorney”) argues that petitioner has failed to exhaust available state court remedies for this aspect of his suggestive identification claim. As the District Attorney observes, examination of petitioner’s brief to the Appellate Division reveals that his arguments regarding the photo array identification focused exclusively on the composition of the photo array; petitioner made absolutely no argument regarding police coercion. Moreover, although petitioner did submit Torres’ 1991 affidavit to both the trial court and the Appellate Division, he did so only in connection with his argument for a new trial in light of newly discovered evidence. Specifically, petitioner presented the 1991 affidavit as newly discovered evidence supporting his theory that Rahman Ferati was the individual Torres had seen outside the car, not Leka. Finally, Torres’ 1998 affidavit, which was prepared in conjunction with this petition, has never been presented to the state courts for any purpose. Nonetheless, under the standard delineated in Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir.1982) (en banc), petitioner’s presentment claim, tenuous though it may be, has merit. In Daye, the Second Circuit held that to satisfy the exhaustion requirement a petitioner must have informed the state court of both the factual premises of his claim and “essentially the same legal doctrine he asserts in his federal petition.” Id. at 191— 92 (citations omitted). The court clarified that “[b]y the same legal ‘basis’ or ‘doctrine,’ we do not mean that there can be no substantial difference in the legal theory advanced to explain an alleged deviation from constitutional precepts.” Id. at 192 n. 4. As an example, the court stated that the exhaustion requirement would be met in a case where a state defendant made an involuntary confession claim in the state courts based on physical coercion, but argued in federal court that coercion was shown by the totality of the circumstances including psychological coercion. See id. (citing United States ex rel. Kemp v. Pate, 369 F.2d 749 (7th Cir.1966)). In addition, the Second Circuit held that a state defendant may fairly present a constitutional claim to the state courts for exhaustion purposes by “allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Id. at 194. In this case, petitioner argued a tainted identification claim (albeit one based on the composition of the photo array) in his brief to the Appellate Division. See Pet.’s App. Mem. at 37-42. In addition, by submitting copies of Torres’ 1991 affidavit to the trial court and the Appellate Division, petitioner presented a pattern of facts— Torres’ being pressured to pick Leka and subsequently persuaded that Leka was the-shooter — to the state courts, which, if true, would clearly provide an alternative ground for such a claim. Under Daye, petitioner’s police coercion theory of tainted identification was, therefore, fairly presented to the state courts notwithstanding the fact that petitioner’s brief to the Appellate Division did not invoke Torres’ allegations of police misconduct in the context of petitioner’s tainted identification claim. ii. Independent and Adequate State Grounds The Appellate Division’s opinion on the tainted identification issue specifically addresses only the question whether the composition of the photo array was inherently suggestive. Petitioner’s “remaining contentions” — including, presumably, the police coercion aspect of his tainted identification claim — were dismissed as being “either unpreserved for appellate review or without merit.” See Leka, 209 A.D.2d at 725, 619 N.Y.S.2d at 146. The facial ambiguity of the Appellate Division’s leaves uncertain the whether the particular claim now under discussion — the police coercion claim — was “adjudicated on the merits,” 28 U.S.C. § 2254(d) (Supp.1999), or was dismissed on the ground of a state procedural default and hence not subject to federal habeas review, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (holding that federal habeas review is generally barred where a state prisoner defaults his federal claims pursuant to an “independent and adequate” state procedural rule). Moreover, because the police coercion claim was not presented to the state trial court, there is no lower court ruling to which this court may look to illuminate the basis for the Appellate Division’s decision. See Ylst v. Nunnemaker, 501 U.S. 797, 801-03, 111 S.Ct. 2590, 2593-95, 115 L.Ed.2d 706 (1991) (holding that when a lower state court spoke clearly, all unexplained affirmances of that opinion