REPORT AND RECOMMENDATION

SARAH L. CAVE, Magistrate Judge.

I. INTRODUCTION

Pro se Petitioner Phillip Washington, who is incarcerated at Greenhaven Correctional Facility, filed a petition for writ of habeas corpus (the "Petition") pursuant to 28 U.S.C. § 2254, following his 2011 conviction, after a jury trial, in New York State Supreme Court, Bronx County, for the criminal sale of a firearm and the criminal sale of marijuana. (See ECF Nos. 1; 10 at ¶ 7). The state court sentenced him to consecutive determinate prison terms of seven and six years, respectively, to be followed by consecutive terms of five and three years of post-release supervision, respectively. (ECF No. 1).1

Washington raises eight claims in his Petition: (1) the prosecution's failure to disclose certain phone records violated Brady v. Maryland, 373 U.S. 83 (1963); (2) trial evidence was not properly admitted under N.Y. C.P.L.R. 4539; (3) the prosecution's failure to disclose a cooperation agreement with his co-conspirator also violated Brady; (4) he was deprived of his Confrontation Clause right under the Sixth Amendment; (5) his conviction for third-degree criminal sale of a firearm was against the weight of the evidence; (6) the cumulative effect of the prosecutor acting as an unsworn witness violated Due Process; (7) cumulative errors in the jury charge deprived him of a fair trial, and (8) the preclusion of his alibi defense deprived him of his right to present a defense. (ECF No. 1 at 11-12).

Respondent opposes the Petition on the grounds that: (1) the weight of the evidence claim is not cognizable on federal habeas corpus review, and Washington's guilt was proven by overwhelming evidence; and (2) the state courts' rulings on the issues of the prosecutor's conduct at trial, the alleged Brady violations, and the alleged Confrontation Clause violation were neither contrary to Supreme Court precedent nor an unreasonable determination of the facts. (ECF No. 11).

For the reasons set forth below, I respectfully recommend that the Petition be dismissed in its entirety.

II. BACKGROUND

A. Factual Background

Washington's claims arise out of his sale of contraband to the same undercover officer on three occasions.

1. The October 6, 2006 transaction

On October 6, 2006, Undercover Detective 3262 (who, for his safety, testified without using his real name) ("Undercover 3262"), met Basil Cocheekaran and two individuals he later learned were Washington and his co-defendant Robert Calderon.2 (ECF No. 11 at 2-3). Parked nearby was Firearms Investigation Unit Detective Doug Lansing, along with several other officers. (ECF No. 10-1 at 7-8). The planned purpose of the meeting, which took place in a McDonald's parking lot, was for Undercover 3262 to purchase four firearms for $3,500. (Id.) Arriving on a green Kawasaki motorcycle, wearing a motorcycle helmet and bandana, was Washington, whom Cocheekaran introduced to Undercover 3262 as "Tony" or "Gat Tony." (ECF Nos. 11 at 3; 10-1 at 8). Undercover 3262 testified that Washington put onto the backseat of Cocheekaran's car one of the 9mm handguns that Undercover 3262 purchased in the transaction. (ECF Nos. 10-1 at 8; 12-3 at 101). Riding in Cocheekaran's car, Undercover 3262 followed Washington, who was driving his motorcycle, to 2466 Marion Avenue, which was where Calderon lived and was on the same block as Washington's residence. (ECF Nos. 10-1 at 8-9; 12-3 at 40, 45). As Washington walked toward the building at that address, he nodded to a man wearing a red t-shirt and bandana, whom Undercover 3262 called "JD Red" and identified in court as Calderon. (ECF No. 10-1 at 9). Washington, followed by Undercover 3262 and Cocheekaran, walked down an alley, took off the helmet and bandana to reveal his face, removed an unloaded 9mm handgun from his waist, and gave it to Undercover 3262. (Id. at 9-10). Calderon entered the alley a few minutes later and gave Undercover 3262 a shoebox containing two.38 caliber revolvers and a box of bullets. (Id. at 10). Undercover 3262 gave Washington $3,500, which Washington split with Calderon and Cocheekaran. (Id.) Undercover 3262 testified that, that day, he purchased from Washington, Cocheekaran, and Calderon a total of four firearms, including the two 9mm handguns and two.38 caliber revolvers, which were received in evidence at trial. (ECF Nos. 11 at 3; 10-1 at 10). Undercover 3262 recorded in the "buy report" of the transaction that JD Red, a/k/a Calderon, was 5-feet-7 inches tall, and that Gat Tony, a/k/a Washington, was 5-feet-9 inches tall. (ECF No. 10-1 at 9). At trial, the evidence showed that Calderon's height was actually 6-feet-1 inches, and that Washington's was 5-feet-7 inches. (Id.)

2. The October 16, 2006 transaction

The second transaction arose after Cocheekaran called Undercover 3262 on October 15, 2006, told him that his friend had a.45 caliber handgun he wanted to sell, and asked if he (Cocheekaran) could give Undercover 3262's number to Gat Tony. (ECF Nos. 10-1 at 10; 11 at 3). Undercover 3262 agreed, and a short time later, received a call from Washington, who identified himself as Gat Tony, whose voice the officer recognized from the October 6 transaction, and who was dialing from a Direct Connect number. (ECF Nos. 11 at 3-4; 10-1 at 10-11). The next day, October 16, at 12:40 p.m., Washington called Undercover 3262 to arrange to meet at Marion Avenue and 193rd street to sell him a gun for $750. (ECF Nos. 10-1 at 11; 11 at 3-4). Washington told Undercover 3262 to look for him in a tan Saturn, which he found and entered to meet with Washington. (ECF No. 10-1 at 11). Washington took a Colt.45 handgun from under the seat, wiped it with a cloth, and gave it to Undercover 3262, who gave Washington $750 and then exited the vehicle. (Id.) The Colt.45 handgun contained no ammunition and was received in evidence at trial. (Id. at 12).

