Hamilton v. Lee (188 F. Supp. 3d 221, 2016)

Memorandum & Order

Jack B. Weinstein, Senior United States District Judge:

I. Introduction... 225

II. Fact and Procedural Background. . .227

A. State Proceedings.. .227

1. Criminal Case.. .228

a) Duct Tape Evidence.. .228

b) Additional Evidence.. .228

c) Conviction.. .228

2. Direct Appeal.. .229

3. Motion to Vacate Conviction ...229

4. Coram Nobis Application... 229

B. Federal Proceedings.. .280

1.Habeas Corpus Petition.. .230

a)Denial of Right to Confront Witnesses.. .230

b) Introduction of Perjured Testimony. . .231

c) Introduction of False and Inflammatory Evidence.. .231

d) Withholding of Brady Material...231

e) Denial of Effective Assistance of Counsel.. .231

f) Tape Unavailable.. .232

2. Denial of Habeas Petition.. .233

3. Appeal.. .233

4. Retrieval and Examination of Tape...233

III. Instant Rule 60(b) Motion.. .233

A. Petitioner’s Rule 60(b) Motion. . .233

B. Re-examination of Tape by Petitioner’s Expert.. .234

C. Petitioner’s Supplemental Letter... 235

D. Evidentiary Hearing Ordered... 235

E. Respondent’s Opposition... 236

F. Tape Re-examination Ordered. . .236

G. Additional Reports by Petitioner’s Expert.. .237

H. Re-examination of Tape by NYPD...237

I. Evidentiary Hearing.. .237

IV. Applicable Law.. .238

A. Rule 60(b) Relief from a Judgment or Order.. .238

1. Rule 60(b)(1): Mistake, Inadvertence, Surprise, or Excusable Neglect. . .238

2. Rule 60(b)(2): Newly Discovered Evidence.. .238

3. Rule 60(b)(6): Any Other Reason that Justifies Relief.. .239

B. Rule 60(b) Motion or Successive Habeas Petition... 239

C.Ineffective Assistance of Counsel...240

V. Application of Law to Facts.. .240

A. Motion Arises , in Part Under Rule 60(b)...240

1. Claims Relating to Newly Available Tape Evidence Allowed Under Rule 60(b)... 241

2. Remaining Claims Dismissed. . .241.

B. Motion is Timely.. ,242

C. Motion Fails on Merits... 242

1. 2005 Tape Examination.. .243

a) Print Development.. .243

b) Print Preservation.. .244

c) Metadata.. .248

2. No Missing “Photograph;” Digital Camera Used.. .249

3. Print Image Cards Appropriate For Comparison.. .251

4. 2016 Tape Re-examination.. .252

a) Latent Print Durability.. .252

b) Visible Ridge Detail.. .253

c) Court’s Own Observation.. .255

d) Uncrumpling.. .255

5. Petitioner’s Admissions.. .256

D. Ineffective Assistance of Counsel...257

1. Claim Already Considered and Dismissed.. .257

2. New Evidence Confirms Original Findings.. .258

E. Adequacy of Rule 60(b) Hearing. . .258

VI. Conclusion.. .259

I. Introduction

This is a Rule 60(b) motion brought by Rohan Hamilton (“petitioner” or “movant”) requesting relief from this court’s judgment of March 27, 2015, which denied his habeas corpus petition. It is based primarily on his theory that Hurricane Sandy rendered unavailable key palm print evidence which would have proved his innocence. Sandy washed away many things, but not the evidence of petitioner’s guilt.

Evidence of Hamilton’s palm prints on duct tape used to tie the victim’s ankles together was properly created, manipulated, compared, preserved, and authenticated by a modern digital system instead of traditional photography. Digital images of petitioner’s palm print left on duct tape used to tie up the victim before she was shot, plus testimony, proved defendant guilty.

A digital image, properly produced and preserved, is the equivalent of a photograph. The use of digital archives is now a common practice across different fields. See, e.g., Roger S. Bagnall, Materializing Ancient Documents, Daedalus (Spring 2016) at 79-81 (discussing the impact of digital databases on the study of ancient written artifacts).

Hamilton was convicted in state court of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree, in causing the death of Shanti Paschal, the mother of their child. See N.Y. Penal L. §§ 125.25(1), 265.03(2). In January 2007, he was sentenced to twenty-three years to life in prison and a lifetime term of post-release supervision on the murder charge, to run concurrently with fifteen years of imprisonment and five years of post-release supervision on the weapon charge.

The evidence against him included the testimony of his brother, his brother’s wife and the victim’s mother, as well as his palm print on a piece of duct tape recovered from the victim’s body. An image of the developed latent print was introduced at trial. Petitioner elected to do no independent testing of the tape. .

In his habeas petition before this court, Hamilton challenged the Validity of the tape evidence. See infra Part II.B.1. The tape was not then available; it had been stored in a warehouse partially submerged by Hurricane Sandy. The court addressed the merits of petitioner’s contentions without the then unavailable duct tape evidence. The petition was denied. The New York Police Department (“NYPD”) was reminded of its “continuing obligation to produce the duct tape, and to expedite that production to the extent possible,” Hamilton v. Lee, 94 F.Supp.3d 460, 481 (E.D.N.Y.2015).

The tape subsequently became available for examination. Petitioner’s expert, Robert J. Garrett, conducted an inspection, using optical magnification and special light, in August 2015. He did not “observe” a latent palm print on the “crumpled” duct tape specimens recovered from the victim’s body. In September 2015, petitioner filed the instant Rule 60(b) motion seeking reconsideration of the court’s judgment denying his request for habeas relief. See Pet’r’s Letter Mot. to Alter J., Sept. 29, 2015, ECF No. 92 (“Mot. to Alter J.”); Report of Robert J. Garrett, Aug. 27, 2015, Ex. A to Mot. to Alter’ J., ECF No. 92-1 (“August 2015 Garrett Report”).

Because of the unusual circumstances of the case, and in order to develop a complete factual record, the court ruled that petitioner’s claims relating to the newly available duct tape evidence were properly raised in the context of a Rule 60(b) motion. An evidentiary hearing was ordered. The parties were directed to appear with qualified experts prepared to address,among other relevant issues: (1) if, and why, the latent print previously identified by the NYPD on the duct tape appeared to no longer be visible; (2) what kind of further examination, if any, could be carried out to determine whether there is, or was, a print on any part of available tape; and (3) any other issues raised by the parties. See Hamilton v. Lee, No. 13-CV-4336, 2015 WL 6955399, at *1 (E.D.N.Y. Nov. 10, 2015) (ECF No. 102).