by higher state tribunals must ordinarily be read to confirm the unambiguous holding of the lower court). In similar circumstances, one recent Second Circuit panel has held that habeas review of a petitioner’s claims was not procedurally barred where the New York Court of Appeals summarily rejected those claims as “meritless or unpreserved.” See Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir.1998) (citing Coleman, 501 U.S. at 735, 111 S.Ct. at 2557). However, a different Second Circuit panel presented with a case in nearly the same procedural posture later declared: “Whether this language [viz., that defendant’s remaining claims are “unpreserved or without merit”] in a state court’s affirmance is too ambiguous to preclude federal court review on the independent ground of procedural default has yet to be determined in this circuit.” Hayes v. Coombe, 142 F.3d 517, 519 (2d Cir.1998) (per curiam), cert. denied sub nom. Hayes v. Goord, — U.S. -, 119 S.Ct. 879, 142 L.Ed.2d 779 (1999). Although it questioned the basis of the Tanklejf court’s decision on this issue, see id. at 519 n. 2, the Hayes panel ultimately decided the case before it on other grounds, see id. at 519 (holding that petitioner’s claims were “patently devoid of merit” and invoking the doctrine of hypothetical jurisdiction). In absence of clear precedent to the contrary, I will give petitioner the benefit of the doubt on the issue and follow the earlier panel’s holding in Tanklejf. Accordingly, I decline to hold that the Appellate Division’s summary dismissal of Leka’s remaining claims as “either unpre-served for appellate review or without merit” announces an independent and adequate state ground barring habeas review of his police coercion claim. Accord Avincola v. Stinson, 60 F.Supp.2d 133, 153 n. 7 (S.D.N.Y.1999) (following Tankleff); Santana v. Filion, 55 F.Supp.2d 136, 140 (E.D.N.Y.1999) (same); McLean v. McGinnis, 29 F.Supp.2d 83, 92 & n. 7 (E.D.N.Y.1998) (same). iii. Standard of Review Because review of petitioner’s police coercion theory of tainted identification is not procedurally barred, the next issue that must be resolved is which standard of review should be applied to the Appellate Division’s summary rejection of the claim. Generally, under the AEDPA a state court decision on a mixed question of law and fact, such as that presented by petitioner’s police coercion claim, is reviewed under § 2254(d)(1) to determine whether the decision “was contrary to, or involved an unreasonable application” of federal law. See supra § (l)(a). By its terms, however, § 2254(d)(1) only applies to claims that were “adjudicated on the merits.” This case raises the question whether a state court’s summary rejection of a defendant’s claim constitutes an “adjudication] on the merits” sufficient to qualify for review under § 2254(d)(l)’s deferential standard. Some courts and commentators have opined that where a “state court summarily disposes of a claim without setting forth the legal or factual basis for its denial,” § 2254(d)(1) does not apply, and the federal habeas court should, in accordance with pre-AEDPA law, review the claim de novo. United States ex rel. Maxwell v. Gilmore, 37 F.Supp.2d 1078, 1089 (N.D.Ill.1999); see 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure, § 30.2b, at 1238 (3d ed.1998) (arguing that summary denial of relief should not suffice for § 2254(d)(1) to apply). These authorities have reasoned that § 2254(d) does not cover summary dispositions because in such cases “there is no state court analysis to examine for ‘unreasonableness.’ ” Gilmore, 37 F.Supp.2d at 1088; see 2 Liebman & Hertz, supra, § 30.2b, at 1238 (same). Other courts have held that a summary disposition of a petitioner’s claim is an “adjudication] on the merits” within the meaning of § 2254(d)(1), but that in such cases, “the practical significance of (d)(l)’s deferential standard of review is lessened.” Cardwell v. Netherland, 971 F.Supp. 997, 1015 (E.D.Va.1997). “ “Where ... there is no indication of how the state court applied federal law to the facts of a case,”’ a federal habeas court must necessarily undertake its own independent review of the record, with the result that “ ‘the distinction between de novo review and “reasonableness” review becomes less significant.’ ” Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.) (quoting Netherland, 971 F.Supp. at 1015), cert. denied, — U.S. -, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); see also Delgado v. Lewis, 181 F.3d 1087, 1091 (9th Cir.1999) (“[W]hen confronted with a state court decision that does not provide the basis of its decision, [a federal habeas court] must determine whether, in light of an independent review of the record and the relevant federal law, the state court’s resolution of a petitioner’s claim was ‘contrary to, or involved an unreasonable application of, clearly established Federal law ....,’” because “when a state court does not articulate the rationale for its determination, a review of that court’s ‘application’ of clearly established federal law is not possible.”); Wright v. Angelone, 151 F.3d 151, 157 (4th Cir.1998) (declining to “presume that a summary order is indicative of a cursory or haphazard review of a petitioner’s claims,” but requiring “independent review of applicable law” by federal habeas court). Still other courts have held the summary nature of a state-court opinion does not affect the applicable standard of review under § 2254(d)(1). See James v. Bowersox, 187 F.3d 866, 869 (8th Cir.1999); see also Hennon, 109 F.3d at 335 (holding that “perfunctory” state court rulings are nonetheless evaluated pursuant to § 2254(d) for reasonableness); cf. McLee v. Angelone, 967 F.Supp. 152, 156 (E.D.Va.1997) (“There is no requirement in the statute that the state court decision be detailed or explanatory in nature for § 2254(d) to apply.”). In adopting such an interpretation, Chief Judge Posner of the Seventh Circuit reasoned that a contrary approach that focused on the “quality of the reasoning process articulated by the state court in arriving at the determination” “would place the federal court in just the kind of tutelary relation to the state courts that the recent amendments are designed to end.” Hennon, 109 F.3d at 335. Chief Judge Posner, however, candidly admitted: [O]f course the better the job the state does in explaining the grounds for its rulings, the more likely those rulings are to withstand further judicial review. That is just realism. It doesn’t follow that the criterion of a reasonable determination is whether it is well-reasoned. It is not. It is whether the determination is at least minimally consistent with the facts and circumstances of the case. Id. In dicta, I recently agreed with Chief Judge Posner’s approach to § 2254(d)(1). See Sellan v. Kuhlman, 63 F.Supp.2d 262, 267-68 (E.D.N.Y.1999) (discussing Hennon, 109 F.3d at 334-35). However, as in Sellan, the facts of this case do not require a decision on the issue. Petitioner’s claim fails even on the least deferential standard of review. Accordingly, in the interest of judicial prudence, petitioner’s police coercion theory of tainted identification -will be reviewed de novo. See Gilmore, 37 F.Supp.2d at 1089. When reviewing a mixed question of law and fact de novo, a federal habeas court is still bound to defer to relevant state court findings of fact under the standard of review prescribed by § 2254 for factual determinations. See 28 U.S.C. § 2254(d)(2)(e)(1) (Supp.1999); Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985) (in context of de novo habeas review of the voluntariness of a confession, subsidiary factual questions such as “whether in fact the police engaged in the intimidation tactics alleged by the defendant are entitled to the § 2254(d) presumption [of correctness]” (citation omitted)); 1 Liebman & Hertz, supra, § 2.4b, at 27 (if analysis of mixed question of law and fact turns on a historical fact, habeas court must defer to state courts’ findings with regard to that fact unless, inter alia, the finding is “unreasonable” under the AEDPA standard). Thus, in deciding whether the misconduct alleged in the 1991 affidavit constitutes an imper-missibly suggestive identification procedure, this court must accept the state trial court’s written assessment of the affidavit’s credibility as long as that factual determination meets the requirements of § 2254(d). See Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 756 n. 6, 9 L.Ed.2d 770 (1963) (on habeas review, “ ‘issues of fact’” means “basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators’ ” (citation omitted)). Because the AEDPA changed the standard of review that § 2254(d) prescribes for state court factual determinations, some discussion of the new standard and its predecessor is warranted. Prior to the enactment of the AEDPA, § 2254(d) directed federal habeas courts to accord a presumption of correctness to state court factual determinations that were evidenced by written findings made after an adversarial hearing on the merits unless, among other enumerated exceptions, the state court factual determination was not “fairly supported by the record [in the state court proceeding].” 