3. The January 18, 2007 transaction

The third transaction occurred on January 18, 2007, when Washington sold Undercover 3262 over a pound of marijuana. (ECF Nos. 11 at 4; 10-1 at 13)3. Washington had arranged the sale during an earlier phone call with Undercover 3262, who agreed to buy the marijuana for $1000. (ECF Nos. 11 at 4; 10-1 at 13). The two met near 193rd Street and Marion Avenue, and the sale took place in the back seat of Washington's car. (ECF Nos. 11 at 4; 10-1 at 13). After Washington put the money in his pocket and exited the car, Undercover 3262 called to report a positive buy as well as Washington's description and location, which Detective Lansing received. (ECF No. 10-1 at 13). Two other officers then approached Washington, who began to run and discard money, $900 of which was recovered and determined to be pre-marked bills Detective Lansing had given to Undercover 3262. (Id. at 13-14). Washington was arrested, and a few hours later, Undercover 3262 saw him in custody and identified him as the subject of all three of the sales. (Id. at 14).

B. Procedural History

A consolidated indictment charged Washington with five counts of third-degree criminal sale of a firearm for selling four guns to Undercover 3262 on October 6, 2006, and one gun on October 16, 2006, and first-degree criminal sale of marijuana for selling over a pound of marijuana to Undercover 3262 on January 18, 2007. (ECF No. 10-1 at 6). Before trial, the Honorable Ann M. Donnelly conducted hearings pursuant to Mapp v. Ohio, 367 U.S. 643 (1961)4 and People v. Hinton, 31 N.Y.2d 71 (1972),5 denied Washington's motion to suppress, and granted the prosecution's Hinton motion. (ECF No. 10 at ¶ 6). Washington proceeded to trial, along with Calderon, on the firearm sale counts. (See ECF No. 1 at 1).

1. Additional evidence at trial

Defense counsel, in her opening statement, conceded Washington's guilt on the marijuana charge. (ECF No. 13 at 6-7; see ECF No. 10-1 at 6; ECF No. 12-2 at 110).

In addition to the testimony of Undercover 3262, the prosecution's evidence at trial included, inter alia:

The defense's case included the testimony of Ethel Amponsah, who did the bookkeeping and promotional work for Bang Tu Records, which Washington founded, for which he recorded music under the stage name Gat Tony, and for which Cocheekaran was a music producer. (ECF No. 10-1 at 15-16; see ECF No. 11 at 5 n.5). Amponsah testified that on January 18, 2007, Washington called her from jail, where he remained for several weeks. (ECF No. 10-1 at 16).

2. Summations

During summation, Washington's counsel argued that the phone records in evidence did not include a call from Washington to Undercover 3262 on October 15 or on November 26, as Undercover 3262 had testified. (ECF No. 10-1 at 16). In response during her summation, the prosecutor argued that on October 15, Washington had used a different phone to insulate himself from potential criminal liability. (Id.)

Washington's counsel moved for a mistrial, arguing that the prosecutor's statement improperly shifted the burden of proof, and Judge Donnelly denied the motion. (ECF No. 11 at 6). Judge Donnelly also denied a motion for a mistrial by Calderon's counsel, in which Washington did not join, based on the argument that the prosecutor was improperly drawing inferences and conclusions from the evidence. (Id.) Finally, she denied defense counsels' motion for dismissal for failure to present a prima facie case as to each of the counts in the indictment. (Id.)

3. Jury Instructions, deliberation, and verdict

During the instructions to the jury, Judge Donnelly gave a single-witness identification charge,7 and submitted the counts as follows:

(See ECF No. 10-1 at 16).

During deliberations, the jury requested and received a read-back of Undercover 3262's testimony regarding the events on October 6, and phone records from October 15 and 16. (Id. at 17). The jury viewed some of the phone records on a limited-access laptop provided by the prosecution. (ECF No. 12-6 at 39). After completing their deliberations, the jury acquitted Calderon of all seven counts, found Washington guilty as to the October 16 gun sale and the January 18 marijuana sale, and acquitted Washington of four counts of third-degree criminal sale of a firearm and three counts of criminal possession of a weapon as to the October 6 sale. It did not reach a verdict on the charge of second-degree criminal sale of five or more firearms. (ECF No. 10-1 at 17.)

At sentencing, Judge Donnelly sentenced Washington to seven years in prison for the firearm sale and a consecutive six years in prison for the marijuana sale, followed by five and three years of post-release supervision, respectively. (Id. at 18; ECF No. 10 at ¶ 7).