Respondent opposed petitioner’s Rule 60(b) motion, See Resp’t’s Letter in Opp’n to Mot. to Alter J., Nov. 23, 2015, ECF No, 105 (“Resp’t’s Opp’n Letter”). It enclosed a letter from Alynka Jean, the NYPD criminalist who originally developed the latent print from the duct tape in this case. Jean noted that: (1) future examination of the tape was possible; (2) the area on the tape where the latent print was originally developed was detectable because it was marked with the identifier “AJ#1;” and (3) re-examination might lead to more accurately observing print ridge detail present on the tape. See Letter from Alynka Jean to ADA Edward Puree, Nov. 17, 2015, ECF No. 105 (“Jean Letter”).

In light of Jean’s observations, and in order to allow the parties to present all possible evidence at a hearing, respondent was ordered to arrange for Jean or another expert to examine the tape to determine whether there is, or was, a print on any part of the available duct tape. See Order of Dec. 14, 2015, ECF No. 109, at 3.

An examination of the duct tape was conducted by respondent’s forensic experts in January 2016. Petitioner’s counsel, Laurence Stern, and print expert, Robert Garrett, were also present, together with NYPD personnel. See Police Lab Re-examination Report, Feb. 4, 2016, ECF No. 133.

At the heart of the instant Rule 60(b) motion is petitioner’s contention that his trial attorney was ineffective because a reasonable doubt could have been raised as to whether his print was on the duct tape. See Hr’g Tr., Apr. 7, 2016, ECF No. 162, at 6:5-8. Argued is that: (1) the renewed examinations show no print on the tape; and (2) the image of the latent print developed in 2005, which was used to match petitioner’s inked print exemplar taken at the time of his arrest, was not an “original” photograph. Petitioner suggests that because no “original file” was produced, the possibility exists that “there was manipulation or fakery of some sort here.” Hr’g Tr., Apr. 8, 2016, ECF No. 171, at 161:1-3.

The parties have had ample opportunity to thoroughly address these issues through evidence, expert testimony, and extensive briefs. Petitioner’s contentions are without merit. In the examination made for the Rule 60(b) motion, the NYPD experts were able to observe a “ridge detail” on the part of the tape where a palm print had originally been identified in 2005, marked with the identifier “AJ#1.” See Police Lab Re-examination Report, Feb. 4, 2016, ECF No. 133.

Petitioner’s expert initially disputed that such a detail was visible. At the hearing, photographs of the observed ridge detail were introduced by the parties and marked by Jean. See Hr’g Tr., Apr. 7, 2016, ECF No. 162, at 30:8-32:7; Resp’t’s Exs. 20T, 2QQ (NYPD Photographs of Reexamined Tape); Pet’r’s Exs. 27H, 27G (same). The ridge detail was visible to the court. See Hr’g Tr., Apr. 7, 2016, ECF No. 162, at 33:19-20. Although petitioner’s expert stated that no “usable” print for comparison purposes was discernible on the tape, he conceded that the marked area observed by the court was “characteristic of ridge detail.” Id. at 32:21, 23, 33:21-23 (emphasis added).

The credible testimony of criminalist Jean established that there is no missing “[p]hantom photograph”—-the so-called “original file.” See Hr’g Tr., Apr. 8, 2016, ECF No. 171, at 161:8-11; see also id. at 159:23-160:3. The original file, comprising the enhanced and unenhanced latent print images captured and processed by Jean in 2005 by a digital camera, together with the corresponding metadata, was stored on the NYPD’s “More Hits” software, in accordance with appropriate contemporaneous practice. See Resp’t’s Ex. 19 (NYPD Lab Computer Metadata Printout); Resp’t’s Ex. 1 (2005 NYPD Police Lab Standard Operating Procedures); see also infra Part V.C.2. “More Hits” was a forensic image tracking system used by the NYPD in 2005. Its purpose was to digitally store aiid archive latent print' images, as well as keep track of their chain of custody and any changes made.

The latent print images used to make a positive comparison with petitioner’s inked print exemplars and introduced at trial were accurate print-outs of the enhanced and unenhanced latent print digital images Jean captured in 2005 and stored through the “More Hits” program. See Ct, Exs. 2 and 3 (Original Latent Print Image Cards) (on file with respondent); Pet’r’s Ex, 9 (Photocopy of Latent Print Image Cards); Hr’g Tr., Apr. 8, 2016, ECF No. 171, at 175:3-5 (Jean testifying that all the images she took of the developed prints in 2005 are included in Court Exhibits 2 and 3), 202:24-203:8 (Jean testifying that the digital images on Court Exhibits 2 and 3 are her “original photos” and this is what she sent-to the NYPD’s latent print identification unit at-the close of her examination in 2005). There is no original “photograph” in the traditional sense. See id. at 159:23-160:3 (Jean confirming that “there is no photograph independent of what we have through material introduced into the computer”); see also infra Part V.C.2-3,

II. Fact and Procedural Background

A. State Proceedings

The factual background is set forth at length in this court’s memorandum and order of March 27, 2015. See Hamilton, 94 F.Supp.3d at 466-69. Facts relevant to the instant Rule 60(b) motion are re-stated below.

1. Criminal Case

Shanti Paschal, mother of petitioner’s son, was found dead in her apartment on October 31, 2004. Trial Tr. of Dec. 6-13, 2006, ECF No. 9-12 (“Trial Tr.”), at 172:22-174:23. Her hands and feet were bound with duct tape and she was shot several times. Id. at 173:25-174:2, 179:14-17. At trial, Dr. Aglae Chariot, a medical examiner, testified that Paschal died of blood loss from three gunshot wounds to the chest. See id. at 79:24-84:4.

a)Duct Tape Evidence

Duct tape recovered from the victim’s body, as well as a roll of duct tape, were among evidence retrieved from the crime scene. See id. at 126:20-128:4, 179:11-180:23. Detective Michael Dryver vouch-ered the ligature pieces of tape. Id. at 179:22-25. He sent them to the NYPD’s crime lab for further analysis after receiving them from the medical examiner’s office. Id. at 179:26-180:23.

In January 2005, Alynka Jean, an NYPD criminalist and expert on latent print development, performed several tests on the pieces of tape that had bound Paschal. Id. at 149:17-155:6. The first three tests did not yield any prints. The fourth test revealed a single palm print. See id. at 163:1-3; see also infra Part V.C.l.

At trial, Jean testified that she developed a latent palm print from the duct tape removed from the victim’s body, digitally photographed the latent print, pulled the image into the computer program “More Hits” for preservation, digitally enhanced the print image by changing the color to black and white and making it brighter or lighter, and sent a print-out of the palm print image to the latent print section of the NYPD laboratory. Trial Tr. at 150:16-155:17.

