OPINION ORDER

HAROLD BAER, JR., District Judge

John Sease ("Sease") pro se petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on two counts of first-degree robbery and two counts of second-degree robbery. For the following reasons, Sease's petition is denied.

I. BACKGROUND

In an indictment filed on July 13, 1995, Sease was charged with eleven counts of first-degree robbery and eleven counts of second-degree robbery with respect to three crimes in March 1995. The trial judge submitted only six representative counts, one first-degree and one second-degree count for each of the three crimes. Sease was acquitted of the two representative counts for a robbery of a concession stand at a movie theater on March 7, 1995. However, he was convicted of the counts submitted to the jury with respect to two other crimes.

Sease was convicted of one count of first-degree robbery and one count of second-degree robbery in connection with a robbery he participated in along with two others of a clothing store in lower Manhattan on March 1, 1995. The evidence showed that Sease, along with Glen "China" Martin and Ernest "Shorty" or "Shorts" Sturdivant, entered the Oak Tree Men's Clothing store shortly before closing at 6:45 p.m. At some point, Martin and Sease drew their guns and forced the three employees and one customer to the store's basement, where the victims were handcuffed to a clothes racks, threatened, and robbed of their wallets. The robbers also stole approximately $1,000 from the store's cash register. In addition, Sease took a cell phone from one of the victims, which was later used to call Sease's mother and the grandmother of one of Sease's children. Tr. 1108-09.

Sease was also convicted of one count of first-degree robbery and one count of second-degree robbery in connection with another robbery he participated in of a jewelry store on March 28, 1995. Sease, the two collaborators in the Oak Tree robbery, and a fourth man (Eric Fonte) posed as detectives with the Better Business Bureau and entered the Gold Touch Jewelry store. The robbers handcuffed the four employees who were working in the store at the time and then stole the victims' wallets and jewelry and jewelry from the store. When Sease attempted to remove jewelry from one of the victims, he accidentally fired a shot into a jewelry case. The four robbers kept some of the jewelry and pawned the rest.

Detectives from the New York Police Department arrested Sease on May 4, 1995 and transported him to the Manhattan Robbery Squad ("MRC"). His sister Keisha Sease, who was arrested earlier that day and was taken to the MRC in connection with other robberies under investigation, gave a statement to the police in which she implicated Sease in several robberies. (She also indicated her brother's whereabouts.) Later that evening, after he was informed that his sister was under arrest and after he was read his Miranda rights, Sease provided the detectives a written statement about his participation in three robberies. While Sease wrote the statement, one of the detectives made notes in a spiral notebook about Sease's pedigree and potential co-defendants. This notebook, which also contained notes of the detective's interrogation of Keisha Sease, was subsequently lost. Tr. 982. Sease participated in a lineup for an unrelated case that night. He participated in a second lineup at 3:45 pm the next day and was identified by one of the victims of the Gold Touch robbery. Sease contends that he was arraigned at around 5:30 am on May 7, 1995, approximately forty hours after his arrest. Habeas Pet. at 6. Pursuant to a court order, he was placed in a third lineup on May 25, 1995, at which time he was identified by one of the victims of the Oak Tree robbery.

In addition to this evidence, when the police conducted a search of his apartment, they discovered, among other things, three pairs of handcuffs. When arrested, Sease was in possession of jewelry from the Gold Touch robbery; in addition, jewelry from this robbery was found in Sease's girlfriend's apartment. Tr. 797-98. Sease signed a statement to the effect that these items belonged to him but later retracted this statement and claimed that he only did so in order that his sister could go free. Tr. 1128-29. Sease testified that he bought the jewelry from a man he knew as "Chino" who often came into his stepfather's store. Tr. 1098.

Judge Altman conducted a Huntley-Wade hearing on April 2, 1997, after which he denied Sease's application to suppress the statement he made to detectives the evening he was arrested. The judge concluded that the lineups were conducted properly, that the delay was not in bad faith but rather justified by the investigation of multiple incidents, and that Sease gave the statement voluntarily. Judge Altman also held a Sandoval hearing the next day and concluded that the prosecution could cross-examine Sease on three prior convictions for robbery, but also concluded that the prosecution could not question him about the underlying facts of or the sentences on those convictions and could not question him about several other prior crimes. Tr. 411.

