OPINION AND ORDER

GERARD E. LYNCH, District Judge

Socrates Mena seeks a writ of habeas corpus, challenging his conviction in New York County Supreme Court for multiple counts of rape, sodomy, robbery and sexual abuse, and resulting sentence to prison terms totaling 66 to 132 years. The petition will be denied.

Mena's sentence was imposed on November 6, 1997, following conviction by a jury. The evidence amply established that Mena and three other men abducted two women and a man in the early hours of June 3, 1995, and subjected their victims to five hours of brutal torture and sexual abuse. The circumstances, which are unnecessary to describe in greater detail, amply justify the extreme sentence imposed by the court. All three victims identified Mena as the leader of their tormentors, as did a cooperating witness who was a member of the gang.

Mena raises three arguments, none of which warrants habeas relief.

(1) Mena contends that a line-up conducted after his arrest, at which two of the victims identified him, was unconstitutionally suggestive because he was the only participant with a ponytail. The argument is not frivolous: the ponytail worn by the leader of the kidnapers was such a significant attribute of the victims' descriptions of their chief abuser that he was referred to and addressed as "Ponytail" by his accomplices during the ordeal. It would therefore certainly have been better had the police utilized at least some stand-ins in the lineup who had a similar hairstyle.

However, the findings of the state trial court following a thorough evidentiary hearing, which are presumed correct unless refuted by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), dispel any concerns about the fairness of the line-up. After hearing testimony and reviewing photographs of the lineup, the court found that the lineup consisted of six Hispanic males "of similar complexions, age and general appearance," who all had "mustaches or some facial hair." (Forshaw Decl. Ex. A at 6, 12.) Most importantly, the victims observed the lineup participants from the front. "Neither the fillers nor Mena faced sideways." (Id. at 6.) Accordingly, the victims did not have "the opportunity to see [Mena's] ponytail," which was not visible from their angle of view. (Id. at 12.) What apparently could be seen from the front was that at least two of the stand-ins, like Mena, "had some length of hair in the back." (Id.) The victims each "immediately" identified Mena. (Id. at 7.) Mena does not remotely meet his burden of refuting these factual findings by clear and convincing evidence. The court's conclusion that "the line-up viewed by [the two victim witnesses] was not unduly suggestive" was therefore well supported by the evidence.

At a minimum, the court's conclusion does not constitute an unreasonable application of Supreme Court precedent, such as would be required to grant habeas corpus relief. 28 U.S.C. § 2254(d). Under well-established Supreme Court decisions, an identification procedure presents no constitutional problem unless the procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. U.S., 390 U.S. 377, 384 (1968);accord Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977). The Appellate Division correctly applied this standard, and determined that under the circumstances found by the trial court, based on the undisputed evidence presented at the hearing, because "the fillers were positioned in a way that obscured defendant's ponytail . . . the circumstance of defendant being the only participant in the lineup with a ponytail did not render the lineup unduly suggestive in that it did not create a substantial likelihood that defendant would be singled out for identification." People v. Mena, 731 N.Y.S.2d 451, 452 (1st Dept. 2001).

Moreover, even had the lineup been unduly suggestive, Mena would be entitled to no relief. The two witnesses to the contested lineup also identified Mena in court before the jury. Such in-court identifications are admissible, even after an unduly suggestive out-of-court identification, where the identifications are found to be reliable based on the witness's independent basis for making the identification. Brathwaite, 432 U.S. at 113; Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Here, the victims were often face-to-face with their attackers during a five-hour period, and thus had plenty of opportunity to observe and recall their physical features. The victims at the lineup identified Mena immediately, without hesitation or doubt, and without observing the ponytail that Mena claims rendered the lineup unfair. Given the length of the victims' interaction, the lapse of sixteen months between the crime and the lineup was not particularly long. Thus, under the totality of the circumstances, the victims' in-court identifications could not have been the product of any suggestiveness of the lineup in any event. Moreover, two other witnesses, the third victim and a participant, who had not participated in the lineup and so could not have been affected by any suggestiveness in that procedure, also identified Mena as the principal perpetrator.

Under all of these circumstances, the rejection on the merits of Mena's lineup argument by the Appellate Division was not merely a reasonable application of Supreme Court precedent, but was unquestionably correct.

(2) Mena next claims that the trial court erred in refusing to instruct the jury that it could draw an adverse inference from the mishandling of certain physical evidence by the police. Such objections to jury instructions are primarily matters of state law that do not ordinarily provide a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In order to establish a denial of constitutional rights, petitioner must show not merely that the court's instructions were erroneous, but also that they denied him some right guaranteed by the federal constitution. Cupp v. Naughen, 414 U.S. 141, 146 (1973). Mena does not come close to meeting this standard.

The claim concerns four condoms that were recovered by the police at the crime scene, which were misplaced for a considerable length of time and found again in advance of trial. When the condoms were rediscovered, both sides had the opportunity to conduct DNA tests. The prosecution's expert found that Mena could be excluded from being the source of DNA in two of the condoms, and that the material in the other two was insufficient for analysis. The defense expert, applying a different standard, concluded that Mena could be excluded from all four. All of this evidence was presented at trial, and the defendant was permitted to argue an adverse inference from the police mishandling of the evidence, as well as to rely on the substantive exculpatory testimony of both experts.

Under these circumstances, it is difficult to see how Mena could have been prejudiced by the discretionary refusal of the trial judge to advise the jury of the possibility of drawing an adverse inference. Petitioner has made no showing that the evidence was intentionally mishandled; the evidence was in fact available for testing and presentation to the jury; the defense was permitted to urge the jury to draw an adverse inference; and most importantly, the mishandling of the evidence, and any resulting degradation of the biological material that may have resulted, did not prevent the experts from effectively excluding Mena as the source of that material. Even if the evidence had been totally lost, a due process violation would not occur absent bad faith on the part of the police, which has not been shown here. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). There is thus no basis for concluding that the refusal of the requested instruction rendered the trial fundamentally unfair, or denied the defendant due process.

(3) Finally, Mena argues that his appellate attorney was constitutionally ineffective in not arguing the adverse inference instruction point to the Appellate Division. However, an appellate advocate is not required to argue every possible point on appeal, and is expected to use reasonable professional judgment in selecting the most persuasive claims of error to advance. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). On appeal as at trial, the test of ineffective assistance is whether the lawyer's representation "fell below an objective standard of reasonableness," and, if it did, whether petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 688 (1984).

Because Mena did not present this argument to the state courts before filing his habeas petition, the Court stayed proceedings to permit him to exhaust the claim. Mena then applied to the Appellate Division for a writ of error coram nobis, which was denied. Since the state court denied the claim, habeas may only be granted if that denial was an unreasonable application of theStrickland test. It was not. For the reasons discussed above, any argument by Mena that a spoliation of evidence charge was required would have been unavailing, since the evidence was available to the defense, was exculpatory in nature, and was successfully exploited by the defense. No prejudice to the defendant occurred, and no argument based on this chain of events could possibly have succeeded in overturning his conviction. It was thus hardly unreasonable for appellate counsel to abandon this claim in favor of the more plausible argument attacking the lineup identification, which appellate counsel vigorously and effectively pressed. This is thus not a case in which appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Accordingly, there is no basis for claiming that appellate counsel was constitutionally, ineffective.

CONCLUSION

SO ORDERED.