Detective Deborah Kennedy, an expert in print analysis and comparison, then compared the latent print image Jean developed from the duct tape with the ink prints taken from petitioner. See id. at 200:15-24, 205:19-206:2. She testified that the latent palm print found on the duct tape matched that of the petitioner and explained her methods. See id. at 212:10-216:21.

b)Additional Evidence

Petitioner’s brother, Uzal Hamilton, testified that he had overheard petitioner threaten to kill Paschal during a telephone conversation on October 30, 2004, and that petitioner was in possession of a gun at the time of that argument. Id. at 41:3-43:16. He testified that on the night of the murder petitioner confessed to killing Paschal, See id. at 32:7-33:22. Uzal Hamilton’s wife, Tarkia McGrier, also testified that she overheard petitioner confessing to shooting and killing Paschal on the night of the murder. Id. at 52:12-21, 54:24-55:3.

The victim’s mother, Bertha Paschal, testified that petitioner called her on the morning of November 1, 2004 and said, “That’s why I killed your bitch ass daughter.” See id. at 92:20-93:26. Bertha Paschal’s boyfriend, Reginold Leroy Clark, testified that petitioner telephoned later that morning and threatened him, saying there were many “hiding places” and “dark spots.” See id. at 98:6-17; see also Hamilton, 94 F.Supp.3d at 467.

c)Conviction

Petitioner was convicted by a jury of Murder in the Second Degree in violation of New York Penal Law section 125.25(1), and Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law section 265.03(2). In January 2007, the state court sentenced him to twenty-three years to life in prison and a lifetime term of post-release supervision on the murder charge, to run concurrently with fifteen years of imprisonment and five years of post-release supervision on the weapon charge. Both terms were to run consecutively with a two-and-one-half year to five year sentence that he was serving for an unrelated offense. See Sentence Tr. Jan. 11, 2007, ECF No. 9-12, at 16:16-17:10.

2. Direct Appeal

Petitioner, represented by counsel, directly appealed his state court conviction on May 30, 2008. See Br. for Def.-Appellant, May 2008, ECF No. 9-1. Argued was that: (1) his Sixth Amendment right to confront the witnesses against him was violated when fingerprint and palm print cards were admitted through testimony of a print examiner, rather than by the testimony of the officer who took the prints; and (2) that he was deprived of a fair trial when, over objection, the court admitted autopsy photographs that were so morbid, inflammatory, and cumulative of other evidence that their prejudicial effect overwhelmed any ostensible ground for their admission. Id. at 14-25; see also Hamilton, 94 F.Supp.3d at 467.

Hamilton then filed a separate supplemental brief pro se, which included three additional claims for relief: (1) that he was denied a fair trial in violation of his rights under the Due Process Clause because the evidence adduced at trial was false, and known by the prosecutor prior to trial to be false; (2) that he was denied effective assistance of trial counsel; and (3) that he was denied a fair trial due to judicial misconduct because the judge expressed his opinion during voir dire and allowed the admission of false evidence. See Suppl. Br., ECF No. 9-3; see also Hamilton, 94 F.Supp.3d at 467-68.

The Appellate Division affirmed. See People v. Hamilton, 66 A.D.3d 921, 922, 887 N.Y.S.2d.261 (2d Dep’t 2009). It found that because Hamilton did not object to the admission of the print cards on Sixth Amendment grounds at trial, the claim was unpreserved for appellate review and, in any event, without merit. Id. at 921-22, 887 N.Y.S.2d 261 (finding that the cards themselves were not directly accusatory and were properly admitted into evidence through the testimony of the print examiner, who was available for cross-examination). The court also determined that the photographs of the deceased’s body had been properly admitted into evidence. Id. at 922, 887 N.Y.S.2d 261 (“the photographs were relevant both to help illustrate and corroborate the testimony of the medi[c]al examiner, and to establish intent”). It dismissed Hamilton’s remaining contentions as unpreserved for appellate review and without merit. Id. '

In December 2009, the Court of Appeals of New York denied an application for leave to appeal. See People v. Hamilton, 13 N.Y.3d 907, 895 N.Y.S.2d 321, 922 N.E.2d 910 (2009).

8. Motion to Vacate Conviction

Petitioner subsequently filed a pro se motion to vacate his conviction with the New York State Supreme Court, Kings County. His motion was denied. See Hamilton, 94 F.Supp.3d at 468-69.

4. Comm Nobis Application

He filed a motion for a writ of error coram nobis, claiming that his appellate counsel provided ineffective representation on his direct appeal by refusing to raise claims petitioner presented to her, including the ineffective assistance of his trial counsel. See Not. of Mot. for Writ of Error Coram Nobis, July 31, 2012, ECF No. 9-9. In March 2013, the Appellate Division denied petitioner’s motion. People v. Hamilton, 104 A.D.3d 874, 960 N.Y.S.2d 659 (2d Dep’t 2013). In June 2013, the Court of Appeals of New York denied an application for leave to appeal. See People v. Hamilton, 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 (2013).

B. Federal Proceedings

1. Habeas Corpus Petition

In July 2013, petitioner filed a petition for a writ of habeas corpus in this court. He sought relief on the five grounds listed below. Pet. for Writ of Habeas Corpus, July 22, 2013, ECF No. 1; Suppl. Mem. of Counsel in Supp. of Pet. for Habeas Corpus, Mar. 11, 2014, ECF No. 15 (“Pet’r’s Suppl. Mem.”); Pet’r’s Reply to Resp’t’s Resp. to Pet’r’s Suppl. Mem. of Law, May 12, 2014, ECF No. 20; Hamilton, 94 F.Supp.3d at 469. Counsel was appointed. See Order of Aug. 22, 2013, ECF No. 5.

a) Denial of Right to Confront Witnesses

First, petitioner claimed that he was denied his rights under the Confrontation Clause when palm print photographs and out-of-court statements identifying them as his were introduced at trial for the purpose of proving his guilt. Hamilton, 94 F.Supp.3d at 472. Petitioner argued that, while an NYPD detective testified that she positively compared an image of the latent print developed from the duct tape with a photograph of an inked print taken from petitioner, the witness did not possess independent knowledge of the sources or the identities of the images. Pet’r’s Suppl. Mem. at 3. Rather, she read the labels from reports accompanying the data in order to establish then- provenance.- Id. Petitioner contended that only computer print-outs of the latent and inked prints were produced at trial; the originals were not produced and ,no evidence was introduced that the. print-outs were accurate copies of the originals. Id. at 5 (“There was no nonhearsay evidence of how or when or by whom the original photograph of the inked print was input into the system, nor evidence that the copy of the inked print produced at trial was an accurate copy .... ”). Petitioner’s claim focused on an alleged lack of foundation:

[P]etitioner was deprived of the Constitutional rights to cross-examination, ■ due process, and fair trial by the introduction of the hearsay, and apparently false, testimony that the inked exemplar print was taken from petitioner. The label or report read by the crime lab witness attributing the inked print to petitioner was not prepared by the witness and was not based on her personal knowledge, and was apparently false. There was no evidence that the photographs of the prints used in the comparison were true and accurate copies of the original prints.