Sease testified at trial and denied that he was involved in any way with the three robberies. He also testified that he was told that he would not have access to a telephone call or a lawyer for 36 hours and that the detectives threatened that his sister was going to suffer. Sease testified that the statement he wrote out was largely based on what the detective told him to write and that he did this so that his sister would be released. Sturdivant, who had previously provided a written statement which implicated Sease, also testified at trial about Sease's participation in the robberies. (However, he admitted that some of the allegations in the written statement about Sease were incorrect.) Sease was found guilty on two counts of robbery in the first degree and two counts of robbery in the second degree on May 16, 1997, for the Gold Touch and Oak Tree robberies. On September 17, he was sentenced to an aggregate indeterminate prison sentence of twenty-five to fifty years. He filed a timely appeal but his conviction was unanimously affirmed on October 7, 1999. People v. Sease, 696 N.Y.S.2d 430 (1st Dep't 1999). His leave to appeal to the Court of Appeals was denied. People v. Sease, 94 N.Y.2d 829 (1999) (Kaye, C.J.). This pro se habeas corpus petition was filed in a timely manner on February 2, 2001, within the one-year-plus-ninety-days time period.

II. DISCUSSION

A. Standard of Review

Federal courts have limited power to review criminal convictions from state courts. Section 2254(d) of Title 28 provides,

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

B. Improper Jury Instructions

With respect to his claim about an improper jury instruction, Sease contends in his petition:

The court's instruction on the evaluation of accomplice testimony improperly failed to inform the jury that such testimony was untrustworthy. My co-defendant had testified against me under a plea agreement, and the judge did not stress, nor strongly encourage them that the testimony of this individual was suspect and should be carefully looked at, since he was being promised leniency, and was in a good position to go home if I were to be convicted. Even though I was not identified by the majority of the victims, the jury favored the testimony of my co-defendant.

In his brief for his appeal to the appellate division, Sease stated that the most damning testimony was from co-defendant Sturdivant and that the jury was not properly instructed that accomplice testimony is inherently untrustworthy.

In New York, the right to appellate review of a trial error, such as an incorrect jury instruction, is waived "unless an objection is registered contemporaneously with the error's occurrence." Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990) (citing N.Y. Crim. Proc. L. § 470.05(2) (McKinney Supp. 1990)). His appellate brief acknowledged that no objection was made to the jury charge, and the appellate division dismissed his claim based on this procedural bar. See Sease, 696 N.Y.S.2d at 431. (The appellate division also indicated that it would conclude that the trial court properly stated the law if it were it to reach the merits of his claim. See id.) "If a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with such a `contemporaneous objection' rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review." Peterson, 896 F.2d at 663 (citing Wainwright v. Sykes, 433 U.S. 73, 86-87 (1977)).

However, a federal court may yet review a habeas petition that is barred on an otherwise independent and adequate state-law procedural ground if the petitioner demonstrates either cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 724 (1991); Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002) ("It is now axiomatic that in `cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" (quoting Coleman)). With respect to the miscarriage-of-justice prong, the hurdle that Sease must surmount is high. See Dunham, 313 F.3d at 730 ("A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." (citing Schlup v. Delo, 513 U.S. 298, 321 (1995), and Murray v. Carrier, 477 U.S. 478, 496 (1986))). Notwithstanding Sease's assertion to the contrary, there is considerable evidence of his guilt to the crimes charged, including his own statement, and identifications by victims. Other than his assertion, he has pointed to no new evidence that indicates his innocence and that a denial of his habeas based on a procedural bar would be a miscarriage of justice.

The first way around the procedural bar — the default-and-actual-prejudice route — is similarly unavailing for Sease. With respect to actual prejudice, Sease argued in his appellate brief that the trial judge should have included the following charge from the Criminal Jury Instructions New York:

Our law views with suspicion the testimony of an accomplice in a criminal trial, since by his own testimony he was a participant in the events charged in the indictment. This is especially true where the accomplice witness has sought or received or has been promised some consideration in exchange for his testimony.

The State here does not respond to the appropriateness of this charge now urged by Sease, but instead contends that his claim lacks merit because the rest of Judge Altman's charge appropriately instructed the jury on witness credibility. For one, Judge Altman instructed the jury that "you and you alone have the power to say whether a witness was or was not truthful and what weight you should give the witness' testimony." Judge Altman also instructed the jury to consider whether "the witness had a demonstrable reason to falsify" and whether "the witness has an interest in or lack of interest in the outcome of the case." The State also notes that the unreliability of Sturdivant's testimony was a prominent theme in the defense's summation and that there was, as noted above, substantial additional evidence of his guilt. Although the trial judge did not read an instruction that Sease now contends was called for, the record makes clear that there was no actual prejudice to him. The instruction taken as a whole communicated to the jury that accomplice testimony was suspect, and the jury acquitted Sease of the charges where the accomplice testimony was pivotal. C. Sandoval Hearing

Sease contends that the prosecution's cross-examination about his prior convictions unnecessarily prejudiced the jury because the crime for which he was on trial was for the same offense as the three prior convictions about which the judged permitted the prosecution to inquire. The State contends that there was no error in the trial court's ruling, and even if the ruling were incorrect, any error would not rise to the constitutional level for which habeas relief would be available.