4. Direct appeal

Washington filed a timely notice of appeal, and the New York Supreme Court, Appellate Division, First Department, granted him leave to proceed in forma pauperis and assigned appellate counsel. (ECF No. 10 at ¶ 9). Washington's appointed counsel filed a brief on his behalf raising two arguments: (1) his conviction for criminal sale of a firearm was against the weight of the evidence; and (2) his thirteen-year prison sentence was excessive. (ECF No. 10-1). Washington also filed a pro se brief raising the following arguments: (1) the prosecution's failure to disclose certain phone records violated Brady; (2) trial evidence was not properly admitted under N.Y. C.P.L.R. 4539; (3) the prosecution's failure to disclose a cooperation agreement with his co-conspirator also violated Brady; (4) he was deprived of his Confrontation Clause right under the Sixth Amendment; (5) his conviction for third degree criminal sale of a firearm was against the weight of the evidence; (6) the cumulative effect of the prosecutor acting as an unsworn witness violated Due Process; (7) cumulative errors in the jury charge deprived him of a fair trial, and (8) the preclusion of his alibi defense deprived him of his right to present a defense. (ECF No. 10-2).8

On January 19, 2016, the First Department unanimously affirmed Washington's conviction, holding that: (1) "[t]he verdict was not against the weight of the evidence," (2) there was "no basis for disturbing the jury's credibility determinations"; (3) "[a]ny inconsistencies in [Undercover 3262's] testimony were minor" and other evidence corroborated his testimony; and (4) there was "no basis for reducing the sentence." People v. Washington, 135 A.D.3d 565 (1st Dep't 2016). The First Department added that it had "considered and rejected defendant's pro se claims." Id. Washington unsuccessfully sought leave to appeal to the New York Court of Appeals raising the same grounds that he had asserted in his pro se brief to the First Department. People v. Washington, 27 N.Y.3d 1076 (2016).

C. Federal Habeas Corpus Petition

On May 16, 2017, Washington filed his pro se petition, which, as noted above, makes the following eight claims: (1) the prosecution's failure to disclose certain phone records violated Brady; (2) trial evidence was not properly admitted under N.Y. C.P.L.R. § 4539; (3) the prosecution's failure to disclose a cooperation agreement with his co-conspirator also violated Brady; (4) deprivation of his Confrontation Clause right under the Sixth Amendment; (5) his conviction for third degree criminal sale of a firearm was against the weight of the evidence; (6) the cumulative effect of the prosecutor acting as an unsworn witness violated Due Process; (7) cumulative errors in the jury charge deprived him of a fair trial; and (8) the preclusion of his alibi defense deprived him of his right to present a defense. (ECF No. 1 at 11-12). Washington incorporated by reference the tables of authorities and contents from his pro se First Department brief, which made the same eight arguments. (Id. at 9-15). On September 29, 2017, Respondent filed a brief in opposition, along with the briefs from the direct appeal as well as the transcript of the pre-trial, trial, and sentencing proceedings. (ECF Nos. 10, 11, 12). On November 3, 2017, Washington filed a pro se reply responding to the two Brady counter-arguments in Respondent's brief. (ECF No. 13).

III. DISCUSSION

A. Applicable Legal Standards

1. Exhaustion

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement is fulfilled once the federal claims have been presented to "the highest court of the state." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In New York, the petitioner must have presented each of his claims to the Appellate Division and then sought leave to appeal on the same grounds to the Court of Appeals. See id. at 74 ("one complete round" of New York's appellate review process involves appeal to Appellate Division and then application to Court of Appeals for certificate granting leave to appeal).

2. Standard of review

If a state court has denied a state prisoner's federal constitutional claim on an "independent and adequate state procedural ground," a federal court may not review the claim on federal habeas corpus review, "unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional violation, or that he is actually innocent." Anderson v. Lempke, No. 11-cv-8240 (NSR) (PED), 2015 WL 4104605, at *8 (S.D.N.Y. July 6, 2015). "A procedural bar is `adequate' if it is `based on a rule that is firmly established and regularly followed by the state in question.'" Id. (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)). "A procedural ground is `independent' if `the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Id. (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)).

If the state court has adjudicated the merits of a claim—that is, ruled on the substance of the claim rather than a procedural or other ground9—the federal court must apply a "highly deferential" standard in reviewing that claim in a habeas corpus proceeding. 28 U.S.C. § 2254(d); Renico v. Lett, 559 U.S. 766, 773 (2010); Williams v. Taylor, 529 U.S. 362, 413 (2000); Berrios v. City of New York, 14 Civ. 8959, 2018 WL 4608211, at *3 (S.D.N.Y. Sept. 25, 2018). This "highly deferential" standard of review permits a federal court to grant a writ of habeas corpus on a claim that has been previously adjudicated on the merits by a state court only if the state adjudication:

28 U.S.C. § 2254(d)(1), (2).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established federal law where the state court either applies a rule that contradicts Supreme Court precedent or confronts a case with materially similar facts to a Supreme Court case and arrives at a different result. See Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Williams, 529 U.S. at 412-13). An "unreasonable application" of clearly established federal law occurs when the state court identifies and applies the correct governing legal principle, but its application was "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 73-76 (2003) (citing Williams, 529 U.S. at 409). Under section 2254(d)(2), the Court must consider the reasonableness of the decision in light of the evidence presented at the proceeding under review. See Cardoza v. Rock, 731 F.3d 169, 182 (2d Cir. 2013).

Even if the standard under Section 2254(d)(2) is met, the petitioner "still bears the ultimate burden of proving by a preponderance of the evidence that his constitutional rights have been violated." Cardoza v. Rock, 731 F.3d at 178 (internal quotation and citation omitted). The question under the AEDPA "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable, which is a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see Berrios, 2018 WL 4602811, at *3 ("`A state court's determination that a claim lacks merit' is not unreasonable `so long as fairminded jurists could disagree' on the correctness of the state court's decision") (quoting Ramos v. Racette, 726 F.3d 284, 287-88 (2d Cir. 2013) (internal citation omitted)). Courts must review pro se habeas corpus petitions "`with a lenient eye, allowing borderline cases to proceed.'" Berrios, 2018 WL 4602811, at *3 (quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983)).