28 U.S.C. § 2254(d) (1994) (superseded). If none of the exceptions applied, a writ could still be granted if the petitioner could establish by “convincing evidence” — including evidence outside the state court record — that the factual determination was erroneous. See id. See generally 1 Liebman & Hertz, supra, § 20.2c (describing pre-AEDPA standard of review). The AEDPA substantially modified the applicable standard of review for state court factual determinations by eliminating the various exceptions enumerated in old subsection (d) and replacing them with a single inquiry into the substantive fairness of the factual determination. Section 2254(d) now provides, in pertinent part: An application for a writ of habeas on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... (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) (Supp.1999). Notwithstanding its elimination of the old ha-beas statute’s various exceptions related to procedural fairness, the AEDPA provides in a new subsection that state court factual determinations are still entitled to a presumption of correctness and that an applicant must now rebut that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1) (Supp.1999). Neither the Supreme Court nor the Second Circuit has yet provided guidance on the interplay between the reasonableness inquiry prescribed by § 2254(d)(2) and the clear and convincing evidence standard of § 2254(e)(1). Some commentators have suggested that the two subsections should be read together in light of the former statute as prescribing a two-step inquiry: first, into the reasonableness of the state court’s determination on the record before the state court, and second, into whether the petitioner can establish by clear and convincing evidence (whether in the state record or not) that the factual determination is erroneous. See 1 Liebman & Hertz, supra, § 20.2c, at 751-52. On this reading, a federal habeas court could grant a writ based on a challenge to a state court factual determination that was reasonable in light of the evidence presented to the state court if a petitioner can establish factual error by clear and convincing evidence (including newly discovered evidence). See id.; see also Valentine v. Senkowski, 966 F.Supp. 239, 241 (S.D.N.Y.1997) (after holding that state court determination was not unreasonable in light of evidence presented to state court, district court only dismissed petition upon additional holding that petitioner had not satisfied the burden of rebutting by clear and convincing evidence the presumption of the correctness accorded to that decision). By contrast, some courts, most notably the Fifth Circuit, have read subsections (d)(2) and (e)(1) to impose the more onerous requirement that petitioner both show that the state court determination was unreasonable in light of the state court record and demonstrate by clear and convincing evidence (including newly discovered evidence) that the determination was in fact erroneous. See, e.g., Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir.1997). But see Larry W. Yackle, Developments in Habeas Corpus (Part 2), Champion, Nov. 1997, at 16, 17 (arguing that such an interpretation inappropriately bars habeas relief where the content of the state court record was limited as a result of state court procedures that violated due process). See generally Note, Rewriting the Great Writ: Standards of Review for Habeas Corpus under the New 28 U.S.C. § 2254, 110 Harv. L.Rev. 1868, 1873-76 (1997) (surveying attempts to reconcile subsections (d)(2) and (e)(1)). Disposition of the present claim does not require a decision on the interplay of § 2254(d)(2) and § 2254(e)(1). Even if the more liberal, two-step inquiry suggested by Professors Liebman and Hertz is followed in this case, petitioner’s police coercion claim must be rejected. Therefore, without resolving the issue and solely for the purpose of disposition of this case, the two-step inquiry will be applied to petitioner’s claim. iv. Reasonableness of the State Courts’ Factfinding In its opinion denying petitioner’s motion to set aside the conviction on the basis of newly discovered evidence, the trial court expressly found Torres’ 1991 affidavit to be “incredible recanting testimony.” Section 440.10 Opinion, supra, at 9. In the pertinent paragraph of the affidavit, Torres states: “I was pressured to pick out Mr. Leka by the Police and then led to believe that it was Mr. Leka through conversations with various