The use of prior bad acts to impeach a criminal defendant who testifies in his own defense is a matter within the trial court's discretion. See People v. Sandoval, 34 N.Y.2d 371, 374 (1974) ("The nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge."); Gonzalez v. Portuondo, No. 00 Civ. 1357 (SAS), 2001 U.S. Dist. LEXIS 10698, at *31 (S.D.N.Y. July 31, 2001) ("A trial court must use its discretion to determine which `prior specific criminal vicious and immoral acts' to admit, if any." (quoting Sandoval)). "[A]mong the factors that may bear upon the court's decision whether to permit use of a prior conviction are the period of time since the conviction, the degree to which it bears on a defendant's veracity and credibility, and the extent to which any similarity between the prior conviction and the crime charged may `be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility.'" People v. Williams, 56 N.Y.2d 236, 239 (1982). Moreover, theft-related offenses, such as the ones that the judge permitted the prosecution to cross-examine Sease about, are considered relevant to a defendant's credibility, even if the prior convictions were for crimes similar to the ones for which the defendant is on trial. See Sandoval, 34 N.Y.2d at 378 (u[P]roof of prior convictions of perjury or other crimes of individual dishonesty[, such as theft-related crimes,] should usually be admitted on trial of another similar charge, notwithstanding the risk of possible prejudice, because the very issue on which the offer is made is that of the veracity of the defendant as a witness in the case."); Walker v. Speckard, 806 F. Supp. 420, 424 (W.D.N.Y. 1992) ("Under Sandoval and other state court rulings, acts of individual dishonesty, such as offenses involving theft, have a material relevance to a defendant's credibility on the witness stand.").

In his appellate brief, Sease argued that the trial judge abused his discretion "by not engaging in the appropriate balancing" of the potential for undue prejudice against the probative value. See Williams, 56 N.Y.2d at 239 (ordering a new trial because the trial judge did not "engage in any exercise of its discretionary power to weigh the various relevant factors"). Contrary to Sease's contention, it is clear that the trial judge exercised his discretion to balance the probative value and the risk of prejudice. He endeavored to limit the prejudice to Sease by permitting the prosecution to only inquire about theft-related convictions and by foreclosing inquiry about the facts and the sentences. The judge did not allow the prosecution to inquire about other prior arrests for which the disposition was unknown. The judge clearly recognized the possibility that the jury would improperly infer that Sease has a propensity to commit such crimes but determined that the law was clear that he is not entitled to protection because he specializes in a particular kind of crime. See, e.g., People v. Post, 653 N.Y.S.2d 307 (App.Div. 1997) ("Defendant's theft-related convictions were highly relevant to his credibility, notwithstanding any similarity to the present charges, and defendant cannot shield himself from impeachment simply because he has specialized in theft-related crimes." (citing People v. Pavao, 59 N.Y.2d 282, 292 (1983)); see also Fabelo v. Greiner, No. 97 Civ. 2988 (DC), 1999 U.S. Dist. LEXIS 12869, *15-*16 (S.D.N.Y. Aug. 18, 1999) (noting that the danger of unfair prejudice from the admission of evidence of similar prior convictions is "arguably high" but denying habeas relief because, inter alia, the trial court prevented inquiry into the underlying facts of the convictions and gave detailed limiting instructions). Thus, the trial court's ruling on the Sandoval issue was a proper application of the relevant New York law.

Further, it must be kept in mind that under the present law, "[t]he introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence `is so extremely unfair that its admission violates fundamental conceptions of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). As the Second Circuit further explained:

Where the prejudicial evidence is "probative of [an] essential element" in the case, its admission does not violate the defendant's right to due process. For the erroneous admission of other unfairly prejudicial evidence to amount to a denial of due process, the item must have been "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it."

D. Arraignment Delay

Sease claims the delay in arraignment was a denial of his right to counsel and therefore the second lineup identification at 3:45 on May 5, approximately 26 hours after his arrest, by one of the victim's of the Gold Touch robbery should be suppressed. As noted above, he claims — and the State indicates there is no evidence to the contrary — that he was arrested at around 1:40 pm on May 4, 1995 but was not arraigned until around 5:20 am on May 6. The State contends that the trial and appellate courts' determinations that there was no undue delay in his arraignment was not contrary to or an unreasonable application of clearly established federal law.