B. Analysis

1. Exhaustion

In his pro se brief on his direct appeal to the First Department, and in the request for leave to appeal to the Court of Appeals, Washington raised the same eight claims that he asserts in his petition. (ECF No. 1 11-15; see ECF No. 11). His counseled brief on the direct appeal also argued that his third-degree firearm conviction was against the weight of the evidence, which is one of the eight claims in his pro se brief and in his Petition. (ECF No. 10-1 at 18-23). Respondent appears to concede that Washington exhausted all eight claims, but asserts, in a footnote, that because defense counsel only objected on hearsay grounds to Undercover 3262's testimony about Cocheekaran's statements, Washington failed to preserve for the First Department's review a Confrontation Clause claim with respect to this testimony. (ECF No. 11 at 19 n.9). See Canemo v. Dennison, No. 06 Civ. 2078 (BSJ), 2010 WL 1685384, at *4 (S.D.N.Y. Apr. 23, 2010) (citing New York cases holding that hearsay objection is insufficient to preserve a Confrontation Clause objection); see also United States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2003) ("a hearsay objection by itself does not automatically preserve a Confrontation Clause claim").

In its decision affirming Washington's conviction, the First Department did not explain that it was rejecting the Confrontation Clause claim for failure to properly preserve the issue at trial, and therefore did not "clearly and expressly state[] that its judgment rest[ed] on a state procedural bar," Anderson, 2015 WL 4104605, at *8. Instead, the First Department appears to have rejected all of his claims, including his Confrontation Clause claim, on the merits. Washington, 135 A.D.3d at 565 ("We have considered and rejected defendant's pro se claims."). Therefore, the Court finds that, with one exception noted below (see infra section III.B.4.), Washington has exhausted the claims in his petition for the purposes of federal court review. See Galdamez, 394 F.3d at 74.10

2. Evidentiary claims

Washington raises four claims related to the evidence at trial: (1) the prosecution's failure to disclose certain phone records violated Brady; (2) the prosecution's failure to disclose a cooperation agreement with his co-conspirator also violated Brady; (3) trial evidence was not properly admitted under N.Y. C.P.L.R. 4539; and (4) his conviction for third-degree criminal sale of a firearm was against the weight of the evidence.

a. Alleged Brady violations

Washington argues that the prosecution's failure to disclose certain phone records and a cooperation agreement with his co-conspirator, Cocheekaran, violated the Supreme Court's holding in Brady. (ECF No. 1 at 3, 11). "Under Brady, `the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.'" Brightley v. Heath, No. 11 Civ. 1761 (LGS), 2016 WL 1060326, at *5 (S.D.N.Y. Mar. 15, 2016) (quoting Brady, 373 U.S. at 87) (original emphasis)). "Impeachment evidence that would not likely change the verdict is not material." Id. at *5 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).

i. Phone records

The phone records Washington sought before trial included call records and cell tower locations for additional numbers that defense counsel argued may have shown that he had an alibi defense. (ECF No. 12-5 at 3-9). The trial transcript indicates that the prosecution disclosed at least some of this information during discovery before trial, but defense counsel elected not to use the information affirmatively during trial until the prosecution introduced spreadsheets reflecting additional call records specifically for "David Simpson," the name on the account associated with the calls Washington made to Undercover 3262 using his cell phone number and Direct Connect number. (Id.) Judge Donnelly adjourned the trial for over a day to allow defense counsel's expert to review the records. (Id. at 32).

Even assuming that the prosecution delayed disclosing the "David Simpson" phone records, Washington has not demonstrated that the information the records contained was "material" to his defense. Brightley, 2016 WL 1060326, at *5 ("Impeachment evidence that would not likely change the verdict is not material."). His defense counsel at trial, and he himself in his Petition, speculate that the records "may" have provided a basis for an alibi defense, but neither he nor his counsel provided any detail about what that alibi might have been—the trial record is barren of any other indication about where Washington might have been when the three sale transactions occurred, or any other evidence that corroborated a potential alibi. In the face of the testimony of Undercover 3262, and the additional evidence that corroborated his identification of Washington as the individual who conducted the three sales—evidence that the First Department specifically credited in affirming his conviction—Washington has not shown that the phone records would likely have changed the verdict. See Brightley, 2016 WL 1060326, at *5. Accordingly, Washington has not shown a constitutional violation under Brady.

ii. Co-conspirator agreement

Although Washington claims that the prosecution failed to disclose a cooperation agreement with Cocheekaran (ECF No. 1 at 15), Respondent states that there was no cooperation agreement between Cocheekaran and the prosecution. (ECF No. 11 at 18-19). The trial record contains no indication of any cooperation agreement with Cocheekaran, and Washington's Petition and other filings in support do not provide any evidence of such an agreement. There can be no Brady violation for failure to disclose evidence that does not exist. See Mallet v. Miller, 432 F.Supp.2d 366, 377 (S.D.N.Y. 2006) ("[T]he mere speculation that exculpatory evidence was withheld is insufficient to warrant habeas relief."); Pepe v. Walsh, 31 F.Supp.3d 441, 498 (N.D.N.Y. 2012) (finding no Brady violation where petitioner failed to show that interview notes actually existed and were withheld by prosecution). Accordingly, Washington has not shown a constitutional violation under Brady.

b. Alleged failure to comply with C.P.L.R. 4539

Washington argues that, although phone records were admitted into evidence based on testimony that they had been kept and retrieved in the ordinary course of business, the prosecution failed to show by affidavit or testimony that those records were not tampered with or degraded, in violation of N.Y. C.P.L.R. 4539(b). (ECF No. 20 at 20-23). Because the phone records were not turned over before trial, he did not have a chance to investigate the records to determine if they had been fabricated or altered, thus compromising his defense. (Id. at 21).