Id. at 7.

This court found that petitioner’s claims were barred because of a state court default. And, even if this were not the case, the Appellate Division had reasonably determined that the claims were without merit. Hamilton, 94 F.Supp.3d at 472-73. The prints and the notation on the inked print card were not directly accusatory and not “testimonial” under the Confrontation Clause, since “[t]hey were made primarily to . identify defendant in order to process his arrest, not to create evidence for trial:”

There is a strong inference that an officer assigned in a murder case to take fingerprints of a suspect clearly linked to the crime would take the prints in a professional, correct way. Raising this point on trial would, with a high degree of probability, not have aided the defendant.... Defendant had the opportunity to cross-examine Jean, who lifted the latent print; Kennedy, who made the accusatory match; and Dryver, whose name was noted on the ink fingerprint card. Defendant’s confrontation right was not violated in substance by Kennedy’s testimony, including that regarding the notations on the fingerprint card.

Id. (internal citations omitted),

b)Introduction of Perjured Testimony

Second, petitioner argued that he wás denied his constitutional rights to due process, equal protection and a fair trial by the introduction of: (1) Detective Kennedy’s allegedly false testimony that the inked exemplar was taken by Detective Dryver; and (2) computer print-outs of “photographs” of prints rather than original prints or original “photographs” of prints. Id. at 473-74.

With respect to (1), this court determined that petitioner’s claims were unsupported and speculative. Id. at 474. With respect to (2), this court found that the claim was based primarily on a lack of foundational evidence. The court concluded that “[t]he alleged lack of foundation for the admission of the computer printouts and the information on the ink prints’ label raises state evidentiary matters that are not cognizable on habeas review” and, in any event, represented “routine matters not likely to have been made improperly.” Id. at 474 (internal citations omitted),

c)Introduction of False and Inflammatory Evidence

Third, petitioner argued that he was deprived of his constitutional rights to due process and a fair trial by the introduction of: (1) allegedly misleading testimony that Detective Dryver unsuccessfully followed petitioner’s cell phone signals out of state when searching for him; and (2) purportedly inflammatory photographs. Id. at 475.

This court determined that the challenge to the detective’s testimony was procedurally barred and without merit. Id. With respect to the photographs, the Appellate Division had considered and rejected the challenge. This court found that the Appellate Division’s decision was not unreasonable given the fact that the evidence was accompanied by an appropriate instruction to the jury. Id.

d) Withholding of Brady Material

Fourth, petitioner argued that the prosecution denied him his due process rights by withholding crucial Brady material—an “original photograph” of the latent palm print purportedly taken by Jean, an earlier laboratory report, and a police report.' See id. at 476; see also Pet’r’s Suppl. Mem. at 21-22.

In the context of petitioner’s motion to vacate his conviction, the New York Supreme Court rejected petitioner’s claims relating to the withholding of a latent print “photograph” and an earlier laboratory report, since petitioner had offered no corroboration that such documents existed or that, even if they did exist “not only would [they] be favorable to his case, but [they] would have changed the outcome of the trial.” Id. at 476 (quoting New York v. Hamilton, No. 327/2005, 2011 WL 3235990 (N.Y.Sup.Ct. July 13, 2011) (Decision & Order), at 4-5 (filed in the instant case at ECF No. 9-6)); This court agreed: the New York Supreme Court’s “adjudication of these claims was not contrary to, or an unreasonable application of, [United States] Supreme Court precedent or an unreasonable determination of the facts.” Id.

With respect to the allegedly missing police report, the claim was unexhausted and, in any event, without merit. See id. at 476-77.

e) Denial of Effective Assistance of Counsel

Fifth, petitioner claimed that his trial counsel was ineffective by failing to: (1) seek sanctions for alleged Brady violations; (2) conduct a pre-trial investigation; (3) object to the prosecution’s opening statement; (4) retain an independent fingerprint expert or request fingerprint reports; (5) appropriately cross-examine prosecution witnesses; and (6) avoid implicating him in the charged crime during summation. Petitioner had raised virtually identical claims in his pro se supplemental brief on direct appeal. Id. at 478.

This court found that the Appellate Division had' reasonably concluded that such claims did not rise to the level of a Sixth Amendment violation. Id. In particular, petitioner failed to show that his trial counsel was ineffective for not requesting sanctions for alleged Brady violations, because no Brady violations were established: “[pjetitioner has failed to demonstrate that the prosecution intentionally withheld an exculpatory photograph of the latent fingerprint Criminalist Jean purportedly made during her examination, an earlier laboratory report, or a police report.” Id. Petitioner did not demonstrate that his trial counsel was ineffective by failing to pursue expert analysis to refute the palm print testimony: “trial counsel adequately challenged the prosecution’s fingerprint expert on cross-examination and in his summation_” Id. at 479.

Petitioner also claimed that his appellate counsel was ineffective in failing to advance most of his present claims relating to his trial counsel’s ineffective assistance. This claim was meritless since appellate counsel had exercised sound, reasonable and professional judgment in deciding not to raise an ineffective assistance of trial counsel claim. Id. at 479-80 (“She explained that it made no sense to attack petitioner’s trial attorney for failing to pursue arguments that she herself had correctly concluded would not entitle petitioner to relief as a matter of law.”) (internal citations omitted).

f) Tape Unavailable

Petitioner sought to retrieve the duct tape with which the deceased victim was bound to demonstrate, through expert examination, that his palm print was not, and had never been, on the tape. Trial counsel was ineffective, according to petitioner, because he did not arrange to conduct an independent examination. Such an examination, petitioner alleges, would have shown that there had never been his print on the duct tape. See id. at 480.

At the time of the habeas petition, the NYPD demonstrated that the tape was not available due to damage caused to the Erie Basin Evidence. Facility in Red Hook, Brooklyn, by Hurricane Sandy. The court found that “[cjounsel for defendant did not fall below minimum standards in not seeking out independent expert examination since, under the circumstances, the project had little likelihood of success.” Id. at 480.