detectives.” Torres 1991 Aff. ¶ 5. However, as the trial court observed: This allegation is conclusory. Mr. Torres does not state any specific action taken by police to coerce him into identifying Mr. Leka. The conclusion that he was pressured also fails to explain why he was unable to recant his identification earlier. & ‡ ‡ # % ‡ Additionally, the court finds the allegation incredible as defense attorney was present at both lineups in which Mr. Torres identified Sami Leka as the shooter. The allegation directly contradicts Mr. Torres’ trial testimony, and is recanting testimony. Section 440.10 Opinion, supra, at 9 (citation omitted). Indeed, both at the Wade hearing and at trial, Torres testified unequivocally that the police who drove him and Módica to the precinct on the night after the shooting did not relate any information about the case to them, see W. 96; that the police did not present the photo arrays to him in a suggestive manner, see W. 72-73; T. 707-OS; that no one told him who to choose, see W. 76; T. 708; that no one directed his attention to any particular photo, see W. 76; T. 708; that the police did not tell him that he and Módica had picked the same person, see T. 708-709; and that the police did not tell him he had chosen the right suspect, see W. 75, 102-03. In light of this evidence, the trial court’s finding that the allegations of police coercion and persuasion recited in Torres’ 1991 affidavit were unworthy of credence is not an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. As noted previously, on this habeas petition Leka’s police coercion argument focuses on a new, greatly elaborated affidavit which was given by Torres some seven years after his first affidavit and which has never been presented to the state courts. Assuming for the sake of argument that a federal habeas court may consider this new evidence under § 2254(e)(1), the 1998 affidavit, when taken in conjunction with the evidence before the state courts, does not constitute clear and convincing evidence sufficient to rebut the presumption of correctness accorded to the state trial court’s factual determination that Torres’ allegations of police misconduct are false. As an initial matter, both federal and New York state courts view the recantation of testimony given at trial with “utmost suspicion” due to its inherent unreliability. United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1318 (2d Cir.1975); see People v. Donald, 107 A.D.2d 818, 819, 484 N.Y.S.2d 651, 652 (2d Dep’t 1985) (“It is ancient learning that ‘[tjhere is no form of proof so unreliable as recanting testimony.’ ” (quoting People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733, 736 (1916))). Upon considering the record as a whole, this court can find no facts that would redeem Torres’ most recent recantation. In his 1998 affidavit, Torres expands on and amplifies his recantation, now claiming that he knew from conversations with his wife and the police that Albanians were involved in the shooting. See Torres 1998 Aff. ¶ 4. In particular, Torres alleges that the police discussed this with him and Módica while they were driving together to the precinct. See id. Torres states that he focused on the only non-Hispanie in the photo array shown to him at the precinct and that once he told the police that he thought the non-Hispanic was the shooter, the police began to pressure and reassure him in an effort to make him more definite about his identification. See id. ¶¶ 6-8. Torres explains that he succumbed to these police tactics because it was the middle of the night, and he was concerned about Modica’s health. See id. ¶ 8. In addition, Torres now claims that the police informed him and Módica that they had both picked the same person. See id. ¶ 9. As noted above, each of these statements is directly contradicted by Torres’ Wade hearing testimony, in which he denied that the police had related any facts regarding the case to him, had suggested which individual he should pick from the photo array, or had advised him that he had picked the right person. See W. 72-73, 75-76,102-03. Torres also asserts that when he and Módica discussed the events at the precinct, they discovered that they had similar experiences while being shown the photo array. See Torres 1998 Aff. ¶ 9. For her part, Módica makes no such allegation of police “pressure” in her 1991 affidavit, see Módica Aff. passim, which is consistent with the testimony she gave both at trial and the Wade hearing that the police did not present the photo array to her in a suggestive or coercive