C.P.L.R. 4539 details the circumstances in which a copy of a document or image is admissible in evidence in place of the original. Specifically, the reproduction of a digital image is "admissible in evidence as the original" if it is "authenticated by competent testimony or affidavit," including information about "the manner or method by which tampering or degradation of the reproduction is prevented." N.Y. C.P.L.R. 4539(b); see People v. Gunther, 172 A.D.3d 1403, 1404 (2d Dep't 2019) (finding that computer reproductions of bank records were properly admitted under C.P.L.R. 4539(b)).

"[S]tate trial court evidentiary rulings generally are not a basis for habeas relief." Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012). A claim that "evidence was incorrectly admitted or excluded under state law" is not cognizable on federal habeas corpus review, which does not provide relief "`for errors of state law.'" Hall v. Lee, No. 15 Civ. 2559 (LGS) (KNF), 2016 WL 4597624, at *3 (S.D.N.Y. Sept. 1, 2016) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Here, Washington contends that the certain phone records admitted into evidence did not comply with C.P.L.R. § 4539(b) but has not established that this alleged error "deprived him of a fundamentally fair trial." Id. at *3 (internal citation omitted). Accordingly, federal habeas corpus relief is not available for this claim.

c. Weight of the evidence

Washington argues, pursuant to Jackson v. Virginia, 443 U.S. 307 (1979), that his conviction for third degree sale of a firearm was "against the weight of the evidence, and legally insufficient to sustain a verdict of guilty." (ECF No. 1 at 12). In Jackson, the Supreme Court acknowledged that "a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt" could assert a Due Process claim in a federal habeas proceeding (assuming he had exhausted his state remedies and no adequate and independent state ground stood as a bar). 443 U.S. at 321.

The Supreme Court has subsequently explained that "Jackson claims face a high bar in federal habeas corpus proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, on the direct appeal to the state appellate court following trial, courts acknowledge that "`it is the responsibility of the jury— not the court—to decide what conclusions should be drawn from evidence admitted at trial,'" and, therefore, "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Id. (quoting Cavazos v. Smith, 565 U.S. 1 (2011) (per curiam)). Second, "on habeas review, `a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court,'" but rather the "federal court instead may do so only if the state court decision was `objectively unreasonable.'" Id. (quoting Cavazos, 565 U.S. at 1 (internal citation omitted)). Accordingly, a court reviewing a sufficiency of the evidence claim in a federal habeas corpus proceeding must assess "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; Douglas v. Portuondo, 232 F.Supp.2d 106, 113 (S.D.N.Y. 2002) (explaining that a federal court may only grant habeas corpus relief for a Jackson claim if "the record is totally devoid of evidentiary support").

Washington argued on his direct appeal that his firearm conviction was infirm under Jackson because "it was based on the testimony of a single witness," Undercover 3262, "whose account was neither credible nor reliable." (ECF No. 10-1 at 18). Washington pointed to the facts that: (1) Detective Lansing did not see or hear the individuals with whom Undercover 3262 met on October 6, October 16, or January 18; (2) the jurors acquitted Washington and Calderon of all of the charges relating to the October 6 firearm sale; (3) phone records contradicted Undercover 3262's testimony that Washington called him from his Direct Connect phone on October 15; (4) the Direct Connect number associated with "David Simpson" that the prosecution claimed belonged to Washington continued to make and receive calls after his January 18, 2007 arrest; (5) the testimony of defense witnesses that Washington was not involved in Cocheekaran's illegal business transactions; and (6) Undercover 3262's mistaken description of Washington's and Calderon's height. (Id. at 20-21; see also ECF No. 20 at 29-33).

On the direct appeal, the First Department held that "[t]he verdict was not against the weight of the evidence," and found in particular that "[a]ny inconsistencies in the undercover officer's testimony were minor and did not detract from his clear account of the events, which was corroborated by other evidence." Washington, 125 A.D.3d at 565. Therefore, there was "no basis for disturbing the jury's credibility determinations." Id.

To the extent Washington's claim is that the weight of the evidence does not support his conviction, that is a challenge to the credibility assessments the jury made at trial, and his claim must fail. The credibility of witnesses is left "exclusively" in the hands of the jury. United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); Douglas, 232 F. Supp. 2d at 115. On federal habeas corpus review, this Court "must defer to the assessments of the weight of the evidence and credibility of the jury," and, therefore, "cannot address `weight of the evidence' claims," which are "pure state law claims." Douglas, 232 F. Supp. 2d at 115 (internal citations omitted). Because Washington's "weight of the evidence" argument does not assert a federal claim cognizable under 28 U.S.C. § 2254(a), he is not entitled to federal habeas corpus relief.

To the extent Washington is challenging the legal sufficiency of the evidence at trial, such a claim may be cognizable on federal habeas corpus review. See Douglas, 232 F. Supp. 2d at 113; Garbez v. Greiner, No. 01 Civ. 9865 (LAK) (GWG), 2002 WL 1760960, at *6-7 (S.D.N.Y. July 30, 2002). The question a legal sufficiency claim presents is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319.