The issue of the tape and possible fabrication were considered at the hearing on the habeas petition. Petitioner’s expert conceded that there was a match between the image of the latent , palm print developed from the tape and that of Hamilton’s inked print exemplars. See Hr’g Tr., Mar. 20, 2015, ECF No. 75, at 25:7-8. His claim therefore rested on allegations that the evidence was fabricated. See id. at 27:18-22 (“THE COURT: ... There is a possibility here based on the material I have before me and the concession that the photographs actually presented show a match, so that the claim must rest on evidence that was fabricated, correct? MS. BRUF-FEE: Yes.”). It was concluded that there was no evidence suggesting that the inked and latent prints—as shown on the print image cards introduced at trial—might have been a fabrication or mistake. Id. at 27:23-28:2 (“THE COURT: That’s the claim with no basis at all because we now have a concession that there is a match with the photographs which appear to me and would appear to the average counsel with minimum skills sufficient to meet constitutional requirements to be • clear enough.”). The court determined, that the absence of the duct tape from the record did “not support granting the petition.” Hamilton, 94 F.Supp.3d at 481.

The court did, however, issue a certificate of appealability with respect to (1) petitioner’s right to confrontation, and (2) “whether defense counsel provided a constitutionally adequate defense with respect to the issue of the duct tape, and whether a different defense would have changed the verdict.” Id. The NYPD was determined to be under a “continuing obligation to produce the duct tape, and to expedite that production to the extent possible.” Id.

2.Denial of Habeas Petition

The habeas, petition was denied orally. See Hr’g Tr., Mar. 20, 2015, ECF No. .75, at 29:15-16. Petitioner then.filed a motion for reconsideration. See Pet’r’s Mot. for Reconsideration, Mar. 21, 2015, ECF No. 67. The court issued a memorandum and order on March 27, 2015 explaining the reasons for its denial of the habeas, petition. Hamilton, 94 F.Supp.3d at 460. On the same day, it also issued a judgment in which it:

• denied petitioner’s motion for reconsideration, since no new substantial grounds were asserted;

• granted a certificate of appealability with respect-to: (1) petitioner’s right to confrontation;, and (2) whether defense counsel provided a constitutionally adequate defense with respect to the issue of the duct tape, and whether a different defense would- have changed the verdict; and

• determined that the NYPD “is under a continuing obligation to produce the duct tape, and to expedite that production to the extent possible.” The court referred this issue to -the magistrate judge for decision, noting that , the “referral is not intended by the court to affect the finality of this judgment of dismissal and certification.”

Judgment, Mar. 27,2015, ECF No. 73.

After dismissing petitioner’s habeas petition orally on the record, the court declared that it would “hear a Rule 60 motion based on any additional material ... found but the order of dismissal is a final judgment.” Hr’g Tr., Mar. 20, 2015, ECF No. 75, at 30:2-4.

3.Appeal

Petitioner appealed this court’s denial of his habeas petition to the Court of Appeals for the Second Circuit. See Not. of Appeal, Apr, 13, 2015, ECF No. 76. That appeal is currently pending.

4.Retrieval and Examination of Tape

The duct tape evidence became available shortly after the conclusion of the habeas proceedings. The NYPD agreed “under the unique circumstances of this case and subject to, the drafting and signing of appropriate waivers,” to allow defendant’s fingerprint expert to conduct “on-site testing of the ligature duct tape removed from the homicide victim’s body .... ” Resp’t’s Letter of Apr. 20, 2015, ECF No. 78, at 1.

III. Instant Rule 60(b) Motion

A. Petitioner’s Rule 60(b) Motion

Petitioner obtained access to, and examined, the piece of duct tape on which petitioner’s latent palm print was allegedly found, as well as two other pieces of tape removed from the body of the victim. He then moved for relief from this court’s March 27 judgment, relying on Federal Rules of Civil Procedure 60(b)(1), (2) and (6). See Mot. to Alter J.

He is entitled to relief, he argues, because: (1) his expert examined the tape and observed no latent palm print; (2) the “crumpling” of the duct tape was done “purposely prior to trial” in an “attempt to impede its examination and to conceal -that the tape was exculpatory;” and (3) no “original photograph” of the alleged latent print was produced; yet an “unidentified, unauthenticated computer print-out of a latent was improperly introduced at trial” and “[tjhere was ... no legitimate evidence that the latent introduced at trial came from the duct tape found on the victim.” Id. at 1-2. According to petitioner:

Ineffective assistance of defense counsel at trial allowed the testimony that petitioner’s latent print was found on the duct tape to go to the jury without the facts that the testimony was contradicted by the tape itself and impeached by the absence of a photograph necessary to identification of the latent, by the police mishandling of the tape and the photograph indicating purposeful concealment of exculpatory evidence, and by fraud in its creation. The 'mishandling was a trial defense in itself, and to the extent that the evidence had been damaged or destroyed, it is grounds for vacatur of the conviction.

Id. at 2 (internal citations omitted) (emphasis added).

With its letter, petitioner included a report by its fingerprint expert, Robert J. Garrett, detailing his August 20, 2015 examination of the tape. See August 2015 Garrett Report.

B. Re-examination of Tape by Petitioner’s Expert

Pursuant to the agreement reached by the parties with the NYPD, petitioner’s expert examined the duct tape at the NYPD’s Erie Basin Evidence Facility. He photographed an unpackaged roll of duct tape, which “appeared to have been damaged by moisture.” Id. at 2. He also examined three sections of duct tape that were “individually packaged” and “referred to as ligatures” by the NYPD. Id. Observed was that the

[pjaekaging was in dry, brown paper bags which had been sealed with evidence and packing tape. The bags seemed undamaged. The labeling on the bags was clearly readable. Two cardboard barrels, from which the evidence had presumably been retrieved, were near the table. They were dry and dented and had what appeared to be water stains on the bottom exteriors.

Id. at 2.

Garrett found that all three pieces of “ligature” tape were in a “crumpled” condition, which was “detrimental to the preservation of developed fingerprints and to future examination.” Id. He examined the crumpled pieces under optical magnification and special light, without ‘uhcrum-pling’ them. Id. His observations were as follows: (1) “[n]o fingerprint ridge detail was observed;” (2) all three pieces of tape appeared to have been “processed' in a manner that was consistent with the testimony and lab notes of NYPD Criminalist Alynka Jean: cyanoacrylate (CA) fuming followed by dye staining with Ardox;” (3) “[tjhere was no observable indication that a partial palm print was developed” on any of the three segments; (4) “[pjrints developed with CA fuming would not fade over time or due to exposure to moisture;” and (5) generally, if a “portion of a specimen is found to have something of significant evidential value”—such as a latent print— “that portion is separated” from the rest of the specimen, but no such excised portion was present here and no markings on the tape were observed “indicating that a developed print had been removed and preserved.” Id. at 2-3.