manner, see T. 523-24; W. 23-26. Torres goes on to explain that he continued to identify petitioner as the shooter because he recognized petitioner from the photo array and he believed that he was doing the right thing. See Torres 1998 Aff. ¶¶ 10-12, 13. However, when Torres identified Leka from the line up conducted at the Wade hearing, Torres testified that the reason he was identifying Leka was because he recognized Leka from the incident, not because he remembered Leka from the photo array or the earlier precinct house line up. See W. 86. Finally, Torres claims that upon seeing a picture of Ferati after the trial, he recognized Ferati as the man he had seen firing a gun on the evening of February 12, 1988. See Torres 1998 Aff. ¶ 13. This statement conflicts with Torres’ 1991 affidavit in which he stated that “the shooting only came from the car.” Torres 1991 Aff. ¶ 6. Moreover, in view of the fact that Torres told the police, and later testified at trial, that he saw the victim, whom he later learned to be Ferati, lying mortally wounded on the street and had looked the victim in the face, Torres’ explanation for his recantation is simply incredible. Before Torres ever saw Ferati’s picture, he should have been able to distinguish Leka from Ferati. For the foregoing reasons, the allegations in Torres’ 1998 affidavit concerning police misconduct do not provide clear and convincing evidence rebutting the presumption of correctness accorded to the state trial court’s reasonable determination that Torres’ allegations of coercive or improper police tactics are false. Accordingly, this court is bound by that factual determination in deciding whether the pretrial identification procedures were unduly suggestive. Because the record does not otherwise contain any evidence of police misconduct in relation to Torres and Modi-ca’s photo array identifications of the petitioner, petitioner has not shown that the identification procedure was impermissibly suggestive in violation of the first prong of the Neil test. Consequently, there is no need to proceed to Neil’s independent reliability prong. The police conduct surrounding the photo array did not violate due process, and petitioner’s application for a writ cannot be granted on this ground. (2) Petitioner’s second claim in support of his petition is that the prosecution suppressed material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, petitioner claims that the prosecution withheld: (1) a police interview report of Anthony Chiusano, a bus driver who drove past the scene of the shooting as it occurred; (2) grand jury testimony of Joseph Gonzalez, a postal worker who lived in an apartment across the street from the shootout; and (3) the identity of Officer Wilfredo Garcia as an impeachment witness. Garcia was an off-duty police officer who witnessed part of the shooting and administered first aid to Ferati before the ambulance arrived. a. Petitioner’s Arguments i. Suppression Petitioner alleges that the prosecution suppressed the grand jury testimony of Gonzalez and the police report of Chiusa-no’s interview by withholding these two pieces of evidence until two days and “days” prior to trial, respectively, despite a defense request for “Brady Material” two years earlier. See Letter from Benfante to Assistant District Attorney Malaby of 4/26/88, at 7-8, Pet.’s Supp. Mem., Ex. 9. Petitioner claims that the incorrect spelling of Chiusano’s name as “Cansano” and the fact that Gonzalez had moved to Florida further precluded petitioner from using this evidence at trial. See Pet.’s Supp. Mem. at 12,14. In the case of Garcia, petitioner’s allegations go beyond untimely disclosure. Petitioner accuses the prosecution of actively obstructing his efforts to contact Garcia through misrepresentations to defense counsel and the trial court. Petitioner claims that at some point before trial the prosecutor told his trial counsel that Garcia could identify Leka as the gunman. Later, when the defense attempted to contact Garcia during jury selection, the prosecutor represented to the trial court that Garcia would be called as a prosecution witness and that he did not wish to speak to the defense. Relying on these representations, the trial judge forbade the defense from attempting to speak to Garcia before he was called. The prosecution, however, never called Garcia and thus— according to petitioner — effectively concealed the content of Garcia’s potential impeachment testimony from the defense, ii. Materiality — Chiusano During an interview with police on February 18, 1988