To be convicted of third-degree criminal sale of a firearm, the defendant must have lacked authority to possess the firearm and unlawfully either (1) sold, exchanged, gave, or disposed of the firearm to another person, or (2) possessed a firearm with intent to sell it. N.Y. Penal L. § 265.11. Washington primarily argues that the evidence was legally insufficient to prove beyond a reasonable doubt that he was the person who sold the firearm to Undercover 3262 on October 16, 2006. (See ECF No. 1 at 12). Here, the evidence that Washington was the seller included not only the testimony of Undercover 3262, who identified him after three in-person sales, but also the phone records for "David Simpson" that reflected calls to Cocheekaran, Undercover 3262, and Washington's mother. (ECF No. 12-5 at 43, 48-50). In addition, Washington's counsel conceded that he sold marijuana to Undercover 3262 on January 18, 2007 (ECF No. 12-2 at 110), thus corroborating Undercover 3262's testimony that the same individual conducted all three sales, including the one on October 16, 2006. This cumulative evidence was legally sufficient to support beyond a reasonable doubt the elements of the offense of third-degree sale of a firearm, and therefore, the First Department's affirmance of his conviction was not contrary to nor did it involve an unreasonable application of clearly established federal law. See Douglas, 232 F. Supp. 2d at 115 (denying federal habeas corpus claim based on sufficiency of the evidence); Garbez, 2002 WL 1760960, at *7-8. For these reasons, the Petition should be denied with respect to the insufficiency of the evidence claim.

3. Confrontation Clause claim

Washington claims that he was denied his Sixth Amendment right of confrontation when Undercover 3262 testified as to statements made by Cocheekaran that "his friends," including Washington, had firearms they wanted to sell. (See ECF Nos. 20 at 25-28; 12-3 at 192, 243; 11 at 19).

The Sixth Amendment's Confrontation Clause guarantees the right of a defendant in a criminal proceeding "to be confronted with the witnesses against him." U.S. Const. Amend. VI. The Fourteenth Amendment extends this right to defendants in state criminal proceedings. Pointer v. Texas, 380 U.S. 400, 406 (1965). The Confrontation Clause extends only to "testimonial" evidence, that is, "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington, 541 U.S. 36, 52-53 (2004) (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Examples of "testimonial" statements include "affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, . . . depositions, . . . confessions, . . . [or other] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52 (internal citations omitted). Examples of non-testimonial statements include "business records or statements in furtherance of a conspiracy." Id. at 56. If the statement was not made for "`the primary purpose of creating an out-of-court substitute for trial testimony, its admissibility is the concern of state and federal rules of evidence, not the Confrontation Clause." Williams v. Illinois, 567 U.S. 50, 84 (2012) (internal citations omitted).

The threshold question is whether Cocheekaran's statements as relayed by Undercover 3262 were testimonial. See Gantt v. Brown, No. 08 Civ. 10194 (CM) (DF), 2012 WL 34087, at *6-7 (S.D.N.Y. Jan. 6, 2012). Cocheekaran was speaking to Undercover 3262—whom Cocheekaran apparently did not realize was a police officer—for the purpose of arranging the sale of a firearm. (ECF No. 12-3 at 243). There are no indicia that any purpose, let alone the "primary purpose," of Cocheekaran's statements was to substitute for trial testimony. See Williams, 567 U.S. at 84. Therefore, Cocheekaran's statements were not subject to Confrontation Clause protection. See Abreu v. Lee, No. 13 Civ. 4697 (AT) (KNF), 2015 WL 13215669, at *7 (S.D.N.Y. Mar. 16, 2015) (cooperating accomplice's out-of-court statement that defendant was the shooter were not testimonial and therefore not protected by Confrontation Clause).

In addition, Cocheekaran's statements were also admissible under the hearsay exception in Federal Rule of Evidence 801(d)(2), see Diaz v. Herbert, 317 F.Supp.2d 462, 482 (S.D.N.Y. 2004) (finding no Confrontation Clause violation where co-conspirator's statements were otherwise admissible under Fed. R. Evid. 801(d)(2)), and under New York law. See People v. Bac Tran, 80 N.Y.2d 170, 179 (1992) ("A declaration by a co-conspirator during the course and in furtherance of the conspiracy is admissible against another co-conspirator as an exception to the hearsay rule."). The trial court found that the prosecution established a prima facie case of conspiracy, Cocheekaran's statements were made in furtherance of that conspiracy, and, accordingly, were admissible pursuant to People v. Caban, 5 N.Y.3d 143 (2005). (ECF No. 12-3 at 168). The trial court's finding is not unreasonable and is reinforced by the evidence that Cocheekaran and Washington were conspiring to sell firearms illegally, and Cocheekaran's statements were made in the course of and in furtherance of that conspiracy. Apart from calling Washington one of "his friends," Cocheekaran made the arrangements for the initial meeting with Undercover 3262 on October 6, accompanied Washington to that meeting, and split with Washington the money Undercover 3262 had paid for the guns that day. (ECF No. 12-3 at 190-95). Cocheekaran's statements were properly admitted, and Washington was not denied his rights to due process and a fair trial. See Layne v. Capra, 17 Civ. 6736 (AT) (GWG), 2018 WL 5258584, at *13 (S.D.N.Y. Sept. 17, 2018). Therefore, no habeas corpus relief is available for Washington's Confrontation Clause claim.

Finally, in the context of the entire record, the Court finds that the trial court's admission of Cocheekaran's statements did not "so infuse[] the trial with unfairness as to deny due process of law," and therefore, does not provide a basis for federal habeas corpus relief. Abreu, 2015 WL 13215669, at *7 (quoting Estelle, 502 U.S. at 75); see Diaz, 317 F. Supp. 2d at 483 (finding that any potential Confrontation Clause violation was harmless error where totality of other evidence supported conviction).

4. Claims Based on Jury Instructions

Washington claims that he was deprived of his right to a fair trial because the trial court did not give jury instructions concerning commingling of evidence and accomplices. (ECF Nos. 1 at 12; 20 at 40-43).