• The expert explained his examination at the evidentiary hearing:

Q. And how did you conduct your exam?

A. I used a small alternate light source that is used to fluoresce the Ardrox stain on the tape, looking for areas on the tape where I would find fluorescence and hopefully also find the fluorescent fingerprint. I also initially examined it using regular white light and optical magnification,

Q. And did you find a latent print on the tape?

A. No, sir.

Q. When you used your light, did things on the tape fluoresce?

A. There were some areas on the tape that did fluoresce, yes.

Q. And could you tell whether—did any of those taped—any of those fluorescing particles or debris or whatever it was, did that indicate—did that look in any way like fingerprint, like a fingerprint?

A. No, sir.

Hr’g Tr., Apr. 7, 2016, ECF No. 162, at 19:6-22. He concluded that:

Any further examination of the duct tape would need to be conducted in a laboratory or other place conducive to further processing. Only under such conditions would it be feasible to attempt to “uncrumple” the tape and try to locate any developed latent prints which could then be compared to the defendant’s exemplar. Such an examination could possibly determine whether any print was developed on the tape near the torn ends or elsewhere on the roll and the probable event which led to its deposit e.g. it may be possible to determine if it was likely that a print was deposited through casual handling of the roll prior to its use related to the homi- ■ cide.

August 2015 Garrett Report at 3.

C. Petitioner’s Supplemental Letter

Petitioner filed a supplemental letter addressing the condition of the duct tape in the warehouse. See Suppl. Rule 60 Mot. Letter, Oct, 8,2015, ECF No. 98. It included a supplemental report by Garrett, stating that: (1) with the exception of the duct tape roll, the tape specimens did not appear to. have been damaged by water; and (2) any prints developed by Jean using the cyanoaerylate fuming process “would not have been affected or dissolved by exposure to moisture or immersion in water.” Suppl. Report of Robert J. Garrett, Oct. 7, 2015, ECF No. 98-1.

D. Evidentiary Hearing Ordered

Petitioner’s motion and accompanying expert report suggested fraud. In light of the “unusual circumstances of this case and the. desirability of developing a complete factual record for the Court of Appeals for the Second Circuit” it was determined that “petitioner’s claims relating to the newly available duct tape evidence [were] properly raised .in the context of a Rule 60(b) motion challenging the dismissal of the habeas corpus petition.” Hamilton, 2015 WL 6955399, at *1.

•The parties were directed to appear with qualified experts to address:

(1) why-the latent print previously identified by the NYPD on the duct tape appears to no longer be visible;

(2) what kind of further examination, if any, could be carried out to determine whether there is, or was, a print on any part of available duct tape; and

(3) any other issues raised by the parties.

Id. As explained in the court’s memorandum and order:

This is a criminal case affected by Hurricane Sandy. Petitioner’s Rule 60(b) motion raises serious evidentiary questions requiring further expert analysis. The court is troubled by the results of a recent examination conducted by petitioner’s expert, which concluded that no latent palm print was present on apparently critical evidence—the duct tape recovered from the victim’s body. Although evidential ry hearings are disfavored in habeas petitions, the unusual circumstances of this case warrant expert testimony on newly available evidence.

Id. (emphasis added).

E. Respondent’s Opposition

Respondent opposed petitioner’s motion. See Resp’t’s Opp’n Letter. It submitted a report from Alynka Jean, the NyPD crimi-nalist who originally developed the latent print from the tape in this case. See Jean Letter.

According to respondent, Garrett’s report and photographs indicate that a palm print was developed on the piece of tape marked as “9B (Ankle);” this piece of tape showed a bracket with the notation “AJ#1” written above it, indicating the location of the print. See Resp’t’s Opp’n Letter at 2; Jean Letter at 1. Out of the three items submitted for evidence, Jean explained, “there was only one developed latent [palm]print that was deemed potentially of value. It was found on item #1 of Property Clerk Invoice # L275795, Court Exhibit Reference 9B, labeled as AJ#1.” Jean Letter at 1.

Jean noted that “cyanoacrylate fuming could fade and/or disappear ... over time due to high heat and friction.” Id. at 2. In any event, the latent was developed with Ardrox dye stain, which “does fade over time regardless of heat, friction or exposure to moisture.” Id. (emphasis added). Thus, respondent argued, “the fact that the latent print developed from the duct tape was not visible to Mr. Garrett more than ten years after it was developed by Criminalist Jean does not cast doubt on the validity of the latent print evidence in this case.” Resp’t’s Opp’n Letter at 2. Jean noted that “the duct tape is not crumpled in a manner that would prevent future examination” and re-application and re-examination of Ardrox may lead to more accurately observing any finger or palm print ridge detail present on the tape. Jean Letter at 1.

Jean, respondent claimed, properly preserved the developed latent print by making a digital record of it. Resp’t’s Opp’n Letter at 2. “Taking a photograph leaves the area of ridge detail intact on the evidence rather than using lifting tape to remove it from the surface. This makes future examination possible.” Jean Letter at 1. The NYPD expert explained that “[t]he evidence was examined and packaged within the guidelines of the Standard Operating Procedures of the Police Laboratory in 2005.” Id. at 2. It was not standard procedure to excise areas of developed latent prints for preservation. Instead, the developed latent prints were preserved “by taking a photograph, leaving it intact on the evidence with a bracket around it and a unique identifier.” Id.

F. Tape Re-examination Ordered

In order to “present all possible evidence at the evidentiary hearing” respondent was directed “to arrange for its expert Alynka Jean or another expert to examine the tape to determine whether there is, or was, a print on any part of available duct tape.” Order of Dec. 14, 2015, ECF No. 109, at 3. The examination was to be conducted prior to the evidentia-ry hearing and, if practicable, in the presence of petitioner’s expert and counsel. Respondent was ordered to prepare and file a written report. See id

G.Additional Reports by Petitioner’s Expert

Petitioner’s expert submitted two additional reports, on January 7, 2016 and January 16, 2016. In his January 7 report, Garrett addressed the durability of cya-noacrylate-developed fingerprints. See Suppl. Report of Robert J. Garret,. Dec. 20, 2015, ECF No. 121-1. At the request of defense counsel the expert “performed a series of tests on fingerprints that had been deposited on the nori-adhesive side of duct tape and developed with the cyanoac-rylate (CA) process” in order to “test the durability of the developed prints under various conditions.” Id at 1. These included repeatedly brushing developed prints with “a small coarse bristled paint brush,” exposing them to heat and running them through a dish washer cycle; Id. at 1-2.