As the State notes, where, as here a habeas petition challenges a claim that was adjudicated on the merits, he must surmount a tall hurdle. Sease must show that either that the state-court adjudication resulted in a decision that (1) `was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams v. Taylor, 529 U.S. 362, 412 (2000) (O'Connor, J., concurring and writing for the majority in this part) (quoting 28 U.S.C. § 2254(d)(1)). Initially, Sease does not cite any case for the proposition that the unnecessary delay deprived him of his Fifth Amendment right to counsel; in his appellate brief, Sease relied on state cases applying state law. However, the case that Sease relied on for this proposition, People v. Mosley, 522 N.Y.S.2d 238 (App.Div. 1987), has since been overruled by the Court of Appeals. See People v. Ramos, 99 N.Y.2d 27, 37 n. 11 (2002) (holding that "a delay in arraignment for the purpose of further police questioning does not establish a deprivation of the State constitutional right to counsel" and noting that to the extent that Mosley held or suggested otherwise it should not be followed). Nor was this decision either contrary to or an unreasonable application of state law. With respect to delays in arraignment, the Supreme Court has held that under the Fourth Amendment, a person arrested must be given a probable-cause hearing promptly. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (citing Gerstein v. Pugh, 420 U.S. 103 (1975)). The Supreme Court explained that "[a]lthough we hesitate to announce that the Constitution compels a specific time limit, . . . we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." County of Riverside, 500 U.S. at 56. The Court further explained:

This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake.

Sease's contention that there was no valid reason for such a delay in arraignment where, as of six o'clock on the evening of his arrest he had supposedly already provided a statement of his involvement in the crimes, is not without some force. However, the trial judge determined after a hearing that there was no intent to the delay, and on habeas review a state court's factual determinations are presumed to be correct and are rebuttable only upon a showing of clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The evidence at the hearing showed that after Sease was arrested, the NYPD detective notified police in Ardsley in Westchester County who were investigating other cases in which Sease was a suspect. A lineup was held that night, but several prospective witnesses were unavailable to view the lineup at that time. The detective spoke with a prosecutor and was advised to terminate the investigation and shortly thereafter Sease was lodged overnight at Manhattan Central Booking. The next morning, the detectives returned Sease to the robbery squad where he was included in further lineups. Also that morning, the detectives were arranging to obtain a search warrant for the apartment where they believed he lived. At 3:45 pm he was part of a lineup for four witnesses from the robberies in Manhattan and two witnesses from the robberies in Westchester. In sum, as the appellate court concluded, the record indicated that the "arraignment was delayed solely so that the numerous witnesses from multiple robberies in at least two counties could view defendant in a lineup, and not to gain an unfair advantage." Sease, 696 N.Y.S.2d at 431. Sease has not rebutted the presumption of correctness of this factual determination, nor has he shown that the trial and appellate courts' decision was either contrary to or involved an unreasonable application of federal law.

E. Preclusion for Statement due to lost Rosario material

Sease contends that the statement he made to detectives the evening he was arrested should have been precluded because the notebook in which Detective Roldos made notes of that conversation was lost and could not be produced at trial. Habeas Petition at 6. Sease contends that the adverse-inference charge told the jury to ignore the lost evidence or to determine that the lost materials supported the prosecution. As the State contends, the sanction imposed for a Rosario violation is a claim based entirely on state law and does not present a federal constitutional question. See, e.g., Whittman v. Sabourin, No. 00 Civ. 2867 (SAS), 2001 U.S. Dist. LEXIS 8049, at *11-*12 (S.D.N.Y. June 8, 2001) ("Federal courts have consistently held that Rosario claims are not subject to federal habeas corpus review because they `arise exclusively under state law.' . . . A Rosario claim, however, is purely a state right, which `embodies policy considerations grounded in state common law, not constitutional principles.'" (quoting and citing cases)). In any event, Sease's claim is without merit. A trial court faced with the loss of Rosario material must impose an appropriate sanction to eliminate any prejudice to the defendant. See People v. Carracedo, 89 N.Y.2d 1059, 1062 (1997). Here, the trial judge instructed the jury as follows:

[T]he failure to preserve the notebook [and certain other items] . . . cannot be used against the People unless you find that they were relevant and material to an issue in the case and that the People have not shown a reasonable explanation for their failure to preserve them. If you are so satisfied, you may, if you wish, in weighing the evidence in the case infer that the materials produced would not have supported the People on the issues in question.

Notwithstanding Sease's argument to the contrary, he has failed to show that the loss of the notebook created prejudice that required the preclusion of all testimony about the statement he made to Detective Roldos. The court's decision to permit such evidence and the instruction it gave was certainly not a failure of a constitutional dimension, if it was a failure at all.

IV. CONCLUSION

For the foregoing reasons, Sease's petition for a writ of habeas corpus is denied. The Clerk of the Court is instructed to close this petition and any other pending motions and remove this case from my docket. Because petitioner has not "made a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.