Washington first argues that the trial court should have instructed the jury to avoid commingling evidence introduced for each crime and to render a verdict separately on each count. (ECF No. 20 at 40-41). Washington concedes that his counsel did not object to the lack of a commingling instruction in Judge Donnelly's charge to the jury. (Id. at 41). Under New York law, a party must object to a jury charge to preserve the issue for review. Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) (internal citation omitted); see People v. Moultrie, 6 A.D.3d 730 (2d Dep't 2004). Under Second Circuit precedent, "[a] state prisoner who fails to object to a jury instruction in accordance with state procedural rules procedurally forfeits that argument on federal habeas review." Reyes, 118 F.3d at 138. Accordingly, the trial court's failure to deliver a commingling instruction does not provide a basis for habeas relief. See Sable v. Artus, No. 09 Civ. 7242 (WHP) (GWG), 2010 WL 3719270, at *13-14 (S.D.N.Y. Sept. 23, 2010) (failure to preserve argument based on commingling instruction precluded federal habeas review).

Washington's second argument appears to be that the trial court should have given an instruction based on N.Y. Criminal Procedure Law § 60.22, which precludes a jury from convicting a defendant on the basis of an accomplice's testimony unless that testimony is corroborated by "evidence tending to connect the defendant with the commission of [the] offense." N.Y. Crim. P.L. § 60.22. A witness is an accomplice if "according to evidence adduced in [the] action, [the witness] may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged." Id. A typical accomplice witness instruction involves the trial court instructing the jury, as a matter of law, that certain prosecution witnesses were accomplice witnesses. See Lozada v. Brown, No. 10 Civ. 3222 (DAB) (FM), 2014 WL 6845192, at *14 (S.D.N.Y. Dec. 4, 2014) (quoting 1 Howard G. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case: New York, § 4.1 (2014)). The trial court instructs the jury that the

Id.

With regard to Washington's second argument concerning the jury instructions, Judge Donnelly instructed the jury:

(ECF No. 12-5 at 276). Judge Donnelly then provided a detailed framework for evaluating the credibility of witness testimony. (Id. at 277-79). Washington cannot show that the lack of the accomplice instruction denied him a fair trial because, as set forth above (supra, section III.B.2.c) the prosecution presented "ample corroborating evidence" that linked him to the crime. Lozada, 2014 WL 6845192, at *14. Furthermore, Judge Donnelly's charge as a whole appropriately instructed the jury on how to assess witness credibility. See Sease v. Goord, No. 01 Civ. 1378 (HB), 2003 WL 23100261, at *4 (S.D.N.Y. Dec. 30, 2003) (habeas relief not warranted where charge as a whole properly instructed jury on witness credibility and therefore absence of accomplice instruction did not provide a basis for habeas relief). Because Washington has not shown that the accomplice instruction would have changed the jury's verdict, he cannot show prejudice to his right to a fair trial, and accordingly, has not stated a claim for habeas relief.

5. Claims Based on Jury Deliberations

Washington argues that during their deliberations, the jury did not receive all requested read-back material and was allowed to review evidence on a laptop provided by the prosecution. (ECF Nos. 1 at 12; 20 at 42-44).

While they were deliberating, the jury sent a note requesting a read back of Undercover 3262's testimony "on direct and cross-examination about JD Tony on 10/6 at the McDonalds." (ECF No. 12-6 at 25). Judge Donnelly held a conference with counsel for both sides and determined which pages were to be read back. (Id. at 25-29). Washington's counsel requested four additional pages, but Judge Donnelly declined to include them on the ground that those pages contained testimony beyond the jury's request. (Id. at 27-29). The jury also asked to see a report from the Department of Motor Vehicles and a CD containing a photograph of the 1999 tan Saturn. (Id. at 39). For ease of the jury's review, the prosecution put the two exhibits, which had been admitted in evidence, on a laptop that had been cleared of any other information relating to the case. (Id. at 39-41). Washington's counsel objected, arguing that the jury should receive the hard copies, but Judge Donnelly overruled the objection, charged the jury that they could only look at the specific requested documents and ordered that the laptop be brought back out of the jury room once their review was finished. (Id. at 43).

"Whether to allow testimony to be read back to the jury is within the trial court's sound discretion." United States v. Damsky, 740 F.2d 134, 138 (2d Cir. 1984); Cottrell v. New York, 259 F.Supp.2d 300, 305 (S.D.N.Y. 2003). This Court reviews the trial court's decision for abuse of discretion. Cottrel, 259 F. Supp. 2d at 305; see Damsky, 740 F.2d at 138. Factors relevant to determining whether to permit read-backs include: "(i) whether reading certain testimony will unduly call attention to it; (ii) whether giving the read-back will unduly delay the proceeding; and (iii) the difficulty involved in giving a read-back." Cottrel, 259 F. Supp. 2d at 305 (citing Damsky, 740 F.2d at 138). Under New York law, trial courts have discretion to respond to juries' requests for testimony and evidence, provided the court "respond[s] meaningfully to the jury's request for further instruction or information." People v. Malloy, 55 N.Y.2d 296 (1982).

Here, Judge Donnelly acted within her discretion in limiting the read-back to only those pages that contained testimony relevant to the jury's question. See Santiago v. Artuz, No. 99 Civ. 4477 (KMW) (FM), 2003 WL 470569, at *11 (S.D.N.Y. Jan. 23, 2003) (finding no abuse of discretion when trial court interrupted read-back of testimony that was not responsive to jury's request). Considering the factors set forth in Damsky, it was also within her discretion to make it more feasible and efficient for the jury to review the exhibits by allowing them to be presented on a scrubbed laptop in the jury room. See Damsky, 740 F.2d at 138. Accordingly, the Court finds that "no error of a constitutional dimension exists" sufficient to justify habeas relief. Cottrel, 259 F. Supp. 2d at 305.