The January 16 report concerned the “[d]urability testing of cyanoacrylate developed fingerprints with Ardrox dye stain.” See Suppl. Report of Robert J. Garret, Jan. 16, 2016, ECF No. 130. Garrett conducted tests “on fingerprints that had been deposited on the non-adhesive side of duct tape and developed with the cyanoacrylate (CA) process and dye stained with Ardrox” in order to “test the durability of the developed prints under conditions of high temperature, excessive moisture and friction associated with water under pressure.” Id at 1. The expert: (1) processed a piece of duct tape through cyanoacrylate ester fumes exposure for forty minutes; (2) ran the section of the tape on which fingerprints had been developed through a dish washer cycle for 60 minutes at a temperature of 117 degrees Fahrenheit without using detergent; (3) allowed the tape to dry; and (4) further examined the print. Id The expert reported that following this procedure the prints developed with cyanoacrylate continued to be visible. Id

H. Re-examination of Tape by NYPD

A re-examination of the ligature tape at issue in the present case was conducted by NYPD criminalists Alynka Jean and Mani-shi Agarwal on January 26, 2016 at the NYPD Property Clerk Erie Basin . Auto Pound. See Police Lab Re-examination Report, Feb. 4, 2016, ECF No. 133. Assistant District Attorney Edward Puree, petitioner’s counsel Lawrence Mark Stern, petitioner’s expert Robert Garrett, and police personnel were present. Id

Out of the three pieces of ligature tape in evidence, the NYPD criminalists re-examined the one recovered from the victim’s ankle (item no. 9B). Only the part marked as “AJ#1” was processed. Following a series of tests, including re-application of Ardrox stain, a print ridge detail was observed by respondent’s experts and photographed.: Id.-, see also infra Part V.C.4. .

I. Evidentiary Hearing

The parties engaged in extensive further discovery, after .which a full evidentiary hearing was conducted. See Hr’g Tr., Apr. 7, 2016, ECF No. 162; Hr’g Tr., Apr. 8, 2016, ECF No. 171. The central issue addressed by the parties, as stated by petitioner’s counsel, was whether “evidence could have been presented on behalf of the petitioner at trial that there was reasonable doubt that the latent [palm] print evidence presented to the jury was valid.” Hr’g Tr., Apr. 7, 2016; ECF No. 162, at 6:2-8.

Petitioner presented two expert witnesses: (1) Robert Garrett, the fingerprint expert who conducted an examination of the tape in August 2015; and (2) Richard McEvoy, a forensic photographer, who addressed the availability of an “original camera file” linked to the 2005 “photographs” of the developed latent prints.

Alynka Jean testified for respondent. Respondent also sought to introduce the testimony of former assistant district attorney Elisa Paisner. Objection to her as a witness'was sustained. Hr’g Tr., Apr. 8, 2016, ECF No. 171, at 212:13-25.

Following comprehensive witness and expert testimony and full briefing and argument, petitioner’s Rule 60(b) motion is denied. Nothing at the hearing puts into question the court’s decision of March 27, 2015 denying petitioner’s writ of habeas corpus.

IV. Applicable Law

A. Rule 60(b) Relief from a Judgment or Order

Petitioner brings the present motion pursuant to Federal Rules of Civil Procedure 60(b)(1), 60(b)(2) and 60(b)(6), which provide as follows:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with’ reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(6) any other reason .that justifies relief.

Fed. R. Civ. P. 60(b)(l)-(2), (6).

When considering a Rule 60(b) motion, a court must seek “a balance between serving the ends of justice and preserving the finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986); see also Lifrieri v. Stinson, No. 97-CV-6868, 2009 WL 2413400, at *5 (E.D.N.Y. July 31, 2009); Clark v. Kuhlman, No. 98-CV-6086, 2009 WL 87507, at *3 (E.D.N.Y. Jan. 12, 2009); Rodriguez v. Keane, No. 00-CV-1866, 2003 WL 21673624, at *1 (S.D.N.Y. July 16, 2003).

1. Rule 60(b)(1): Mistake, Inadvertence, Surprise, or Excusable Neglect

Dissatisfaction with a judgment does not sufficiently justify an allegation of mistake under Rule 60(b)(1). In re Bulk Oil (USA) Inc., Nos. 89-B-13380, 93-CV-4492, 93-CV-4494, 2007 WL 1121739, at *10 (S.D.N.Y. Apr. 11, 2007). .“Rule 60(b)(1) affords a party relief from a material mistake that changed the outcome of the court’s judgment.” Id. (citation omitted). It. “will not provide a movant an additional opportunity to make arguments or attempt to win a point already ‘carefully analyzed and justifiably disposed.’” Id. (quoting Matura v. United States, 189 F.R.D. 86, 90 (S.D.N.Y.1999)) (finding that the petitioner’s delayed challenge was an improper attempt to use Rule 60(b)(1) to convince the court to reconsider the judgment). Courts should not “reconsider issues already examined simply because Petitioner is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources.” Id. (citation omitted); see also Serrano v. Smith, No. 05-CV-1849, 2009 WL 1390868, at *2 (S.D.N.Y. May 13, 2009).

2. Rule 60(b)(2): Newly Discovered Evidence

A motion brought under Rule 60(b)(2) referring to

‘newly discovered evidence,’ may refer either to evidence pertinent to the federal habeas proceeding or to evidence that .might have been submitted in the State criminal proceeding. Nonetheless, the procedural object of the motion authorized by Rule 60(b) is simply to vacate the federal judgment dismissing the habeas petition, not, to vacate the state conviction.

Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir.2001) (emphasis added),

3. Rule 60(b)(6): Any Other Reason that Justifies Relief

A Rule 60(b)(6) motion requires a showing of “extraordinary circumstances” to “justify! ] the reopening of a final judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (“The Rule ... should only be applied in ‘extraordinary circumstances.’ ”) (quoting Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950)); Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.1990) (finding that relief under Rule 60(b) may be granted “only upon a showing of exceptional circumstances”); Winslow v. Portuondo, 599 F.Supp.2d 337, 341 (E.D.N.Y.2009).

“Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6) .... ” Agostini v. Felton, 521 U.S. 203, 239, 117 S.Ct. 1997, 138 L.Ed.2d 391 1997. The Supreme Court has defined extraordinary circumstances that justify relief under Rule 60(b)(6) motions as errors which rise above “excusable neglect.” Klapprott v. United States, 335 U.S. 601, 613 (1949); see also Harrison v. Senkowski, 247 F.R.D. 402, 413 (E.D.N.Y.2008).