6. Alibi Defense

Washington argues that he was deprived of his Sixth Amendment right to present a defense when Judge Donnelly precluded his alibi defense. (ECF No. 1 at 12). The trial transcript shows that his counsel objected to Undercover 3262 testifying about a DD-5 report, which the prosecution disclosed just before the trial started, in which Undercover 3262 had written that on Monday November 13, 2006 at 14:50 hours (2:50pm), he had received a call from "JD Tony" using the Direct Connect number, that "JD Tony" said that he "might come across a few firearms," and, when he did, he would contact Undercover 3262. (ECF No. 12-3 at 172). Washington's counsel argued that, not only was the report disclosed late, but it was prejudicial because she did not have time to explore whether Washington had an alibi, i.e., that he could not have been the person who made that call to Undercover 3262. (Id. at 174). The prosecution countered that there could not be an alibi for a phone call, which can be made from anywhere, and that the request for an alibi defense was untimely; Judge Donnelly agreed that Washington's counsel's argument did "seem rather odd." (Id. at 175). Nevertheless, Judge Donnelly briefly recessed the proceedings to give Washington time to confer with his counsel. (Id. at 173-74). After the recess, Washington's counsel did not press an alibi defense, and Judge Donnelly concluded that there was no prejudice to Washington from any delay in disclosing the DD-5 report. (Id. at 173-76).

The fact that Washington's counsel decided not to press an alibi defense suggests that there was not sufficient evidence to support such a defense, and therefore, the absence of an alibi defense does not constitute a constitutional error. See Parson v. Portuondo, 259 F.Supp.2d 309, 311-12 (S.D.N.Y. 2003) (finding that trial court's rejection of alibi defense was not a constitutional error where there was "no reliable proffer" of alibi evidence). In addition, Judge Donnelly's instructions to the jury stated several times that the prosecution had the burden of establishing beyond a reasonable doubt each defendant's guilt as to each element of each offense, such that the absence of an alibi charge was not prejudicial. (ECF Nos. 12-5 at 34, 273, 281; 12-6 at 11). As the First Department found, the other evidence at trial corroborated Undercover 3262's identification of Washington and the three sale transactions; therefore, any alibi defense would not likely have changed the result at trial, and therefore, Washington has not shown that the preclusion of an alibi defense "by itself so infected the trial that [his] conviction violated due process." Guzman v. Scully, No. 92 Civ. 5175, 1995 WL 1335590, at *5 (S.D.N.Y. Mar. 29, 1995), rev'd on other grounds, 80 F.3d 772 (2d Cir. 1996); Sanders v. Scully, No. 90 Civ. 1058, 1991 WL 35498, at *1-2 (E.D.N.Y. Mar. 1, 1991) (holding that petitioner's constitutional rights were not violated by trial court's refusal to give alibi instruction where instructions made clear that "the jury must acquit if the evidence raised a reasonable doubt about any of the elements of the crimes charged").11

7. Prosecutorial misconduct claim

Washington's claim that the prosecution "deliberately deceiv[ed] the court by injecting testimony known to be false" appears to arise from the prosecutor's statement during her summation that Washington used a different phone to insulate himself from potential criminal liability. (ECF No. 1 at 15). Washington's counsel moved for a mistrial, arguing that the prosecutor's statement improperly shifted the burden of proof, and Judge Donnelly denied the motion and reiterated that she would instruct the jury that "the defense doesn't have any burden." (ECF No. 12-5 at 269).

In evaluating allegedly improper remarks by a prosecutor on summation, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). In evaluating a habeas claim based on prosecutorial misconduct in summation, this Court must "distinguish between `ordinary trial error of a prosecutor and that sort of egregious misconduct . . . amount[ing] to a denial of constitutional due process.'" Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly, 416 U.S. at 647-48). Three factors are relevant to the Court's evaluation: (1) the severity of the misconduct, (2) the measures the trial court adopted to cure the misconduct, and (3) the certainty of conviction absent the improper statement. Floyd, 907 F.2d at 355; Thompson v. Cunningham, No. 08 CV 10548 (VB), 2013 WL 3742490, at *12 (S.D.N.Y. June 28, 2013).

First, the Court finds that the prosecutor's statement, essentially pointing out to the jury an inference they could draw from the evidence, does not rise to a constitutionally infirm level of severity. See e.g., Floyd, 907 F.2d at 354-55 (finding prosecutor's characterization of petitioner as a liar over 40 times in summation and linking lies to burden of proof constituted excessive and inflammatory use). Even if the prosecutor's single statement could be construed as calling Washington untruthful, that one statement is neither "excessive" nor "likely to be inflammatory." United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987).

Considering the second and third factors together, the First Department's rejection of this claim was not contrary to nor an unreasonable application of clearly established federal law. Judge Donnelly instructed the jury more than once that counsel's statements were not evidence and that the defendant did not bear the burden of proof. (ECF No. 12-5 at 269). This was an "appropriate measure[] to cure any prejudice" that might have resulted from the prosecutor's statement. Thompson, 2013 WL 3742490, at *13. And, as the First Department found, the weight of the evidence supported the guilty verdict, such that Washington "would have been convicted with or without these comments." Id. Therefore, Washington's prosecutorial misconduct claim does not provide a basis for habeas relief.

IV. CONCLUSION

For all of the foregoing reasons, I recommend that the Petition be dismissed in its entirety.

I further recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), as Washington has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the address below.