The Court of Appeals for the Second Circuit has declared that Rule 60(b)(6) “confers broad discretion on the trial court to grant relief when appropriate to accomplish justice [and] it constitutes a grand reservoir of equitable power to do justice in a particular case.” Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir.2004) (quoting Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir.1986)).

B. Rule 60(b) Motion or Successive Habeas Petition

Rule 60(b) relief with respect to a habeas petition that has been denied, is available only when the motion “attacks the integrity of the habeas proceeding.” Harris v. United States, 367 F.3d 74, 77 (2d Cir.2004) (citing Rodriguez, 252 F.3d at 191). A Rule 60(b) motion attacks the integrity of a habeas proceeding if it does not “assert, or reassert,. claims of error in the movant’s state conviction.” Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641. When, instead, a Rule 60(b) motion asserts a .federal basis for relief from a state court’s conviction, it is “in substance a successive habeas petition and should be treated accordingly.” Id.; see also Harrison, 247 F.R.D. at 413-14; Oyague v. Artuz, No. 98-CV-6372, 2008 WL 5395748, at *6 (E.D.N.Y. Dec. 12, 2008). Under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), successive federal habeas petitions requesting relief from a conviction in state court must satisfy strict requirements before a district court can adjudicate them on the merits. 28 U.S.C. § 2244(b); see also Harrison, 247 F.R.D. at 417-18; Oyague, 2008 WL 5395748, at *7

A Rule 60(b) motion is treated as a successive habeas petition when it “attacks the federal court’s previous resolution of a claim on the merits.” Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641 (emphasis in original). The motion does not amount to a successive petition where it “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas ‘proceedings.” Id. (emphasis added); see also Harrison, 247 F.R.D. at 413-14; Graves v. Smith, 811 F.Supp.2d 601, 607 (E.D.N.Y.2011) aff'd sub nom. Graves v. Phillips, 531 Fed.Appx. 27 (2d Cir.2013).

C. Ineffective Assistance of Counsel

The Counsel Clause of the Sixth Amendment provides that a criminal' defendant “shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const, amend. VI. This right to counsel is “the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added). The “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Somerville v. Conway, 281 F.Supp.2d 515, 518-19 (E.D.N.Y.2003).

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that: (1) his attorney’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This test applies to a claim of ineffective assistance of counsel at any stage of the litigation. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

The performance and prejudice prongs of Strickland may be addressed in either order, and “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Hinton v. Alabama, — U.S. —, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014) (per curiam) (citation omitted). “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696, 104 S.Ct. 2052.

Reasonable strategic choices by counsel after an appropriate investigation of the facts and law are “virtually unchallengeable;” those “made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. Counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecéssary.” Id. at 691, 104 S.Ct. 2052.

Courts “apply a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Rivas v. Fischer, 780 F.3d 529, 547 (2d Cir.2015) (citation omitted). “Second guessing from the federal bench is seldom appropriate on tactical and strategic issues of counsel made in the heat of trial.” Hamilton, 94 F.Supp.3d at 477-78.

V. Application of Law to Facts

A. Motion Arises in Part Under Rule 60(b)

This is an unusual case. Petitioner’s request for relief could be addressed as either a Rule 60(b) motion or a second habe-as petition. Included in his original habeas petition were claims relating to the alleged fabrication of evidence with respect to the palm print. See supra Part II.B.l. These claims were considered and found' to be without merit; there was no evidence suggesting that the palm print might have been a fabrication or mistake. Hamilton, 94 F.Supp.3d at 480-81.

Yet, petitioner’s current request for relief is also a challenge to the integrity of the prior habeas proceedings. This court reached a decision on the merits before petitioner had an opportunity to present all evidence; it was found that the absence of the duct tape from the record did “not support granting the [habeas] petition.” Id. at 481.

1. Claims Relating to Newly Available Tape Evidence Allowed Under Rule 60(b)

In his Rule 60(b) motion, petitioner raises three main claims relating to the latent print evidence retrieved from the duct tape: (1) petitioner’s trial counsel was ineffective since he failed to obtain expert examination of the allegedly exculpatory tape at the time of the state trial; (2) petitioner’s trial counsel was ineffective because he allowed the “unidentified, unauthenticated computer print-out of a latent [print]” to be improperly introduced at trial; and (3) there is “ample evidence of police and prosecution bad faith, ' even fraud, in the presentation of ■ the blank tape, crumpling and mishandling of the tape, the missing photograph, and the unidentified computer print-out[.]” Mot. to Alter J. at 2-3.

Although these claims were previously addressed by this court, they are not barred as a second habeas petition to the extent they rest on allegations of fraud based on the re-examination of the newly available tape evidence. Construing those parts of petitioner’s motion that relate to the recovered duct tape as arising under Rule 60(b) is in the interest of the efficient administration of justice. The atypical aspects of this case require the court to examine complex factual evidentiary questions with the assistance of qualified experts. While evidentiary hearings are.generally discouraged in habeas petitions, the court considered' one necessary in this case. An evidentiary hearing allowed the court to properly assess critical evidence which was previously unavailable. This court’s factual investigation should relieve the Court of Appeals for the Second Circuit from having to authorize further fact-finding and will provide it with a complete record for its consideration in the context of the present pending appeal.

2, Remaining Claims Dismissed

Petitioner raised additional claims attacking his state court conviction. These claims must be dismissed. They constitute a second habeas petition couched in the language of a Rule 60(b) motion, requiring prior authorization from the Court of Appeals for the Second Circuit. See Oyague, 2008 WL 5395748, at *9-10; see also supra Part IV.B.

Specifically, petitioner alleges that his trial counsel was ineffective because he failed to challenge inculpatory statements made by petitioner’s relatives at trial. See Mot. to Alter J. at 3. This claim is a further attack on the merits of his state conviction and is not properly raised in the context of a Rule 60(b) motion.

Petitioner also argues that he was denied due process of law and his rights to confrontation when

the' unidentified, unautheiiticated computer print-out of a latent was improperly introduced at trial through a witness who was not qualified to authenticate it and without the jury’s knowledge of the exculpatory evidence ■discovered at the hearing, including the fact that the- witness who identi-fled it reported that it had been developed by a method that in fact was not used, -

Pet’r’s Post-Hr’g Mem. in Supp. of Rule 60(b) Mot., May 8, 2016, ECF No. 166 (“Pet’r’s Post-Hr’g Mem.”), at 18 (footnote and citation omitted). This, to